In all criminal prosecutions, the accused shall enjoy the right to a… trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law….
–Amendment VI

The Framers of the Constitution of 1789 and of the Bill of Rights revered trial by jury. They had been part of the American experience from the start.

In some colonies, juries had the power to judge questions of law as well as fact. They consisted of twelve people who always acted by unanimous vote. In felony cases, nonjury trials were unknown, and guilty pleas infrequent. Trials were expeditious and routine.

The period since the Framing has seen notable changes in the general understanding of the right to jury trial.

They were essential to the U.S. system, “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”

In Apodaca v. Oregon in 1972, four Supreme Court Justices concluded that conviction by a vote of 10–2 did not violate the Sixth Amendment. Four Justices dissented, arguing that the amendment preserved the historic requirement of unanimity. The remaining Justice agreed with the dissenters on the construction of the Sixth Amendment but rejected the view that “all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth.” As a result, nonunanimous verdicts are permissible in state but not federal courts. (OPINION: this slicing and dicing of the Constitution by the SCOTUS would be comedic if the result was not so tragic).

Although juries sometimes disregarded the legal instructions of judges in England, they never acquired formal authority to do so. The American practice, however, was different. In 1735 in New York, Andrew Hamilton told the court trying his client, publisher John Peter Zenger, that the authority of juries “to determine both the law and the fact” was “beyond all dispute.” The jury’s acquittal of Zenger, despite his apparent guilt of seditious libel, helped shape the American understanding of the role and duties of jurors. (OPINION: a fairly modern example of this would be the jury nullification verdict in the O.J. Simpson murder case).

More recently, however, courts have denied the legitimacy of nullification altogether. In 1997, a federal Court of Appeals held that, even after jury deliberations had begun, a trial judge could remove a juror who had revealed “beyond doubt” an intention to violate the court’s instructions on the law. (OPINION: since jury deliberations are “secret”, even from the judge presiding, my question would be “how would the judge in the case know ‘beyond doubt’ that a juror had the intention to violate the court’s instructions?)

Today nearly half of the convictions in the felony cases tried are the products of trials before judges sitting without juries. Moreover, only a small minority of felony cases go to trial. Ninety-four percent of the felony convictions in both state and federal courts are by guilty plea, and behind this figure lies the practice of bargaining with defendants to waive the Sixth Amendment right to jury trial.

Far from encouraging guilty pleas in felony cases, courts at the time of the Bill of Rights actively discouraged them. When instances of plea bargaining began to appear in appellate reports in the decades following the Civil War, lower courts generally denounced the practice and often declared it unconstitutional. The Supreme Court did not uphold the constitutionality of plea-bargained waivers of the right to jury trial until 1970.

Prolonged jury-selection procedures, cumbersome rules of evidence, repetitive cross-examination of witnesses, courtroom battles of experts, jury instructions that many empirical studies tell us jurors do not understand, and other complications have made trials inaccessible for all but a small minority of defendants. Only a shadow of the communitarian institution the Framers wished to preserve has survived into the twenty-first century. Although the Sixth Amendment declares, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” one commentator has said that Americans could replace the word “all” in this Amendment with the words “virtually none.”

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(c2018)

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; 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.

The drafter of this clause, James Madison, opined: “A Government is instituted to protect property of every sort…This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” Against the proposition that the singular purpose of our government is the protection of property, there is the curiosity that the original Constitution scarcely mentions the term. Although at least two states demanded every other provision that we know today as the Bill of Rights, not one requested the Takings Clause. What explains the anomaly?

The beginning of an answer can be found in Alexander Hamilton’s observation that “the true protection of men’s rights are to be found not among old parchments, or musty records. They are written…in the whole volume of human nature…and can never be erased or obscured.” Alexander Hamilton was, of course, referring to the natural law, which is one of the doctrinal foundations of the United States set out in the Declaration of Independence.

As a matter of original understanding, the American Founders viewed the natural right to acquire or possess property as embedded in the common law, which they regarded as the natural law applied to specific facts. Thus, the Framers thought that there was little need to create a “parchment protection” against the states, which were, after all, carrying on the common-law tradition. Many early colonial and state charters had explicitly protected “the means of acquiring and possessing property” as part of the common-law rights of Englishmen brought over at the time of the first settlements. Nonetheless, Madison apparently believed that the federal government, which, of course, had no long-standing tradition of supporting property rights, should be explicitly restricted to follow the common-law form. It was not until the late nineteenth century that the clause would be judicially applied to the states through the Due Process Clause of the Fourteenth Amendment. Chicago, Burlington & Quincey Railroad Co. (1897).

Property is not, however, entirely a natural right. The Founders understood that it would need to be further defined in statute. Particular rights of sale or use might well vary from place to place. For example, Thomas Jefferson introduced legislation in Virginia that would abolish landed estates (so-called entails) that were inheritable only through limited bloodlines. Similar restrictions were present in the common law through the rule against perpetuities, which prevents an owner from leaving property with ultimate ownership uncertain for too long a period after his death.

Because the Fifth Amendment places a restriction on the ability and manner of taking property by the federal government, this begs a central question: what is the source of the federal government’s power of eminent domain in the first place? The states clearly had that power through their longstanding common-law tradition. How did the new federal government come to possess it as well? Two answers have been proposed. The first suggests that the power to take property is inherent in any sovereign. Jones v. United States (1883); Mississippi & Rum River Boom Co. v. Patterson (1878). Although Hugo Grotius, who coined the phrase “eminent domain” in 1625, disagreed, a sovereign in certain very limited—usually war-time—situations, has been allowed to take property without the obligation to compensate. In another rare circumstance, where property is physically taken, if the taking results in no net loss to the owner, compensation is not due. Brown v. Legal Foundation of Washington (2003). Putting these rarities aside, it is frequently said that the very institution of the federal government brings with it the power of eminent domain.

A second answer is that the federal power of eminent domain resides in, and is limited by, the Necessary and Proper Clause (Article I, Section 8, Clause 18), or by Congress’s implied powers as confirmed by the Necessary and Proper Clause. McCulloch v. Maryland (1819); United States v. Gettysburg Electric Railway Co. (1896). Under this perspective, Congress may exercise the power of eminent domain only in order to effectuate one of its delegated powers. Similarly, the executive is limited to property takings allowable only under Article II executive powers, but they are far more restricted. Youngstown Sheet & Tube Co. v. Sawyer (1952). Inasmuch as James Madison came to support and propose a Bill of Rights because he realized the range of congressional power under the Necessary and Proper Clause, and inasmuch as the Takings Clause is primarily his offering, such a reading has historical credence.

What changes to the definition of property, then, can the federal government—and since incorporation of the Fifth Amendment, a state or local government—legislate without offending the natural right to property that underlies the common law? Justice Oliver Wendell Holmes initially opined that regulation must not go “too far”: a judicial limit, but not a very formidable one. Pennsylvania Coal Co. v. Mahon (1922). Worse, the test actually looked at the wrong question. It focused on whether the regulation diminished the value of the property, rather than asking whether the regulation actually was consistent with common-law limitations on the use of property. The confusion between restrictions on use and diminution of value continues to affect the judicial interpretation of the clause.

So what limits have the modern cases placed on the regulation of property? In other words, what is “too far”? The Supreme Court easily determined that a regulation that authorizes the physical occupation of property was a taking. Loretto v. Teleprompter Manhattan CATV Corp. (1982). This categorical protection of the right to exclude emerged from the ancient protection against trespass. But Loretto‘s significance was not great as a practical matter, because few regulations have the brazenness, short of formal condemnation, to authorize third parties to station themselves on other’s property. Occasionally, regulation comes close to outright physical occupation, by conditioning the grant of a governmental permit upon some forfeiture of a property interest. For example, one homeowner was told that he could expand his home, but only if he provided a beach easement to the public. Nollan v. California Coastal Commission (1987). Another was told that she could enlarge a retail plumbing store if she set aside property for a bike path. Dolan v. City of Tigard (1994).

In these cases, the Court has held that the Takings Clause prohibits the regulating agencies from using the permit process to leverage their governmental power to achieve what they wish without cost. To survive review, regulatory conditions must “substantially advance” a legitimate governmental interest and be reasonably “proportionate” to the external effects likely to be caused by the property owner’s proposal. In Nollan, the landowner was freed of the beach-easement requirement because it was unnecessary to the government’s stated purposes. In Dolan, the store owner did not have to facilitate the bike path, because, however desirable that might be, the need for it was not caused by the activity being regulated (the expansion of a plumbing store).

The Court has also applied the Takings Clause to invalidate regulations that deprive property of all of its economic use. Lucas v. South Carolina Coastal Council (1992). This, too, is a taking unless the regulation parallels the limitations in the background principles of the state’s law of property and nuisance. In Lucas, the desired property use was for residential construction, and the regulating state could not show that the common-law nuisance principles prohibited that use of the property.

The significance of the common-law/natural-right backdrop of property continues to shape constitutional doctrine. But what happens if modern regulation does not just mimic the common law but imposes far greater restrictions, based perhaps on modern environmental considerations? Recent judicial pronouncements indicate that the courts would regard at least a certain amount of environmental restriction as a reasonable extension of the common-law principle. But if one knowingly purchases land in a jurisdiction with an expansive environmental regime, the landowner is not automatically precluded from a takings claim. Rather, that knowledge is only one additional factor for the court to consider in judging whether the regulation can justifiably be considered a taking. Palazzolo v. Rhode Island (2001).

Other factual matters do play a significant role in keeping most takings cases out of court. State administrative and judicial determinations regarding the final application of regulations to individual parcels and the availability of compensation to owners are prolonged and expensive. Until these processes are completed, a “ripeness doctrine” prevents owners from seeking relief in federal court. Williamson County Regional Planning Commission v. Hamilton Bank (1985). The Court has occasionally expressed frustration with the bureaucratic games that result in protracted litigation, Monterey v. Del Monte Dunes at Monterey, Ltd. (1999), but most often property owners are turned away from the courts and told to keep working through the prescribed processes.

The most difficult Takings Clause cases are the most common ones. In these, the regulation has not physically invaded or precipitated a total loss, or even been employed to gain undue leverage. Rather, regulation reduces, often significantly but not totally, the economic prospects for property, and an owner asks to be compensated. The governing case here remains Penn Central Transportation Co. v. City of New York (1978). In Penn Central, which dealt with an ordinance that preserved a historic landmark by imposing a large loss on the property owner by forbidding construction of an office tower above it, the Court admitted that the takings issue was “a problem of considerable difficulty.” “There was,” said the Court, “no ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” The Court admitted that in the typical case it would apply an ad hoc balancing test that would consider (1) the economic impact on the property owner, (2) the extent to which the regulation interfered with investment-backed expectations, and (3) the character or extent of the government action.

In the weighing of these factors, most property owners have lost their claims for compensation. A few have prevailed by recharacterizing the portion taken as a complete deprivation of a part, rather than a partial deprivation of a whole. The Court has said that, where there is a regulation that is terminated after a court has concluded that it constituted a taking, the owner’s deprivation during the temporary period in which the regulation was effective is compensable. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987). However, whether a planned moratorium (even if it lasts for years) constitutes a taking must be determined by using the Penn Central multifactor test. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002).

Despite the frustration and cost of litigation of enforcing the Takings Clause, property owners remain indefatigable, and they are especially so when they perceive regulation to exceed a reasonable scope and invade that which may fairly be thought to be one of the natural rights of ownership. The ultimate purpose of the Takings Clause was well described by the Court more than forty years ago as “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960). That is the central principle that prompted the Framers to add the Takings Clause to the Bill of Rights. Unfortunately, in today’s litigious world and governmental overreach the “protections” afforded by the “takings” clause are ephemeral at best.

In Kelo v. City of New London (2005) the city of New London planned to use eminent domain to acquire property for a redevelopment project that would replace existing private homes in good condition with private office space and parking lots. The property owners argued that the taking was not “for [a] public use,” and thus violated the Fifth Amendment. In a 5–4 opinion, the Court upheld the taking, holding that where a government presents a “comprehensive development plan” with “public benefits” that are not merely “incidental or pretextual,” the Court will apply a deferential, rational-basis–like standard to determine whether the asserted public benefit of the taking satisfies the public use requirement. In dissent, Justice Sandra Day O’Connor argued that taking of a private property for the benefit of another private party does not constitute public use, unless there is a direct public benefit, such as the elimination of a blighted area.

Kelo v. City of New London and it’s ongoing TIF progeny effectively make a mockery of not only the “taking” clause of the Fifth Amendment, but the entire concept of private property.

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(c) 2018

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; 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.

Article Thirty-nine of the Magna Carta (1215) proclaimed that “no free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” This “law of the land” requirement, which is often called the principle of legality, prohibited unilateral, arbitrary action by the king against certain protected private interests.

The phrase “due process of law” made its first appearance in a statute of 1354 concerning court procedures. “Due process of law” meant that judgments could only issue when the defendant was personally given the opportunity to appear in court pursuant to an appropriate writ (i.e., was served process). The phrase retained this technical meaning in English law into the eighteenth century.

At the time of the drafting of the Bill of Rights, at least eight state constitutions contained clauses restraining government from depriving persons of life, liberty, or property except pursuant to the law of the land. The Fifth Amendment, which otherwise tracked the form of these state provisions, used the phrase “due process of law” instead of “law of the land.” The reasons for this change in terminology are uncertain, but it is likely that the Founding generation was misled by some seventeenth-century statements of Sir Edward Coke (familiar to virtually all the Founders), who had declared—wrongly, in the judgment of modern historians—that the phrases “law of the land” and “due process of law” were essentially equivalent. Accordingly, the constitutional meaning of “due process of law” almost certainly refers to the principle of legality rather than to pleading technicalities.

Until very close to the time of the Framing, the judicial power was generally viewed as an aspect of executive power. Thus, the essence of the eighteenth-century American understanding of the phrase “without due process of law” meant something like “executive or judicial action taken without lawful authorization and/or not in accordance with traditional forms of justice.” The Supreme Court extended the principle to Congress in Murray’s Lessee v. Hoboken Land & Improvement Co. (1856). There, the Court determined that the Due Process Clause limited the power of Congress to authorize novel forms of adjudication. The case involved a constitutional challenge to a statutory procedure in which the government collected deficiencies from tax collectors without first having a court determine whether the tax collector really owed the money to the government. The Court found that the clause “is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will.” In order to determine whether legislatively prescribed forms of adjudication violated due process of law, the Court looked to “those settled usages and modes of proceeding existing in the common and statute law of England.” The Court found a long tradition in English and American law of auditing tax collectors without prior hearings and accordingly upheld the practice.

The Due Process Clause requires that deprivations of “life, liberty, or property” be accompanied by due process of law. The deprivation of other interests that do not fall within this enumeration need not be accompanied by due process of law. When the Due Process Clause was ratified in 1791, the meaning of “liberty” as a personal right was clear. Sir William Blackstone, whose influence on the Founding generation was enormous, wrote in his Commentaries on the Laws of England that the right to liberty meant “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” That definition excludes such matters as bodily integrity. Those interests, however, were encompassed by Blackstone’s definition of life, which referred to an array of rights lumped together under the general heading of personal security: “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” The term “property” in 1791 was more ambiguous. It could have referred to land, to land plus chattels, to anything of exchangeable value, or (what seems most likely) to whatever interests common-law courts would have recognized as property entitled to legal protection. None of these understandings would include as property future enjoyment of government benefits, such as jobs or licenses. The law sharply distinguished between property rights and mere privileges that the government could continue or terminate at its pleasure.

The eighteenth-century lawyer trying to define the phrase “life, liberty, or property” would have had to face a very sticky problem that could not be answered by reference to Blackstone, tradition, or any other authoritative source of meaning: Do these terms draw their meaning from federal law, state law, or both? Does the Constitution contain its own internal definitions of those terms, so that the Constitution itself determines whether a particular interest is property? Are they defined by reference to the laws of the states, so that a particular interest might be constitutional “property” in Pennsylvania but not in New York? Or must the universe of constitutionally protected interests be determined by some combination of federal and state law?

Perhaps the best answer, though it is impossible to prove this claim decisively, is that federal law sets the outer boundaries of “life, liberty, and property” and state law fixes the details. Surely the Constitution does not itself determine whether a particular estate in land, such as a surface estate on mining land, is or is not “property” for purposes of the Due Process Clause; either answer is permissible and, accordingly, can vary from one jurisdiction to another. But if a state decided that land was henceforth no longer to be considered “property,” that would pass the boundaries of acceptability. Federal law thus establishes for each term a “core” of meaning that no jurisdiction can alter, but beyond that core, governments are free to expand or contract the range of constitutionally protected interests.

Modern doctrine has significantly modified the original understanding of how one determines compliance with “due process of law.” Instead of reference to traditionally accepted procedural forms, contemporary law, dating back a century, has judged the adequacy of procedures by a mélange of practical factors that resist easy reduction. As Justice Frankfurter summarized matters in a famous concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath in 1951: “‘[D]ue process’ is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess….It is a delicate process of judgment by those whom the Constitution entrusted with the unfolding of the process.”

This is a fancy, (and fanciful), way of saying that like pornography, the court will know “due process” when it sees it!

In Matthews v. Eldridge (1976), the Court attempted to clarify its case law by requiring consideration of

first, the [significance of the] private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [weight of the] Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

This balancing-of-factors approach is universally decried as unpredictable. Many observers also object to the Court’s optimistic goal of accurate decision-making, and there is considerable disagreement about which other possible goals of procedure should be factored into the mix.

In addition, one of the trickiest questions in modern law concerns the timing of procedures: which procedures (if any) must come before the government deprives people of protected interests? The law in this area remains unsettled in many important respects and defies simple description.

The most dramatic transformations in modern due process have concerned the range of interests encompassed by the phrase “life, liberty, or property.” As late as 1950, the original meaning still largely held sway, though Blackstone’s broad understanding of “life” mysteriously vanished in favor of a much narrower meaning. No doubt this development, which was never expressly acknowledged, put pressure on the other terms in the enumeration to include such worthy interests as physical integrity and reputation. More importantly, the rise of the post-New Deal administrative state vastly expanded the range of circumstances under which official action could affect people’s lives, and the concomitant expansion of government benefits, jobs, and licenses raised the stakes of excluding such interests from procedural protection. By the early 1960s, a majority of the Court was prepared to treat the phrase “life, liberty, or property” as a convenient shorthand for “any interest whose loss would be grievous” rather than as a list of three distinct terms with distinct, ascertainable meanings—a development that some commentators half-jokingly described as “lifelibertyproperty.” On this new understanding, government benefits could easily constitute interests whose loss would be grievous.

In 1970, the Court formalized this understanding in Goldberg v. Kelly, where the State of New York, in its argument to the Supreme Court concerning the need for elaborate pretermination hearings prior to termination of benefits under the Aid to Families with Dependent Children Act, did not even argue that expected future receipt of AFDC benefits was not a constitutionally protected interest. Subsequent cases quickly extended constitutional protection to such interests as government licenses and reputation.

In 1972, the Supreme Court established the framework of modern law in Board of Regents of State Colleges v. Roth. That case reestablished some differentiations among the three protected interests. The Court held that “liberty” and “property” were distinct terms with ascertainable meanings, though “life” continues to be conspicuously absent from modern recitations of the range of protected interests. The Court explicitly stated, however, that these terms would not be construed in accordance with their original meaning, but would have to be construed to include the extended range of interests recognized in prior case law, including government benefits.

Accordingly, the Court has expanded the definition of the term “liberty,” beginning with Meyer v. State of Nebraska (1923), in which it declared that “liberty” includes “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized…as essential to the orderly pursuit of happiness by free men.” It is true that the term has been held not to include (at least under some circumstances) a right to government employment, an interest in reputation, or many interests claimed by prisoners. The government is free, however, to construct these excluded interests to be constitutionally protected through statutes and regulations by specifying a clear causal connection between satisfaction of criteria of eligibility and receipt of a benefit, but they are not automatically protected as a matter of constitutional command. Nonetheless, the Court’s extraordinary expansion of the concept of “liberty” reached its apogee in the famous (some critics say infamous) declaration by Justice Anthony Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

It is state law today that primarily defines the term “property.” Interests within the traditional understanding of property are generally still considered to be property. Interests beyond the traditional understanding, such as government benefits and licenses, are constitutionally protected if statutory or regulatory provisions draw a clear causal line from the satisfaction of eligibility criteria to the receipt of benefits. The case law distinguishes the substance of the created interest from the procedures for its termination. The latter is what the Due Process Clause protects. Within the zone beyond the constitutional core of “liberty” and “property,” government can determine which substantive interests shall receive due-process protection, but once that substantive decision is made, the constitutional law of due process assesses the adequacy of the procedures. In other words, the government may not make acceptance of “unconstitutional” termination procedures a condition of receiving government benefits.

If an interest does not fall within the meaning of the phrase “life, liberty, or property,”, (as defined by the Court), the Due Process Clause does not mandate any particular procedures for its deprivation. Other sources of law, whether constitutional or statutory, may well do so, but the Due Process Clause is, so to speak, “turned off.” There are several other “on-off switches” that determine the applicability of the Due Process Clause.

First, the clause only applies to government action; private entities are not bound by the Fifth Amendment or, indeed, by anything in the Constitution except the Thirteenth Amendment. This can pose difficult questions when the acting entity is nominally private but is involved in some fashion with the government. See “State Action” in the Fourteenth Amendment, Section 1. Second, modern law holds that the word “deprived” in the Due Process Clause means an intentional (or, at a minimum, a reckless) taking of a protected interest. Losses inflicted by government negligence do not implicate the Due Process Clause.

Third, and most importantly, administrative agencies are responsible for the vast bulk of governmental actions that work deprivations of interests within the compass of the Due Process Clause. Those agencies engage in two forms of official action: rule-making, which strongly resembles in form and function the promulgation of a statute by the legislature, and adjudication, which strongly resembles in form and function the decision of a case by a court. The Due Process Clause has never been understood to impose procedural requirements on legislatures (though it does, under modern understandings, regulate the content of legislation that authorizes executive or judicial procedures). For almost a century, courts have held that agency rule-making shares in this legislative immunity from due-process analysis; agency rule-making is subject to no constitutional procedural requirements. Agency adjudication, however, is subject to due-process analysis, but agencies do not stand in the same shoes as courts. Procedures that would be obviously inadequate in judicial proceedings are considered constitutionally adequate for agency adjudication. The size of the gap is uncertain, which typifies the complexity of the modern law of procedural due process.

Regarding “due process” perhaps we should refer back to Lewis Carroll writing in the voice of Humpty Dumpty; “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018

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; 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.

Scholars have suggested that the privilege against self-incrimination reflects the Framers’ antipathy to two specific abuses. One abuse was the European practice of judicial torture, and the other was the questioning of witnesses sworn to the oath ex officio before the notorious courts of the High Commission and the Star Chamber in England. The oath ex officio pledged the witness to answer any and all questions truthfully, without any indication of the subject matter. The oath was used to persecute political and religious dissenters and had the obnoxious effect of forcing devout individuals to choose between admitting offenses, to be followed by hanging, or denying offenses, to be followed by damnation. Some recent scholarship has offered an alternative to this account. It suggests that the privilege against self-incrimination arose mainly from American practice rather than as a reaction against European or English royal abuses.

In America the privilege arose because of the particular practice of self-representation by defendants. Consistent with the practice of English common law, the accused could not be forced to be sworn as a witness in the late eighteenth and early nineteenth centuries in America. The reason for the rule was fear that the guilty would be tempted to swear falsely and be damned by God. The accused representing himself, therefore, literally could not be called to be a witness against himself. This rule was also congenial with a law, which prevailed in England well into the nineteenth century, that parties to the litigation were themselves incompetent to testify, either on their own behalf or if examined by their adversaries. In effect, the Fifth Amendment codified this practice.

The defendant typically represented himself and could speak for himself throughout the trial, both by making unsworn statements heard by the jury and by examining witnesses. Such statements were, of course, voluntary. On the other hand, early American practice involved pretrial questioning of the accused by a magistrate or justice of the peace where the defendant could be pressed to admit wrongdoing.

The Founders, then, regarded the privilege as valuable enough to include in the Constitution, but their own practice put considerable pressure on defendants to surrender incriminating information before trial. The assertion of the privilege at trial became more common as the advent of modern police forces had the effect of replacing pretrial judicial questioning with custodial interrogation by the police, particularly when defendants availed themselves of professional attorneys.

Judicial interpretations of the Self-Incrimination Clause were slow in coming. John Marshall, both in Marbury v. Madison (1803) and in the treason trial of Aaron Burr (1807), permitted third-party witnesses to claim the privilege. The federal government prosecuted relatively few cases, and the Court held that the privilege, like the rest of the Bill of Rights, did not apply to the states, a situation that did not change until after the Civil War, when the Supreme Court, over a period of many years, read the Due Process Clause of the Fourteenth Amendment to incorporate most of the Bill of Rights.

In the 1880s, the Supreme Court took the view that the privilege protected private books and papers. With antecedents in the common law, the privilege protected an individual against a subpoena demanding incriminating private documents. Indeed, even if the government obtained the papers without a subpoena, the use of private papers as evidence against their owner was equated with compelled testimony. During this same period, the Supreme Court upheld a congressional statute providing for compelled testimony under the grant of transactional immunity, but rejected the claim that corporations could assert the privilege.

In 1964, the Supreme Court held that the privilege applies against the states as a matter of Fourteenth Amendment due process, and that testimony compelled in state court could not be used against the witness in a federal prosecution (and vice versa). Malloy v. Hogan; Murphy v. Waterfront Commission. Subsequently, Fifth Amendment doctrine changed significantly. The most dramatic change was the decision in Miranda v. Arizona (1966), holding that information received from the interrogation of arrested persons by the police was presumptively the product of unconstitutional compulsion in the absence of the specific warnings. The Miranda doctrine prohibits custodial interrogation absent a knowing and voluntary waiver of the rights to silence and counsel.

Subsequent cases have developed in detail the meaning of custody, interrogation, waiver, and the consequences of invoking silence and/or counsel. For example, the Court ruled that if the defendant elects to testify at trial, statements tainted by Miranda violations may be admitted to impeach. The Miranda exclusionary rule is also more limited with respect to derivative evidence than the Fourth Amendment exclusionary rule. In 2000, in Dickerson v. United States, the Supreme Court reaffirmed Miranda and struck down a congressional statute that had purported to return to pre-Miranda practice, although the majority appeared to concede that the Constitution itself did not require the Miranda rule.

Outside the police-interrogation context, the privilege protects against compelled testimonial evidence tending to incriminate the witness. Compulsion is not limited to court order, but includes such pressures as the threatened loss of government employment or public contracts, or an inference of guilt from silence at a criminal trial. Testimonial evidence means a communication of information from the target’s memory or knowledge. Thus fingerprints, tissue samples, and physical evidence are not testimonial: the government can compel their production. In a reversal of its earlier position, the modern Court has held that the Fifth Amendment does not protect physical evidence like private papers unless official compulsion forced the defendant to create the document. In the case of private papers, the Fourth Amendment and not the Fifth Amendment normally governs the government’s power to seize papers, just like the Fourth Amendment limits the government’s powers to seize conversations by wiretap.* The privilege applies when the evidence sought is incriminating, that is, it provides a link in a chain of proof that might be useful, and the risk of prosecution is more than fanciful. Where a violation of the Self-Incrimination Clause is the product of a directly coerced or compelled confession, the government may not use in a later case that confession or any evidence that is the fruit of such coercion. If, however, the original illegality is a violation of the Miranda rule, rather than actual coercion, the government may use in a later prosecution evidence that was discovered as a fruit of the Miranda-violative confession.

Evidence is not incriminating, however, and the privilege cannot be asserted if it is produced under an immunity order by the court, that is, a promise not to use the compelled information against the defendant. The government may grant the witness “transactional immunity,” or “use and derivative use immunity.” Transactional immunity bars any prosecution for the conduct to which the testimony relates. Use and derivative use immunity, the only type of immunity constitutionally required, permits the government to prosecute the witness, but only after proving that it, the prosecution, has made no use of the compelled testimony or any evidence derived from it. Typically, the prosecution will exhaust all other avenues of investigation before applying for a use immunity order, and the supporting affidavit will describe in detail all of the evidence the prosecution has prior to the compelled testimony. Nonetheless, the risk that immunized testimony may aid the prosecution indirectly is thought sufficiently serious that many states still authorize only transactional immunity above and beyond the Fifth Amendment’s protections.

Leaving the Miranda situation aside, the witness must claim the privilege, or it will be deemed waived. Of course, direct police physical or psychological coercion or compulsion that produces a “confession” is inadmissible whether or not a “waiver” is asserted by the police. In addition, the government may not coercively obtain a waiver by, for example, threatening the loss of public employment or government contracts. A criminal defendant who elects to take the stand waives the privilege with respect to questions asked on cross-examination that are reasonably related to the direct examination.

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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; 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.

Although the principle can be found in Greek, Roman, and canon law, the prohibition against double jeopardy came into the United States Constitution from English common law. According to Sir William Blackstone’s Commentaries on the Laws of England, it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.” A defendant to a criminal charge could plead either a former conviction or a former acquittal to the same offense and have the charges dismissed.

All state constitutions drafted prior to the Bill of Rights contained a double-jeopardy provision. The principle was so universal that when James Madison proposed on the floor of the First Congress that “No person shall be subject, except in cases of impeachment, to more than one punishment, or trial for the same offence,” Members rose to object that the language was not strong enough. Representatives Egbert Benson and Sherman declared that the wording would prevent a new trial for a person who had been improperly convicted. Others argued that it should stand as drafted, because it was merely “declaratory of the law as it now stood.” The House defeated an attempt to remove the words “or trial,” but the Senate revised the language to its present form, which the House accepted.

The history of the interpretation of the Double Jeopardy Clause by the Supreme Court is complex, and, as the Court itself confessed, it is not a “model of consistency and clarity.” Burks v. United States (1978). Over time, however, the Court identified the clause as embodying three protections of the individual against the government: (1) no second prosecution for the same offense after an acquittal; (2) no second prosecution for the same offense after a guilty verdict; and (3) no multiple punishments for the same offense. See Monge v. California (1998). The Court recognized early on that the clause could not be read literally; it refers only to “jeopardy of life or limb,” a reference that made sense when most serious offenses were sanctioned by capital punishment but hardly makes sense today, when most sanctions are merely a fine or imprisonment. Despite the wording of the clause, the Court applies it to any indictment or information charging a person with any statutory or common-law felony or misdemeanor sanctioned by death, imprisonment, or fine. Of course, the Double Jeopardy Clause originally applied only to the federal government, Palko v. State of Connecticut (1937), but in Benton v. Maryland (1969), the Court held that the Double Jeopardy Clause of the Fifth Amendment applied to the states as well as to the federal government.

Current double-jeopardy jurisprudence falls under five basic headings: (1) sovereign, (2) sanction, (3) trial, (4) retrial, and (5) offense.

First, the Court reads the Double Jeopardy Clause as a protection against conduct by the same “sovereign.” Accordingly, as the federal government is, as is each state, a separate “sovereign,” the Double Jeopardy Clause does not prohibit a federal prosecution after a state prosecution. Despite the doctrine, the federal government as a matter of policy will not prosecute a matter first prosecuted at the state level, absent unusual circumstances. Nor does the clause prohibit a state prosecution following a federal prosecution. Nor does it prohibit successive state prosecutions. But it does prohibit successive prosecutions by the state and a local government or two local governments, because each derives its sovereignty from a common source, the state constitution. Indian entities are treated as separate sovereigns.

Second, a sanction counts for double-jeopardy purposes only if it is a criminal “punishment.” What counts as a punishment for double-jeopardy purposes depends on the nature of the sanction imposed. Based on identical conduct, a civil forfeiture of property may follow a criminal acquittal of the owner of the property. Civil fines are not a form of criminal punishment. But a tax may not be specially imposed on criminal conduct. A sexual predator may be retained in civil confinement after his criminal term of imprisonment ends; the Court holds that the confinement is punishment under neither the Double Jeopardy nor the Ex Post Facto Clauses of the Constitution.

Third, determining when a “lawful trial” begins and ends is crucial to the application of the concept of double jeopardy. Accordingly, the court must have jurisdiction over the offense. Jeopardy attaches in a bench trial when the first witness is sworn; it begins in a jury trial when the jury is sworn. Finally, the trial ends with an acquittal, that is, a decision of not guilty on the facts, whether the decision is legally right or legally wrong, even if the acquittal is “based upon an egregiously erroneous foundation.” An appellate court may also grant an acquittal.

Fourth, the Double Jeopardy Clause does not absolutely prohibit retrials. The clause is no bar to a new trial when the defendant successfully appeals his conviction, but a successful appeal of a lesser charge (manslaughter) by a defendant precludes a retrial on a greater charge (murder). Nor may a new trial be held if an appellate court finds that the conviction was not based on sufficient evidence. On the other hand, retrials may be held when a defendant requests a mistrial or when a “manifest necessity” is present. Manifest necessity is present, for example, if the jury deadlocks or is unduly influenced by the misconduct of the defense counsel.

Fifth, a crucial issue turns on the definition of “offense.” Modern criminal law is characterized by “specificity in draftsmanship”; it is also characterized, as a result, by an “extraordinary proliferation of overlapping and related statutory offenses.” Double-jeopardy protections depend, therefore, on a careful ascertaining of what constitutes an “offense,” that is, what is the “allowable unit of prosecution.” However, few limits, if any, are imposed by the Double Jeopardy Clause on the legislative power to define offenses. But once a legislature defines that proscription, it “determines the scope of protection afforded by a prior conviction or acquittal.” To ascertain whether two statutory offenses constitute two “offenses” for double jeopardy, which would prohibit successive prosecutions, the Court follows a multiple-element test to determine whether each “offense” contains an element that is not common to the other. Blockburger v. United States (1932). Under the Blockburger test, the Double Jeopardy Clause prevents successive prosecutions for both greater and lesser included offenses. The focus of the test is on statutory elements rather than evidence or conduct. Nevertheless, a prosecution of a lesser offense (e.g., assault and battery) does not preclude the prosecution of a greater offense (murder) if all of the elements of the greater offense (e.g., death) were not present at the time of the prosecution of the lesser offense. On the other hand, a distinction is drawn between successive prosecutions and multiple punishments. Even if individual offenses are not separate under the Blockburger test, the Double Jeopardy Clause does not prevent multiple punishments for them when they are tried together, when the legislature intended the higher level of punishment.

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(c) 2018

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; 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.

Grand juries have historically served two functions: accusatory and protective. The accusatory function has roots in the English common law. The Founders’ motivation for adding this provision to the Constitution was principally to protect those accused of crimes from prosecutorial overreach. Contemporary practice, however, limits the extent to which grand juries are capable of performing that aspect of their traditional role.

A typical federal grand jury consists of twenty-three citizens drawn from the community. The jurors meet in a closed courtroom, with no judge, no accused, no press, and no lawyer but the prosecutor present. The prosecution presents evidence that a particular suspect committed a crime; the prosecutor is then excused, and the jurors deliberate and vote on whether there is enough evidence to justify the filing of criminal charges against this suspect and sending the case forward to trial. If a majority of jurors believe that there is sufficient evidence, the jurors return a “true bill,” which when signed by the prosecutor becomes the indictment: the formal criminal charge that the government must prove beyond a reasonable doubt at trial.

Grand juries originated in England, probably in the twelfth century, and began as an effort to increase the king’s power. Their original purpose was strictly accusatory; grand jurors were expected to bring to the proceedings any information or suspicions they had about their neighbors and criminal activity. By the mid-seventeenth century, the jurors also assumed the responsibility to investigate and protect citizens against unfounded charges. This dual role of accuser and protector of the accused was the model that settlers brought with them to this country. The first grand-jury session was held in Virginia in 1625, and the practice soon spread to the other English colonies.

Prior to the American Revolution, the grand jury’s role as a shield for the accused took on increasing importance. The most famous such case involved John Peter Zenger, accused of seditious libel in 1734 for publishing material that was critical of the governor of New York. The evidence against Zenger was strong, but three grand juries refused to indict, impressing on colonists their power to frustrate the enforcement of unpopular laws. As the Revolution drew closer, royal prosecutors who tried to enforce English tax and import laws also found themselves stymied by local grand juries, who at times refused to let even meritorious cases go forward to trial. These experiences, coupled with the writings of influential legal thinkers (particularly Sir William Blackstone, Henry Care, and John Adams), convinced the colonists of the need for grand-jury review as a restraint on government power. When there was no mention of grand juries in the original Constitution, the criticism was swift; so in December 1791, the Fifth Amendment to the Constitution, containing the Grand Jury Requirement Clause, was ratified.

The Supreme Court has concluded that, unlike nearly all of the other provisions of the Bill of Rights, the Grand Jury Requirement Clause is not “incorporated” against the states, that is, the federal Constitution does not require that states use grand juries at all. If they do, they are not required to follow the federal procedures. Hurtado v. California (1884). The result is that many states use grand juries sparingly, and, if they do, use significantly different procedures from those that are required in federal criminal cases. Given that states are still the primary enforcers of the criminal law, this interpretation severely limits the importance of this part of the Fifth Amendment.

The current state of the law restricts the ability of a grand jury to serve as a significant shield against prosecutorial overreach. There are several reasons for this. First, the Supreme Court has greatly limited the ability of criminal suspects to challenge federal grand-jury procedures. The proceedings are secret, and thus a suspect has no way of knowing if the evidence presented by the prosecution is complete or accurate. Even if a suspect can ascertain what evidence the jury hears, his ability to attack the indictment based on this information is small. Federal courts have not required prosecutors to disclose evidence to the grand jurors that is favorable to the accused. See United States v. Williams (1992). In addition, the Supreme Court has held that a suspect has no ability to challenge an indictment even if the jurors only considered evidence (such as hearsay) that would not be admissible in a later trial; “[a]n indictment returned by a legally constituted and unbiased grand jury,” the Court has said, “if valid on its face, is enough to call for a trial of the charge on the merits. The Fifth Amendment requires nothing more.” Costello v. United States (1956).

Second, criminal law enforcement has changed dramatically since the Bill of Rights was ratified. Prosecutors are now highly professional and specialized, and federal criminal laws have become more complex. One result of this change is that grand jurors lack the realistic ability to decide whether the prosecutor has presented “enough” evidence to justify an indictment. The question that jurors are asked is ultimately a legal one concerning the sufficiency of the evidence, a question that is posed after the only lawyer in the room—the prosecutor—has recommended that the defendant be indicted. Because the prosecutor has complete control over the evidence the grand jurors hear, and because the jurors have no benchmark against which to measure that evidence, it is rare for jurors to second-guess a prosecutor’s recommendation. Consequently, grand jurors agree with the prosecutor’s recommendation and return a true bill in nearly every case where they are asked to do so.

So despite the original purpose of the Fifth Amendment, most observers now agree that the grand jury has returned to its accusatory roots and is now used as an investigative tool that is much more of a benefit to the prosecutor than to criminal suspects. Grand juries today have broad subpoena power, which enables them to gather an extraordinary amount of evidence in criminal investigations. Suspects often waive the right to grand-jury review of their case; they may prefer to forgo the minimal protection that comes from this review and avoid the potential for a more searching investigation of their conduct.

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(c) 2018