How The Fifth, Sixth, And Seventh Amendments Protect Us

Want to know why a room full of ordinary people may be the strongest shield for your freedom? We sit down with Dr. James Stoner to unpack how the Fifth, Sixth, and Seventh Amendments built a citizen‑powered brake on state power—and why those guardrails still shape trials, property, and civil justice today.

We start with the founding clash over juries, where Anti‑Federalists demanded more than Article III’s broad promise. You’ll hear how vicinage, grand juries, and the fear of “the process as punishment” led to layered protections that force prosecutors to justify charges before citizens. From there, we break down the Sixth Amendment’s working parts—speedy and public trials, confrontation, compulsory process, and the right to counsel—showing how each element turns a trial into a transparent test of proof rather than a bureaucratic grind. We also trace the uniquely American expansion of counsel rights to appointed counsel for the indigent, aligning fairness with reality.

Then we pivot to the takings clause and its modern battleground: what counts as a public use, and when regulation becomes a taking. You’ll hear why just compensation matters as a bridge between individual property rights and shared infrastructure needs. Finally, we explore the Seventh Amendment’s civil jury, where everyday disputes and high‑stakes class actions alike become engines of accountability. Through diversity jurisdiction and community judgment, civil juries set incentives that touch product safety, environmental harm, and professional standards.

Along the way, we surface open questions around self‑incrimination, double jeopardy, and qualified immunity, and we connect historical intent to today’s courtroom realities. If you care about due process, eminent domain, civil juries, and how constitutional rights work on the ground, this conversation offers clarity you can use. Enjoy the episode, then share it with a friend—and leave a quick review to tell us which protection you think matters most.

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Episode Transcript

SPEAKER_00 (00:00):
Welcome back, everyone.
We have a returning scholar, Dr.
James Stoner, with us.
Dr.
Stoner, can you give us anoverview of the Fifth, Sixth,
and Seventh Amendments andexplain what kind of rights they
protect?

SPEAKER_01 (00:13):
Well, thank you, and thank you for having me back
again.
Uh these are amendments thatconcern especially trial by jury
and therefore due process of lawin the strict sense, the way in
which trials will take place,the way in which government can
only act upon citizens by goingthrough courts, and that means

(00:37):
in front of juries.
And that was really important tothe founding generation.
You know, one of the mainobjections the anti-federalists
had to the original constitutionwas its lack of a bill of
rights.
And when they complained aboutthe lack of a bill of rights,
they seemed especially toemphasize the inadequacy of

(00:57):
protections for the right oftrial by jury.
Now, the Constitution does say,the original Constitution does
say in Article III that thetrial of all crimes shall be by
jury, except in case ofimpeachment, shall be by jury
and shall be held in the statewhere such where the said crime
shall have been committed.

(01:19):
But the anti-federalist view wasthat what they left out of that
was was really more significantthan what they said.
Here's part of what they leftout.
They left out whether thosetrials would just have to be in
the same state or would actuallyhave to be in the neighborhood

(01:42):
where the crime had taken place.
The term of law that was usedwas for neighborhood was
vicinage.
And many of the proposals saidthat the trial should be in the
vicinity in which the crime hadhappened, meaning among the very
people where the crime had takenplace.
And there's some dispute nowabout whether or not that's

(02:02):
because those people would knowthe accused or just would know
what the customs of the placewere and the general
expectations of people were inthe place.
But it was certainly their viewthat if govern if a distant
government could act upon peopleand take away their lives, their
liberty, or their property, thatis to say, execute them, jail

(02:26):
them, or or or fine them, thatthat people's rights just
weren't going to be can uhweren't going to be pursued,
weren't going to be secured.
Or really two things.
Neither would people's rights besecured, individual people's
rights would be secured, nor theinvolvement of the local people
in governing themselves.
And both of those things wouldconceivably have been taken away

(02:52):
or have been compromised if thejury right was presented in that
limited way it is in ArticleIII.
And here's the proof that theAnti-Federalists had something
to it.
In Federalist 83, AlexanderHamilton is responding to some
of these objections.
In particular, in eighty innumber 84, he responds to the

(03:13):
objection of a lack of a Bill ofRights.
But in 83, he responds to theobjection concerning trial by
jury.
And he says, well, there is aslight difference between us and
some of these opponents on thequestion of the trial by jury.
We think that trial by jury is alet me see if I can find the

(03:35):
exact language.
It's a a valuable uh safeguardfor liberty.
That's what he said.
We think we federalists thinkit's a valuable safeguard for
liberty.
But the other folks think it'sthe very palladium of liberty,
the very shield that protectsliberty.
And so you can see Hamiltonsaying, well, trial by jury,

(03:57):
it's okay.
You know, it's it's it's helpfulsometimes.
But the uh anti-federalistobjection seems to be no, trial
by jury is absolutely crucial.
It's the key to to understandingEnglish liberty, or at least
English liberty as it wasguaranteed by the common law,
and and therefore it needs to beprotected precisely and exactly.

(04:20):
And the the amendments that getproposed seem to do that.
They specify quite a bit moreabout the trial by jury than
what was there in the originalconstitution.
So, in the first place, theyprotect the grand jury as well
as the ordinary, what we callthe petted jury, the smaller

(04:41):
jury, the jury of 12 thatdecides in a particular case.
The Sixth Amendment begins, orI'm sorry, the Fifth Amendment
begins by saying no one can beindicted for a crime except upon
presentment by a grand jury.
That's the larger jury of 24,which is inquiring into probable
cause that a crime has beencommitted.

(05:02):
Before someone is put on trial,you see, there's a kind of
pretrial in which theprosecutor, remember the
executive, has to go before thegrand jury and convince them
that it's likely that a crimehas taken place.
Because you've maybe heard thephrase, the process is the
punishment.
Uh, just accusing someone, evenif they're vindicated in the

(05:25):
end, can be a real damage.
It takes their time, it takestheir energy, it uh puts them in
fear that they'll be punished.
And and so that they're thefolks who insisted on a Bill of
Rights insisted, first of all,let's have a kind of double
protection.
Prosecutors can't just go afteranyone, they have to convince 24

(05:46):
citizens that that it's likelythat there's a crime here and
that a trial ought to takeplace.
Uh, and now and again, you know,nowadays it's often said, well,
prosecutor can get a grand juryto indict on anything he wants
to get them to indict on.
And maybe in general that'strue, but it would be a little
hard to tell because prosecutorsaren't going to charge people

(06:09):
with things they don't thinkthey can convince a grand jury
of.
But it's also true that now andagain a grand jury won't indict,
or they'll indict on a lesser, alesser charge.
Gosh, I think I saw in thepapers yesterday or heard on the
news yesterday, something aboutan apparently an attempt to
indict someone who had thrownsomething at one of the ICE
agents, and maybe somethingplastic at one of the ICE

(06:32):
agents.
And the grand jury indicted forjust a misdemeanor charge.
They were trying to go after theperson on a felony charge.
And that's an example ofprecisely what the grand jury
was for, to get popularsentiment in there to calm
prosecutors down or I guess stoppolitical prosecutions.
That's what especially theywould have been worried about.

(06:52):
And so that's that's alreadythere with regard to the grand
jury.
Then with regard to the more uhspecific jury trial, uh it the
Sixth Amendment goes into detailabout that.
The trial has to be speedy andpublic, no private trials,
right?
No secret trials, uh, and nolong delays.
You might wonder what thatmeans, but of course, these

(07:15):
would this would be a right inthe defendant, right?
And so the defendant can seekpostponement of a trial.
The government has some kind ofobligation not to hold the
threat of an indictment overpeople for a long period of
time, or an indictment overpeople for a long period of time
before they're actually put ontrial for that offense.

(07:36):
I I don't know that there's anyspecific and certainly not quick
rule about that these days, butit could be uh it it's there in
the Constitution, and it's a itestablishes at least the
principle that if you're goingto charge someone with the
crime, get your get yourevidence together and then
proceed with the trial.

(07:56):
Give him a chance to vindicatehimself.
Although, of course, give him achance also to prepare.
And that's part of what'sinvolved in that amendment, to
make clear that uh the accusedhas the right to confront the
witnesses against him, tosubpoena witnesses, use
compulsory process is the termin the in the amendment, to

(08:16):
bring witnesses in on hisbehalf, presumably, and then to
be informed of the nature of anyaccusation against him.
I mean, all this put in right.
This is probably presumed by theFifth Amendment's guarantee of
due process of law, which is asort of summary term which goes
all the way back to Magna Cartain 1215 in England, with the

(08:40):
guarantee that no one, the crownwon't go against anyone except
by uh a judgment of the peersand the law of the land.
And that phrase the law of theland is uh subsequently seen to
be equivalent to this phrase dueprocess of law.
The 17th century, the law booksare saying they mean the same
thing.
And so, but but the SixthAmendment's really spelling out

(09:02):
in detail what due process oflaw involves.
Interestingly, the the mentionat the end of the Sixth
Amendment of having theassistance of counsel for one's
defense was something of aninnovation in the late um 18th
century, and I thinkparticularly an innovation of
the Americans, because the oldcommon law had been that the

(09:24):
accused did not have a have aright to counsel, but it was the
judge's responsibility toprotect the rights of the
accused.
I guess the theory was that thejudge would, since that was part
of his responsibility, if he'sfollowing his oath, he'll have
to make a special effort towatch out and always be

(09:45):
attentive to the rights of theaccused.
But the American's view was no,that's not adequate.
You should be able to bring yourown counselor in who knows the
law and can speak for you.
Interestingly, in modern times,that's been interpreted to say
you don't only have a right to acounsel, you have a right to
free counsel, that is, tosomebody who's paid by by the
state.
And that doesn't get establisheduntil the 1960s.

(10:09):
But but in general, most, Imean, sorry, established as an
explicit dictate of Americanconstitutional law.
But in fact, in mostjurisdictions, the some
provision was made to provide uhthe assistance of counsel to the
indigent.
So sometimes members of the barhad it as a kind of mandatory uh

(10:30):
charitable exercise that thecourt could appoint them counsel
in a case for someone whocouldn't otherwise afford it.
But in any event, uh it's it'sall to say that in proposing
these amendments and seeking tosatisfy the uh complaints of

(10:50):
those who were opposed to theinitial constitution, there was
a real attempt to bring back andto preserve, as they say in the
Seventh Amendment, these variouscommon law rights.
I'll pause for a minute.
So uh uh Liz, so I don't know.

SPEAKER_00 (11:05):
Can I ask about the takings clause of the Fifth
Amendment?
Because it feels like it feelsrandom to me.
And maybe I'm wrong, but itever, you know, it's talking
about, you know, you you haveyou have to be indicted by a
grand jury.
Like it's talking about doublejeopardy and all of these

(11:26):
things.
And then I feel like the lastpart it again, it feels random
to me, is it?

SPEAKER_01 (11:32):
Well, that's that's very astute of you to say.
I was just reading um uh KielAmar's Professor Keel Amar's
book on the Bill of Rights, andhe says, uh Madison slipped this
in there.
And what's interesting aboutthat clause, uh the clause says,
right, that uh private propertyshall not be taken for public
use without just compensation.

(11:52):
And it's a clause that has anextensive jurisprudence,
especially in recent times,where every word of that clause
is being parsed.
Do you have what constitutes apublic use?
And do the courts decide that?
Is it limited in its meaning?
And uh, what constitutes ataking the seizure of the of the

(12:13):
title of the property, or is itenough that you've taken away
some of the use of the propertythat could have been made before
a regulation was passed?
And but but right, and and Amarpoints out that you know most of
the provisions, not quite all,but many of the provisions of
the bill of the Bill of Rightswere actually recommended by the

(12:36):
state legislatures.
I'm sorry, by the stateratifying conventions.
Because, you know, in the storyof ratification, in some states,
ratification sailed rightthrough.
But in other states, and thisreally started in Massachusetts,
people came to that conventionroughly one-third in favor of
it, one third against it, andone third not sure.

(12:58):
And the way the the advocates ofthe Constitution won the
skeptical ones over was topromise that they would
introduce amendments in the formof a sort of bill of rights
after the Constitution wasratified.
Now you might say, well, whywould anybody believe that
promise?
Oh, sure, we'll run, we'll giveyou your change after you vote
for us.

(13:18):
Well, they would believe itbecause it was easier to amend
the Constitution than it was toratify it in the first place.
That is to say, ratificationtook unanimity among the states
ratifying it, but an amendmentrequired only three-quarters of
the states and only two-thirdsin Congress to propose it.
So so I guess the thinking wasthat you know, it would, if you

(13:42):
went back to a second conventionto make these changes, it was
very unlikely it would work out.
You'd never get the unanimitythat you needed, even among
those who were otherwise forratifying the Constitution.
But if you if you went amendmentby amendment and put them
through after the Constitutionwas, it was much more likely.

(14:02):
And that turned out to be thecase.
And Madison, who was part ofsetting up that deal with John
Hancock of Massachusetts,Madison goes follows through on
that.
And the way he prepares what toratify, what to propose in
Congress, in the first Congressin 1789, is he he takes all
these suggestions that are madeby the state ratifying

(14:24):
conventions.
Because the state, what thestates start to do, the state
ratifying conventions start todo is saying, well, we ratify
and we propose these changes.
And so Madison collected all ofthem.
He was a very scholarly guy.
He collected them all.
But here's what he did.
He put them into two piles.
One pile would be anything thatwould change the Constitution,
change its basic institution,and he left those out.

(14:46):
But others were things that hethought, well, we could live
with this, or we didn't mean totake this away anyway.
And those are the things he leftin on the whole.
But just compensation,interestingly, was something he
was very serious about, butwhich was not, but it was not
mentioned by any of the stateratifying conventions.
He puts it in.

(15:08):
I don't think it completelydoesn't fit, right?
Because they had just said inthe due process clause, you
can't take away property withoutdue process of law.
And now they're making clearthat on the matter of eminent
domain, the ability of the stateto take private property, it can
be done, but there has to bejust compensation.

(15:29):
And by implication, that meansyou get to go before a jury,
that would have been the dueprocess to have a jury determine
what's the value of the propertythat's being taken.
So government can take it ifthere's a public use.
But even though the individualmay not want it taken, you know,
you don't want, you don't wantyour front law, your front lawn

(15:51):
to disappear to widen the road,but everybody else needs a wider
road.
And so you gotta, well, notquite that you have to suck it
up, you know, it's not quitethat you just have to sacrifice
your land.
You get to be paid for your landand paid for it at its real
value as determined by a jury.
So I can see how it fits, eventhough it it is not about trials

(16:15):
per se, exactly.
But then again, the due processclause, if you look at its later
history, ends up being about alot of things beyond just the
process within a trial, and tobe about precisely these basic
questions of justice in regardto your right to your own
property and to your liberty andyour own freedom of action, as

(16:35):
opposed to the power ofgovernment to uh regulate your
life and take your stuff.
Uh go ahead.
Yeah.

SPEAKER_00 (16:43):
I was gonna ask about the Seventh Amendment if
you're ready for that, but ifyou still have other things to
say.
So the Seventh Amendment talksabout jury trials.
And when I was teaching, mystudents always thought it was
so funny that they put a dollaramount in there, right?
That it can't, it shall exceed$20.
And they they always wouldgiggle and whatever else.
So, can you give us a what whydoes it matter to have jury

(17:08):
trials in civil lawsuits withinthe Bill of Rights?

SPEAKER_01 (17:12):
Yeah, that's good.
So so the original constitutiondoesn't say anything about civil
juries, and it it just speaks ofthe criminal jury.
But the civil jury was also atthe time of the founding
considered important.
In fact, Tocqueville says thatthe civil jury is really the key

(17:33):
to the importance of thedemocratic element of
self-governance that's involvedin the juries, because there are
more civil trials than there arethan there are criminal trials,
really.
And and uh and so this was takenas a matter that really
mattered.
Also, it was a considerationthat you could sue the

(17:55):
government if they had steppedout, if they'd done something to
you.
You can't sue them to go afterthe government's treasury
itself, but if governmentofficers, that's called uh
sovereign immunity, theprinciple that you can't do
that.
That comes up in the 11thAmendment.
So next week or the week after,or whenever you get to that in
your uh series.
But but but you can, you can, orat least you could, sue

(18:17):
government officials who actedoutside their authority and
harmed you.
Now the courts have instituteddoctrines of they've extended
immunity to police officers andothers in a way that sort of
abrogated that.
But in the original, the back atthe time of the founding, that
was what you did if uh agovernment official had exceeded
his charge.
If, for example, he searchedyour property without a warrant,

(18:39):
you could sue that individualhimself for having done that.
And um, so I think one of thereasons, at least what the
historians say about the SeventhAmendment, is it's also
protecting against government aswell as protecting individuals
in their disputes with oneanother.
And by the way, don't presumeindividual disputes with one

(19:00):
another are just this neighboragainst that neighbor.
That actually is not going toend up in federal court.
That's just gonna be a statematter.
But civil suits are reallyimportant in the regulation of
uh economic life still today.
So, for example, you'll feelyou'll you'll find uh suits
about toxic substances that getinto the water supply or or or

(19:24):
that or suits about dangerous,uh dangerous objects that have
been manufactured with defectsand sold.
Sometimes these are big classaction suits and involve a lot
of people today, and they're oneof the chief ways in which big
corporations are held toaccount.
And it's they're held to accountby ordinary people, as it were,

(19:46):
in jury trials where medicalmalpractice, right?
I mean, medical malpracticesuits will often go before a
jury.
And even when you know thedoctors might want to say, uh,
well, we have our owncommissions, we're policing
ourselves and we're taking careof things.
You still have to be able toconvince a jury, if you can
convince a jury that the doctorswere negligent and that their

(20:09):
practice really wasn't lookingout for you, that's when you can
collect for damage that wasdone.
Uh the big trunking companies,right?
That have the lawyers on thebillboards all over.
I don't know about where you'relistening, whether they're all
over the company.
But down where I am, they'reabout the only people on the
billboard now, or uh billboardsare the lawyers, but they're

(20:30):
there precisely because of uhserious damage that can be done
to individuals.
And civil suits are our remediesfor those damages.
We don't go before the the thehighway the highway
administrator who decides howmuch we get for in compensation
for an accident.
No, that's a civil matter, andit's brought before a jury.

(20:53):
If there's someone at fault thatthrough their negligence or or
or or or other uh malfeasancehas uh caused us damage.
And so that's a serious thing.
The civil jury is a seriousthing.
And you know,$20 was somethingthen, it's a lot less now.
It's less less now than it was10 years ago.
But uh but but one way oranother, the point is that if

(21:16):
the if if the uh it's a it's ahigher amount now in practice,
because I think the clause hasbeen read to be uh to be
variable in that way, or atleast to to still require a
congressional statute.
And it gets invoked becausethere were not common law suits
that were direct in federal law,but these would be suits between

(21:40):
citizens of different states,because this the federal courts
originally have jurisdictionover matters of federal law, and
they have jurisdiction in casesbetween citizens of different
states, even if the only thingat issue is state law, and most
common law is state law, or allcommon law state law nowadays.
And so, for example, if I'm inLouisiana, if I get uh hit by a

(22:06):
truck from Texas in Louisiana,it's under Louisiana law, but
but the the maybe we put it theother way around.
If I'm in Texas, so I'm inTexas, I drive to Texas and I
get hit by some big truck, and Ifeel I've got a damage suit
against that person, I might nottrust that the Texas judges
won't favor the Texans.

(22:27):
So I would have a right to go tofederal court if enough money is
at issue and uh try beforepresumably a neutral arbiter
who's not in a court that's notfrom the state of Louisiana or
the state of Texas, although Iguess the jury is going to be
chosen from one or the other.
So so that's that's civil civillaw cases really do matter, and

(22:50):
but they matter precisely underthis so-called diversity
jurisdiction.
That's called the diversityjurisdiction of the federal
courts.
Nowadays, when there's lots offederal statutory law and
regulatory law, I think most ofthe business of the federal
courts is actually under federallaw.
Let's say statutes made by thefederal government.

(23:11):
But in the early days of therepublic, when there wasn't as
much federal law, most of thebusiness of the federal courts
was actually diversityjurisdiction suits between
citizens of one state andcitizens of another state.
And what they're seeking to dois preserve the right of trial
by jury in those cases.
Now there's some dispute overwhether that meant preserve the

(23:34):
right of trial by jury as itstood at that period of time in
1789 or 1791 when the amendmentwas ratified, or whether it
means whatever the stateprovides, if the state provides
a role of a trial by jury inthat case, the federal
government has to as well.
And the general rule has been,uh as I understand it, has been

(23:54):
to stick with the to say, no,it's a it's a sort of permanent
uh decision.
It's not it's not a floatingthing where, so to speak, state
law can change the constitutionin that way.
But it shows something about howimportant at the time of the
founding the right of trial byjury was to Americans, precisely

(24:15):
what to those Americans who wereskeptical of the Constitution,
even though they then decide togo along with it, provided these
rights are sort of locked intoplace.

SPEAKER_00 (24:28):
Dr.
Stoner, you took three prettybig amendments and distilled
them down for us to really likekind of get that overview and a
general understanding.
So thank you so much for that.
I have pages of notes becausethey're big amendments, you
know, and so there are things wedidn't talk about.

SPEAKER_01 (24:50):
Privilege against self-incrimination, for example.
That's a really important one.
That goes back anciently inEnglish law.
So if you've ever watched themovies about or the plays or the
stories of St.
Thomas More when he was held uhtried for uh treason against the
king, he did not respond untilafter he was convicted.

(25:14):
Uh, and he was basicallyinvoking his privilege against
self-incrimination.
He didn't respond.
He he felt he didn't have torespond.
I'm sorry, he he said, This iswhy I don't have to take the
oath.
You can't force me to speak anoath.
That's what he didn't do.
He he said, You can't force meto say the oath.
And the privilege againstself-incrimination was the same

(25:34):
thing.
The government can't force youto say words that you don't wish
to say.
You have control of your ownmind and your own speech in that
way.
So that's an important part ofit.
And probably if we dug intodouble jeopardy, I mean, are
they all every every part ofthese amendments uh could could
lead to uh a whole session uh ofthe podcast.

(25:55):
But it's they're they're wellworth digging into and they
really matter, and they've allhad, or many of them have had a
complicated jurisprudence sincethe time of the American
founding.

SPEAKER_00 (26:05):
Thank you so much.
I I