Kenneth Ellman

Origins of the 5th Amendment

I have owned `Origins of the 5th Amendment’ for over twenty years. It is time to write a note. It is both difficult and invigorating to write about the 5th Amendment to the United States Constitution. When one contemplates the significance of this accomplishment of human beings, that being the creation of the 5th Amendment protecting the people of the United States from harm, you should ask yourself how and why, why did the human mind part with such a long history and behavior of abuse and assault, to create such ideas. The answer to that I suspect confronts the question itself. Perhaps there indeed was a long quest by human beings for the safety and protection of the 5th Amendment type idea, and in the past their reach was just not long enough. The time was not yet on hand. Another fact is that the 5th Amendment is more well known for the clause:
`…nor shall be compelled in any criminal case to be a witness against himself…’.

Yet, the 5th Amendment is more than `the right against self-incrimination’, but for the purposes of this review that is what author Leonard W. Levy discusses. So we have the excellent work by Professor Levy which details the relationship of the 5th Amendment in the United States Constitution to the history and precedents that came on before its existence. The author, Prof. Leonard W. Levy, died at the age of 83 in 2006. He was a distinguished constitutional historian and not an attorney. He won the Pulitzer Prize for History in 1969 and taught at Brandeis University and the Claremont Graduate School.
Lest you forget the entire 5th Amendment I repeat it here:
“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”

This book by Levy spans the entire English History and Common Law development of the right against self incrimination. It includes the 12th and 13th centuries, the period of the Norman conquest, times when trial by jury were unknown and trial by Ordeals were still practiced.
It discusses the Magna Carta, the religious use and compulsion to testify against yourself put forth by Sir Thomas Moore, Bishop William Smith and Bishop John Longland; the attacks upon John Lilburne and John Wilkes are covered and the wonderful Court decision of Lord Camden in the case of Entick v. Carrington. His book carries you right into the creation of the 5th Amendment and includes excerpts from the Founding Fathers to modern jurists such as Abe Fortas and Felix Frankfurter. In closing Levy attaches an extraordinary appendix of commentary from ancient Jewish Law Texts from the time of Moses and Talmudic writings. The Ancient Trial Law of Israel was highly developed with the duties of Judges and criminal procedure well established. What we consider today to be `right against self incrimination’ and our 5th Amendment was discussed in stunning and eerie detail by the ancient laws and Courts of the Jewish nation.
Keep in mind that this Levy book of 561 pages only discusses a small part of the 5th Amendment.
We have a vast legal heritage as Americans and how much of that we impart to our children will significantly determine our future. Kenneth Ellman, email:ke@kenenthellman.com, Box 18, Newton, NJ 07860.