Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 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 offence 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.

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Doctrine below is drawn from two Founders' Constitution slices: tocs/amendV-VI_criminal_process.md (anchors only — 5 of 53 documents read, shared with Sixth Amendment) for the grand jury, double jeopardy, self-incrimination, and procedural due-process clauses; and tocs/amendV_due_process.md (anchors only — 8 of 27 documents read) for the Takings Clause and a second, earlier anchor on due process.

Original public meaning. Virginia's Declaration of Rights, sec. 8 (12 June 1776), supplies the direct textual precursor for two of this Amendment's clauses: "no man be deprived of his liberty except by the law of the land, or the judgment of his peers," and "he cannot be compelled to give evidence against himself." The English Bill of Rights, sec. 11 (1689), contributes the narrower common-law strand — that "jurors ought to be duly impanelled and returned" — showing the jury guarantees the Fifth and Sixth Amendments elaborate were already secured, in more limited form, in English law a century before ratification.

The House of Representatives' drafting debate of 17 Aug. 1789 shows three of this Amendment's clauses were contested, not assumed. On double jeopardy, the committee draft read "no person shall be subject, in case of impeachment, to more than one trial or one punishment for the same offence" — textually distinct from the ratified "twice put in jeopardy of life or limb." Egbert Benson moved to strike "one trial or," worried the clause as drafted would bar a convict from obtaining a second trial after a successful appeal; Roger Sherman defended the double clause, arguing courts would never try and punish twice for the same offense and that an acquitted defendant should face no second trial, while a defendant who won a reversal was not disadvantaged by getting one. Benson's motion lost by a considerable majority, and the clause proceeded (the ratified "jeopardy of life or limb" language reflects further revision beyond this sitting). On self-incrimination, William Lawrence objected that the clause's protection against compelled self-witnessing was written too broadly and moved to confine it to criminal cases; the motion carried, and the clause "as amended was unanimously agreed to" — this is the direct source of the ratified text's "in any criminal case" limitation. On 18 Aug., the grand jury and vicinage-jury clause (see Sixth Amendment) was adopted without amendment after Aedanus Burke's motion to substitute "district or county" for "vicinage" failed.

Joseph Story's Commentaries (1833), §§ 1778-83, give the fullest founding-era gloss on this Amendment's structure. On the grand jury, Story explains the presentment/indictment mechanics — a jury of "not less than twelve, nor more than twenty-three," at least twelve concurring, endorsing a bill "a true bill" or "not found" — and calls the grand jury "a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies." On double jeopardy, Story resolves the ambiguity Benson raised in 1789 in Sherman's favor: the clause means "that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted... and judgment has passed thereon," but does not bar retrial after a discharged jury, an arrested judgment, or a new trial granted in the defendant's own favor. On self-incrimination, Story frames the privilege as a common-law inheritance whose alternative he treats as barbarism, citing Cicero and Ulpian against compelled confession by torture: "it is well known, that in some countries, not only are criminals compelled to give evidence against themselves, but are subjected to the rack or torture in order to procure a confession of guilt." On due process, Story traces the clause directly to Magna Carta's "nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terrae" and to Coke's gloss that per legem terrae ("by the law of the land") means "due process of law, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law" — reading the due process clause as an affirmance of common-law procedure, not an independent substantive standard.

Alexander Hamilton's 1787 remarks to the New York Assembly, opposing a bill of attainder-like disqualification, supply the earliest anchor this wiki holds for what "due process of law" itself was understood to mean, predating the federal Bill of Rights by two years. Hamilton reads New York's own 1787 bill of rights — "no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers" — against Coke's gloss on Magna Carta's per legem terrae, and concludes the phrase has "a precise technical import" confined to "the process and proceedings of the courts of justice": due process "can never be referred to an act of legislature," because an act of the legislature simply declaring a forfeiture is not itself a judicial process. William Blackstone's Commentaries 1:137-38 (1765) supply the underlying English theory Hamilton draws on: the "emphatical words of magna carta," that the king will not sell, deny, or delay right or justice to any subject, guarantee that redress runs through the ordinary courts "by course of law," and that neither the king's prerogative nor arbitrary process may substitute for it — a principle vindicated, Blackstone notes, when the Star Chamber's petition-and-bill procedure was abolished by 16 Car. I. c. 10.

Takings Clause. The Takings Clause's property theory traces to John Locke's Second Treatise, §§138-40 (1689): "the Supream Power cannot take from any Man any part of his Property without his own consent". Because "the preservation of Property being the end of Government, and that for which Men enter into Society," a government that could seize an individual's estate "at pleasure" would defeat the purpose for which men entered society in the first place — Locke extends the same principle to taxation, which requires "the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them". The Continental Congress's Declaration and Resolves (14 Oct. 1774) declares the colonists "entitled to life, liberty and property," and Virginia's Declaration of Rights, sec. 1 (12 June 1776), similarly names "the enjoyment of life and liberty, with the means of acquiring and possessing property" among the inherent rights government exists to secure — both without yet stating a compensation rule for takings specifically.

Vanhorne's Lessee v. Dorrance (C.C.D. Pa. 1795) supplies the founding generation's own working construction of "just compensation," four years after ratification. Riding circuit, Justice Paterson held a Pennsylvania "quieting and confirming act" that divested one set of landholders and vested title in another void: "the legislature... had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without a just compensation". Paterson reasons directly from Lockean property theory and the state's own declaration of rights, and adds that even a compensated taking cannot transfer property from one private citizen to another for the latter's private benefit — only "state necessity" justifies the "despotic power" of eminent domain at all. See Vanhorne's Lessee v. Dorrance.

Barron v. Baltimore (1833) then supplies the founding-adjacent Court's own limit on the Takings Clause's reach: writing within living memory of ratification, Chief Justice Marshall held the Fifth Amendment restrains only the federal government, not the states, because Article I distinguishes explicit state-directed restrictions (sec. 10) from restrictions on the federal government alone (sec. 9), and "These amendments demanded security against the apprehended encroachments of the general government — not against those of the local governments." See Barron v. Baltimore.

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These sources establish the grand jury, double jeopardy, self-incrimination, procedural-due-process, and Takings Clauses' common-law and drafting-history roots, but do not by themselves reach modern doctrine. Miranda v. Arizona and its self-incrimination progeny are now ingested below (annotated-amendments:c24p31), but the substantive due process line running from Lochner v. New York through Griswold v. Connecticut, and the Fourteenth Amendment selective-incorporation doctrine that eventually applied takings and due-process protection against the states despite Barron, remain un-ingested. Story's own §1785 flags an unresolved originalist tension worth preserving: he warns that transplanting "some of the general guards and proceedings of the common law" into a written constitution, without the whole surrounding evidentiary system, risks leaving "little more, than a solemn pageantry" unless the underlying public virtue is present to enforce it.