Podcasts | Constitutionally Speaking

Episode 37: Pleading the Fifth, Part Two: Protecting Your Conscience and Taking Your Stuff


Today, Jay and Luke talk about the second half of the Fifth Amendment, which means digging into the right against self-incrimination, the guarantee of due process of law, and finally the Takings Clause.

Last week we talked about grand juries, martial law, and double jeopardy. Unlike many of the other liberty-enhancing remedies we’ve discussed, which trace back to the Roman civil law or the English common law, the historical provenance of the right against self-incrimination dates explicitly to the seventeenth century. Indeed, America’s understanding of self-incrimination is a direct hold-over from the English Civil War, and can largely be traced back to the obstreperous career or radical Separatist, soldier, pamphleteer, prisoner, and Leveller John Lilburne. Lilburne’s brand of radicalism was popular among the English expatriates to the thirteen colonies, and would survive there long after it was politically quashed in England. Likewise, the right to Due Process of law, initiated in Magna Carta and later expounded by lawyers like Sir Edward Coke, gained a special foothold in American law as a protection against executive capriciousness. Due process, after all, has a home not only in the Fifth Amendment, but also in the Fourteenth Amendment, which explicitly incorporates due process protections against the states. But this expansive notion of due process at its outer edge morphs into the doctrine of Substantive Due Process, which Jay and Luke explain has a very politically controversial history.

Finally, with the Takings Clause, we get beyond matters of life, limb, and conscience to what happens when the government takes your stuff. The government is supposed to observe two key, interlocking principles here: public use and just compensation. But Jay and Luke note how the under-defined elements of “public use” have allowed the power to take private property to expand over time.

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