American Culture

American vs. unAmerican values, according to the Fifth Amendment of the Constitution

Torture and extrajudicial killings of citizens by the US government run counter to the Fifth Amendment, and are thus unAmerican.

The Bill of Rights

For other articles on unAmerican values, click here

Without the Declaration of Independence and the Constitution of the United States of America, the United States of America would not exist. As such, the values laid out in these two documents are, by definition, American values. And any values held in opposition to the values in these documents are, again by definition, unAmerican.

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; 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.

The Grand Jury clause is not usually challenged by those who would reject it, but there are a few aspects of it that certainly appear to be unAmerican. For example, no Grand Jury is required for crimes committed by members of the military in a time of war. But what about a “citizens militia” like those who patrol the Mexican border or who support Nazis and white supremacists? One could argue that crimes committed by them when they are acting as a militia also don’t need to be handled via a Grand Jury. But that would neuter this clause of the Fifth Amendment, and so it would be unAmerican.

Combatants engaged on either side of the so-called “war on terror” should get grand jury protections. After all, it was never formerly declared and so there isn’t an actual war, there can’t be a war on an emotion (terror) in any meaningful sense of the word, and there’s no way to end this so-called war. So the extra-judicial killing of American citizens by the US military should be opposed by the Fifth Amendment, rendering such killings criminal and unAmerican.

At the moment, the double jeopardy clause of the Fifth Amendment does not apply to civil courts, since the clause only applies to “life and limb,” not to financial penalties in civil courts. And the Supreme Court has ruled that dual sovereignty (federal vs. state) means that a defendant can be tried twice for the same crime, once at the state level and again at the federal level. While it is my opinion that this still qualifies as double jeopardy and breaks the spirit of the Fifth Amendment, the Supreme Court has ruled otherwise, and as such it is considered an American value.

The Fifth Amendment protects against someone being forced to implicate themselves. This is most commonly used by people who “take the Fifth” and who refuse to answer questions. But it’s also why confessions can be thrown out of court and why prosecuting attorneys need to have sufficient evidence to convict someone without a confession – the defendant is always allowed to recant their confession. And the Fifth Amendment is another reason that torture is unAmerican (besides the Declaration of Independence invoking inalienable human rights) – it’s considered compelling someone to be a witness against themselves.

With respect to the due process clause of the Fifth Amendment, both criminal and civil courts qualify as “due process.” But so does access to a competent lawyer, not being killed in an extrajudicial manner by agents of the US government, and applying new penalties to criminals after they’ve been released from prison. Cutting funding for public defenders is thus unAmerican (unless some other method to ensure the right to a lawyer is provided). And I suspect that a criminal who is released only to find that new laws restrict their liberties in ways that were not in place when they were sentenced could successfully challenge such restrictions on Fifth Amendment grounds.

Finally, taking of private property for public use, aka eminent domain, is acceptable so long as individuals are paid a fair amount for their property. Unfortunately, the Supreme Court has ruled that eminent domain can be used to condemn low-value properties in order to convert them to high-value (and tax-generating) properties, which remains to this day one of the worst Supreme Court decisions I’ve ever read. At least the Supreme Court also pointed out that, while using eminent domain in this way was constitutional, it wasn’t a good idea.

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