Justice Dept Files Suit Against Arizona.

[chuck]

Duncan,
Thanks for your observations, analysis and comments.

That is what I have on the issue now. How say you?

I agree with the contention of the author because:
1. I interpret the sentence to have the same intent that he has concluded.
2. I believe that direct questioning of the defendant was the primary method of finding out what actually happened. They didn't have the sophisticated crime catching tools available in the 18th century so they couldn't afford to throw out the defendant's statements.
3. I personally think his interpretation is the way it should be to be fair for the most number of people. (I know, #3 is my opinion and what I think it should be isn't a valid cause to interpret the constitution that way, but it is bias that I have to be aware of since it influences how I want to read the sentence).

In my way of thinking, each of the clauses you pointed out are independent and for this discussion, we only need to consider the third one:

[*]Clause 3 deals with a list of things:

• First not compelled to testify against oneself in a criminal trial.
• Second not to be deprived of life without due process.
• Third not be deprived of liberty without due process.
• Fourth not be deprived of property without due process.

The actual clause:

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;

I parse it out differently than you do. You say it is a list of four items; I think of it as a list of two. My reasoning is that the "nor" plus a verb is the primary separation. They are spelling out what the government may not do. "Life," "liberty," and "property" are just parts of what is being deprived.
1. "nor shall be compelled in any criminal case to be a witness against himself,"
2. "nor be deprived of life, liberty, or property,"
The final comma in this clause is obviously not used to separate an element of a list but to provide separation of the phrase that indicates the requirement for the government to override the two prohibitions. If the "due process" phrase was only intended for the "deprived" part, they would have separated the "compelled" part with a semicolon.

Further his argument falls apart in and of itself. He claims a requirement to testify against self interest. "

Read the way I parsed it, it does allow the government to compel (or require) the defendant to testify as long as due process is adhered to.

I was going to go into Due Process" but that would take some time.

I don't want to get into it either. For the sake of discussion here, I assume someone in a court of law with council has been accorded due process and someone who is tortured in a back room has not, with a lot of haggling in situations between those extremes.

If Mr. Gwinn is correct in his analysis then there is an inherent discrepancy between the Fifth & Fourteenth Amendments. Gwinn says all of the material between "limb" and "law" are inextricably linked, yet the Fourteenth shows that not to be the case.

I don't see your point or the relevance here at all. Are you talking grammar or substance?

My 2nd and 3rd reasons to agree with the author pretty much stem from my belief that the framers wanted truth and justice. They were not looking for a loophole for the guilty to use to avoid the consequences of their actions.

[DuncanONeil]

I can see where you and Mr Gwinn are being very restrictive in your reading of the clause as to the testimony being provided. Your argument is based on the position that the party testifying is the party accused in the case in question. Such is not always the case in a court action. Witnesses that are not charged could in the course of their testimony reveal facts that could place them in jeopardy of court action being taken against them. The position taken by Mr Gwinn makes a mockery of the article of jurors prudence innocent until proven guilty. Mr Gwinn advocates a person being forced to give testimony against themselves tantamount to physcological torture. Since failure to testify can place you in jail until you tell them what they want to hear. This obviates the need for the prosecution to prove you guilty and fails the test of due process.
You chose to parse the Fifth in a fashion that violates the rules of grammer. So lets take a look at that Amendment again;

As written;

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 offense 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.

With each part spelled out;

No person shall be held to answer for a capital crime, unless on a presentment or indictment of a Grand Jury. No person shall be held to answer for an otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. The aforementioned shall not apply in cases arising in the land or naval forces when in actual service in time of War or public danger. The aforementioned shall not apply in cases arising in the Militia when in actual service in time of War or public danger. No person shall be subject for the same offense to be twice put in jeopardy of life or limb. No person shall be compelled in any criminal case to be a witness against himself. No person shall be deprived of life without due process of law, liberty without due process of law, or property without due process of law, No person shall have private property be taken for public use, without just compensation.

Now the difficulty here is that this already is at odds with your position. To be fair this would need to be read and digested by yourself and someone who's opinion you trust, or an English teacher/professor. Not because you are wrong or can't understand but because of what you have already said. My contention here is that the original in green and the translation in blue are equivalent. But your predilection to take the position that a person can be forced to testify against themselves and that I have added words (though they are virtually all contained in the original) may require an independent party to adjudicate.

Duncan,
Thanks for your observations, analysis and comments.
I agree with the contention of the author because:
1. I interpret the sentence to have the same intent that he has concluded.
2. I believe that direct questioning of the defendant was the primary method of finding out what actually happened. They didn't have the sophisticated crime catching tools available in the 18th century so they couldn't afford to throw out the defendant's statements.
3. I personally think his interpretation is the way it should be to be fair for the most number of people. (I know, #3 is my opinion and what I think it should be isn't a valid cause to interpret the constitution that way, but it is bias that I have to be aware of since it influences how I want to read the sentence).

In my way of thinking, each of the clauses you pointed out are independent and for this discussion, we only need to consider the third one:

The actual clause:


I parse it out differently than you do. You say it is a list of four items; I think of it as a list of two. My reasoning is that the "nor" plus a verb is the primary separation. They are spelling out what the government may not do. "Life," "liberty," and "property" are just parts of what is being deprived.
1. "nor shall be compelled in any criminal case to be a witness against himself,"
2. "nor be deprived of life, liberty, or property,"
The final comma in this clause is obviously not used to separate an element of a list but to provide separation of the phrase that indicates the requirement for the government to override the two prohibitions. If the "due process" phrase was only intended for the "deprived" part, they would have separated the "compelled" part with a semicolon.

Read the way I parsed it, it does allow the government to compel (or require) the defendant to testify as long as due process is adhered to.

I don't want to get into it either. For the sake of discussion here, I assume someone in a court of law with council has been accorded due process and someone who is tortured in a back room has not, with a lot of haggling in situations between those extremes.

I don't see your point or the relevance here at all. Are you talking grammar or substance?

My 2nd and 3rd reasons to agree with the author pretty much stem from my belief that the framers wanted truth and justice. They were not looking for a loophole for the guilty to use to avoid the consequences of their actions.

[chuck]

Your argument is based on the position that the party testifying is the party accused in the case in question.

That is not true. My argument is based on the grammar and the intent of that wording. My bias as to what I want it to mean and my belief that the framers would be inclined to write law in that direction also don't rely on considering only the accused. I think you overlooked my "situations between extremes" comment.

Witnesses that are not charged could in the course of their testimony reveal facts that could place them in jeopardy of court action being taken against them.

This is off topic a bit, but interesting.
I don't see this as a negative. If in the course of a legal proceeding a crime is discovered, then it is a good thing to have that crime accounted for. Frankly, I don't see that as much different than a policeman stopping a motorist for an expired registration tag and arresting him for drunk driving.

Mr Gwinn advocates a person being forced to give testimony against themselves [which is] tantamount to physcological torture. Since failure to testify can place you in jail until you tell them what they want to hear. This obviates the need for the prosecution to prove you guilty and fails the test of due process.

This too is off topic a bit and still interesting.
Assuming I read your post correctly (I placed clarity words in your quote to indicate how I interpreted it), your logic seems irrational on that point. Giving testimony is stressful and I guess you could consider it torture, particularly if you were guilty or hiding something. But my assumption is that such testimony is done with access to council and under the watch or approval of the judicial system. "What they want to hear" should be the truth, not necessarily a confession and certainly it should not be a false confession. I don't see how this obviates the need for the prosecution to prove you guilty.

You chose to parse the Fifth in a fashion that violates the rules of grammer.

I don't see that, but if it is the case, I still base my reasoning on the intended use of the grammar used.

So lets take a look at that Amendment again;

As written;

[First clause]

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;

With each part spelled out;
[First clause]

No person shall be held to answer for a capital crime, unless on a presentment or indictment of a Grand Jury. No person shall be held to answer for an otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. The aforementioned shall not apply in cases arising in the land or naval forces when in actual service in time of War or public danger. The aforementioned shall not apply in cases arising in the Militia when in actual service in time of War or public danger.

Actually, this parses out the same way I parsed out the clause being discussed and your interpretation re-enforces my contention. Note the verbiage that describes the exception: "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;"
You say:
1. "The aforementioned shall not apply in cases arising in the land or naval forces when in actual service in time of War or public danger."
2. "The aforementioned shall not apply in cases arising in the Militia when in actual service in time of War or public danger."
Note, you ascribe the condition (when in actual...) to both because they are separated by a comma and not a semi-colon.

Now look at my parsing of the relevant clause (with minor adjustments to mirror your style and to eliminate confusion with the commas used to list "life, liberty, or property") ;
1. "nor shall [the aforementioned] be compelled in any criminal case to be a witness against himself [without due process of law]"
2. "nor [the aforementioned] be deprived of [any of those three items] [without due process of law]"

I don't see any difference. You have stated my case.