Module 19: The Fifth Amendment

How We Got Here: Five Guarantees, Five Histories

The Fifth Amendment is the longest of the first ten, 108 words, and it does not have one subject. It joins five protections that came from different centuries and different fights: a grand jury for serious crimes, a bar on being tried twice, a privilege against self-incrimination, due process, and just compensation for property taken by the government. Each had its own history, and the Framers collected them in a single sentence.¹

The grand jury

The Constitution Annotated traces the grand jury to Athens, pre-Norman England and the Assize of Clarendon under Henry II. In the colonies, the first mention it found is the New York Charter of Liberties of 1683: "That in all Cases Capital or Criminal there shall be a grand Inquest who shall first present the offence." Madison's draft of the Bill of Rights included the clause from the start, and the House recorded no debate and no opposition to it.² The Supreme Court has described the grand jury as a body "of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor," and its historic office as "a shield against arbitrary or oppressive action."²

Double jeopardy

Under Coke and Blackstone the English rule came to mean that a defendant could plead a former conviction or acquittal as a bar to a new prosecution. The first American bill of rights to state a double jeopardy rule was the New Hampshire Constitution of 1784: "No subject shall be liable to be tried, after an acquittal, for the same crime or offence." Pennsylvania's 1790 declaration used language almost identical to the Fifth Amendment's. Madison's own draft was wider: "No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense." Some House members objected that it could be read to bar a retrial after a defendant's successful appeal, which they thought would free the guilty and make appellate courts slower to reverse bad convictions, and the language barring a second trial was dropped.³

Self-incrimination

The source was a maxim, nemo tenetur seipsum accusare, "no man is bound to accuse himself." The Constitution Annotated describes two English systems of justice. In the accusatorial system, juries and the state proceeded by examining others. In the inquisitorial system, which developed in the church courts, an official could make a person swear the oath ex officio and answer all questions, without first learning the charge. Use of that oath in Star Chamber proceedings against political and religious dissenters, combined with opposition to the ecclesiastical oath, led over a long period to acceptance of the principle that a person could not be required to accuse himself under oath. After the Revolution six states put the privilege in their constitutions, and several ratifying conventions recommended it for a federal bill of rights. Madison's draft said "nor shall be compelled to be a witness against himself," and on August 17, 1789 the House inserted "in any criminal case."⁴

Due process

The phrase has a long lineage. In Magna Carta in 1215 King John promised that no free man would be deprived of life, liberty or property "except by the lawful judgment of his peers or by the law of the land." The words "due process of law" first appear in a 1354 statute restating those provisions, and Sir Edward Coke wrote that "by law of the land" meant the same thing. Coke's writings described both procedural and substantive aspects, and colonial charters and declarations of rights borrowed them.⁵

Takings

Justice Story grounded the just-compensation guarantee in "natural equity," "a principle of universal law" without which "almost all other rights would become utterly worthless." The Supreme Court later said the 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."⁶

The Text

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

U.S. Const. amend. V, as transcribed by the National Archives

Congress proposed it as "Article the seventh" in the set of twelve articles sent to the states on September 25, 1789, and it was ratified with nine others by December 15, 1791.¹

Who and what each clause covers

• Grand jury. "Capital, or otherwise infamous crime." It does not apply to lesser offenses, and it has a military exception.
• Double jeopardy. "Same offence" and "jeopardy of life or limb." The wording looks capital, but the Court reads it to cover prosecutions for any defined crime.
• Self-incrimination. "In any criminal case." The privilege is broader in practice than that phrase suggests, as the sections below explain.
• Due process. "Life, liberty, or property." The clause binds the federal government. The Fourteenth Amendment has its own due process clause for the states.
• Takings. "Private property," "public use," "just compensation." The Fourteenth Amendment makes the clause apply to the states, and the Idaho constitution has its own version.

Three of the five clauses were applied to the states by incorporation: double jeopardy in Benton v. Maryland, self-incrimination in Malloy v. Hogan, and just compensation through the Fourteenth Amendment's Due Process Clause. The grand jury clause was not, and no one has persuaded the Court otherwise since 1884.⁷⁸⁶⁹

The Grand Jury

A federal felony prosecution generally starts with an indictment, a written accusation voted by a grand jury of citizens who hear the prosecutor's evidence in secret. The jury decides only whether there is probable cause, and it does not decide guilt. Idaho's statute puts the same idea in a sentence: the grand jury "ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury."¹⁰

Two functions

The Constitution Annotated says grand juries return indictments, and also serve broader purposes, chiefly investigation: summoning witnesses, compelling testimony and gathering evidence. Operating in secret, under the direction but not control of a prosecutor, they may examine witnesses without counsel in the room. The exclusionary rule does not apply in grand jury proceedings, so a witness may be questioned on the basis of illegally seized evidence, which United States v. Calandra (1974) decided. But limits exist: a grand jury may not force a witness to answer questions that violate the Fifth Amendment, may not compel production of incriminating papers, and may not invade a legitimate Fourth Amendment privacy interest. In Hale v. Henkel (1906) the Court said a subpoena "far too sweeping in its terms to be regarded as reasonable" under the Fourth Amendment will be disallowed.¹¹

What a grand jury cannot be asked to check

In Costello v. United States (1956) the defendant argued that his indictment rested only on hearsay. The Court held that "an indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more."¹² In United States v. Williams (1992) the Court, five to four, held that courts have "no authority to prescribe" a duty for prosecutors to present substantial exculpatory evidence to the grand jury, because the grand jury sits as an independent body.¹³

Which crimes need an indictment

The clause reaches "capital, or otherwise infamous" crimes. The Constitution Annotated says whether a crime is infamous depends on the punishment it carries, and the question is what the court is authorized to impose, not what it did impose. Imprisonment in a penitentiary, or hard labor, makes a crime infamous. Conduct punishable by a fine of not more than $1,000 or imprisonment of not more than six months can be tried without an indictment.¹¹

The military exception

Members of the regular armed forces are subject to court-martial rather than grand jury indictment. The phrase "when in actual service in time of War or public danger" modifies only the militia, not the regular forces, according to Sayre (1895). Solorio v. United States (1987), over a three-Justice dissent, overruled O'Callahan v. Parker and held that service members may be tried by court-martial even for offenses not connected with service. Offenses against the laws of war may be tried by military commission.¹⁴

Not applied to the states

Hurtado v. California (March 3, 1884) upheld a state murder prosecution begun by an information after a magistrate's examination rather than a grand jury indictment. The Court reasoned that "it by no means follows, that nothing else can be due process of law" than the forms used in England, and the Fifth Amendment's grand jury clause has not been applied to the states since.⁹

Views on the institution

Defenders and critics both have a source. In Mandujano the plurality said that, "notwithstanding periodic criticism, much of which is superficial," the grand jury continues to work as a barrier to reckless or unfounded charges. The Constitution Annotated observes that despite the vast power of grand juries, there is little judicial or legislative response designed to supervise them. Supporters see a citizen check on prosecutors. Critics see a secret proceeding that prosecutors control. Both descriptions can be true of the same grand jury, and the Constitution itself leaves the details of procedure to statutes and rules.²¹¹

Double Jeopardy

What the clause covers

The text says "twice put in jeopardy of life or limb," which at common law referred to capital punishment. The Court now holds that it protects against a second prosecution after an indictment or information "charging a party with a known and defined crime or misdemeanor," and the Constitution Annotated adds that it generally has no application in noncriminal proceedings, though a sanction that is civil in form can count as punishment if it is applied that way, as in the juvenile case Breed v. Jones.¹⁵

Incorporation: Benton

In Palko v. Connecticut (1937) the Court held double jeopardy was not so fundamental that the states had to obey it. Benton v. Maryland (June 23, 1969) reversed that. A Maryland jury had acquitted a man of larceny and convicted him of burglary. Justice Marshall wrote that "the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage," and applied it to the states. Justices Harlan and Stewart dissented.¹⁶⁷

Same offence: Blockburger

What counts as the "same offence"? In Blockburger v. United States (1932) the Court gave the test still used when one act violates two statutes: "whether each provision requires proof of an additional fact which the other does not." If each statute does, they are two offenses, and Congress may punish both. If one statute's elements are contained within the other, they are the same offense.¹⁷

Issues already decided: Ashe

In Ashe v. Swenson (April 6, 1970) masked men had robbed six poker players. The defendant was tried for robbing one and acquitted, then tried for robbing another. The Court held that collateral estoppel, the rule "that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit," is part of the guarantee, and the second trial was barred. In Currier v. Virginia (2018) the Court held that when a defendant consents to severing charges for separate trials, a second trial on the severed charge does not violate the clause, and it described the Ashe test as a demanding one.¹⁸¹⁹

Two governments: Gamble

Under the dual-sovereignty doctrine a state and the federal government may each prosecute the same conduct. United States v. Lanza (1922) said each government "is exercising its own sovereignty, not that of the other." In Gamble v. United States (June 17, 2019) a seven-Justice majority declined to overrule the doctrine: "where there are two sovereigns, there are two laws, and two 'offences.'" The majority read "offence" in 1791 to mean a violation of a particular law, and each law is defined by a sovereign. Justices Ginsburg and Gorsuch dissented in separate opinions.¹⁶²⁰

The disagreement is textual and historical. The majority relied on the original meaning of "offence" and a line of cases reaching back to the 1840s. The dissenters, as the syllabus and the Constitution Annotated describe them, would have read the Clause to protect the person from successive prosecutions whoever the prosecutor is. Some states, Idaho among them, have added statutory protection, discussed below.²⁰²¹

The Privilege Against Self-Incrimination

Incorporated against the states

For decades the Court held the privilege did not bind the states. Malloy v. Hogan (June 15, 1964) reversed that, and declared that "the Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement."⁸

Testimony, not the body

The privilege protects against compelled communication. In Schmerber v. California (June 20, 1966) police had a doctor take a blood sample from a man arrested for drunk driving. The Court held that the privilege protects an accused "only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature," and that withdrawing blood did not involve compulsion of that kind.²²

In the grand jury room and beyond

The text says "in any criminal case," but the Court has long applied the privilege to any proceeding where an answer could be used in a criminal case. The Constitution Annotated notes that grand jury witnesses may invoke it, and that a grand jury may not compel a person to produce books and papers that would incriminate him.¹¹

Invoking it

The privilege must usually be claimed. In Salinas v. Texas (June 17, 2013), the Court, without a majority opinion, rejected a claim from a man who answered some questions in a voluntary police interview and fell silent on another, because he had not expressly invoked the privilege. Justice Alito's opinion was joined by two Justices; two more concurred in the judgment on a different ground; four dissented. This lesson read the syllabus and not the full opinions.²³

Miranda and Custodial Interrogation

The decision

Miranda v. Arizona (June 13, 1966) decided four cases together, all involving confessions from people questioned in police custody without being told of their rights. Chief Justice Warren wrote that "without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." The Court required warnings before questioning: the suspect "has the right to remain silent," anything he says "can be used against him in a court of law," he has the right to the presence of counsel, and if he cannot afford one, counsel will be appointed. "Custodial interrogation," the Court said, means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Four Justices dissented in the lead cases.²⁴

Constitutional rule or safeguard?

Congress tried to overrule Miranda in 1968 with 18 U.S.C. § 3501, which made voluntariness the test. In Dickerson v. United States (June 26, 2000) seven Justices held that "Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress." Two Justices dissented.²⁵

The status of the rule was tested again in Vega v. Tekoh (June 23, 2022), where the Court held, six to three, that a violation of the Miranda rules does not provide a basis for a claim under 42 U.S.C. § 1983. The majority described Miranda as imposing "prophylactic" rules that do not themselves necessarily mean a Fifth Amendment violation occurred. The dissent, by Justice Kagan, would have allowed the suit. A statement taken without warnings can still be excluded from the prosecution's case, but the officer is not liable for money damages for that reason alone.²⁶

Waiver and invocation

A suspect may waive the rights, and the prosecution bears a "heavy burden" to show a valid waiver. In Berghuis v. Thompkins (June 1, 2010) a divided Court held, five to four, that a suspect who sat largely silent through a 2 hour and 45 minute interrogation had not invoked his right to remain silent, because invocation must be unambiguous, and that he had waived the right when he answered a question. The dissent would have required more.²⁷ When a suspect does ask for counsel, the Court has barred police from continuing or reopening questioning until counsel is present, unless the suspect himself starts the conversation, under Edwards v. Arizona (1981).²⁸

Exceptions

In New York v. Quarles (1984) the Court created a public-safety exception: officers may ask about a gun they believe a suspect just hid in a supermarket before giving warnings. Unwarned statements may also be used to impeach a defendant who takes the stand and contradicts them, under Harris v. New York (1971), and some physical fruits of an unwarned statement can be admitted.²⁸

Due Process

Procedure and substance

The Constitution Annotated says the Fifth Amendment's Due Process Clause, which applies to the federal government, gives both procedural and substantive guarantees. Procedural due process generally means notice and an opportunity to be heard before a deprivation. Substantive due process protects certain fundamental rights regardless of the procedures used. The clause protects all persons within U.S. territory, including corporations and noncitizens. The states are bound by the Fourteenth Amendment's own clause, which Module 10 covers.²⁹

The Fifth Amendment as a source of equal treatment

The Fifth Amendment has no equal protection clause, but in Bolling v. Sharpe (May 17, 1954), the District of Columbia school case decided with Brown, the Court held that discrimination "may be so unjustifiable as to be violative of due process," which bound the federal government in the District.³⁰

How much process: Mathews

The test most often used for procedural questions comes from Mathews v. Eldridge (February 24, 1976). The Court wrote that "the fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner,'" and said that identifying the specific requirements involves three factors: the private interest affected, the risk of erroneous deprivation under the procedures used and the value of additional safeguards, and the government's interest, including the burden of additional procedures.³¹

2025: notice before removal

The clause was at the center of two Supreme Court orders in 2025. In Trump v. J. G. G. (April 7, 2025) the Court, dealing with removal of Venezuelan nationals under the Alien Enemies Act, wrote that "it is well established that the Fifth Amendment entitles aliens to due process of law" in removal proceedings, and that detainees must receive notice that they are subject to removal, with enough time to seek habeas relief. In A. A. R. P. v. Trump (May 16, 2025) the Court enjoined removals and stated that notice must be "reasonably calculated, under all the circumstances," to inform them, and must afford a reasonable time to make an appearance, noting that all nine Justices had agreed on the notice requirement in J. G. G.³²³³

Takings: Public Use

The Takings Clause has two requirements, public use and just compensation. The Constitution Annotated says the government cannot take property for any reason other than public use, even with compensation, and that whether a use is public is a judicial question, though courts have granted a high degree of deference to legislative judgments. The Court has described the judicial role in public-use review as "extremely narrow."³⁴

Kelo

In Kelo v. City of New London (June 23, 2005), the city, after the Navy closed its Undersea Warfare Center in Fort Trumbull in 1996 and lost over 1,500 jobs, adopted a development plan and used eminent domain to assemble land for it, over the objection of homeowners. The Court held, five to four, that the taking served a "public use" within the Takings Clause, adopting "the broader and more natural interpretation of public use as 'public purpose'" and deferring to legislative judgments about public needs. The city could not take land simply to give a private party a benefit, but a carefully considered plan was different.³⁵

Justice O'Connor, dissenting for four Justices, wrote that "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." The majority answered that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power," and noted that many states already impose public-use requirements stricter than the federal baseline.³⁵

The two sides disagree about the role of courts. The majority treats the legislature as the judge of public needs and the Court's job as limited. The dissent treats the limit on public use as one the courts must enforce, because otherwise any property is at risk. State legislatures and state constitutions have been the main place where the policy argument has continued.

Takings: Physical, Regulatory and Compensation

Physical takings: Loretto and Cedar Point

When the government physically appropriates property, the Court applies a per se rule: "The government must pay for what it takes." In Loretto v. Teleprompter Manhattan CATV Corp. (1982) a permanent physical occupation of real property was a taking whatever its public benefit or economic effect. In Cedar Point Nursery v. Hassid (June 23, 2021) California required agricultural employers to allow union organizers on their property up to three hours a day, 120 days a year. Six Justices held that the access regulation was a per se physical taking, because it "appropriates a right to invade the growers' property." Justice Breyer dissented.³⁶³⁷

Regulatory takings: Penn Central and Lucas

When the government regulates how an owner uses property rather than occupying it, Penn Central Transportation Co. v. New York City (June 26, 1978) set out an ad hoc inquiry in which "the economic impact of the regulation on the claimant," the extent to which it has interfered with "distinct investment-backed expectations," and "the character of the governmental action" are factors. The Court held that applying New York's landmarks law to Grand Central Terminal was not a taking. In Lucas v. South Carolina Coastal Council (June 29, 1992) the Court identified a category in which regulations that deny the owner all economically viable use of the land require compensation without the usual case-specific inquiry.³⁸³⁹

Getting to court: Knick

In Knick v. Township of Scott (June 21, 2019) the Court held, five to four, that "a government violates the Takings Clause when it takes property without compensation," and that an owner may bring a federal claim under § 1983 at that time rather than first going through state inverse-condemnation procedures. The case overruled the exhaustion rule of Williamson County.⁴⁰

Conditions on permits: Sheetz

In Sheetz v. County of El Dorado (April 12, 2024) a county required a $23,420 traffic impact fee as a condition of a residential building permit. A unanimous Court held that "the Takings Clause does not distinguish between legislative and administrative land-use permit conditions," so a condition imposed by a legislature is not exempt from the permit-condition rules.⁴¹

Tax foreclosure: Tyler and Pung

In Tyler v. Hennepin County (May 25, 2023) a unanimous Court held that a county's retention of the $25,000 by which the value of a foreclosed home exceeded the tax debt plausibly violated the Takings Clause.⁴² In Pung v. Isabella County (June 23, 2026), a family owed $2,241.93 in property taxes, and the county sold their house, assessed at $194,400, for $76,008 at public auction. The Court held that the proper baseline for measuring just compensation following a tax sale is the auction price, not the home's hypothetical fair market value, "at least when the sale is fairly conducted in light of the country's history of tax sales," and left to the Sixth Circuit on remand any properly preserved arguments that the procedure was unfair. It also rejected an Excessive Fines Clause claim on the same facts. Justice Sotomayor, joined by Justices Gorsuch and Jackson, concurred, and Justice Thomas concurred in part and in the judgment.⁴³

Myths and Misreadings

• "Police must read Miranda warnings at every arrest." The warnings are required before custodial interrogation. An arrest without questioning needs none, and a public-safety question may be asked first under Quarles.
• "A Miranda violation lets you sue the officer." Vega v. Tekoh held that it does not support a § 1983 claim, though the unwarned statement may be excluded from the prosecution's case.
• "Double jeopardy means you can never face two prosecutions for the same act." Under Gamble, a state and the federal government are different sovereigns and may each prosecute. Idaho adds a statutory bar for convictions or acquittals in another state or country.
• "The grand jury decides guilt." It decides whether there is probable cause to charge, in secret, on the prosecutor's presentation. A trial jury decides guilt.
• "The government can only take land for roads and schools." Kelo held that a development plan can be a public use, though many states have since limited the power by statute or constitution. Idaho is one.
• "The government must always pay market value." Compensation in a condemnation case is ordinarily fair market value, but Pung shows that in a tax sale the auction price can be the baseline.
• "The Fifth Amendment due process clause applies to the states." It binds the federal government. State governments are bound by the Fourteenth Amendment's clause, and also by their own constitutions.

Short Q&A

What is the difference between an indictment and an information? An indictment is a written accusation presented by a grand jury. An information is filed by the prosecutor, in Idaho after a magistrate has found cause at a preliminary examination. Idaho's constitution allows either for felonies.

Does the privilege cover fingerprints and blood samples? Under Schmerber, it protects testimonial or communicative evidence, not physical evidence taken from the body. The Fourth Amendment governs the taking.

Can a person who is acquitted be retried if new evidence appears? Not by the same sovereign for the same offence. The government can appeal some rulings before verdict, and a different sovereign may bring its own prosecution under Gamble.

Does the owner get a say before property is condemned? Yes. In Idaho, before property can be taken it must appear that the use is authorized by law and that the taking is necessary to that use, and the owner can contest both in court, under Idaho Code § 7-704.

Landmark Cases

Each case was checked against the opinion text or the Court's syllabus as the footnotes say. Reporter citations were checked only where an opened source gave them; the others are shown by docket number.

The Idaho Connection

Idaho's Declaration of Rights has its own versions of four of the five Fifth Amendment guarantees, in Article I, sections 8, 13 and 14.

Section 8: indictment or information

Section 8 reads in part: "No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases arising in the militia when in actual service in time of war or public danger." A grand jury "may be summoned upon the order of the district court in the manner provided by law," and "after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of public prosecutor."⁴⁴ In practice that means a prosecutor can file an information after a magistrate finds cause at a preliminary examination, and Idaho Code § 19-815 sets the order the magistrate uses to hold a defendant to answer.¹⁰

Idaho's grand jury statutes track the older common-law rules. Section 19-1101 directs the grand jury to inquire into public offenses triable in the county. Section 19-1106 says the jury is not bound to hear evidence for the defendant but must weigh all the evidence and, when it has reason to believe other evidence "will explain away the charge," should order it produced. Section 19-1111 limits who may be present to jurors, witnesses under examination, an interpreter, a supporting person for a child witness, and the reporter, plus the prosecuting attorney. Section 19-1121 requires that a person called before a special inquiry judge be told of the privilege against self-incrimination and the right to have counsel present as observer and adviser. Section 19-1114 allows a witness to agree in writing to testify with use and derivative-use immunity.¹⁰ This lesson did not find data on how often Idaho counties use grand juries.

Section 13: the criminal defendant's guaranties

Section 13 gathers rights that the federal Bill of Rights spreads over the Fifth and Sixth Amendments: "In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense; nor 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."⁴⁵

• Double jeopardy. The Idaho clause says "offense," like the federal one, with no "jeopardy of life or limb" qualifier. Idaho Code § 19-315 adds that when an act is within the venue of another state, territory or country as well as Idaho, "a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this state." Section 19-316 does the same between counties. Section 19-315 was added in 1972 and amended in 1986. This lesson did not determine whether it reaches a prior federal prosecution, which the text does not mention.²¹
• Self-incrimination and due process. The words follow the federal text.

This lesson did not open Idaho appellate decisions interpreting sections 8 or 13 and does not state their holdings.

Section 14: eminent domain

Idaho's takings clause is longer than the federal one. It declares that "the necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state." It then says: "Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor."⁴⁶

Two features set it apart. The text names irrigation, mining and development of the state's "material resources" as public uses in the constitution itself, a reflection of the state's water and mining economy. And it requires payment "not until" compensation is paid, so compensation comes before the taking. The federal clause says only that property shall not be taken "without just compensation."⁴⁶

Idaho statutes after Kelo

• Limits on economic-development takings. Idaho Code § 7-701A, added in 2006 and amended in 2015 and 2021, says eminent domain "shall not be used to acquire private property" for any alleged public use that is "merely a pretext" for transfer to a private party, or "for the purpose of promoting or effectuating economic development," with exceptions for water and certain other statutes and for constitutionally authorized uses. Within urban renewal areas and similar districts, property may be condemned only if shown by clear and convincing evidence to meet listed conditions of dilapidation and risk to health and safety. The rationale for any condemnation "shall be freely reviewable" in court. The statute was added the year after Kelo, and this lesson did not open a source stating the legislature's reasons.⁴⁷
• Procedure and compensation. Under § 7-704 the plaintiff must show that the use is authorized by law and the taking is necessary. Under § 7-711 the minimum damages for the property are the greater of the assessed value for property tax purposes or the plaintiff's highest prelitigation appraisal, unless the property has been substantially altered, with additional damages for a severed remainder and for a qualifying business.⁴⁸
• Regulatory takings review. Idaho Code title 67, chapter 80, added in 1994, directs the attorney general to prepare a checklist that state agencies and local governments must follow, and lets an owner request a written taking analysis, due within 28 days after the final decision and not later than 42 days after the request. A governmental action is voidable if a requested analysis is not prepared. The chapter says it is not meant to expand or reduce constitutional property protections.⁴⁹

This lesson did not open Idaho decisions on article I, section 14, and did not check what Idaho courts have said about the effect of Cedar Point, Knick or Pung on state claims.

Where This Shows Up for Officials, Reporters and Citizens

The city planner assembling land

A planner for an invented Idaho city, Rosa Delgado, has a redevelopment plan that would need several parcels, some of which would end up with a private developer. Under § 7-701A the plan cannot rest on economic development as the purpose, and a pretext for a transfer to a private party is barred. In urban renewal areas the owner can force the city to prove dilapidation by clear and convincing evidence. A defensible record names a use authorized in § 7-701 or the constitution and shows why each parcel is necessary under § 7-704. Kelo sets a federal floor, and Idaho sets a higher one.⁴⁷⁴⁸

The county clerk receiving a taking-analysis request

A property owner files a written request for a regulatory taking analysis after the county commission denies a permit. The clerk's calendar matters: the county must prepare the analysis not more than 28 days after the final decision and deliver it within 42 days of the request, using the attorney general's checklist, and the analysis is public information. A decision made without a requested analysis is voidable.⁴⁹

The detective planning an interview

A detective questioning a suspect in custody must give the warnings first, since Miranda is a constitutional rule under Dickerson. After Berghuis, a suspect's silence alone does not stop an interview, and a clear request for counsel does. A public-safety question under Quarles is an exception for an emergency, not a routine tool. Under Vega the detective cannot be sued for it, though a judge may still exclude the statement.^24252726

The county prosecutor choosing between an information and a grand jury

Idaho lets a prosecutor proceed by information after a preliminary examination, or by indictment. If a grand jury has ignored a charge, § 8 bars an information on that charge. A prosecutor charging conduct that has already been tried in another state should check § 19-315 before filing.⁴⁴²¹

The reporter covering a plea or a second trial

A story that says a defendant faces "double jeopardy" should say which sovereign brought each case. Under Gamble, two governments can each charge the same conduct. The reporter can check whether the charges are two offenses under Blockburger, or whether the second case would relitigate an acquittal's necessary finding under Ashe.²⁰¹⁷¹⁸

The homeowner with a notice of condemnation

An owner who gets a condemnation complaint can contest whether the taking is for an authorized use and necessary, and can claim compensation under § 7-711. The Idaho constitution requires payment before the taking. A federal claim can be brought in federal court under Knick once property is taken without compensation.⁴⁸⁴⁶⁴⁰

Related Modules

• Module 18, The Fourth Amendment: the exclusionary rule and the search that comes before the statement.
• Module 20, The Sixth Amendment: counsel, confrontation and the trial that follows an indictment.
• Module 17, The Third Amendment: the other Bill of Rights clause about homes.
• Module 10, The Civil War Amendments: the Fourteenth Amendment and incorporation of these rights against states.
• Module 5, Federalism and the States: dual sovereignty and why state constitutions can say more.

Sources & Further Reading

Primary Sources

• National Archives, The Bill of Rights: A Transcription
• Idaho Constitution, art. I, § 8
• Idaho Constitution, art. I, § 13
• Idaho Constitution, art. I, § 14
• Idaho Code, title 19, chapter 11 (grand jury)
• Idaho Code § 19-315 (conviction or acquittal in another state)
• Idaho Code, title 7, chapter 7 (eminent domain)
• Idaho Code § 7-701A (limits on eminent domain)
• Idaho Code, title 67, chapter 80 (regulatory takings)

Court Opinions

• Hurtado v. California, 110 U.S. 516 (1884)
• Blockburger v. United States, 284 U.S. 299 (1932)
• Bolling v. Sharpe, 347 U.S. 497 (1954)
• Costello v. United States, 350 U.S. 359 (1956)
• Malloy v. Hogan, 378 U.S. 1 (1964)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• Schmerber v. California, 384 U.S. 757 (1966)
• Benton v. Maryland, 395 U.S. 784 (1969)
• Ashe v. Swenson, 397 U.S. 436 (1970)
• Mathews v. Eldridge, 424 U.S. 319 (1976)
• Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)
• Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
• Lucas v. South Carolina Coastal Council (1992)
• United States v. Williams, 504 U.S. 36 (1992)
• Dickerson v. United States (2000)
• Kelo v. City of New London, 545 U.S. 469 (2005)
• Berghuis v. Thompkins (2010)
• Salinas v. Texas (2013)
• Currier v. Virginia (2018)
• Gamble v. United States (2019)
• Knick v. Township of Scott (2019)
• Cedar Point Nursery v. Hassid (2021)
• Vega v. Tekoh (2022)
• Tyler v. Hennepin County (2023)
• Sheetz v. County of El Dorado (2024)
• Trump v. J. G. G., No. 24A931 (2025)
• A. A. R. P. v. Trump, No. 24A1007 (2025)
• Pung v. Isabella County, No. 25-95 (2026)

Secondary Sources and Further Reading

• Constitution Annotated, Amdt5.2.1: Historical Background on Grand Jury Clause
• Constitution Annotated, Amdt5.2.2: Grand Jury Clause Doctrine and Practice
• Constitution Annotated, Amdt5.2.3: Military Exception to Grand Jury Clause
• Constitution Annotated, Amdt5.3.2: Historical Background on Double Jeopardy Clause
• Constitution Annotated, Amdt5.3.1: Overview of Double Jeopardy Clause
• Constitution Annotated, Amdt5.3.3: Dual Sovereignty Doctrine
• Constitution Annotated: Historical Background on Self-Incrimination
• Constitution Annotated: Miranda exceptions
• Constitution Annotated: Miranda requirements
• Constitution Annotated: Historical Background on Due Process
• Constitution Annotated: Overview of Due Process
• Constitution Annotated: Overview of Takings Clause
• Constitution Annotated: Public Use and Takings Clause
• Gibson Dunn, Supreme Court holds taxpayers not entitled to hypothetical fair market value in tax sale (Pung)

Footnotes

1. National Archives, The Bill of Rights: A Transcription, https://www.archives.gov/founding-docs/bill-of-rights-transcript. The Fifth Amendment was "Article the seventh" of the twelve articles Congress proposed on September 25, 1789. Its 108 words are this lesson's count of the transcription. Ten of the twelve articles were ratified by December 15, 1791.
2. Constitution Annotated, Amdt5.2.1, Historical Background on Grand Jury Clause, https://www.law.cornell.edu/constitution-conan/amendment-5/historical-background-on-grand-jury-clause. Source for the grand jury's roots in the Assize of Clarendon, the New York Charter of Liberties of 1683, the absence of recorded debate on Madison's draft, and the quotations from Costello and Mandujano.
3. Constitution Annotated, Amdt5.3.2, Historical Background on Double Jeopardy Clause, https://www.law.cornell.edu/constitution-conan/amendment-5/historical-background-on-double-jeopardy-clause. Source for the common-law plea in bar, the New Hampshire Constitution of 1784, the Pennsylvania Declaration of Rights of 1790, Madison's June 8, 1789 text and the House objections.
4. Constitution Annotated, Amdt5.4.2, Historical Background on Self-Incrimination, https://www.law.cornell.edu/constitution-conan/amendment-5/historical-background-on-self-incrimination. Source for the maxim nemo tenetur seipsum accusare, the oath ex officio and Star Chamber, the six state constitutions, Madison's text, and the House insertion of "in any criminal case" on August 17, 1789.
5. Constitution Annotated, Amdt5.5.2, Historical Background on Due Process, https://www.law.cornell.edu/constitution-conan/amendment-5/historical-background-on-due-process. Source for Magna Carta chapter 39 of 1215 as quoted ("by the lawful judgment of his peers or by the law of the land"), the 1354 statute using "due process of law," and Coke's equation of the two phrases.
6. Constitution Annotated, Amdt5.7.1, Overview of Takings Clause, https://www.law.cornell.edu/constitution-conan/amendment-5/overview-of-takings-clause. Source for Justice Story's grounding of the clause, Kohl v. United States (1876), Armstrong v. United States, 364 U.S. 40, 49 (1960), and the extension to the states through the Fourteenth Amendment.
7. Benton v. Maryland, 395 U.S. 784 (1969) (decided June 23, 1969), https://www.law.cornell.edu/supremecourt/text/395/784. Justice Marshall wrote for the Court; Justice Harlan, joined by Justice Stewart, dissented.
8. Malloy v. Hogan, 378 U.S. 1 (1964) (decided June 15, 1964), https://www.law.cornell.edu/supremecourt/text/378/1.
9. Hurtado v. California, 110 U.S. 516 (1884) (decided March 3, 1884), https://www.law.cornell.edu/supremecourt/text/110/516. The opinion upholds California's use of an information after examination in place of a grand jury indictment. The quotation is from the Court's discussion of what counts as due process. The Constitution Annotated, note 2 above, cites Hurtado and Palko v. Connecticut, 302 U.S. 319 (1937), for the grand jury's federal function.
10. Idaho Code title 19, ch. 11 (powers and duties of grand jury), https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH11/; sections 19-1101, 19-1106, 19-1107, 19-1111 and 19-1121 read at the parallel section pages, for example https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH11/SECT19-1107/. Also Idaho Code § 19-901, https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH9/SECT19-901/, and § 19-815, https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH8/SECT19-815/.
11. Constitution Annotated, Amdt5.2.2, Grand Jury Clause Doctrine and Practice, https://www.law.cornell.edu/constitution-conan/amendment-5/grand-jury-clause-doctrine-and-practice. Source for the investigative function, secrecy and absence of counsel in the room, Calandra, Hale v. Henkel, the "infamous crime" cases, Ex parte Wilson, and the rule that an indictment valid on its face cannot be challenged for inadequate evidence.
12. Costello v. United States, 350 U.S. 359 (1956) (decided March 5, 1956), https://www.law.cornell.edu/supremecourt/text/350/359.
13. United States v. Williams, 504 U.S. 36 (1992) (decided May 4, 1992), https://www.law.cornell.edu/supremecourt/text/504/36. Justice Scalia wrote for five Justices; Justice Stevens dissented for four.
14. Constitution Annotated, Amdt5.2.3, Military Exception to Grand Jury Clause, https://www.law.cornell.edu/constitution-conan/amendment-5/military-exception-to-grand-jury-clause. Source for Sayre, Solorio and Ex parte Quirin.
15. Constitution Annotated, Amdt5.3.1, Overview of Double Jeopardy Clause, https://www.law.cornell.edu/constitution-conan/amendment-5/overview-of-double-jeopardy-clause. Source for "jeopardy of life or limb," its application beyond capital cases, and civil sanctions that amount to punishment.
16. Constitution Annotated, Amdt5.3.3, Dual Sovereignty Doctrine, https://www.law.cornell.edu/constitution-conan/amendment-5/dual-sovereignty-doctrine. Source for Palko, Benton and Lanza (260 U.S. 377 (1922)).
17. Blockburger v. United States, 284 U.S. 299 (1932) (decided Jan. 4, 1932), https://www.law.cornell.edu/supremecourt/text/284/299.
18. Ashe v. Swenson, 397 U.S. 436 (1970) (decided April 6, 1970), https://www.law.cornell.edu/supremecourt/text/397/436.
19. Currier v. Virginia, No. 16-1348 (U.S. 2018), https://www.law.cornell.edu/supremecourt/text/16-1348. This lesson confirmed the holding from the Court's syllabus. Justice Gorsuch delivered the opinion of the Court as to Parts I and II; Justice Kennedy concurred; Justice Ginsburg dissented. This lesson did not check the reporter citation or the decision date.
20. Gamble v. United States, No. 17-646 (U.S. June 17, 2019), https://www.law.cornell.edu/supremecourt/text/17-646. Justice Alito wrote for seven Justices; Justices Ginsburg and Gorsuch dissented. This lesson did not check the reporter citation.
21. Idaho Code § 19-315, https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH3/SECT19-315, and § 19-316, https://legislature.idaho.gov/statutesrules/idstat/Title19/T19CH3/SECT19-316/. The history line for § 19-315 reads "added 1972, ch. 336, sec. 4, p. 986; am. 1986, ch. 289, sec. 15, p. 731." This lesson did not find an Idaho appellate decision applying § 19-315 to a federal prosecution.
22. Schmerber v. California, 384 U.S. 757 (1966) (decided June 20, 1966), https://www.law.cornell.edu/supremecourt/text/384/757.
23. Salinas v. Texas, No. 12-246 (U.S. June 17, 2013), https://www.law.cornell.edu/supremecourt/text/12-246. Justice Alito announced the judgment in an opinion joined by the Chief Justice and Justice Kennedy; Justice Thomas, joined by Justice Scalia, concurred in the judgment; Justice Breyer dissented. This lesson read the syllabus only. This lesson did not check the reporter citation.
24. Miranda v. Arizona, 384 U.S. 436 (1966) (decided June 13, 1966), https://www.law.cornell.edu/supremecourt/text/384/436. Chief Justice Warren wrote for the Court. Justice Clark dissented in three of the four cases and concurred in the result in the fourth; Justices Harlan, Stewart and White dissented. The warnings, the definition of custodial interrogation and the "inherently compelling pressures" passage are from the opinion.
25. Dickerson v. United States, 530 U.S. 428 (2000) (decided June 26, 2000), https://www.law.cornell.edu/supremecourt/text/99-5525. Chief Justice Rehnquist wrote for seven Justices; Justice Scalia, joined by Justice Thomas, dissented.
26. Vega v. Tekoh, No. 21-499 (U.S. June 23, 2022), https://www.law.cornell.edu/supremecourt/text/21-499. Justice Alito wrote for six Justices; Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. This lesson did not check the reporter citation.
27. Berghuis v. Thompkins, 560 U.S. 370 (2010) (decided June 1, 2010), https://www.law.cornell.edu/supremecourt/text/08-1470. Justice Kennedy wrote for five Justices; Justice Sotomayor dissented for four. The 2 hour and 45 minute interrogation is from the Constitution Annotated, https://www.law.cornell.edu/constitution-conan/amendment-5/miranda-exceptions.
28. Constitution Annotated, Amdt5.4.7.3 and related pages on Miranda exceptions and requirements, https://www.law.cornell.edu/constitution-conan/amendment-5/miranda-exceptions. Source for the public-safety exception of New York v. Quarles, 467 U.S. 649 (1984), and for impeachment use of unwarned statements; the page on requirements, https://www.law.cornell.edu/constitution-conan/amendment-5/miranda-requirements, is the source for Edwards v. Arizona, 451 U.S. 477 (1981).
29. Constitution Annotated, Amdt5.5.1, Overview of Due Process, https://www.law.cornell.edu/constitution-conan/amendment-5/overview-of-due-process. Source for procedural and substantive due process under the Fifth Amendment and the persons it protects.
30. Bolling v. Sharpe, 347 U.S. 497 (1954) (decided May 17, 1954), https://www.law.cornell.edu/supremecourt/text/347/497.
31. Mathews v. Eldridge, 424 U.S. 319 (1976) (decided Feb. 24, 1976), https://www.law.cornell.edu/supremecourt/text/424/319.
32. Trump v. J. G. G., 604 U.S. ___ (2025) (per curiam, April 7, 2025), https://www.law.cornell.edu/supremecourt/text/24A931.
33. A. A. R. P. v. Trump, 605 U.S. ___ (2025) (per curiam, May 16, 2025), https://www.law.cornell.edu/supremecourt/text/24A1007. This lesson did not read the dissents or the separate opinions and states only the point on notice.
34. Constitution Annotated, Amdt5.7.2, Public Use and Takings Clause, https://www.law.cornell.edu/constitution-conan/amendment-5/public-use-and-takings-clause. Source for Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
35. Kelo v. City of New London, 545 U.S. 469 (2005) (decided June 23, 2005), https://www.law.cornell.edu/supremecourt/text/04-108. Justice Stevens wrote for five Justices; Justice Kennedy concurred; Justice O'Connor, joined by the Chief Justice and Justices Scalia and Thomas, dissented; Justice Thomas also dissented separately.
36. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (decided June 30, 1982), https://www.law.cornell.edu/supremecourt/text/458/419. This lesson read the syllabus statement of the holding.
37. Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) (decided June 23, 2021), https://www.law.cornell.edu/supremecourt/text/20-107. Chief Justice Roberts wrote for six Justices; Justice Kavanaugh concurred; Justice Breyer dissented.
38. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (decided June 26, 1978), https://www.law.cornell.edu/supremecourt/text/438/104.
39. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (decided June 29, 1992), https://www.law.cornell.edu/supremecourt/text/91-453. This lesson read the syllabus statement of the holding.
40. Knick v. Township of Scott, 588 U.S. 180 (2019) (decided June 21, 2019), https://www.law.cornell.edu/supremecourt/text/17-647. Chief Justice Roberts wrote for five Justices.
41. Sheetz v. County of El Dorado, No. 22-1074 (U.S. April 12, 2024), https://www.law.cornell.edu/supremecourt/text/22-1074. The Court was unanimous. This lesson did not check the reporter citation.
42. Tyler v. Hennepin County, 598 U.S. 631 (2023) (decided May 25, 2023), https://www.law.cornell.edu/supremecourt/text/22-166. The Court was unanimous.
43. Pung v. Isabella County, No. 25-95 (U.S. June 23, 2026), argued Feb. 25, 2026, https://www.law.cornell.edu/supremecourt/text/25-95. Justice Alito wrote for the Court (Justice Thomas joining except as to Part II-B); Justice Sotomayor, joined by Justices Gorsuch and Jackson, and Justice Thomas, joined in part by Justice Gorsuch, filed separate opinions. A law-firm summary reporting that the Court was unanimous is at https://www.gibsondunn.com/supreme-court-holds-that-taxpayers-are-not-entitled-to-receive-the-hypothetical-fair-market-value-of-property-sold-in-a-tax-sale/. The slip opinion was subject to revision when this lesson read it.
44. Idaho Constitution art. I, § 8, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect8/.
45. Idaho Constitution art. I, § 13, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect13/.
46. Idaho Constitution art. I, § 14, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect14/.
47. Idaho Code § 7-701A, https://legislature.idaho.gov/statutesrules/idstat/Title7/T7CH7/SECT7-701A/. The history line reads "added 2006, ch. 96, sec. 1, p. 270; am. 2015, ch. 122, sec. 1, p. 310; am. 2021, ch. 87, sec. 1, p. 291." This lesson did not open a source stating why the legislature acted in 2006.
48. Idaho Code title 7, ch. 7 (eminent domain), https://legislature.idaho.gov/statutesrules/idstat/Title7/T7CH7/; § 7-701, https://legislature.idaho.gov/statutesrules/idstat/Title7/T7CH7/SECT7-701/; § 7-704, https://legislature.idaho.gov/statutesrules/idstat/Title7/T7CH7/SECT7-704/; § 7-711, https://legislature.idaho.gov/statutesrules/idstat/Title7/T7CH7/SECT7-711/.
49. Idaho Code title 67, ch. 80 (regulatory takings), https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH80/; §§ 67-8001 to 67-8003 read at the parallel section pages, for example https://legislature.idaho.gov/statutesrules/idstat/Title67/T67CH80/SECT67-8003/.