Vail Daily column: What the Constitution says
Editor’s note: This is the ninth part of a series.
If we were talking about America’s Pastime, coming to the plate would be strength of the batting order. The lead-off batter — the First Amendment — has swung for the fences and the 2 hole has been filled with what remains the controversial Second Amendment. Dropping the doughnut-style bat sleeve and advancing from the batter’s box and swinging heavy lumber, are now the third through fifth amendments.
The Third Amendment harkens back to another era. Much like the Second which, at least in part, provided for the establishment of a militia, the Third Amendment allows, in its entirety that, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Pretty straightforward stuff. Still, sometimes you’ve got to scratch your head. While in our modern era, the “quartering of soldiers” may seem a bit out of step, particularly near the front of the batting order of the Bill of Rights, in the years leading up to the Revolutionary War, the forced quartering of bawdy, ill-behaved and grievously unwelcomed British soldiers was a jolly big deal. In modern times, however, the Third Amendment has retreated into the mists of more or less historical antecedent and I’d venture that the Supreme Court, sitting on high, has had precious few Third Amendment cases coming before it in recent years.
The clean-up spot is filled with the hard-hitting Fourth Amendment which holds that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth is — you may have already divined — each person’s right to be secure against unreasonable and “unwarranted” government intrusion. It is the man’s (or more modernly, man’s or woman’s) right to consider his home, his person (and, again more modernly), and his or her vehicle his castle. Stated simply, the Fourth protects citizens from unreasonable harassment by the police. It delimits a police officer’s right to arrest or search through a person’s personal property unless first receiving a warrant (a court order approving the search or seizure upon “probable cause” of wrongdoing). In significant ways, this is one of the major checks against totalitarianism and government abuse.
Coming to the plate as No. 5 is, not shockingly, the Fifth Amendment. What it says is this:
“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.”
This amendment packs a punch. It is a big deal in a number of ways. If in lore or legend — or Hollywood perhaps — you have heard someone “take the Fifth,” this is what he or she was referring to. It is the basis of the right against self-incrimination, the constitutional guarantee that you can keep your mouth shut if you are accused of a crime and not contribute to damning yourself with your own words. What’s more, the Fifth Amendment contains the “double jeopardy” clause — if you are tried for a crime and acquitted, the government does not get a second swing at the pinata of your conviction. One and done as it were.
The Fifth Amendment further guarantees that before one may be put on trial, he or she must be formally “indicted” (or charged) with a crime. Finally — but by no means inconsequentially — the Fifth Amendment guarantees that no person can face criminal punishment without first receiving “due process of law.” This deserves a quick aside.
Promise of legality and fair procedure
What “due process of law” means is that the method by which an action may proceed against an accused may not be willy-nilly. OK, that is, admittedly, not the precise legal definition, but it helps to keep that in mind. More precisely, “due process” is the promise of legality and fair procedure.
Due process is the fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government may act to take away one’s life, liberty or property. More, it is a constitutional guarantee that a law shall not be unreasonable, arbitrary or capricious. Fundamentally, it is an egalitarian concept; that the laws must be reasonable, that they must have a fundamental nexus of the common welfare and that everyone will be treated equally under the law.
The constitutional guarantee of due process of law, found in the Fifth Amendment, appears again in the Fourteenth and prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty and property. The due process clause of the Fifth Amendment restricts the powers of the federal government and applies only to actions by it. The Fourteenth, as we shall see, extends these protections to (or perhaps better said, “from”) the states, providing that no “State (shall) deprive any person of life, liberty or property without due process of law.”
In the next part of the series, we will bat around to the last five amendments comprising the Bill of Rights — Amendments 6 through 10 — and the protections and rights of citizenship they collectively provide.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.