Constitution

The Fifth Amendment: Grand Juries, Double Jeopardy, Self-Incrimination, Due Process and Takings

The Fifth Amendment guarantees grand jury indictment, bars double jeopardy and compelled self-incrimination, and requires due process and just compensation.

4Conservative Editors · Published November 8, 2026

The text

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.

In plain English

The Fifth Amendment is five protections in one sentence.

Grand jury. No one can be held to answer for a serious federal crime unless a grand jury indicts. The exception is for military cases. The grand jury requirement has not been applied to the states.

Double jeopardy. No one may be tried twice for the same offense. Separate sovereigns, such as a state and the federal government, may each prosecute.

Self-incrimination. No person may be "compelled in any criminal case to be a witness against himself." That is the right to remain silent.

Due process. No one may be deprived of "life, liberty, or property, without due process of law." This clause covers the fairness of procedures, and courts have also read it to protect certain substantive rights.

Takings. Private property may not be taken for public use "without just compensation."

The 14th Amendment later used the due process language to apply to state governments.

What the Founders said

The grand jury, the privilege against self-incrimination and the due process principle all come from English common law and Magna Carta. Chapter 39 of Magna Carta, in 1215, promised that no free man would be seized or imprisoned "save by the lawful judgment of his peers or by the law of the land."

The Takings Clause was Madison's own contribution. His 1792 essay "On Property" argued that a just government protects property of every sort, including opinions and the free use of faculties, and that the government should not take property without compensation. The clause was the only provision in the Bill of Rights guaranteeing compensation.

Colonial and state experience also lay behind it: seizure of loyalist estates and paper-money laws had shown the risks of legislative power over property. The self-incrimination clause answered abuses of English oaths ex officio, used by the Star Chamber to force suspects to testify against themselves.

How the courts have read it

  • Barron v. Baltimore (1833): the Takings Clause, like the rest of the Bill of Rights, restrained only the federal government.
  • Chicago, Burlington & Quincy Railroad v. Chicago (1897): the first application of takings principles to the states through the 14th Amendment.
  • Miranda v. Arizona (1966): statements made during custodial interrogation are inadmissible unless the suspect was warned of the right to remain silent and to counsel.
  • Berman v. Parker (1954): the Court deferred to legislative judgments on "public use."
  • Kelo v. City of New London (2005): the Court, 5-4, allowed a city to take homes for economic development; many states responded by limiting the power.
  • Penn Central Transportation Co. v. New York City (1978): the test for regulatory takings.
  • Lucas v. South Carolina Coastal Council (1992): a regulation that deprives land of all economic value is a taking.
  • Gamble v. United States (2019): the dual-sovereignty doctrine stands, and state and federal prosecutions for the same conduct do not violate double jeopardy.
  • Cedar Point Nursery v. Hassid (2021): a regulation granting union organizers access to private farmland was a per se taking.

Why it matters now

The Fifth Amendment protects the accused and the owner alike. For conservatives, both parts matter. The privilege against self-incrimination and due process restrain the state's power to punish, and the Takings Clause limits its power to seize. Both express the same Founding idea: a person's liberty and property are not at the government's disposal.

Property rights get less attention in constitutional argument than speech or guns, but they are no less basic. Kelo stirred the public in 2005 because it showed how far "public use" could stretch. State legislatures responded, which is a good example of the Constitution's federal system working. Cedar Point in 2021 showed the Court returning to the clause's plain meaning.

Due process also carries real weight in the modern administrative state. Agencies that investigate, prosecute and decide cases raise questions about fair procedure that the Framers would have recognized. The Court's decision in SEC v. Jarkesy (2024), which sent civil-penalty cases of a common-law kind back to juries, drew on the Seventh Amendment, but the principle is the same.

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