Arguments for my Replacement Bil of Rights: The Rights Part 5

The fifth amendment to be replaced by my proposed bill of rights is:

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.

This amendments contains several specific protections which are readily derivable from my proposal.  In my proposal, Congress is forbidden from making any law which permits or compels an individual to violate the right to liberty of any other individual except as a consequence of that other individual violating or threatening to violate the rights to life or rights to liberty of any other individual.  This ban applies to all aspects of the judicial process, and means at least the following for the legal process:

  1. Police and other such officials cannot be permitted by law to arrest an individual without reasonable evidence that a violation or rights has occurred, because to do otherwise would be to violate that individuals rights on whim.
  2. The courts and/or law enforcement cannot hold individuals indefinitely during or before a trial without objectively proving to a sampling of reasonable individuals (a grand jury) in a timely fashion that a crime has occurred, and that sufficient evidence exists to put the suspect on trial for said crime, because to do otherwise would be to violate that individual’s rights on whim.
  3. The courts cannot repeatedly try an individual for the same crime over and over again, thereby effectively imprisoning the individual and therefore violating that individual’s rights on whim.
  4. The courts cannot punish in any way, an individual for refusing to provide the testimony that the Court desires because to do so would be to violate that individual’s rights on a whim.  Note that this does not mean that a court cannot punish an individual for lying in testimony, because the action of giving false testimony is a violation of the rights of the individuals which make up the jury and the court.
  5. The courts, law enforcement, and other individuals cannot violate an individual’s rights to life, liberty, and pursuit of happiness except by a process in accordance with these rules and others with exist but I have not listed or except when there is a reasonbly credible and persistent threat to the rights of the individuals making up the courts, law enforcement, or other individuals.  To put it more plainly, the due process of the law shall be gauranteed in all situations except those in which an individual is actively engaged in a violation or credible threat of violation of the rights of another and therefore must be stopped and only to the extent reasonably required to gaurantee that stoppage.
  6. The courts shall not seize private property for public use without providing full and just compensation because to do otherwise would be pure theft and thus a violation of an individual’s right to the pursuit of happiness.
  7. And many, many more such rules that are derivable from what is already known from the practice of law in the United States and from the three simple limitations of Congressional power made in my proposal.  New and/or improved rules or versions of these rules may well exist, and my proposal allows for those to be forced to be discovered by permitting any aspect of the legal process which seems to be violating individual rights on whim to be challenged on grounds of constitutionality, thus forcing its reconsideration.

Thus, my proposal reasonably gaurantees all of the same protections provided by the original amendment, but since my amendment makes no exclusions for individuals in the military, the rights of a non-soldier are extended to all soldiers within reason within my proposal.  Furthermore, the due process clause of the fifth amendment would be improved by my proposal.  Currently, the due process clause only requires that a law exist in order to deny an individual their rights, which means that an unjust law can be made to take away individual rights.  Under my proposal, no individual can be denied their rights except as a consequence of their own violation of the rights of others.

Finally, removing the due process clause by replacing the fifth with my proposal does not entirely remove the requirement for due process from the constitution, because the due process clause is repeated in the 14th amendment which is unmodified by my proposal.

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