The Bill of Rights was ratified in 1789, two-hundred-twenty-one years ago. The English language has changed in that time. If you interpret The Bill of Rights in terms of Standard American English circa 2010, you may in fact misinterpret it. Few people can now read late eighteenth-century English (most people even think the 1700s were the seventeenth century). I am among those few (having a Ph.D. in English Language and Literature with a specialty in Early Modern English language and literature).
“Much is being said these days about the Constitution and Bill of Rights. Most of what I’ve heard is nonsense.
The Fifth Amendment
- “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; . . . .”
Even interpreted as a statement in Standard American English, this could not be more clear. No one may be put on trial for murder (whether capital or first or second or third degree) unless a Grand Jury indicts that person. A U. S. prosecutor may not charge anyone with any form of murder (or, I will argue below, manslaughter) on his or her own, without a Grand Jury indictment. Yet state prosecutors do so all the time.
How is this possible? Only by a gross twisting of the words of the Fifth Amendment.
Let’s parse the first clause of the Fifth Amendment:
“No person”—Note that the amendment does not specify the age, gender, or citizenship status of the “person” whom the right protects. “No person” includes children tried as adults.
“. . . shall be”—This verb form is an imperative. It is a command. These days “shall be” is often used as a prissy, formal form of “will be,” that is, as a future-tense form. In the 18th century, “shall” was a command, as in “Thou shalt not.” Had the Fifth Amendment been written a hundred years earlier, it might well have been written, “Thou shalt not hold any person to answer . . . .”
“. . . held to answer”—Note that the amendment does not say “tried for” or “put on trial for.” “Held to answer” is a broader category of government actions than simply to be put on trial. In modern terms, “held to answer” includes being called before any government body by any means (physical force or subpoena, for example). So, no legislature and no Congress can require any person to stand in front of it and answer questions. The government (at all levels from local to federal) cannot force any person “to answer” questions about a “capital, or otherwise infamous crime. . . .”
“. . . for a capital, or otherwise infamous crime, . . . .”—Note that the authors of the Fifth Amendment understood that what is a capital crime in one jurisdiction may not be a capital crime in another jurisdiction, so they specified that all “otherwise infamous” crimes are covered by this amendment. In 1789 the different jurisdictions in question were the various States. As time proceeded, of course, the number of States increased, and new Congresses and administrations were created. Each of these can be viewed as new and different jurisdictions. Therefore, even with time and the addition of new territories, all “infamous crimes” must be investigated by a Grand Jury and “no person” may be tried for such crimes without a Grand Jury indictment. Even State legislatures may not change this. No State laws “shall be” enacted that permit a single prosecutor or a panel of judges to hold any person “to answer” for such crimes.
What is a “capital” or “infamous” crime? In the 18th century a capital crime was any crime for which an ultimate penalty is prescribed. (I plan to write an article on this topic.) However, the addition of “infamous” crimes to those covered by the amendment makes it clear that even crimes for which a lesser punishment is prescribed, no person may be tried without a Grand Jury indictment. To avoid the overburdening of Grand Juries with all crimes, including common crimes like burglary, the amendment stresses the notoriousness of the crimes covered (in other words, crimes of which the community was well aware and could be expected to be concerned about).
“. . . unless on a presentment or indictment. . . .” There is only one requirement or condition under which a person may be forced to appear before any form of tribunal, and that is “a presentment or indictment.” A “presentment” is an offer of evidence or fact. An “indictment” is a specific accusation.
“. . . of a Grand Jury,”—In the 18th century as today there were several types of juries: coroner’s juries, petit juries, and grand juries. The number of people comprising such juries varied, as it does today. The difference between a grand jury and a petit jury was not the number of people on the jury but rather the scope of the jury’s responsibilities. A petit jury heard a single case; a grand jury heard multiple cases over a fixed period of time. The grand jury’s scope is designed to prohibit a situation in which a single person or a single government body (at any level, local or federal) could target any person or persons unfairly. Then, as now, a grand jury could be convened to investigate a single “infamous crime,” but not to indict a specific person or persons.
“. . . 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; . . . .” This phrase opens a can of worms concerning the punishment of war crimes. It isn’t my intent to discuss this phrase, except to say that the phrase limits the rights embodied in this amendment to civilians and civil crimes.
So, the amendment’s language is not only clear, it is brilliant. The Fifth Amendment anticipates that individuals in government will always try to assert their personal powers against the people. It’s human nature. But the “rule of law, not of men” is ensured by the language of this amendment.
That’s why it is one of the ten most-fundamental rights of a free people. Time cannot change this. The “living document” of the Constitution cannot evolve away from this right. It isn’t a matter of State’s rights versus federalism. In fact, the language of the Bill of Rights makes it clear that the individual’s rights supersede State’s rights, which in turn supersede federal powers.
So what? Ask yourself how many people are now on Death Row without having been indicted by a Grand Jury. Ask yourself how many people are now in prison for life without having been indicted by a Grand Jury.
To be continued.