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.


Quote Originally Posted by chuck View Post
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.