The First and the Fifth: With Some Excursions into Others

The First and the Fifth: With Some Excursions into Others

The First and the Fifth: With Some Excursions into Others

The First and the Fifth: With Some Excursions into Others


By a fortuitous combination of circumstances the Anglo-American peoples developed a set of individual rights which secure to the individual a certain area free from the state's intrusion. This was one of the factors that helped to produce a fairly independent citizenry in the West and relatively a more mature one than in the East.

Two of these individual rights, which are in a sense opposites, are those to freedom of utterance on the one hand and to silence on the other. The latter right the bench and bar know generally as the privilege against self-incrimination. The right to freedom of utterance is protected against federal action by the First Amendment, and that to silence by the Fifth. Both of these amendments secure yet other individual rights. The First guarantees as well freedom of religion, and the Fifth Amendment also contains the important due process clause.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


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.

However, the framers of the first ten amendments did not intend them to be applicable to state action. On the contrary, they intended the states to have certain powers over utterances which they denied to the federal government. They sought to make doubly certain of confining . . .

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