Today Brittany and Connor continue discussing the amendments in the Bill of Rights, this time discussing the very important Fifth Amendment.




Here’s a transcript of our conversation:

Brittany: Hi, Connor.

Connor: Hey, Brittany.

Brittany: So we have almost covered all the amendments in the Bill of Rights, the first 10 amendments in the Constitution, but we have a few left that we haven’t covered. And today I wanna talk about the Fifth Amendment, which I think is incredibly important. I have a hard time saying that any amendment is more important than the others because they all kind of like support each other. But I am a huge, huge proponent of property rights and also due process, and both are, you know, vital to maintaining individual liberty, and the fifth deals with both. So, Connor, I was wondering if you could read the actual text of the Fifth Amendment for us.

Connor: Okay. So keep in mind, we’re gonna break this down a little bit, and so, if some of these old English big words sound, weird, just hang tight and we’ll kind of break this down. So, the Fifth Amendment says, 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 offense to be twice put in jeopardy of life or limb, excuse me, 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. So there’s, several, things happening here, Britney, you can see a lot that’s packed in the Fifth Amendment. And it’s important to remember as we begin to unpack this, what the founding fathers put into these amendments were based on problems that they were seeing with the government, not just the British government, but governments around the world. And they wanted to make sure that this brand new government that they were creating would try and avoid some of those problems. And so that leads to like, packing all this stuff in the Fifth Amendment like they have here.

Brittany: Yeah. And there, are five basic concepts in the Fifth Amendment. I want to focus on three specifically, not that any of them, again, are less important than the other. So let’s touch on the first two, briefly, the right to a grand jury for felonies and double jeopardy. Connor, would you mind giving us kind of a simple description? I know they’re like very complex, but if you can give us kind of a simple description of what those are.

Connor: Sure. So, you know, think of the jury of your peers, right? the ability for, average people to kind of hold the government accountable and say, no, that’s a bad, you know, a criminal charge. You shouldn’t be bothering Connor. He didn’t do anything wrong. And so juries are very important. there’s some really, fun stories. In fact, in one episode, in the future, we’ll talk about jury nullification, a bit more. There’s some fun.

Brittany: Oh, we have talked about it. we’ll put it in the show notes.

Connor: That’s, actually, no, that’s right. Yeah, yeah, yeah. I’d forgotten we’d crossed that one off the list. There’s a really fun story in there of William Penn, who’s the founder of Pennsylvania. Yes. And resisting this bad law because he thought it was unjust. And that led to this idea of, jury nullification. And so this, in the Fifth Amendment here, this kind of grand jury basically protects people from being, prosecuted or charged by an out-of-control, government. And so it’s a way to kind of keep the government in theory, restrained so that people aren’t unfairly targeted. The second, one that you mentioned, double jeopardy. This just means that a person cannot be, again, prosecuted or kind of charged in court with the same crime twice. in other words, if I, let’s say the government accuses me of stealing my neighbor’s cow and I’m taken to court and they don’t have enough evidence. And so the jury says, not guilty. Well, the government can’t come back, you know, a year later and say, oh, we found new evidence, we wanna charge Connor again. Right? Like, they can’t put me through that twice. That’s double jeopardy. And so, that’s the concept. They’re trying to make sure that the government can’t come after you again and again and again, right? Like, it’s saying, Hey, government, you get one shot at this. So you might, want to, you know, do it right because there won’t be a second opportunity to prosecute someone.

Brittany: And these are obviously very important details. But the next three parts, in my opinion, are really important ones. And again, they’re all important. But Connor, have you ever heard someone say, I plead the fifth?

Connor: Oh, I think it’s in like, every TV show in a movie dealing with lawyers and courtrooms, right? It’s, that’s very common.

Brittany: Yeah, so let’s talk about what that actually means because it comes directly from the Fifth Amendment pleading The fifth is in reference to your right against self-incrimination. We’re gonna unpack that. So, I mean, hopefully, none of you are doing anything bad, but let’s say you’re on trial for a crime. You have the right to essentially not rat yourself out if you’re guilty. So by pleading the fifth, you’re enacting your right to remain silent, right? You’re enacting your right to the Fifth Amendment. You don’t have to say anything that might incriminate you.

Connor: So, Brittany, what you’re saying is next time, the kids’ listening if their parents ask them if they did something wrong, they can say, I plead the fifth, right?

Brittany: let’s see if that works for your kids. Connor, come back to me, tell me.

Connor: It wouldn’t work. I would reply to ’em and say, that only works in court. our family here is a dictatorship. We’re not a court.

Brittany: A benevolent dictatorship, right?

Connor: So the next part of the Fifth Amendment is about, something called due process, which is also included in the 14th Amendment that came after the Bill of Rights. We’ll talk about that later. But the due process, portion here of the Fifth Amendment is really important. It, makes sure, basically that the government can’t just decide to violate your right to, you know, life, liberty or, property, you know, willy-nilly or arbitrarily, right there are two types of due process. These are big terms, but they’re important. There’s substantive due process. Substantive means like really important and foundational and significant. Okay? So there’s substantive due process, and then there’s procedural due process. Procedural means like process, right? that’s the kind of implied, I guess in the word due process. But it’s just the process of how like court might play out. It means you have the right to be heard. It means you can plead your case, you can testify you should be able to be told by the government if they’re charging you, the court, you know, that you’re being tried in, has to be the right court. They can’t just like haul you off to some random, kangaroo court as the nickname, right? Some random court that doesn’t have the right jurisdiction. So those are procedural, things that’s procedural due process. Just making sure that the process itself, is fair. And we may say for a later episode, kind of talking about the different courts because different courts play different roles. But, it’s important to have procedural due process. Substantive due process is a little bit more complicated and gets debated, you know, in court and what it means. But basically, it’s like, you know, if I am a barber, right, I have the right to work in, that job. The government can’t basically require me to jump through all these hoops and pay all these fees and do all these things to do just a basic, you know, job, right? I have the right to get married, I have the right to raise my kids how I want. I have the right to buy a property and use it. And so these are like fundamental things. So substantive due processes, Hey, government, if you wanna come in and prevent Connor from working in that job, or getting married or buying that property or whatever, right? Like, you have to overcome some really high hurdles in government if you want to restrict those like, fundamental rights, substantive things. and so there’s a really important Supreme Court case. we can link to it on the show notes page if the parents wanna read like Wikipedia or something. But the Supreme Court in this case said that it was not constitutional, that this New York law, this is what they were debating over, was this law. And the court said it’s unconstitutional that this law regulated or restricted the working hours of bakers, okay? They ruled that, well, the benefit to the public of having this type of law was not enough to justify the substantive right of the bakers to work as they want it. And so the courts kind of evaluate, well, if we’re gonna restrict Connor’s, right, for whatever we’re talking about, what is the public interest? What is the reason why this law exists? And is it a good enough reason to restrict, Connor’s rights? So that’s the substantive due process. It just really ties to like, we have these important rights that exist before government was ever created. And so if government comes around and is like, Hey Connor, we’re gonna restrict your right to do that. Well, I need to have this Fifth Amendment substantive due process protection so that I can challenge what the government is doing and say, no, no, no, no. This is an important substantive, right? And if you wanna restrict it, you gotta have a really, really good reason. And then that is what’s debated in the court.

Brittany: And this is really complicated stuff. So as Connor said, we’ll post some links cuz it’s very, very normal to be a little bit lost. The law is so complicated for many, many reasons. but there is one part now of the Fifth Amendment that I think is very important, and that’s how it protects your property. We talked about the Fourth Amendment, which also deals with property. In fact, that’s kind of the main bread and butter when we think of property rights. But the Fifth Amendment has some very important protections. and it’s called the Takings Clause. And there’s actually a lawsuit about to go in front of the Supreme Court called Cedar, what is it? Cedar Point Nursery versus Hasid, which is about the takings clause. So I’ll link to that in case parents are interested in reading what that is. But the takings clause actually goes all the way back to the Magna Carta. There are other reasons for it, but like Connor said, our founders and framers didn’t just like, oh, this sounds good. I’m gonna put it in the Constitution. Right? Right. They did these things because they dealt with them before, or like you said, they knew other countries had dealt with them and they didn’t want to deal with it. So we’ve talked about the Magna Carta. This is actually my favorite historical story. We could do a whole episode just on this, but the Magna Carta was the first written document in human history that restrained a ruler and bound them to a set of rules like the Constitution. So this came about because of King John, whose side note is the king from Robinhood. So if you remember the cartoon what is it King, John the phony King of England. Isn’t that the song? but he was going around and eating all his subject’s food. He would just travel to all his subjects, like little areas, taking their property without compensating it for it. He would give them sticks with notches in it that were like IOUs, but you couldn’t use them anywhere. So he was essentially stealing their property without, you know, compensating. So the Magna Carta, which the landowners literally forced the king to sign, he kind of didn’t have a choice and made sure that government couldn’t take a person’s property. What giving them, giving them just compensation, you know, the value of what something was worth. Now we’ve seen this play out with eminent domain, and it’s still actually kind of an evil practice where the government can say, you know what? We want to build a highway over your house. So the house that you own that you loved forever, we’re tearing it down and we’ll give you just compensation. But one, a lot of the problems we’ve seen with that is that sometimes they don’t give you just compensation. But there’s another part of the Fifth Amendment and of the takings clause of the Fifth Amendment that I think is really cool. And that is you have the right to exclude people from your property. There’s kind of this thing called a man’s house is his castle, So, if you don’t want anyone in your house, you don’t have to let him in. You know, if someone knocks on your door, you can be like, no, this is my house. So there are a lot of laws that violate this. And the Supreme Court case I talked about earlier in California is one of those where in California for 120 days a year for three days, or sorry, three hours a day, private unions are allowed to come on your property, on a private business property with bullhorns and screaming and basically saying to the workers, you need to join our union. And so the case that’s being debated in front of the Supreme Court in March basically says, no, you have the right to exclude people from your property. And so these unions and unions are like a bunch of people that join together and kind of negotiate wages and worker conditions for all the workers. So right now what’s being debated is, does somebody have the right to come onto your property? And Connor, how do you feel about that?

Connor: Well, what’s super important about the story you’re sharing, Britney, I think is the fact that the Constitution has some really important parts here in the Bill of Rights that remain issues today. Yeah, I mean this isn’t just stuff that happened in the 17 hundreds and like, oh, that was a different world, a different time. You know, we’ve evolved since then. right? Like, we don’t deal with such trifles, I mean, maybe the third Amendment right, about like quartering soldiers like we haven’t had to deal with that one so much. mostly because like.

Brittany: You never know.

Connor: Well, mostly I was gonna say mostly cuz the government takes so much of our money through taxes that it just, you know, builds whatever things it needs for the soldiers rather than making us provide for them. But, so many other areas of the Bill of Rights like this are so critical. And again, Brittany, I think we said this when we were talking about the Fourth Amendment, but it certainly applies here. Imagine a country, imagine America without the Bill of Rights, without these protections. I mean, the original Constitution itself would not be enough to protect against. Yeah. You know, some of these issues that you’re raising today. We would have no constitutional protections. And so having this Fifth Amendment here has been so critical to allow for lawsuits, like you’re talking about where some of these government practices can be challenged and overturned. We can put a stop to them because of what is in the Fifth Amendment. And so when you think of just horrible things like the government trying to take property from people under eminent domain and saying, oh, we need this property more than you do. You know like that’s a serious thing. And we talk about that a little bit in the Tuttle twins, in the road to surf Them, how it can be very disruptive to someone’s, there’s a lot here in the Fifth Amendment, you guys, as Brittany said at the beginning, there’s like five totally different things all kind of crammed in here. Each of them though was included for very specific reasons. And so we’ll link to some of these resources that you guys can learn more from on the show notes page. Head to to find the show notes for this and other episodes. A Lot of learning opportunities here to think of the inspiration, I’ll call it, of the founding fathers to put some of these protections in place, that we still rely upon to this day. So good content there, Brittany. Appreciate the conversation. And until next time, we’ll talk to you later.

Brittany: Talk to you later.