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.
Amendment V Grand Jury, Double Jeopardy, Self Incrimination, Due Process, Takings
Passed by Congress September 25, 1789. Ratified December 15, 1791. The first 10 amendments form the Bill of Rights
The Fifth Amendment Criminal Procedure ClausesBy Paul Cassell and Kate Stith
Three of the five clauses of the Fifth Amendment pertain to procedures that must, or must not, be used in criminal prosecutions.
Grand Jury Indictment
The first of the criminal procedure clauses requires that felony offenses in federal court be charged by grand jury indictment. (A grand jury is a panel of citizens that hears evidence that the prosecutor has against the accused, and decides if an “indictment,” or formal criminal charges, should be filed against them.) This is one of only a few provisions of the Bill of Rights that the Supreme Court has not held to apply to the states through the Due Process Clause of the Fourteenth Amendment (the others being the Third Amendment’s protection against quartering of soldiers, the Sixth Amendment’s requirement of trial in the district where the crime was committed, the Seventh Amendment’s requirement of jury trial in certain civil cases, and possibly the Eighth Amendment’s prohibition of excessive fines).
That the Court has been reluctant to apply the grand jury requirement to the states is unsurprising. While the origins of the grand jury are ancient—an ancestor of the modern grand jury was included in the Magna Carta—today, the United States is the only country in the world that uses grand juries. In addition to the federal government, about half the states provide for grand juries—though in many of these there exist other ways of filing formal charges, such as a prosecutorial information followed by an adversarial but a relatively informal “preliminary hearing” before a judge (to make sure there is at least “probable cause” for the charge, the same standard of proof that a grand jury is told to apply). As early as 1884, the Supreme Court held that the grand jury is not a fundamental requirement of due process, and Justice Holmes’ lone dissent from that judgment has been joined by only one Justice (Douglas) in the intervening years.
Recent scholarship has upset the previous understanding that the grand jury was from its inception venerated because it was not only a “sword” (accusing individuals of crimes) but also a “shield” (against oppressive or arbitrary authority). In its early incarnation in England, the grand jury was fundamentally an instrument of the crown, obliging unpaid citizens to help enforce the King’s law. Over the centuries, the idea of a citizen check on royal prerogative became more valued. By the time of the framing of our Constitution, both the “grand” jury (from the French for large, in size—today grand juries are often composed of 24 citizens), and the “petit” jury (from the French for small—today criminal trial juries may be composed of as few as six citizens) were understood, in both Britain and the colonies, to be important bulwarks of freedom from tyranny.
Few in the modern era would espouse such a view. The former Chief Judge of the New York Court of Appeals (that state’s highest court) famously remarked in recent years that because prosecutors —agents of the executive branch—control what information a grand jury hears, any grand jury today would, if requested, “indict a ham sandwich.” While this is a useful exaggeration—the Supreme Court has held that federal grand juries need not adhere to trial rules of evidence, or be told of evidence exculpating the defendant—few prosecutors, fortunately, are interested in indicting ham sandwiches! Rather, the greatest advantage grand juries now provide (at least in federal courts, which are not as overburdened as state courts) is allowing the prosecutor to use the grand jury as a pre-trial “focus group,” learning which evidence or witnesses are especially convincing, or unconvincing.
At least in federal court, grand juries are here to stay. The institution is written into the Fifth Amendment too clearly to be “interpreted” away. Moreover, neither pro-law enforcement forces (for obvious reasons) nor allies of those accused (because occasionally grand juries do refuse to indict—in the legal parlance, returning a “no true bill”) have reason to urge their abolition through amendment of the Constitution.
Double Jeopardy Protections
The Fifth Amendment’s second procedural protection is the Double Jeopardy Clause, which provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The Clause’s core purpose is straightforward: to prohibit the government from forcing a person to undergo repeated trials for the same crime. As Justice Black explained in an oft-quoted passage in Green v. United States (1957), “[t]he underlying idea . . . is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense . . . .”
While the Double Jeopardy Clause’s underlying principle is straightforward, the Clause has spawned complex jurisprudence. The current rule, set forth in cases such as Crist v. Bretz (1978), is that jeopardy begins, or “attaches,” in a jury trial when the jury is empaneled and sworn. Much of the double jeopardy jurisprudence addresses circumstances in which re-prosecution is either permitted or barred after jeopardy has attached. One common situation where this question arises is when the government seeks a retrial after a mistrial—a trial terminated before a final judgment is reached. If the defendant consented to the mistrial, retrial is permitted. But an early Supreme Court case, United States v. Perez (1824), established that even without consent, the defendant may be retried as long as declaring a mistrial was a “manifest necessity.” In Perez, the manifest necessity was a hung jury—a jury that could not agree upon a verdict. While the term “necessity” might imply a nearly impossible burden for a retrial, the Supreme Court has been fairly generous in recognizing such circumstances. On the other hand, retrial is not permitted after an acquittal, a finding that the defendant is not guilty. Although it has not addressed the rare situation where a jury has been bribed, the Supreme Court has made clear that the Double Jeopardy Clause flatly bars re-prosecution for the same offense. Controversially, this absolute bar applies even where the acquittal was the result of erroneous trial court rulings. (As a result, in federal and most state courts, the prosecution is able to take an immediate appeal of a pre-trial ruling suppressing evidence, before the jury is empaneled and jeopardy attaches.) To justify this approach, the Court has drawn analogies to the common law plea of autrefois acquit (formerly acquitted) and expressed concern that the Government, with its superior resources, not be permitted to wear down a defendant.
The rules for re-prosecution following a conviction are different. An 1896 decision, Ball v. United States, recognized an exception to the general prohibition against re-prosecuting someone who has already been convicted: when the convicted person has managed through an appeal to overturn the conviction (on grounds other than insufficiency of evidence, which is equivalent to an acquittal by the appellate court). In later decisions, the Court has explained that this exception rests on considerations related to the sound administration of justice. Society should not have to bear the burden of having a guilty defendant set free because a conviction is overturned for procedural error, such as erroneously admitted evidence or faulty jury instructions. And defendants, too, may benefit, as appellate courts might not zealously protect against errors if the price of reversal is irrevocably setting a defendant free.
To the general public, perhaps the most mysterious line of double jeopardy jurisprudence is the “dual sovereignty doctrine.” Under this doctrine, a defendant can be prosecuted twice for what appears to be the same crime—once by federal authorities and once by state authorities, or even by two different states if they both have jurisdiction over the criminal conduct. In the Rodney King case, for instance, Los Angeles police officers were re-prosecuted for the beating of Rodney King and convicted of federal civil rights violations after having been acquitted in state court of the same beating. In such situations, the Court’s theory has been that a defendant is not being prosecuted twice for the “same offence,” but rather for separate offenses “against the peace and dignity of both” sovereigns and thus may be punished by both. Strong policy arguments can be made in favor of the Court’s interpretation, as it prevents, for instance, a state from barring federal civil rights charges through bungling (or, worse, sabotaging) the initial state prosecution. Likewise, a person who has committed a serious crime will not be able to effectively immunize herself against prosecution by another sovereign for that offense by convincing local or state officials to let her quickly plead guilty to a minor, lesser offense.
As a matter of original meaning, however, the Court’s dual sovereignty jurisprudence is highly questionable. When the Bill of Rights was adopted, the double jeopardy principle was understood as providing inter-sovereign protection. The dual sovereignty doctrine may illustrate a situation where an “original meaning” interpretation of the Constitution provides greater protection for criminal defendants than does a more policy based approach. In addition, one might argue that the Fourteenth Amendment, understood to have applied double jeopardy protections against the states, also is a source of authority for the federal government to vindicate civil rights by means of re-prosecution in situations like the Rodney King case—but this would not justify the Court’s allowance of dual state prosecutions.
Privilege Against Compelled Self-Incrimination
The third procedural protection in the Fifth Amendment is the right not to “be compelled in any criminal case to be a witness against” oneself. This right is often referred to as the Fifth Amendment Privilege or, more colloquially, as the right to “take the Fifth.” The Supreme Court has many times affirmed the most natural understanding of these words: the defendant in a criminal case cannot be compelled to testify—that is, she can’t be called to the stand and thereafter be held in contempt of court (usually leading to immediate imprisonment) if she refuses to answer questions relevant to the charges against her.
But over the years, the Court has read into these words many additional rights, both inside the criminal courtroom and in settings far removed from criminal court. In Griffin v. California (1965) the Court struck down a California rule of evidence that allowed the jury in a criminal case to consider as evidence of guilt the defendant’s failure to testify—his silence in the face of the evidence the prosecution had introduced against him. The reasoning was that if the jury could draw a negative inference from the defendant’s silence, this could induce a defendant who preferred not to testify to decide nonetheless to take the stand, at least where the defendant thought that his testimony would be less damaging than his complete silence. While knowing that the jury could draw a negative inference is not being legally “compelled” in the way that being held in contempt is, the Court implied that the true purpose of the Fifth Amendment Privilege is not only to protect a criminal defendant from compelled self-incrimination, but also to ensure that no one is made “worse off” by asserting the Fifth than by not asserting it.
The idea that “taking the Fifth” should not lead to any penalty took hold in settings outside the criminal courtroom as well. In a series of cases in the late 1960s and 1970s, the Supreme Court held that the government as employer may not condition continued employment on cooperation in the investigation of possible violations of its policies (though private employers routinely do this without any constitutional limitation). For instance, in Gardner v. Broderick (1968), the New York City Police Department was held to have violated the Fifth Amendment rights of a police officer when it fired him after he refused to waive the Privilege and testify before a grand jury that was investigating police corruption. Many observers think the better approach in these cases would have been to hold that continued public employment (or an occupational license) may be conditioned on providing pertinent information (after all, there is no constitutional right to be a police officer or a licensed attorney), but that the individual has a right to assert the Privilege in any governmental investigation related to her public employment or occupational license.
Indeed, it has long been understood that the Fifth Amendment Privilege can be asserted by any witness (not just the defendant) in a criminal trial, and by any witness in a civil trial, grand jury, legislative hearing, or other government proceeding. In effect, the words “in any criminal case” in the Fifth Amendment have been understood not to refer to the type of proceeding where the Privilege may be asserted, but as short-hand for the idea that a witness should not be required to give responses that could be used against him in a present or future criminal case. Given its broad applicability, the Privilege is commonly referred to as the right against compelled “self-incrimination.” Importantly, however, whereas the jury in a criminal case can’t hold the defendant’s failure to testify against her in any way (according to Griffin), the fact-finders in these other settings are permitted to draw a negative inference from the witness’s assertion of the Privilege. While the Privilege may thus be invoked by any witness, the government can defeat the Privilege and require that the witness testify (under pain of contempt) by granting the witness “immunity.” Except for a perjury prosecution, neither the witness’s immunized statements nor any evidence deriving from those statements may be admitted against her in a criminal prosecution. Kastigar v. United States (1972).
The most important, and controversial, decision applying the Fifth Amendment Privilege outside the criminal trial is Miranda v. Arizona (1966). In order to protect criminal suspects from not only “physical brutality” but also “informal compulsion” that is “inherent” in custodial interrogation, the Supreme Court in Miranda devised a set of warnings that the police must give before custodial questioning takes place. The individual must be told that she has a right to remain silent, that any statements she makes may be used against her, and that she has the right to have an attorney present during questioning, including the right to a court-appointed attorney if she cannot afford one. The Court recognized that an individual could “knowingly and intelligently waive these rights.” Critically, the Court fashioned an exclusionary rule to enforce the right to Miranda warnings: “unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against” the defendant at trial.
Some heralded Miranda as a better way to regulate police interrogations than the due process approach the Supreme Court had forged during the previous three decades. In Brown v. Mississippi (1936), a deputy sheriff leading a mob of white men had obtained confessions from two black defendants by sustained and brutal lashings using “a leather strap with buckles on it.” This clearly constituted “compulsion,” but the Fifth Amendment Privilege had not yet been applied against the states though the Fourteenth Amendment’s Due Process Clause. (That would not come until Malloy v. Hogan (1964).) So the Court invoked the Due Process Clause directly, holding that confessions were “involuntary” and their admission at the men’s trial violated their due process rights. In the view of some justices, however, the subjective “totality of the circumstances” test the Court developed to determine whether a defendant’s confession was “involuntary” was unwieldy. And it provided murky guidance for both lower courts and law enforcement, especially in cases with no physical coercion. Miranda, in the view of its supporters, seemed to provide a clear line-in-the-sand for everyone. Although the Court made clear that even if Miranda was followed, a confession might be inadmissible on due process/voluntariness grounds, in fact both the Supreme Court and lower courts have tended to consider a statement presumptively voluntary if made after waiver of Miranda rights.
Miranda was controversial for many reasons. The most serious charge was that whether or not the warnings were good policy, the decision was illegitimate: the Court had just made up a new rule, nowhere found in the Constitution. To be sure, there is much circumstantial evidence that the Fifth Amendment Privilege was adopted in part to constitutionalize a common-law maxim that both British citizens and their American counterparts thought fundamental: nemo tenetur prodere seipsum (no one is bound to accuse himself). In the late eighteenth century, this was understood to forbid extracting confessions by means of physical or spiritual coercion; the latter consisted of forcing a person to take an oath to God and state the truth—undoubtedly coercive in a highly religious society. But nearly two centuries later the Supreme Court was saying that the Fifth Amendment also prohibited the assertedly “inherent coercion” that exists in routine station-house questioning, unless Miranda’s warnings are given and waived. Most pointedly, the warnings themselves looked more like legislative rule-making than constitutional interpretation. The Court, in Miranda and two other cases decided shortly before Miranda, seemed bent on reducing, if not eliminating, an important tool of evidence-gathering in criminal cases—questioning the defendant upon arrest. After all, who wouldn’t leap at the chance to have a lawyer before dealing with the police? And no lawyer would allow a client to submit to immediate questioning, as all of the justices knew.
In fact, Miranda has not prevented people from making incriminating station-house statements, as initially some of its detractors had feared and some of its supporters had anticipated. It appears to be an aspect of human nature that many recently accused persons are eager to talk their way out of trouble. Miranda’s critics, however, believe that Miranda has noticeably reduced the number of confessions by allowing suspects to “lawyer up” rather than face questioning; while Miranda’s supporters contend that any reduction in confessions is quite modest, and note that police officers have learned to live with the decision.
In a series of subsequent decisions, the Supreme Court gave further ammunition to those who considered Miranda to be nothing more than judicial legislation, by creating exceptions to the broad exclusionary rule the decision had announced. In Harris v. New York (1971), the Court held that even if Miranda was violated, any voluntary statements could be admitted to attack the defendant’s credibility if the defendant took the stand. In New York v. Quarles (1974), the Court held admissible the defendant’s statement, obtained without Miranda warnings, as to where he had hidden his gun in a supermarket, because of the “public safety” need to secure the weapon immediately. Quarles created a potentially large loophole and undercut the constitutional basis for Miranda, as the Court said that there was no “actual coercion” in that case even though Miranda warnings weren’t given. That same year, the Court held in Michigan v. Tucker (1974) that Miranda’s exclusionary rule applied only to the defendant’s statements, not to testimony by other witnesses whom the police discovered on the basis of the defendant’s statements. Ten years later the Court held that that statements elicited in violation of Miranda could be used in deportation proceedings. The Court also cast doubt on the scope of the “right to remain silent,” holding in Fletcher v. Weir (1982) that states could adopt rules allowing the defendant’s silence after arrest but before receiving Miranda warnings, to be used to attack his credibility.
It appeared to many that Miranda would in due course be overturned. Quarles had referred to Miranda warnings as merely “prophylactic,” and Tucker had conceded that the warnings were “not themselves rights protected by the Constitution.” In 1999, the Fourth Circuit agreed with the latter statement, and applied a little-noticed statute that Congress had enacted in 1968 in response to Miranda, under which “a confession . . . shall be admissible in evidence [in federal court] if it is voluntarily given.” 18 U.S.C. § 3501(a). The Supreme Court reversed, 7-2, holding that Congress was without authority to enact § 3501(a); despite language in Quarles and Tucker, Miranda had indeed “announced a constitutional rule.” Dickerson v. United States (2000).
Even in the wake of Dickerson, however, the scope and status of Miranda remain unclear. In Chavez v. Martinez (2003), four justices squarely held that violation of Miranda is not a violation of the Fifth Amendment Privilege, which only prohibits the government from admitting compelled statements in a subsequent prosecution of the suspect. Two other justices, concurring, distinguished between this “core” prohibition and “extensions” such as Miranda. The Court has also further cut back on Miranda’s exclusionary rule, holding in United States v. Patane (2004) that as long as the defendant’s statements were voluntary, any physical fruits of them are admissible. And in Salinas v. Texas (2013), the Court further equivocated on the “right to silence”: it was proper to admit the defendant’s silence during police questioning that took place when the defendant was not in police custody, despite the absence of Miranda warnings, and the defendant had waived the Privilege by failing to affirmatively assert it.
Miranda’s future remains uncertain. While the waiver and warning requirement has seemingly become entrenched in American police practices, the decision’s approach to regulating police questioning still draws fire from all quarters. Critics of police questioning believe that the Miranda line of cases does not go far enough, because it has permitted psychological tricks and other aggressive tactics so long as an officer obtains a Miranda waiver at the start. Supporters of broader questioning counter that Miranda is perverse public policy, since career criminals are most likely to lawyer up while the vulnerable and the innocent are most likely to waive their Miranda rights. As a result, considerable interest remains in alternatives (or supplements) to Miranda, such as a requirement that police officers record interrogation sessions.
Paul Cassell Ronald N. Boyce Presidential Professor of Criminal Law, College Of Law, University of Utah Kate Stith Lafayette S. Foster Professor of Law at Yale Law School
The Fifth Amendment Due Process ClauseBy Roger A. Fairfax and John C. Harrison
The principle that the government should be limited in how it makes decisions that are detrimental to private people is very old in Anglo-American law. The Magna Carta, a statement of subjects’ rights issued by King John of England in 1215, became well known over the centuries. Chapter 39 provided that “[n]o free man shall be arrested or imprisoned . . . except by lawful judgment of his peers or by the law of the land.” This language and its subsequent refinements gave rise to the concept of “due process of law,” and influenced the drafters of the Due Process Clause of the Fifth Amendment to the United States Constitution.
Although the Fifth Amendment Due Process Clause is brief, important parts of the Supreme Court’s constitutional doctrine rest on it. At the most general level, the clause reiterates the principle of the rule of law: the government must act in accordance with legal rules and not contrary to them. A more specific application of the Clause is the doctrine today called “procedural due process,” which concerns the fairness and lawfulness of decision making methods used by the courts and the executive. Governmental actors violate due process when they frustrate the fairness of proceedings, such as when a prosecutor fails to disclose evidence to a criminal defendant that suggests they may be innocent of the crime, or when a judge is biased against a criminal defendant or a party in a civil action. Likewise, fair notice and the opportunity to be heard are due process requirements in criminal, civil, and other proceedings. The Court also attributes to the Due Process Clause a notice requirement that applies to statutes rather than executive and judicial action. A statute that is extremely unclear can be, in the Court’s terms, void for vagueness. This is because it does not give people sufficient or fair notice of what the law requires.
Another, more controversial application of the Clause is the doctrine today called “substantive due process,” which extends beyond the methods government institutions use to make decisions, and places substantive limits on governmental authority. There are long-standing debates regarding whether the text and history of the Fifth Amendment Due Process Clause support the concept of “substantive due process” that has been embraced by most of the current Supreme Court justices in varying degrees. These differences of opinion necessarily are informed by interpretations of the meaning and relevance of the historical evidence, the meaning of the words used by the Framers in the Clause and whose understanding of that meaning is relevant, and more fundamental views of whether the meaning of the Constitution was fixed when written or can change over time. Despite the lack of consensus over the scope of substantive due process, the meaning of the Fifth Amendment Due Process Clause in the procedural context is relatively settled as a matter of Supreme Court jurisprudence.
Although both the Fifth and Fourteenth Amendments have Due Process Clauses (the Fifth Amendment Due Process Clause constraining the authority of the federal government and the identical Due Process Clause of the Fourteenth Amendment constraining only state governments), there is only one Equal Protection Clause, and it applies only to the States. The Court has also found that the Due Process Clause of the Fifth Amendment imposes on the federal government restrictions that are almost identical to those imposed on the States by the Equal Protection Clause of the Fourteenth Amendment.
Matters of Debate
Roger A. Fairfax Senior Associate Dean for Academic Affairs and Professor of Law, George Washington University Law School
Let’s Be Clear: Recognizing the Vagueness Doctrine of the Fifth Amendment’s Due Process Clause by Roger Fairfax
The Fifth Amendment’s Due Process Clause does as much work as any provision in the Constitution. The Clause requires fundamental procedural fairness for those facing the deprivation of life, liberty, or property.Full Text
John C. Harrison James Madison Distinguished Professor of Law, University of Virginia School of Law
Does the Due Process Clause Say More Than What Goes Without Saying? by John C. Harrison
The least controversial aspect of the Fifth Amendment’s Due Process Clause is also its least interesting. The clause may reiterate the rule of law itself with respect to the ways in which decisions are made.Full Text
Let’s Be Clear: Recognizing the Vagueness Doctrine of the Fifth Amendment’s Due Process ClauseBy Roger A. Fairfax
The Fifth Amendment’s Due Process Clause does as much work as any provision in the Constitution. The Clause requires fundamental procedural fairness for those facing the deprivation of life, liberty, or property. The Clause also has been interpreted to place substantive limits on governmental authority, meaning that there are certain fundamental freedoms the government cannot take away, regardless of what procedures (for example, notice and a hearing before a judge) that it employs. Under this view, the Clause addresses not only the fairness and availability of procedures the government provides, but also speaks to what the government may forbid or require. As is discussed in the joint essay, the nature and extent of “substantive due process” has long been a matter of intense debate in the United States.
However, while jurists and scholars tend to focus on procedural due process and substantive due process, another important aspect of the Clause deserves greater attention. The Fifth Amendment’s Due Process Clause is also understood to require fair notice. As noted in the joint essay, the due process requirement of fair notice applies not only to notice to parties regarding the availability or pendency of formal proceedings, but also to situations when statutes and sanctions are not sufficiently clear to provide proper notice to those governed by their terms. As the Supreme Court noted in its recent decision in Johnson v. United States (2015), the vagueness doctrine of the Due Process Clause protects against “a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”
In Johnson, the Court addressed part of a key federal criminal sentencing statute, which required someone convicted of a crime to serve a longer prison sentence if they had previously been convicted of three or more “violent felonies.” The Court held that the definition of “violent felony” was ambiguous (it was unclear whether crimes like attempted burglary or possessing an illegal weapon count as “violent felonies”), and thus, the law did not provide proper notice to defendants who might be sentenced more harshly under the law. For this reason, the Court concluded that it violated Fifth Amendment’s Due Process Clause. However, one justice in that case criticized the Clause’s vagueness doctrine, suggesting that its evolution was similar to that of substantive due process, and noting the Court’s historical use of the vagueness doctrine as the basis for striking down a wide variety of laws regulating both social and economic activities.
Nevertheless, whether or not one’s reading of the Clause supports the invalidation of a statute on vagueness grounds, it is safe to say that the vagueness doctrine is well-settled as a feature of the Fifth Amendment’s Due Process Clause in the Supreme Court’s jurisprudence. Despite the attention paid to procedural due process and substantive due process, the vagueness doctrine is central to the Due Process Clause’s place in the constitutional matrix, as it is also a significant constraint on government action and, therefore, merits greater recognition.Roger A. Fairfax Senior Associate Dean for Academic Affairs and Professor of Law, George Washington University Law School
Does the Due Process Clause Say More Than What Goes Without Saying?By John C. Harrison
The least controversial aspect of the Fifth Amendment’s Due Process Clause is also its least interesting. The clause may reiterate the rule of law itself with respect to the ways in which decisions are made. Whatever else it means, due process of law very likely means the government must follow procedure called for by the applicable law, other than the Due Process Clause itself. (For example, if an applicable statute says that the courts of appeals must hear oral argument in certain cases, they may not limit parties to written submissions.) While a promise by King John to respect the rule of law may have been significant in 1215, when an ancestor of the Due Process Clause first appeared in Magna Carta, in our legal system with a written constitution, it is simply assumed that the executive and the courts must operate in accordance with legal rules.
Whether the Due Process Clause adds any procedural requirements of its own is more doubtful, but it may. On one hand, due process of law is sometimes used to mean something more than compliance with whatever procedural rules the law contains. On the other hand, constitutional drafters who wanted to make sure that government decisions were subject to procedural requirements might have thought such a vague provision to be too unclear to impose specific requirements on top of the procedural rules contained in other laws.
The history of the Due Process Clause suggests another reading, one that was very important for many decades but that has largely dropped out of sight. According to this interpretation, due process of law means specifically the procedures that are used by, and only by, the courts. Courts decide according to existing law after giving parties notice and a hearing. According to this interpretation, the Clause is part of the separation of powers: it absolutely forbids the executive and the legislature from doing what the courts do, which is to deprive people of life, liberty, or property. As an historical matter, this reading was mainly deployed against legislation that directly altered property rights by pure force of law, like statutes cancelling corporate charters previously granted. While this reading played a very important role in constitutional history, it is subject to the objection that it just reiterates the separation of powers itself: if there are functions that only courts may perform, the separation of powers keeps the legislature and the executive from performing those functions. This reading of the Due Process Clause (and of analogous provisions in state constitutions) was the textual foundation of the nineteenth century doctrine of vested rights, according to which private property, and private rights created by contracts, were protected against legislative alteration.
Substantive due process as it is currently understood—meaning that the government may not violate certain fundamental rights that do not appear elsewhere in the Constitution, and may not draw certain classifications (for instance, based on race or sex), without especially strong justification—is difficult to justify in light of the text and history of the Fifth Amendment. The text is at best a very indirect way of saying that government must be reasonable, that unidentified but important interests are protected to some substantial but unidentified extent, and that some unidentified grounds of distinction must have an especially strong justification. If the drafters wanted to convey any of those messages, they would have done so much more openly and in much greater detail. The history does not suggest that the Due Process Clause of the Fifth Amendment was anything like as important or ambitious as current substantive due process doctrine makes it.John C. Harrison James Madison Distinguished Professor of Law, University of Virginia School of Law
The Fifth Amendment Takings ClauseBy Richard A. Epstein and Eduardo M. Peñalver
The Takings Clause of the Fifth Amendment to the United States Constitution reads as follows: “Nor shall private property be taken for public use, without just compensation.” In understanding the provision, we both agree that it is helpful to keep in mind the reasons behind it. We agree that the Clause is intended to uphold the principle that the government should not single out isolated individuals to bear excessive burdens, even in support of an important public good. When this happens, the payment of “just compensation” provides a means of removing any special burden. The most influential statement of this principle is found in Armstrong v. United States (1960), where the Supreme Court wrote: “The Fifth Amendment’s [Takings Clause] . . . was 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.”
For the Takings Clause to serve this principle effectively, we both agree that the guarantee of just compensation must apply at the very least to cases in which the government engages in the outright confiscation of property. This means more than merely the government taking a privately owned asset for itself. It also includes situations in which the government permanently deprives a private owner of possession of the asset or gives the asset (or the right to permanently physically occupy the asset) to someone else.
We agree that the compensation requirement must apply not only to land but to all forms of private property. At a minimum this means that the Clause applies to government confiscation of personal property, including interests as diverse as animals and corporate stock. The Clause also applies, not only to the confiscation of all existing interests in any individual piece of property, but to the confiscation of certain lesser interests in property. Under Anglo-American law, these would include recognized interests like easements (such as rights of way), leases, mortgages, life estates, and remainders. The Clause also applies to the confiscation of intangible property, including intellectual property such as patents, copyrights, trade marks and trade secrets. Although the Clause has not been read to apply to taxes, it does apply when the government seizes a specific pool of money, such as a bank account or a bag full of cash, or when it orders an individual to pay a specific amount of money.
We also agree that the Clause prohibits the government from confiscating property (even with just compensation) if it is not doing so for a public use. Although the boundaries of this prohibition are controversial, we agree that it encompasses at a minimum situations in which the government takes property from A for the purpose of giving it to B solely for B’s private benefit.
We agree that the phrase “just compensation” means that the owner of the property shall receive at a minimum the fair market value of the property in its best alternative use, independent of the government taking. In most instances the compensation required is paid in cash, but in some situations, the government compensation may come in the form of some reciprocal or return benefit given to a party, such as the increase in the value of retained land when the government builds a road over that property.
Finally, we agree that, under the Takings Clause, the government need not compensate private property owners when it requires them to take reasonable steps to avoid pollution or other releases that harm either public or private property in land, air and water. Any time some private party could seek a court order stopping another private party from engaging in harmful activities, the government can impose the same limitations through fines and court orders without a duty to compensate.
With the advent of the modern welfare state (and the complex regulation that came with it), more challenges than ever before are raised under the banner of the Takings Clause. The breadth of state action and the diversity of its interactions with private owners have multiplied the gray areas in which the government burdens some owners more than others. The key areas of dispute about the meaning of the Takings Clause relate to how much the government may burden an individual property owner before triggering its obligation to pay just compensation. These are the areas on which we shall offer our separate and different views.
Matters of Debate
Richard A. Epstein Laurence A. Tisch Professor of Law and Director of the Classical Liberal Institute, New York University School of Law
Takings Law: Toward A Unified Approach for the Occupation and Regulation of Private Property by Richard A. Epstein
The central challenge of the takings law is how best to respond to two issues. The first is the so-called “regulatory taking,” where the government leaves an owner in possession of his property but restricts its use or disposition (e.g., by sale). The second deals with exactions: where the government is entitled to condition the issuance of a permit or license on the surrender of either some interest in owner’s property or the payment of cash or provision of services toward the general fund.Full Text
Eduardo M. Peñalver Allan R. Tessler Dean and Professor of Law, Cornell Law School
Regulatory Takings as Equitable Judgment by Eduardo M. Peñalver
The most controversial questions in takings law involve determining when the government must compensate a property owner whose property has been burdened by regulation.Full Text
Takings Law: Toward A Unified Approach for the Occupation and Regulation of Private PropertyBy Richard A. Epstein
The central challenge of the takings law is how best to respond to two issues. The first involves so-called “regulatory taking,” where the government leaves an owner in possession of his property but restricts either its use or disposition (e.g., by limiting it to residential use or prohibiting its sale). The second deals with exactions: the government announces that it will only issue a permit or license to the property owner if the owner in exchange either turns over part of that property to the government, pays cash to the public treasury, or pays for off-site repairs or improvements to benefit the public as a whole.
In both settings, the modern view favors a low level of judicial scrutiny, commonly called the “rational basis” test. Unfortunately, that test is unsupported by anything in the text of the Takings Clause. Unfortunately, it opens all government decisions to unacceptable risks of faction and political intrigue.
The mischief starts with the three-part test announced in Supreme Court’s 1978 decision in Penn Central Transportation Co. v. City of New York. New York City’s Landmarks Preservation Commission prohibited the owner of the Grand Central Terminal from constructing a multistory office tower above the Terminal. Under New York law, the owners of the Terminal owned the air rights above the terminal that they could either use or sell. The landmark restriction wiped out the value of those air rights, but the City offered them no compensation to offset that loss. In upholding the City’s actions, Penn Central did not treat the government action as a taking of the air rights, but as a restriction on land use governed by a three-part test, which looked at: (1) the economic impact on owners; (2) a set of “investment-backed” expectations (how investors expected to use the property); and (3) the character of government regulation, under which land use regulations were subject to far less scrutiny than government occupation of property.
Unfortunately, Penn Central never asks the right social question, which is whether the net costs of the regulation will exceed its social benefits. That test would be met if the City were forced to buy the air rights above the landmark Terminal, which the City would not do if the public gains were smaller than the private losses. But it gobbled up those rights because it did not have to pay one cent to acquire them.
Penn Central’s three factors are all sideshows to the main event. The economic impact on owners is a measure of harm for the loss imposed. But just as with physical takings, the size of the loss is irrelevant to question of whether compensation is owed. The reference to “investment-backed expectations” is needless obscurantism that Justice Brennan invoked in an ad hoc way, by announcing without proof that Penn Central was chiefly interested in the success of its current terminal—which hardly shows that the company placed no value on its air rights. Finally, the character of the invasion, physical or regulatory, offers no explanation as to why the two forms of taking should receive different levels of scrutiny.
The correct approach follows the disproportionate impact test of Armstrong v. United States (1960). If landmark designation advances city beautification, the public, and not a single owner, should bear its entire cost. This outcome makes sense whether or not we say that the government or Penn Central now “occupies” the now unusable air space.
This essay is part of a discussion about the Takings Clause with Eduardo M. Peñalver, Allan R. Tessler Dean and Professor of Law, Cornell Law School. Read the full discussion here.
The problem of exactions raises similar issues. The government of course has rights to issue permits and licenses for potentially dangerous activities. But it cannot withhold them on a whim. It would be wholly improper for any government agent to tell a landowner that she may only build if she pays $1 million into the public treasury to fund general improvements. Those should be paid for by general taxes under the Armstrong formula. The result does not change if, as in Nollan v. California Coastal Commission (1987), the government tells a private owner that she can build an ordinary house on her own property only if the public receives for free a lateral public easement across the front of its land. The same logic applies if the government insists that it will issue a building permit on one half a plot of land only if the landowner transfers the other half to it free of charge or dredges a public river.
How then to distinguish proper conditions from improper exactions? The best test asks whether the government condition is intended to block an action, which if allowed to take place would create the kind of nuisance that the government could properly stop by legal action. Some conditions—such as making sure that the dirty water from your plant does not enter the river—meet that test. But others—repairing public facilities along the river—do not. To meet the Armstrong test, those last improvements should be funded by the public at large, and not foisted off on the last to build.
Increasing the level of judicial scrutiny of both regulatory takings and exactions will not block much needed government regulations. But it will help control the nonstop political intrigue so common today in land use regulation and elsewhere.Richard A. Epstein Laurence A. Tisch Professor of Law and Director of the Classical Liberal Institute, New York University School of Law
Regulatory Takings as Equitable JudgmentBy Eduardo M. Peñalver
The most controversial questions in takings law involve determining when the government must compensate a property owner whose property has been burdened by regulation. The same principle that justifies requiring compensation when the state confiscates property for public use—preventing “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))—also seems to justify occasionally requiring compensation when an owner bears an exceptionally heavy regulatory burden. But trying to generalize about when the state should compensate regulated property owners has proven exceptionally difficult for both courts and legal scholars.
In one 2005 case, Lingle v. Chevron, U.S.A., the Supreme Court helpfully clarified that, in considering whether to compensate property owners, decisionmakers should not focus on the rationality or wisdom of the regulation in question but rather on the fairness of the burden it imposes on owners. Any exercise of the state’s police power must be minimally rational, but the best constitutional framework for evaluating rationality is not the degree to which the restriction advances a legitimate state purpose, the standard of review that the Court applies to certain suspect state actions under the Due Process Clause. In the regulatory context, the question to which the Takings Clause directs itself is whether a valid exercise of the police power nevertheless imposes such a heavy burden on a property owner that the state must pay compensation.
The principal legal rubric through which the courts evaluate that burden was set forth in the Supreme Court’s 1978 decision in Penn Central Transportation Co. v. New York City. In that case, New York City designated Grand Central Terminal a historic landmark, and it prohibited the owner of the Terminal from building a multistory office tower on top of it. In considering whether to require New York City to compensate the owners of Grand Central Terminal for the burden of designating the terminal as an historic landmark, the Court discussed three factors: (1) the economic impact of the regulation on the owner; (2) the degree to which the regulation interfered with “distinct investment backed expectations,” and (3) the character of the government action. All three factors focus on different ways in which a regulation might burden an owner. The first factor looks to the economic loss the regulation causes. The second focuses on the degree to which the regulation unsettles expectations about how the property would be used under an earlier (more permissive) regulatory regime—expectations on which the owner has relied in some way. The third turns to other considerations that might color our interpretation of the fairness of the regulatory burden, for example, by asking whether the state is intruding on the owner’s privacy or singling out the owner for unfavorable treatment.
This essay is part of a discussion about the Takings Clause with Richard A. Epstein, Laurence A. Tisch Professor of Law and Director of the Classical Liberal Institute, New York University School of Law. Read the full discussion here.
In a few contexts, the Supreme Court has supplemented the flexible Penn Central factors with more rigid rules, such as when the state authorizes the permanent physical occupation of property or when it regulates property to such an extent that it leaves the owner with no economically viable use of the property. But those rules are both (correctly) exceptional and narrow. As frustrating as Penn Central’s indeterminate factors are to some commentators, they appropriately leave courts with broad discretion about when to require compensation to burdened owners and do a good job of guiding this fairness-based inquiry. The question of when to require compensation for onerous regulation is an area where rules are no substitute for sound judgment.
Another takings context in which the Court has deviated from the Penn Central approach concerns so-called “exactions,” where a government conditions regulatory approval on the owner’s handing over some property (either money or some in-kind property interest) to the government. The idea of property owners paying for regulatory permission strikes some as closely resembling corruption or extortion. In a series of cases, the Supreme Court has held that, when the government conditions regulatory approval on the owner’s handing over of property interests, courts must scrutinize the exactions to ensure (1) that they share a logical connection (“nexus”) with the reasons why the state might legitimately deny regulatory permission in the first place, and (2) that they are roughly proportional to the impacts of the action for which the owner is seeking regulatory permission.
Although exactions do provide an opportunity for government abuse of property owners, they can also serve as a valuable tool for increasing flexibility in regulatory structures while ensuring that owners’ use of their property does not impose costs on the community. In scrutinizing exactions, courts should focus on those situations in which the burdens of exactions have the greatest potential to fall unevenly on regulated owners. Consequently, courts should defer to the government where exactions operate in a transparent and general way, akin to taxation. For example, exactions that call for the payment of money according to a formulaic schedule laid out in advance should receive deferential review in court.Eduardo M. Peñalver Allan R. Tessler Dean and Professor of Law, Cornell Law School