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F, Fifth Amendment.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Fifth Amendment.

Adopted in 1791 as part of the *Bill of Rights, the Fifth Amendment of the Constitution contains a number of important (p. 340) clauses that protect individuals against governmental authority. Many of these guarantees pertain to the procedures governing the prosecution of criminal offenses. Thus, the Fifth Amendment requires that “No person shall be held to answer for a capital, or otherwise infamous crime” without presentment or indictment by a *grand jury. The amendment also prevents a person from being tried twice for the same offense (see double jeopardy), and from being compelled “to be a witness against himself” in any criminal case.

In addition to these safeguards against abuses of criminal law, the Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law.” Drawn from Magna Carta, the Due Process Clause places procedural limitations on the exercise of governmental power by insisting that officials follow established procedures (see due process, procedural). Some commentators also argued that the Due Process Clause went beyond procedural regularity, and placed substantive limitations on the unreasonable use of governmental authority.

To the framers of the Constitution and *Bill of Rights, *property rights were closely associated with personal liberty. Underscoring this identification of property ownership with liberty, the Fifth Amendment declares: “Nor shall private property be taken for public use, without just compensation.” The *Takings Clause limits the power of eminent domain under which government can seize private property. Hence, the Fifth Amendment protects individuals against arbitrary punishment and confiscation of property.

Provisions similar to the Fifth Amendment are included in the constitutions of nearly all states (see state constitutions and individual rights). The Fifth Amendment was long held not to apply to the states, but the Supreme Court in Chicago, Burlington, & Quincy Railroad Co. v. Chicago (1897) ruled that the just compensation requirement was an essential part of due process as guaranteed under the *Fourteenth Amendment. Several of the important criminal procedural provisions were subsequently made effective to state proceedings. In Malloy v. Hogan (1964), the justices determined that the privilege against self-incrimination was incorporated under the Due Process Clause and applicable to the states. Likewise, the Court incorporated the double jeopardy prohibition in Benton v. Maryland (1969).


Although all of the above-mentioned rights are protected by the Fifth Amendment, the amendment is often regarded as synonymous with the privilege against self-incrimination. Saying that a person “takes the Fifth Amendment,” is shorthand for saying that the person asserted the privilege to avoid testifying against him or herself. Although, according to the constitutional text, the provision applies only “in any criminal case,” it has from the beginning been held to bar compelling any testimony that might lead to a criminal prosecution or that might eventually be used in a criminal prosecution of the person required to speak.

Many efforts have been made to explain why the privilege is a desirable or essential part of our basic law. In Twining v. New Jersey (1908), the Court suggested that the privilege was designed to protect the innocent and to further the search for truth. In Tehan v. United States ex rel. Shott (1966), the Court explained “the basic purposes that lie behind the privilege against self incrimination … relate … rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution ‘shoulder the entire load’” (pp. 415–416). It may well be that the basic function of the privilege is to serve as a guard against the use of torture or those kinds of police practices that involve physical and psychological intimidation and are colloquially known as “the third degree.” Indeed, the privilege against self-incrimination is one of the great landmarks in the struggle to fashion a more civilized society.

Two major decisions in the twentieth century helped to make the privilege a protection against improper policy conduct. In McNabb v. United States (1943), the Court held that a confession could not be used as evidence at trial when it was obtained after an “unnecessary delay” in presenting a suspect for arraignment after arrest. In *Miranda v. Arizona (1966), the Court held that the prosecution may not use a statement taken from a person held in custody unless the person is “warned that he has a right to remain silent, that any statement he does make may be used as evidence him, and that he has a right to an attorney, either retained or appointed” (pp. 444–445). The defendant may waive these rights, but only voluntarily and knowingly. Moreover, no questioning can be performed if the person “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking” (p. 445).

Two years after Miranda, Congress enacted 18 U.S.C. section 3501, which stated that any voluntary confession is admissible, even if the suspect has not been given a Miranda warning. In Dickerson v. United States (2000), the Court ruled “Miranda, being a constitutional decision of this court, may not be in effect overruled by an act of Congress, and we decline to overrule Miranda ourselves” (p. 432). Further, the Court explained that Miranda “has become embedded in routine police practice to the point where the warnings have become part of our national culture” (p. 443). Thus Miranda warnings remain the law.

(p. 341) Some limitations on the Fifth Amendment privilege have been upheld. In 1970, Congress adopted 18 U.S.C. section 6002 providing for “use immunity.” Use immunity only protects a witness against the use of compelled testimony and any evidence obtained through a lead provided by the compelled testimony. It does not prevent subsequent prosecution based on independent evidence shown to be available to the prosecutor before the use immunity was granted or on evidence that is otherwise wholly independent from the evidence the witness was required to give. The constitutional validity of this statute was sustained in *Kastigar v. United States (1972).

Another limitation on the privilege was created in Chavez v. Martinez (2003). The question was whether a police officer violates due process when obtaining a confession by coercion, regardless of whether the confession is subsequently used at trial. In this case the suspect was interrogated while being treated for gunshot wounds and never received a Miranda warning. The suspect was never charged with a crime and his answers were never used against him in a criminal proceeding. The Court declared: “[W]e have long permitted the compulsion of incriminating testimony so long as those statements (or evidence derived from those statements) cannot be used against the speaker in any criminal case.”

Fifth Amendment Takings.

The Fifth Amendment’s concluding phrase, “nor shall private property be taken for public use without just compensation,” is known as the Takings Clause. Property owners must be compensated if the title to their property is transferred to the state or when their property is physically invaded under governmental authority. Transfer of title and physical invasion are relatively easy to interpret, especially after Loretto v. Teleprompter Manhattan CATV Corp (1982), in which a cable television company had to pay compensation for physically occupying less than a square meter of a private citizen’s property, even though the city had granted authority to the cable television company.

The Court has also declared that a taking occurs when governments place unreasonable conditions on use or take part of the value of a property. These have become known as “regulatory takings.” One of the early cases claiming a regulatory taking was Village of Euclid v. Ambler Realty Co. (1926), in which zoning was determined to be in the public interest and an appropriate way to control nuisance, even though *zoning restricted owners’ potential uses of their property. *Penn Central Transportion Co. v. New York City (1978) restricted Penn Central Railroad from building a fifty-plus-story addition above their railroad station in New York City. The Court held New York City’s denial of a permit was not a regulatory taking. The Court declared that its past taking decisions were “essentially ad hoc, factual inquiries” and established what is now known as a “balancing test” for determining when a regulation is a taking. The balancing test includes: “[t]he economic impact of the regulation on the claimant, and, particularly, the extent to which the regulation has interfered with distinct, investment-backed expectations,” and “the character of the governmental action” (p. 124).

In 1987, the Reagan administration issued an executive order requiring a “regulatory takings review” of all new federal regulations. The Court decided two regulatory takings cases that year. In *First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987), the Court ruled an agency could be required to pay compensation for loss of the use of property during the time an unconstitutional ordinance was in place. The Court required that there be a nexus between the impact of a development project and mitigating conditions in *Nollan v. California Coastal Council (1987). Government could not, therefore, place unreasonable or disconnected provisions on permits. But the question of how much property could be taken by regulation remained answered.

In *Lucas v. South Carolina Coastal Commission (1992), Lucas purchased two beachfront lots on a South Carolina barrier island. The legislature subsequently enacted the South Carolina Beachfront Management Act, which prohibited Lucas from building on his lots. Lucas sued, claiming that the act made his property valueless, and sought compensation. The Supreme Court held that land-use regulations that deprived an owner of “all economically beneficial uses” of property constituted a per se violation of the Takings Clause. Thus, Lucas established a narrow definition—”all economically beneficial uses”—for per se regulatory takings.

That definition was used in *City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1994), in which the City of Monterey’s refusal to approve any of nineteen proposed site plans for developing a 37.6 acre parcel was determined to be a case of denying all economically viable use of the property. It was also part of the basis for denying a landowner compensation for the regulatory taking of the wetlands portion of his property (Palazzolo v. Rhode Island, 2001). The Court agreed that the owner had lost economic use of the wetlands, but because he had $200,000 in development value remaining on an upland parcel of the property, the regulation did not constitute a per se taking. However, the case was remanded for reconsideration under the Penn Central balancing test.


The Fifth Amendment has now been in effect for two hundred years. It continues to (p. 342) generate controversy particularly in times of stress when human rights safeguards are most needed. The privilege against self-incrimination has served the country well, representing a basic moral value in the nation’s constitutional structure. It has long played a central role in protecting the individual against the collective power of the state, and it is important as a symbol of the nation’s fundamental concern for human rights. The Takings Clause is another symbol of the concern for protecting the individual against the collective power of the state. It, however, has not been expanded in the same ways the privilege against self-incrimination has. In fact, the Takings Clause has not been accorded the same judicial or symbolic value as the other clauses in the Bill of Rights. Chief Justice *Rehnquist claimed in his opinion in *Dolan v. City of Tigard (1994), that, “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances” (p. 392). But, since the Court has been reluctant to accord the same degree of judicial solicitude as other provisions of the Bill of Rights, the Takings Clause remains a “poor relation.”

Steven J. Eagle, Regulatory Takings, 2d ed. (2001). Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain, reprint (1989). William A. Fischel, Regulatory Takings: Law, Economics, and Politics (1998). Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1999).

Erwin N. Griswold; revised by Randy T. Simmons