5th Amendment

With regards to the new Mailbag article at http://www.straightdope.com/mailbag/mfifth.html :

The double-jeopardy clause and the witness-against-himself clause are the ones they use in cop shows and Perry Mason all the time.

But … the two clauses that may (I hope!) start to become more important in coming years are the due-process clause and the just-compensation clause.

I feel that the current forfeiture laws – which allow property to be seized and sold if there is a suspicion of illegal drug activity, and require the alleged criminal to sue the gov’t to get the property back even if the drug crime charges are dropped – violate the Due Process clause of the fifth amendment. I likewise feel that the current “wetlands” laws – by which your property automatically becomes property of the State gov’t if it has standing water on it for more than 7 days a year, without you getting paid for the loss – violate the Just Compensation clause of the fifth amendment.

These topics may be better suited for the Great Debates forum than the Mailbag Comments forum, but hey – you brought up the Fifth Amendment, not me. :slight_smile:

Quick-N-Dirty Aviation: Trading altitude for airspeed since 1992.


You must remember the Constitution is what is says. It is what the Supreme Court (and lower versions) say it is.
They are interested in following the intent not the meaning. For example the 13th Amendment forbids involentary servitude. Clearly the draft is involentary servitude. But that isn’t what was meant. It is just what it says.

As we all learned from the Brady Bunch episode Exact Words it is do what I say not what I said.

Sorry that should be the Constitution * ISN’T* what it says. Oh well what are you gonna do eh?

Um, I think you mean: They are interested in following the intent not the ‘plain meaning’ of the words used.

In the case you quote, ‘involuntary servitude’ there is a good reason for their interpretation of the words in the amendment. The wording of the Thirteenth Amendment (including the term 'involuntary servitude) came straight from the Congressional act organizing the Northwest Territory in about 1797 or so (I don’t wanna go look up the exact year). When the Supremes had their first cracks at the 13th Amendment, they:

  1. Noted the identical language in each act,

  2. Noted that the reason for the original use of the term was to invalidate attempts to impose slavery-like conditions that didn’t meet the strict definition of slavery,

  3. Noted that some of the activities they were deciding on had existed legally in the Northwest Territory under the term (for example, impressing citizens into road-repair crews with no compensation), and

  4. Decided that, if they were legal then, they wouldn’t be unconstitutional now.

In short, at the time, the people who were using the language intended ‘involuntary servitude’ to mean: anything that equates to slavery (not what we would think the term means: forced labor without compensation).

A more telling, and more appropos, example would be the interpretation of the 14th Amendment equal protection and due process clauses. In Plessy v. Ferguson, 163 U.S. 537 (1896), the Supremes ruled that a state could maintain separate but ‘equal’ services for each race without violating the due process or equal protection clauses. By Brown v. Board of Education, 347 U.S. 483 (1954) the Supremes felt this was incorrect as a matter of constitutional law.

It is an unfortunate fact that the Supremes often reflect public opinion, rather than standing steadfast in the face of it, or leading it with needed change.

Ummm. OK. So, back to Double Jeopardy. What about this new movie (that I haven’t seen) which postulates that the lady is tried for murdering her husband, found guilty, serves the sentence, and then finds that he is alive. Would she have a free pass to kill him?


Have I mentioned today that DSYoungEsq is my new hero, despite the fact that I had hoped to be the ConLaw authority on this MB until he showed up? Well, he is. My hero, that is.

That said, I have to pick a nit with your last sentence here. No question, the Court has “often” reflected public opinion, but I’ll go on a limb here and say that among branches of government the Court has most “often” been willing to swim upstream, too.
The Court, in particular Earl Warren and the Supremes, were in fact from time to time willing to take on public opinion, or at least voting public opinion. I hope you’ll agree with me that many Supreme Court decisions would have disqualified any majority voter from ever winning public office. IMHO, over the years the Supremes have done a better-than-expected and better-than-average job of balancing the gradual expansion of the Constitution with what the Republic was ready to accept at the time.

Relevant to the OP (no one thought I’d get back to that, did they?), the scales seem to be tipping these days toward property rights. While I think that the whole idea of unfunded mandates (esp. as regards private property) will not be overthrown in the near future, I do think that the Supremes will produce some decisions in the next few sessions that will reinforce the property protections that I believe are an important part of the prosperity we currently have.

PS: DS, your presence is hereby requested on the “Fighting Words” thread in General Questions. I’ve done the easy part, leaving you to take the glory for the hard part.

Livin’ on Tums, Vitamin E and Rogaine

pwright asked:

In short, no. The whole movie is based on a false premise.

In long, there have been two threads on it over in GQ, though I don’t have the reference links handy.

Here is the link: http://www.straightdope.com/ubb/Forum3/HTML/002878.html

[Note: This message has been edited by CKDextHavn]

Incidentally, Tracer, I agree with what you said. Those weren’t addressed in the Mailbag item because the person asking the question was concerned with the stuff he sees on TV.

tracer wrote:
“But … the two clauses that may (I hope!) start to become more important in coming years are the due-process clause and the just-compensation clause.”

Which reminds me: a friend is challenging a traffic fine he received (for speeding) on the grounds that there is no provision for such cases to be heard by a jury; he says this is a violation of due process, and unconstitutional. Not knowing what the definition of “due process” actually IS, it just sounds sorta bizarre to me that being fined for speeding by a judge is unconstitutional - so what IS the definition, and does it specify anything about the right to trial by jury?

pwrighta: Ummm. OK. So, back to Double Jeopardy. What about this new movie (that I haven’t seen) which postulates that the lady is tried for murdering her husband, found guilty, serves the sentence, and then finds that he is alive. Would she have a free pass to kill him?

<marquee>Slight spoiler alert here</marquee>

The “double jeopardy” plot is really minor in this movie. It’s first mentioned to Ashley Judd by one of her inmate friends after she figures out her hubby pulled a major fraud. (Other inmate used to be a lawyer.) Much later in the film, while trying to coerce info from her hubby, she mentions that she could kill him in the middle of Mardi Gras and get away with it. But for the rest of the movie, she is just trying to find him so that she can get her son back.

Doug Yanega wrote:

What state is his case in? In California, according to Nolo Press’s Fight Your Ticket And Win, you can get a trial by jury for minor traffic infractions, but you have to request it immediately when you plead Not Guilty. (Otherwise, the little form they give you to sign contains a waver where you give up your right to a trial by jury for this offense.)

Quick-N-Dirty Aviation: Trading altitude for airspeed since 1992.

Woops, my mistake. Page 3/2 of Fight Your Ticket California 7th Edition clearly states:

My previous post was based on what a friend who’d read the book told me, rather than the book itself. Serves me right for not checking up on him.

(However, according to the next paragraph, if this is your fourth infraction in a year, you can demand that the case proceed as a misdemeanor, in which case you can get a jury and a free lawyer. But then you can also go to jail if you’re found guilty.)

Quick-N-Dirty Aviation: Trading altitude for airspeed since 1992.

Attorney. A court-appointed attorney. Geez, sometimes it’s a real pain not being able to go back and edit your own messages.

In Illinois you can get a jury trial for something like a speeding ticket. I know not from any book or law, but because I had gotten a ticket for an accident, and while I was waiting, several people who had been caught in a speed trap at a school requested and received such trials (not sure why they wanted them, but they did).

My guess is they were hoping that their friends and neighbors would think that speed traps were unfair and would find them not guilty for that reason, even though they probably clearly WERE guilty of speeding.

I’ve head an amazing load of shinola about speed traps, some of it from police officers. I don’t know which of it is true.

For instance, I’ve been told that in certain jurisdictions in Missouri, it is illegal (well, at least it’s improper procedure and could get the case thrown out) for the police to sit behind a man-made obstruction such as a sign or building and tag cars with radar as they go past. However, it is perfectly permissible for these same police officers to sit behind a natural obstruction, such as a tree or rock, doing the aforementioned tagging.

Actually, in retrospect, I suspect they were going to try to convince the jury that the officer was lying, which a judge was less likely to buy. (They all claimed school was already in session, thus the school speed zone was not in effect. The cop apparently claimed otherwise.)

Heh. In California, it wouldn’t matter whether school was already “in session” or not. California is loaded with signs that say “School zone - Speed limit 25 when children are present”, and at least according to the cop I talked to (who could have been lying, I suppose), children are considered “present” any time they are visible AND at all times during normal school hours 8:00AM-3:30PM.