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.