The Five Shields: A Narrative History of the Fifth Amendment and the People Who Shaped It

Introduction: The Bulwark Against the State

The Fifth Amendment to the United States Constitution is not a mere collection of legal procedures; it is a bulwark against the arbitrary power of the state, forged in the crucible of English history and colonial experience.¹

Its five distinct clauses stand as shields for the individual, born from a deep-seated distrust of the inquisitorial practices exemplified by the infamous English Star Chamber and High Commission, where individuals were forced into the “cruel trilemma” of self-accusation, perjury, or contempt.³

The amendment guarantees the right to a grand jury indictment for serious crimes, protection from double jeopardy, the right against self-incrimination, the right to due process of law, and the right to just compensation for property taken for public use.⁵

Together, these protections form a coherent principle: the government, when it seeks to deprive a person of life, liberty, or property, must itself operate within the bounds of the law.¹

The story of the Fifth Amendment is not one of abstract legal theory.

It is a narrative woven from the lives of ordinary and extraordinary people whose circumstances forced the American judiciary to confront the practical, often messy, meaning of constitutional liberty.

From a California man caught in a fatal love triangle to a Phoenix drifter whose interrogation transformed police procedure, and from a nurse fighting for her “little pink house” to couples seeking the right to marry, their stories are the crucibles in which these foundational principles have been tested, defined, and redefined.

This report will tell those stories, tracing the evolution of the Fifth Amendment from a set of 18th-century ideals into the complex and contested body of law that shapes the relationship between the American citizen and the state today.

Chapter I: The Grand Jury — The People’s Shield and the Prosecutor’s Sword

From the Magna Carta to the Bill of Rights: The Grand Jury as a “Shield”

The grand jury is an institution with a pedigree stretching back nearly a millennium, a direct descendant of early Anglo-Saxon custom and English common law.¹

Its formal origins are often traced to the Assize of Clarendon in 1166, an edict from King Henry II that established a body of local citizens to identify and accuse suspected criminals.¹⁰

This body evolved and was later enshrined as a core protection in the Magna Carta of 1215, which was designed to shield subjects from arbitrary prosecution by the Crown.¹

Over centuries, the grand jury solidified its reputation as an independent check on sovereign power, most famously in 1681 when an English grand jury refused to indict enemies of King Charles II.⁹

American colonists carried this tradition across the Atlantic, where it was not merely preserved but sharpened into a populist tool against royal authority.²

The first colonial grand jury was impaneled in Massachusetts in 1635, and the institution quickly became a vital check on the power of colonial governors.¹²

Grand juries refused to indict leaders of the Stamp Act protests and, in a celebrated 1735 case, repeatedly refused to indict publisher John Peter Zenger for seditious libel against the royal governor of New York.⁹

This experience cemented the grand jury in the minds of the Founders as an essential barrier against overzealous prosecution, leading to its inclusion in the Fifth Amendment.²

The institution was conceived through a powerful dual metaphor: it was to be both a “sword,” empowering citizens to investigate and root out crime, and a “shield,” protecting the innocent from unfounded and malicious government accusations.¹⁵

Composed of laymen operating in secret, its sole constitutional function was to hear the prosecutor’s evidence and decide if probable cause existed to bring formal charges and proceed to trial.⁷

The Story of Joseph Hurtado and the Limits of Federalism

In 1882, the purpose of this constitutional shield was put to a critical test in a case born of passion and violence.

Joseph Hurtado was involved in an affair with the wife of his friend, Jose Antonio Estuardo.

After a series of confrontations, Hurtado fatally shot Estuardo in Sacramento, California.²¹

The state of California, under its 1879 constitution, prosecuted Hurtado not through a grand jury indictment but via a prosecutor’s “information”—a formal accusation filed directly by the district attorney after a magistrate’s examination.²¹

Hurtado was convicted of murder and sentenced to death.²³

His appeal to the U.S. Supreme Court in Hurtado v.

California (1884) presented a fundamental question of American federalism: Does the Fourteenth Amendment’s command that no state shall “deprive any person of life, liberty, or property, without due process of law” mean that states must abide by the Fifth Amendment’s Grand Jury Clause?.²²

In a 7-1 decision, the Court ruled against Hurtado.

Writing for the majority, Justice Stanley Matthews employed a structural argument: since the Fifth Amendment itself contains both a Grand Jury Clause and a Due Process Clause, the latter could not be interpreted to include the former.

To do so, he reasoned, would make the Grand Jury Clause redundant or “superfluous”.²²

The Court concluded that due process required “fundamental principles of liberty and justice,” but not necessarily the specific mechanism of a grand jury indictment that the federal government was bound to use.⁶

The lone dissenter, Justice John M.

Harlan, issued a powerful rebuke, arguing for the full application of the Bill of Rights to the states.²²

While Harlan’s view on incorporation would eventually prevail for nearly every other procedural right, the

Hurtado decision carved out a lasting exception for the grand jury.

This historical accident, a product of the Court’s pre-incorporation era jurisprudence, has created a durable two-tiered system of justice.

A person accused of a serious federal crime today has a constitutional right to have their case reviewed by a grand jury, while a person accused of the same crime in state court does not.⁶

This result reveals a deep and persistent tension in American law between the promise of uniform constitutional rights and the principles of state-by-state federalism.

The Modern Grand Jury: The Prosecutor’s “Ham Sandwich”

In the century following Hurtado, the perception of the grand jury has shifted dramatically.

The historical “shield” against the state has, in the view of many critics, been reforged into a powerful weapon for the state.

Because the prosecutor controls the proceedings—presenting evidence, examining witnesses, and operating without a judge or defense attorney present—the grand jury’s independence is seen as severely compromised.⁷

This dynamic led Sol Wachtler, then Chief Judge of the New York Court of Appeals, to make a now-famous remark in a 1985 interview.

He argued that prosecutors wield so much influence that they could persuade a grand jury to “indict a ham sandwich”.²⁸

The phrase, immortalized in Tom Wolfe’s 1987 novel The Bonfire of the Vanities, perfectly captured a growing public skepticism about the institution’s fairness and became a shorthand for the critique that grand juries have become little more than a rubber stamp for the prosecution.²⁹

This perception stems from the inversion of the grand jury’s historical role.

Originally conceived primarily as a shield for the citizen, its modern function is now dominated by its investigative “sword,” a power wielded almost exclusively by the prosecutor.⁷

Yet, the “rubber stamp” narrative is not the complete story.

A personal account from one former Manhattan grand juror reveals a more complex reality.¹⁵

While acknowledging the “ham sandwich” reputation and the fact that their panel “indicted almost everyone,” the juror pushes back against the idea that they were passive.

Jurors spent hours debating cases, asking pointed questions of witnesses, and grappling with issues of race, mental illness, and drug addiction.

The juror describes feeling frustrated by the low standard of proof—”reasonable cause to believe”—and the immense consequences of an indictment, such as pretrial detention at Rikers Island, job loss, and media attention.¹⁵

This ground-level perspective suggests that even if the deck is stacked in the prosecutor’s favor, the grand jury room can still be a place of genuine, if often fraught, civic deliberation.

Chapter II: Double Jeopardy — One Trial, One Judgment

The Principle of Finality: “Life or Limb”

The Double Jeopardy Clause—”nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”—is animated by a straightforward and deeply ingrained principle: the state, with its immense power and resources, should not be allowed to make repeated attempts to convict an individual for the same alleged crime.²⁰

This protection, rooted in English common law, is designed to provide finality to legal proceedings and shield individuals from the “embarrassment, expense and ordeal” of multiple trials.³³

The constitutional protection begins, or “attaches,” at a specific moment in the legal process: in a jury trial, it is when the jury is empaneled and sworn in.²⁰

Once jeopardy has attached, the state’s ability to retry a defendant is sharply limited.

While a retrial may be permitted after a mistrial declared for a “manifest necessity,” such as a deadlocked jury, the most absolute protection afforded by the clause is the finality of an acquittal.¹³

A verdict of not guilty is a conclusive bar to any future prosecution for the same offense, regardless of whether new evidence of guilt later emerges or the acquittal was the result of a legal error.⁷

The Supreme Court powerfully reaffirmed this principle in

McElrath v.

Georgia (2024), holding that a jury’s verdict of “not guilty by reason of insanity” is an acquittal for double jeopardy purposes and cannot be revisited, even if it appears logically inconsistent with a guilty verdict on another charge.³⁵

The Story of Travis Soto: A Confession and a Constitutional Conundrum

The tension between the principle of finality and the pursuit of truth was starkly illustrated in the tragic case of Travis Soto.

In 2006, Soto’s two-year-old son, Julio, died.

Soto told authorities it was a tragic ATV accident.³⁷

He was charged with involuntary manslaughter and child endangerment.

In a plea agreement, Soto pleaded guilty to the lesser charge of child endangerment, and in exchange, the state dismissed the involuntary manslaughter charge.

He served a five-year prison sentence.³⁹

Ten years after the incident, in 2016, Soto walked into the Putnam County Sheriff’s Office and confessed.

He admitted that he had beaten his son to death and had staged the ATV accident to cover up the murder.³⁷

The state subsequently indicted him for aggravated murder.

Soto’s defense was double jeopardy.

He argued that since involuntary manslaughter is a lesser-included offense of murder, and he had already been placed in jeopardy for that crime in 2006, the state was constitutionally barred from trying him again for the same offense.³⁷

The case presented a novel legal question: does jeopardy attach to a charge that is dismissed as part of a plea agreement?.³⁹

The courts ultimately ruled against Soto.

The legal reasoning hinged on the technical definition of “attachment.” Because the trial court in 2006 never had the power to determine Soto’s guilt or innocence on the manslaughter charge—it was simply dismissed as a condition of the plea—jeopardy for that specific offense had never formally attached.³⁹

The court had only accepted his guilty plea for the separate crime of child endangerment.

This narrow, procedural interpretation allowed the state to proceed with the murder prosecution, demonstrating how the judiciary may interpret constitutional rules to avoid a result—shielding a confessed murderer from accountability—that would shock the public conscience and undermine the truth-seeking function of the justice system.

The “Same Offense” and the “Dual Sovereignty” Doctrine

Determining whether two crimes are the “same offense” is central to double jeopardy jurisprudence.

The governing standard is the Blockburger test, established in Blockburger v.

United States (1932), which asks “whether each provision requires proof of an additional fact which the other does not”.⁴²

For example, in

Brown v.

Ohio (1977), the Court held that joyriding and auto theft were the same offense because joyriding (taking a car without the owner’s consent) did not require proof of any fact not also required to prove auto theft (taking a car with the intent to permanently deprive the owner).⁴²

A far more controversial exception to the double jeopardy protection is the “dual sovereignty” doctrine.

This doctrine holds that a single act may violate the laws of two separate sovereigns—such as the federal government and a state government—and therefore, prosecution by both is permissible.²⁰

The Supreme Court first sustained this principle in

United States v.

Lanza (1922), reasoning that each government is “exercising its own sovereignty, not that of the other”.⁴⁴

This doctrine creates a significant anomaly within Fifth Amendment law.

In Benton v.

Maryland (1969), the Supreme Court declared that the protection against double jeopardy was a “fundamental ideal in our constitutional heritage” and, through the Fourteenth Amendment, made it applicable to the states.⁴⁴

This act of incorporation was part of a broader trend to ensure a uniform standard of rights for all Americans.

Yet, the dual sovereignty doctrine persists, reaffirmed as recently as 2019 in

Gamble v.

United States.⁴⁴

The justification rests on a formalistic view of federalism: two sovereigns mean two laws, and therefore two distinct “offences”.⁴⁴

This legal logic, however, directly conflicts with the foundational purpose of the clause.

It allows a citizen to be acquitted in state court and then face the full might of the federal government for the exact same conduct, giving the government the very “second bite at the apple” that the Fifth Amendment was designed to prevent.

Chapter III: The Right to Remain Silent — Forging a Right in the Interrogation Room

From the “Cruel Trilemma” to the Fifth Amendment

The privilege against self-incrimination is perhaps the most widely recognized aspect of the Fifth Amendment, yet its roots lie in a profound historical struggle against inquisitorial justice.³

The principle emerged in England as a reaction against the practices of the Star Chamber and the High Commission, which utilized the

oath ex officio to compel testimony.³

This oath forced individuals into what has been termed the “cruel trilemma”: confess to a crime (self-accusation), lie under oath (perjury), or refuse to answer and be held in contempt of court.⁴

The Latin maxim

nemo tenetur seipsum accusare—”no man is bound to accuse himself”—became the rallying cry against this system.³

This hard-won principle was enshrined in the Fifth Amendment, reflecting the framers’ conviction that in an accusatorial system of justice, the government must shoulder the entire burden of proving guilt without compelling the accused to contribute to their own conviction.⁴⁹

The privilege is broad in scope, applying not only in a criminal trial but in any official proceeding, civil or criminal, where a person’s compelled testimony might furnish a “link in the chain of evidence” needed for a future prosecution.⁴⁹

The Story of Ernesto Miranda: The Confession in Phoenix

For most of American history, this privilege was primarily a courtroom right.

Its transformation into a rule governing police procedure began with the case of Ernesto Miranda.

Miranda was a man living on the margins of society in Phoenix, Arizona; with only an eighth-grade education, a history of mental instability, and a lengthy criminal record, he was uniquely vulnerable in his interactions with authority.⁵³

In March 1963, he was arrested for the kidnapping and rape of an 18-year-old woman.⁵⁶

At the police station, Miranda was placed in an interrogation room and questioned by two officers for two hours.

He was never told he had a right to remain silent or a right to a lawyer.⁵⁶

At the end of the interrogation, he signed a written confession.

The confession form included a typed clause stating that the confession was made voluntarily and “with full knowledge of my legal rights,” a statement that was patently false.⁵⁶

At trial, his court-appointed lawyer objected to the admission of the confession, but the objection was overruled.

Miranda was convicted and sentenced to 20-30 years in prison.

The Arizona Supreme Court affirmed the conviction, noting that Miranda had never specifically requested counsel.⁵⁶

Miranda v. Arizona (1966): The Warren Court’s Revolution

In a landmark 5-4 decision, the U.S. Supreme Court overturned Miranda’s conviction.

Chief Justice Earl Warren, writing for the majority, fundamentally reshaped American criminal procedure.

The Court’s opinion recognized that the environment of modern in-custody police interrogation, where a suspect is cut off from the outside world, is “inherently compelling”.⁵⁸

This psychological pressure, the Court reasoned, works to “undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely,” thus triggering the Fifth Amendment’s protection against self-incrimination.⁵⁸

To combat these inherent pressures, the Court established a set of “procedural safeguards.” These judicially created rules, now known as the Miranda warnings, are not rights found in the Constitution itself but are “prophylactic” measures designed to protect the core constitutional right.

This distinction is critical; it explains how the Court could create a new police procedure without amending the Constitution and why exceptions to the rule are possible.

The Court mandated that before any questioning, a suspect in custody must be warned of four things:

1. They have the right to remain silent.⁶¹
2. Anything they say can and will be used against them in a court of law.⁶²
3. They have the right to the presence of an attorney.¹³
4. If they cannot afford an attorney, one will be appointed for them prior to any questioning.¹³

The decision was met with fierce dissent, with critics arguing that the Court was “handcuffing” the police and creating an unnecessary obstacle to effective law enforcement.⁶⁰

The story of Ernesto Miranda himself ended in tragic irony.

His conviction was reversed, but he was retried using other evidence and convicted again.

After being paroled, he was stabbed to death in a Phoenix bar fight in 1976.

The man arrested for his murder was read the now-famous rights that bear Miranda’s name.⁵⁹

Life After Miranda: Refinements and Modern Challenges

In the decades since Miranda, the Court has refined and, in some cases, narrowed its application.

In New York v.

Quarles (1984), the Court created a “public safety” exception, holding that police can question a suspect without warnings if there is an immediate need to neutralize a danger, such as locating a discarded weapon.⁶¹

More significantly, in

Salinas v.

Texas (2013), the Court addressed a suspect’s silence before an arrest.

It ruled that if a person is not in custody and has not been read their Miranda rights, their silence in response to a police question can be used as evidence of guilt unless they explicitly invoke their Fifth Amendment privilege.⁶

The most pressing modern challenge to the Self-Incrimination Clause comes from the digital age, specifically the issue of compelled decryption of electronic devices.⁶⁷

This issue forces courts to grapple with the fundamental distinction between testimonial and physical evidence.

The Fifth Amendment protects against compelled “testimonial” communication—revealing the contents of one’s mind—but not against the production of “physical” evidence like fingerprints or blood samples.⁵⁰

A smartphone passcode is clearly testimonial, like the combination to a safe.⁷⁰

But what about a fingerprint or a face scan? These biometric markers, historically considered physical evidence, now function as keys to unlock vast digital worlds containing our most private information.⁷²

This has created a deep split among lower courts.⁷⁴

Some have ruled that compelling a person to use their fingerprint to unlock a phone is non-testimonial, akin to providing a key.⁷³

Others have found the act to be testimonial because it implicitly communicates control and possession of the device and its contents.⁷²

This collision between 18th-century legal principles and 21st-century technology is forcing a fundamental re-evaluation of what it means to be a “witness against himself” when our entire lives are stored behind a digital lock.

Chapter IV: Due Process of Law — The Contested Meaning of Liberty

The Fifth Amendment’s declaration that no person shall “be deprived of life, liberty, or property, without due process of law” is one of the most powerful and consequential phrases in the Constitution.⁷⁷

From these few words, the Supreme Court has developed two distinct and profoundly influential legal doctrines: Procedural Due Process, which requires the government to follow fair procedures, and Substantive Due Process, which protects certain fundamental rights from government interference altogether.⁶

Part A: The Rules of the Game (Procedural Due Process)

The Story of John Kelly: Are Welfare Benefits “Property”?

For much of American history, due process protections applied only to “rights,” not to government “privileges” like licenses or benefits.⁸¹

This understanding was shattered by the case of John Kelly and 19 other New York City residents.

They were recipients of Aid to Families with Dependent Children, a federal welfare program, whose benefits were terminated by the city without any opportunity for a hearing beforehand.⁸¹

They were offered only a post-termination review.

In its landmark 1970 decision in Goldberg v.

Kelly, the Supreme Court fundamentally altered the relationship between the citizen and the modern administrative state.

Writing for a 5-4 majority, Justice William Brennan declared that the old right-privilege distinction was obsolete in an era where millions of Americans depend on government entitlements for their very survival.⁸¹

The Court held that statutory entitlements like welfare benefits are a form of “new property” for those qualified to receive them.⁸²

Because these benefits were now considered “property,” the Due Process Clause required that recipients be given a full evidentiary hearing

before their benefits could be terminated.⁸⁴

This decision constitutionalized a vast area of administrative law, requiring a baseline of fairness where the government had previously acted with unchecked discretion.

The Story of George Eldridge: Crafting a Balancing Test

The expansive procedural requirements mandated by Goldberg were soon refined.

The case of George Eldridge, whose Social Security disability benefits were terminated based on a medical questionnaire without a prior hearing, prompted the Court to create a more flexible framework.⁸⁷

In

Mathews v.

Eldridge (1976), the Court distinguished disability benefits from welfare, noting that eligibility for the former is not based on financial need.⁸⁹

The Court concluded that a full pre-termination hearing was not necessary and, in doing so, established an influential three-factor balancing test to determine what process is constitutionally “due” in any given situation.⁷⁸

This test requires courts to weigh:

1. The private interest that will be affected by the official action.
2. The risk of an erroneous deprivation of that interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.
3. The Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.⁷⁸

The Mathews test remains the dominant framework for analyzing procedural due process claims, providing a flexible, case-by-case approach rather than a rigid set of rules.

Part B: The Unwritten Rights (Substantive Due Process)

Substantive Due Process is one of the most controversial doctrines in constitutional law.

It rests on the idea that the “liberty” protected by the Due Process Clause is not just about fair procedures, but also includes certain fundamental rights that the government cannot infringe upon, regardless of the process it follows.⁷⁹

The history of this doctrine is the story of the Supreme Court’s most profound and politically charged debates over the nature of freedom and the role of the judiciary.

The Rise and Fall of Economic Liberty: The Story of Joseph Lochner

The doctrine first rose to prominence in the defense of economic rights.

In 1905, Joseph Lochner, a bakery owner in Utica, New York, was fined for violating the state’s Bakeshop Act, which limited bakers’ work hours to 10 per day and 60 per week.⁹⁶

In

Lochner v.

New York, the Supreme Court, in a 5-4 decision, struck down the law.⁹⁸

The majority held that the law interfered with the “freedom of contract,” which it deemed a fundamental liberty protected by the Due Process Clause.⁹⁸

This decision inaugurated the “Lochner era,” a period lasting until the 1930s during which the Court frequently invalidated state and federal economic regulations, such as minimum wage laws and workplace safety rules, as unconstitutional infringements on economic liberty.⁹⁴

This aggressive use of substantive due process was eventually repudiated, and the Court now gives great deference to legislative judgments in the economic sphere.¹⁰⁰

The Birth of Privacy: The Story of Estelle Griswold’s Clinic

After the demise of economic substantive due process, the doctrine was reborn to protect personal, non-economic liberties.

The pivotal case was Griswold v.

Connecticut (1965).

Estelle Griswold, the head of Planned Parenthood in Connecticut, and Dr. C.

Lee Buxton opened a birth control clinic in New Haven in open defiance of a state law that criminalized the use of contraceptives, even by married couples.¹⁰³

The Supreme Court struck down the law, but the majority opinion, written by Justice William O.

Douglas, famously avoided relying directly on substantive due process, which was still tainted by the Lochner era.¹⁰³

Instead, Justice Douglas found a right to marital privacy located in the “penumbras, formed by emanations” from several guarantees in the Bill of Rights, including the First, Third, Fourth, and Fifth Amendments.¹⁰³

While the legal reasoning was novel, the result was clear: the Constitution protects a “zone of privacy” into which the government cannot intrude.¹⁰³

From Privacy to Autonomy: The Stories of “Jane Roe” and James Obergefell

The right to privacy articulated in Griswold became the foundation for some of the most significant and contentious Supreme Court decisions of the 20th and 21st centuries.

In Roe v.

Wade (1973), the Court extended this right to encompass a woman’s decision to have an abortion.¹¹⁰

The case was brought by Norma McCorvey (under the pseudonym “Jane Roe”), who challenged a Texas law that banned abortion except to save the mother’s life.¹¹¹

The Court held that the right to privacy was broad enough to protect this deeply personal choice, establishing a trimester framework to balance the woman’s liberty against the state’s interests in maternal health and potential life.¹¹⁰

For nearly 50 years,

Roe was the law of the land, until it was overturned in 2022 by Dobbs v.

Jackson Women’s Health Organization, a decision that reignited the debate over substantive due process and the Court’s role in defining unenumerated rights.¹⁰⁰

Decades later, the principles of liberty and autonomy at the heart of the privacy cases provided the foundation for the right to same-sex marriage.

The case of Obergefell v.

Hodges (2015) was brought by plaintiffs including James Obergefell, who sued the state of Ohio to be listed as the surviving spouse on his late husband’s death certificate.¹¹⁴

In a 5-4 decision, the Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.¹¹⁴

Justice Anthony Kennedy’s majority opinion grounded the right not just in privacy, but in the broader concepts of individual autonomy, intimate association, and the safeguarding of families.¹¹⁴

The long and winding path of substantive due process, from protecting economic contracts to personal autonomy, highlights its role as the primary, and most contested, vehicle through which the Supreme Court defines the unwritten liberties of Americans.

Landmark Case	Right/Liberty Interest at Stake	Court’s Justification (Constitutional Basis)	Significance & Current Status
Dred Scott v. Sandford (1857)	Right of a slave owner to property in a slave.	Fifth Amendment Due Process Clause (Substantive).94	Infamous decision; overturned by 13th and 14th Amendments.
Lochner v. New York (1905)	Freedom of contract (economic liberty).96	Fourteenth Amendment Due Process Clause (Substantive).97	Established the “Lochner era” of economic substantive due process; now discredited and overruled.94
Griswold v. Connecticut (1965)	Right of married couples to use contraception.103	“Penumbras” of the Bill of Rights (1st, 3rd, 4th, 5th, 9th) creating a “zone of privacy”.103	Established a constitutional right to privacy.
Roe v. Wade (1973)	Right to an abortion pre-viability.110	Fourteenth Amendment Due Process Clause (Right to Privacy).110	Extended the right to privacy to abortion; highly controversial; overturned by Dobbs (2022).100
Obergefell v. Hodges (2015)	Right to same-sex marriage.114	Fourteenth Amendment Due Process and Equal Protection Clauses (Fundamental Right to Marry).116	Affirmed marriage as a fundamental right for all couples; remains current law.

Chapter V: The Takings Clause — A Home Is More Than Property

“Public Use” and “Just Compensation”: The Basics of Eminent Domain

The final shield of the Fifth Amendment is the Takings Clause, which states: “…nor shall private property be taken for public use, without just compensation”.¹¹⁹

This clause implicitly recognizes the government’s inherent power of eminent domain—the authority to take private property.¹¹⁹

However, it places two crucial limits on that power: the taking must be for a “public use,” and the government must pay “just compensation,” which is generally understood as the property’s fair market value.¹

For much of American history, “public use” was understood literally, meaning the property had to be used by the public, such as for a road, school, or park.¹²²

However, in the 20th century, the Supreme Court began to broaden this interpretation.

In cases like

Berman v.

Parker (1954), which involved an urban renewal plan in a blighted area of Washington, d+.C., the Court expanded “public use” to mean the more flexible concept of “public purpose”.¹²²

This shift established a policy of significant deference to the judgments of legislative bodies about what kinds of projects serve the public good.¹²²

The Story of Susette Kelo and Her Little Pink House

This deferential standard was put to its most dramatic test in the early 2000s in the small city of New London, Connecticut.

The story centers on Susette Kelo, a nurse who had finally realized her dream of owning a waterfront home, a small pink cottage she lovingly restored.¹²⁶

Her neighbors in the Fort Trumbull neighborhood included families who had lived there for generations.¹²⁷

In 1998, the pharmaceutical company Pfizer announced it would build a major research facility adjacent to Fort Trumbull.

Seeing an opportunity for revitalization, the city approved an ambitious development plan.

It designated the working-class neighborhood not as blighted, but as “distressed,” and handed its eminent domain power to a private entity, the New London Development Corporation (NLDC).¹²⁷

The NLDC’s plan was to condemn and bulldoze the homes to make way for a new private development featuring office space, upscale housing, and a hotel that would complement the Pfizer facility and, the city hoped, generate new jobs and tax revenue.¹²⁵

The homeowners, led by Kelo and represented by the Institute for Justice, sued, arguing that taking their homes simply to give the land to another private party for the purpose of economic development was not a “public use” under the Fifth Amendment.¹²⁵

Kelo v. City of New London (2005): A Decision and a Firestorm

In a deeply divisive 5-4 decision, the Supreme Court sided with the city.

Justice John Paul Stevens, writing for the majority, held that the city’s economic development plan served a legitimate “public purpose” and therefore satisfied the “public use” requirement.¹²⁵

The Court reaffirmed its tradition of deferring to the judgments of elected officials on such matters.¹²²

The decision was met with a scathing dissent from Justice Sandra Day O’Connor.

She warned that the majority had abandoned any meaningful limit on the takings power.

“Under the banner of ‘economic development,'” she wrote, “all private property is now vulnerable to being taken and transferred to another private owner….

The specter of condemnation hangs over all property.

Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory”.¹²⁷

Justice O’Connor’s warning resonated with the American public, sparking an unprecedented political and social firestorm.¹²⁴

The

Kelo decision became a rare instance of a Supreme Court ruling entering the popular consciousness and provoking widespread, bipartisan outrage.

This backlash was not merely rhetorical; it became a powerful example of constitutional dialogue between the judiciary and the people.

In the years following the decision, an astonishing 47 states passed new laws or constitutional amendments to restrict the use of eminent domain for economic development, effectively rejecting the Court’s permissive standard.¹³

The ultimate irony unfolded in New London itself: the promised development never materialized.

Pfizer closed its facility and left town, and for nearly two decades, the land where Susette Kelo’s little pink house once stood remained a barren, empty lot.¹²⁷

Regulatory Takings: When a Law Goes “Too Far”

The Takings Clause also applies when the government does not physically seize property but enacts a regulation that so severely restricts its use that it destroys its economic value.¹²¹

This concept of a “regulatory taking” is defined by an inherent tension between two competing judicial approaches.

The first approach is a flexible, case-by-case balancing test established in Penn Central Transportation Co. v.

New York City (1978).

In that case, the owners of Grand Central Terminal were prevented from building a 50-story office tower above the historic station because of its landmark designation.¹³¹

The Court held this was not a taking, creating a three-factor test that considers the regulation’s economic impact on the owner, its interference with “distinct investment-backed expectations,” and the character of the government action.¹²¹

The second approach is a rigid, categorical rule established in Lucas v.

South Carolina Coastal Council (1992).

David Lucas purchased two beachfront lots with the intent to build homes, but a new state environmental law subsequently barred any construction.¹³⁴

The Supreme Court ruled that when a regulation deprives a property of

all economically beneficial use, it is a “categorical” taking that requires compensation, unless the prohibited use was already considered a nuisance under state property law.¹²¹

This creates a doctrinal cliff: a regulation that destroys 95% of a property’s value is likely upheld under the flexible

Penn Central test, while one that destroys 100% is a per se taking under Lucas.

This unresolved tension reflects the Court’s ongoing struggle to draw a clear line between legitimate public regulation and a compensable government taking.

Conclusion: A Living Amendment

The journey through the Fifth Amendment’s five clauses, guided by the stories of individuals who found themselves at the center of constitutional storms, reveals a document that is far from a static relic.

From Joseph Hurtado’s challenge to state power to Susette Kelo’s defense of her home, these narratives demonstrate that the amendment’s protections are continuously contested, shaped, and redefined.

Several enduring tensions emerge from this history.

There is the fundamental conflict between the rights of the individual and the power of the state, a balance the courts are perpetually recalibrating.

There is the friction between federal and state authority, which has created anomalies like the unincorporated Grand Jury Clause and the dual sovereignty exception to double jeopardy.

Most profoundly, there is the challenge of applying an 18th-century text to the realities of the 21st century—a challenge manifest in the struggles to define due process in the modern administrative state and to apply the privilege against self-incrimination to the encrypted contents of a smartphone.

The stories of Miranda, Kelly, Griswold, and Obergefell show the judiciary’s capacity to interpret broad principles like “liberty” to protect fundamental aspects of human autonomy from majority will, a power that remains the subject of intense debate.

The Fifth Amendment is, in essence, a living charter of ordered liberty.

The struggles of the people who have invoked its shields—against the prosecutor, against the police interrogator, against the administrative agency, and against the bulldozer—are a testament to its vital and unending role in the American experiment.

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