Probably the most famous part of the Fifth Amendment is "that thing from Law and Order" where you don't have to testify against yourself, as in "I'll take the Fifth on that, Your Honor".
However, the sting in the tail of the Fifth is at the end. The final sentence is the opening that governments have used to assert their controversial right to declare "eminent domain" and seize property for their own use. Here is the actual text of the Constitution:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
You see, you don't actually have the right to private property. You have the right not to have property taken from you without due process of law or "just compensation". They are very different legal positions!
The key element is "public use". As you can see above, one cannot be deprived of property without due process of law. But the framers introduced an exception: "public use". In the case of public use, the only thing you are entitled to is "just compensation".
Of course, we believe the framers intended private property to remain fairly sacrosanct -- and the government to remain respectful of its citizens. But desperate times...
Monday, November 2, 2009
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