The 5th Amendment of the Constitution of the United States says

No person shall be held to answer for a... crime, unless on a presentment or indictment of a Grand Jury..., nor be deprived of life, liberty, or property, without due process of law...

First of all, most sources* seem to indicate that this only applies to federal government and that this particular law doesn't forbid citizens from committing murder (though other laws obviously do). Why is that? The Amendment doesn't say that it's only talking about federal government. In fact, the way its worded implies that it applies to anyone. It says that no person shall be held to answer for a... crime period. It doesn't say that no person shall be held to answer of a... crime by federal government. Why doesn't this amendment apply to citizens instead of only federal government?

Second of all, if it does only apply to federal government, does that mean that government can declare it legal for citizens to kill a particular person? If not, how does the Fifth Amendment make that illegal if it only applies to federal government? Or if the Fifth Amendment is not the law that forbids government from doing as I described, what law does (if any)? In other words, what law makes it illegal for government to declare it legal for citizens to kill a certain person without that person being sentenced to death under the "due process of he law"? If it is the Fifth Amendment, how does it forbid government from so doing if the law applies to federal government only?

* https://www.law.cornell.edu/wex/fifth_amendment



2 Answers 2


The Fifth Amendment, and all the other amendments in the "Bill of Rights" (numbers 1-10) were universally understood when passed to be restrictions on the Federal Government only. The courts treated them that way through the end of the US Civil War. This was made definite in the US Supreme Court case Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)

Since the passage of the Fourteenth Amendment the courts have decided that most of the provisions of the bill of rights also apply to actions by the states. A few do not apply, such as the requirement that indictments be by a grand jury, and the Third Amendment ban on quartering soldiers in private dwellings.

This was done through a somewhat roundabout mechanism -- the Supreme Court decided that the protections of the Bill of Rights were included in the Due process clause of the 14th. As a result not all the provisions were made applicable at the same time. (Most were held to be incorporated during the period from 1925-1985. Gitlow v. New York, 268 U.S. 652 (1925) thru Roberts v. United States Jaycees, 468 U.S. 609 (1984)).

Modern legal opinions sometimes discuss incorporation as if it was a fact from the passage of the 14th in 1868. But the actual gradual process is clear in the case law. For example, the Sixth Amendment right to counsel in criminal cases was first incorporated in Powell v. Alabama, 287 U.S. 45 (1932), but only for death penalty cases, and only if "special circumstances" existed, such as a defendant who was illiterate, far from home and support, or feeble-minded. Later cases gradually found "special circumstances" in more and more fact patterns, and in Gideon v. Wainwright, 372 U.S. 335 (1963) the Court extended the right to all felony cases. It has later been extended to misdemeanor cases if jail time is a possible result. A similar history could be spelled out for the Fifth Amendment's protection against self-incrimination, or for the Fourth's against search and seizure, particularly the "exclusionary rule".

I, and a number of legal scholars who have better rights to an opinion, think that the 14th's "Privileges and Immunities" clause would have been a more sensible means to this end, but for various reasons that isn't how it was done. Justice Thomas seems to be trying to reverse this -- he has made comments in a number of opinions of late that various things should be protected under the Privileges and Immunities clause of the 14th, rather than the Due Process clause.. Even if the Court adopts this theory, it probably won't change many outcomes. That is how the Fifth, and other Bill of rights Provisions like the Fourth (search and seizure) and the First (free speech and religion) have been applied to restrict the states.

None of these provisions directly restrict private individuals. In some cases, courts have said that while individuals may not be forbidden to do things that are forbidden to governments under the Bill of Rights, the courts will not help you do such things, such as by enforcing contracts to do them.

No person shall be held to answer for a... crime

"held to answer" here means prosecuted in court. Only governments do that. That provision forbids criminal court cases that do not start with a grand Jury indictment. it is one of the few Bill of Rights provisions which the Supreme Court has held do not apply to the states. But in any case it is purely procedural. It doesn't say that crimes may not be prosecuted, nor that they must. It says only "if you want to try someone for a crime, this is a step you must go through." The other provisions of the Fifth all do apply to the states, such as the ban on double jeopardy, and the protection against self-incrimination.

does that mean that government can declare it legal for citizens to kill a particular person?

No. That would violate the Fifth Amendment's Due Process clause if don3 by the Federal Government, and the Fourteenth Amendment's Due Process clause and its Equal Protection clause if done by a state. It would probably also violate the provision against Bills of Attainder, and perhaps the provision against cruel and unusual punishment.

Once upon a time, several hundred years before the US was founded, the government of England did just that. It was called "outlawry". For certain crimes, the punishment was to be put "outside the law". An "outlaw" (in this older sense) was not protected by the law. Anyone could kill an outlaw, or steal from one, and the legal system would do nothing about it. The US has never used outlawry.

  • 2
    I would consider the incorporation of the Third Amendment to be an open question that has not been definitively resolved. But, other provisions that are not incorporated include the Seventh Amendment right to a jury trial in civil cases over $20, and the component of the 6th Amendment right to a trial by a jury in criminal cases that holds that a criminal jury's verdict must be unanimous. Also, the due process language of the 5th Amendment, rather than being incorporated indirectly through the 14th Amendment is directly part of its language, and so doesn't have to be incorporated.
    – ohwilleke
    Commented Feb 23, 2019 at 0:11
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    A legal fiction in this area is that the incorporation doctrine was actually effective as of the adoption of the 14th Amendment. In practice it took about thirty years before any case actually applied the doctrine. But, for purposes of constitutional law, we look to the intent of the drafters of the 14th Amendment anyway with regard to this novel, long after the fact, innovation of the courts.
    – ohwilleke
    Commented Feb 23, 2019 at 0:25
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    In addition to war, there are cases involving bounties, bounty hunters and bail bondsmen. Not all of the relevant cases and statutes authorize murder, but many authorize what would otherwise be kidnapping, aggravated assault, false imprisonment, battery, and more, and there are some dead or alive precedents in cases of criminal suspects, although far fewer than is commonly assumed.
    – ohwilleke
    Commented Feb 23, 2019 at 0:28
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    @ohwilleke Some of the drafters of the 14th explicitly advocated total incorporation of the 1st 8 amendments, John Bingham in particular. Whether that was the general understanding of the draftes is less clear. I don't think there was any holding (as opposed to dictum) of incorporation until 1898, and no significant incorporation until Gitlow in 1926. Most had been incorporated by 1970. Commented Feb 23, 2019 at 0:30
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    I agree that while it was intended by some drafters (in a manner that has never happened even now) that it simply did not happen until abut 1898 (possibly a little earlier in lower courts). So while the rights doctrinally existed at the moment the 14th Amendment passed, no actual person whose rights were violated for the first several decades had an actual ability to enforce those rights even though court cases often create the impression that someone in say 1881 could have enforced an incorporated right.
    – ohwilleke
    Commented Feb 23, 2019 at 0:34

The 10th amendment says

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

In other words, everything applies to states too.

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    This answer is flat out wrong. For example, there is not a federal right to a grand jury in state court. There is not a federal right to a jury trial in a state court civil case. The 10th Amendment does not mean what you claim that it does.
    – ohwilleke
    Commented Jun 17, 2022 at 2:01
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    @Savage Your ans seems to me to badly misstate what the 10th amendment does. It does not impose n the states all (or indeed any) of the restrictions that apply to the Federal government. Rather, it says that the states retain their powers and rights except where the Constitution restricts them or grants an exclusive power to the federal government. US Rights are granted by the federal or state constitutions, and so are federal or state in their origin. Rights may also be granted by courts, usually in reliance on "due process of law" or some other general expression in a constitution. Commented Jun 17, 2022 at 16:07
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    – feetwet
    Commented Jul 3, 2022 at 16:40

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