Can someone explain the point of the Fifth Amendment to me please?

Factual Questions
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This is a nitpick, but it’s my favorite nitpick. Technically the Declaration of Independence does have some legal force; it is the authority for the propositions that “these United Colonies are… Free and Independent States; [and] that they are Absolved from all Allegiance to the British Crown[.]”

Mk VII, you’re correct that what you call “vigorous institutions” are necessary to preserve freedom in the constitutional scheme, but they’re needed in your scheme as well. The beautiful thing about the separation of powers is that there is a limit to what one or a few corrupt men can do – you have to have a lot of corrupt people in lots of different institutions to effect lasting detrimental change. And blips through we may have (read: are having), it is the nature od democracy (ours, anyway), that’s it’s much easier to get power than to keep it.

–Cliffy

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Um, may I suggest taking the hijacking debate over written vs. unwritten constitutions to a Great Debates thread? :wink:

Getting back to the OP:

The right embodied in the Fifth Amendment is not accurately called the right against self-incrimination. This is the text:

The government is precluded from compelling you to testify as a witness in the case against you. This preclusion extends not just to the actuality of taking the stand in court, but also to the whole concept of being forced in any way to offer testimonial evidence against yourself. In short, you can always tell the government to bugger off when they ask you to tell them what happened.

You are, of course, free to talk to the police if you prefer. You can voluntarily offer up any testimony or confession against yourself you want. But the government cannot legally put you under the bright lights, subject you to the rack, coerce you through threats, etc., into talking.

Why? For two basic reasons, both of which our current administration has completely forgotten (or chooses to ignore).

First, compelled testimony is of dubious value. When the consequences of not talking get large enough, people will squeal like stuck pigs, preferring the alternative, no matter how illogical that may seem in hindsight. We have plenty of cases in our jurisprudential history where people have been convicted wrongly on the basis of confessions made to crimes not committed.

Second, compelling testimony allows a government to engage in serious abuse of those who do not share its philosophies and beliefs. England’s experiences throughout the 15th through 18th Centuries were sufficient to instill in our founding fathers an understanding that government must be kept in check by strong bars to such behaviour. Indeed, this was considered so important at the federal level that the Constitution of 1787 would not have passed had this guarantee, along with several others, not been promised by the framers of the Constitution through immediate amendment.

Does the Fifth Amendment (and the Fourth) make it harder to convict guilty parties? Yes. But we decided long ago that we preferred that to the alternative. Too bad we have forgotten why we felt that way as we watch our current administration violate these principles in the name of fighting terrorism.

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Okay I’m convinced. I was going to start writing a “but the rest of Britain was in the same situation” post when it occured to me that by 1787 the King had virtually no authority in England/Britain other than what Parliament allowed him to have, which wasn’t true in the colonies.

Separately, thanks everyone for your responses, it’s been extremely enlightening.