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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Chapters

• 1:33 Why Juries Matter To Liberty
• 4:54 Anti‑Federalists Versus Federalists On Juries
• 8:06 Grand Juries And The Process As Punishment
• 13:04 Speedy Trials, Confrontation, And Counsel
• 19:58 The Takings Clause And Just Compensation
• 27:54 Civil Juries, Diversity, And Corporate Accountability

Transcript

SPEAKER_00: 0:47

Welcome back, everyone. We have a returning scholar, Dr. James Stoner, with us. Dr. Stoner, can you give us an overview of the Fifth, Sixth, and Seventh Amendments and explain what kind of rights they protect?

SPEAKER_01: 0:59

Well, thank you, and thank you for having me back again. Uh these are amendments that concern especially trial by jury and therefore due process of law in the strict sense, the way in which trials will take place, the way in which government can only act upon citizens by going through courts, and that means in front of juries. And that was really important to the founding generation. You know, one of the main objections the anti-federalists had to the original constitution was its lack of a bill of rights. And when they complained about the lack of a bill of rights, they seemed especially to emphasize the inadequacy of protections for the right of trial by jury. Now, the Constitution does say, the original Constitution does say in Article III that the trial of all crimes shall be by jury, except in case of impeachment, shall be by jury and shall be held in the state where such where the said crime shall have been committed. But the anti-federalist view was that what they left out of that was was really more significant than what they said. Here's part of what they left out. They left out whether those trials would just have to be in the same state or would actually have to be in the neighborhood where the crime had taken place. The term of law that was used was for neighborhood was vicinage. And many of the proposals said that the trial should be in the vicinity in which the crime had happened, meaning among the very people where the crime had taken place. And there's some dispute now about whether or not that's because those people would know the accused or just would know what the customs of the place were and the general expectations of people were in the place. But it was certainly their view that if govern if a distant government could act upon people and take away their lives, their liberty, or their property, that is to say, execute them, jail them, or or or fine them, that that people's rights just weren't going to be can uh weren't going to be pursued, weren't going to be secured. Or really two things. Neither would people's rights be secured, individual people's rights would be secured, nor the involvement of the local people in governing themselves. And both of those things would conceivably have been taken away or have been compromised if the jury right was presented in that limited way it is in Article III. And here's the proof that the Anti-Federalists had something to it. In Federalist 83, Alexander Hamilton is responding to some of these objections. In particular, in eighty in number 84, he responds to the objection of a lack of a Bill of Rights. But in 83, he responds to the objection concerning trial by jury. And he says, well, there is a slight difference between us and some of these opponents on the question of the trial by jury. We think that trial by jury is a let me see if I can find the exact language. It's a a valuable uh safeguard for liberty. That's what he said. We think we federalists think it's a valuable safeguard for liberty. But the other folks think it's the very palladium of liberty, the very shield that protects liberty. And so you can see Hamilton saying, well, trial by jury, it's okay. You know, it's it's it's helpful sometimes. But the uh anti-federalist objection seems to be no, trial by jury is absolutely crucial. It's the key to to understanding English liberty, or at least English liberty as it was guaranteed by the common law, and and therefore it needs to be protected precisely and exactly. And the the amendments that get proposed seem to do that. They specify quite a bit more about the trial by jury than what was there in the original constitution. So, in the first place, they protect the grand jury as well as the ordinary, what we call the petted jury, the smaller jury, the jury of 12 that decides in a particular case. The Sixth Amendment begins, or I'm sorry, the Fifth Amendment begins by saying no one can be indicted 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 been committed. Before someone is put on trial, you see, there's a kind of pretrial in which the prosecutor, remember the executive, has to go before the grand jury and convince them that it's likely that a crime has taken place. Because you've maybe heard the phrase, the process is the punishment. Uh, just accusing someone, even if they're vindicated in the end, can be a real damage. It takes their time, it takes their energy, it uh puts them in fear that they'll be punished. And and so that they're the folks who insisted on a Bill of Rights insisted, first of all, let's have a kind of double protection. Prosecutors can't just go after anyone, they have to convince 24 citizens that that it's likely that there's a crime here and that a trial ought to take place. Uh, and now and again, you know, nowadays it's often said, well, prosecutor can get a grand jury to indict on anything he wants to get them to indict on. And maybe in general that's true, but it would be a little hard to tell because prosecutors aren't going to charge people with things they don't think they can convince a grand jury of. But it's also true that now and again a grand jury won't indict, or they'll indict on a lesser, a lesser charge. Gosh, I think I saw in the papers yesterday or heard on the news yesterday, something about an apparently an attempt to indict someone who had thrown something at one of the ICE agents, and maybe something plastic at one of the ICE agents. And the grand jury indicted for just a misdemeanor charge. They were trying to go after the person on a felony charge. And that's an example of precisely what the grand jury was for, to get popular sentiment in there to calm prosecutors down or I guess stop political prosecutions. That's what especially they would have been worried about. And so that's that's already there with regard to the grand jury. Then with regard to the more uh specific jury trial, uh it the Sixth Amendment goes into detail about that. The trial has to be speedy and public, no private trials, right? No secret trials, uh, and no long delays. You might wonder what that means, but of course, these would this would be a right in the defendant, right? And so the defendant can seek postponement of a trial. The government has some kind of obligation not to hold the threat of an indictment over people for a long period of time, or an indictment over people for a long period of time before they're actually put on trial for that offense. I I don't know that there's any specific and certainly not quick rule about that these days, but it could be uh it it's there in the Constitution, and it's a it establishes at least the principle that if you're going to charge someone with the crime, get your get your evidence together and then proceed with the trial. Give him a chance to vindicate himself. Although, of course, give him a chance also to prepare. And that's part of what's involved in that amendment, to make clear that uh the accused has the right to confront the witnesses against him, to subpoena witnesses, use compulsory process is the term in the in the amendment, to bring witnesses in on his behalf, presumably, and then to be informed of the nature of any accusation against him. I mean, all this put in right. This is probably presumed by the Fifth Amendment's guarantee of due process of law, which is a sort of summary term which goes all the way back to Magna Carta in 1215 in England, with the guarantee that no one, the crown won't go against anyone except by uh a judgment of the peers and the law of the land. And that phrase the law of the land is uh subsequently seen to be equivalent to this phrase due process of law. The 17th century, the law books are saying they mean the same thing. And so, but but the Sixth Amendment's really spelling out in detail what due process of law involves. Interestingly, the the mention at the end of the Sixth Amendment of having the assistance of counsel for one's defense was something of an innovation in the late um 18th century, and I think particularly an innovation of the Americans, because the old common law had been that the accused did not have a have a right to counsel, but it was the judge's responsibility to protect the rights of the accused. I guess the theory was that the judge would, since that was part of his responsibility, if he's following his oath, he'll have to make a special effort to watch out and always be attentive to the rights of the accused. But the American's view was no, that's not adequate. You should be able to bring your own 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 a counsel, you have a right to free counsel, that is, to somebody who's paid by by the state. And that doesn't get established until the 1960s. But but in general, most, I mean, sorry, established as an explicit dictate of American constitutional law. But in fact, in most jurisdictions, the some provision was made to provide uh the assistance of counsel to the indigent. So sometimes members of the bar had it as a kind of mandatory uh charitable exercise that the court could appoint them counsel in a case for someone who couldn't otherwise afford it. But in any event, uh it's it's all to say that in proposing these amendments and seeking to satisfy the uh complaints of those who were opposed to the initial constitution, there was a real attempt to bring back and to preserve, as they say in the Seventh Amendment, these various common law rights. I'll pause for a minute. So uh uh Liz, so I don't know.

SPEAKER_00: 11:52

Can I ask about the takings clause of the Fifth Amendment? Because it feels like it feels random to me. And maybe I'm wrong, but it ever, you know, it's talking about, you know, you you have you have to be indicted by a grand jury. Like it's talking about double jeopardy and all of these things. And then I feel like the last part it again, it feels random to me, is it?

SPEAKER_01: 12:18

Well, that's that's very astute of you to say. I was just reading um uh Kiel Amar's Professor Keel Amar's book on the Bill of Rights, and he says, uh Madison slipped this in there. And what's interesting about that clause, uh the clause says, right, that uh private property shall not be taken for public use without just compensation. And it's a clause that has an extensive jurisprudence, especially in recent times, where every word of that clause is being parsed. Do you have what constitutes a public use? And do the courts decide that? Is it limited in its meaning? And uh, what constitutes a taking the seizure of the of the title of the property, or is it enough that you've taken away some of the use of the property that could have been made before a regulation was passed? And but but right, and and Amar points out that you know most of the provisions, not quite all, but many of the provisions of the bill of the Bill of Rights were actually recommended by the state legislatures. I'm sorry, by the state ratifying conventions. Because, you know, in the story of ratification, in some states, ratification sailed right through. But in other states, and this really started in Massachusetts, people came to that convention roughly one-third in favor of it, one third against it, and one third not sure. And the way the the advocates of the Constitution won the skeptical ones over was to promise that they would introduce amendments in the form of a sort of bill of rights after the Constitution was ratified. Now you might say, well, why would anybody believe that promise? Oh, sure, we'll run, we'll give you your change after you vote for us. Well, they would believe it because it was easier to amend the Constitution than it was to ratify it in the first place. That is to say, ratification took unanimity among the states ratifying it, but an amendment required only three-quarters of the states and only two-thirds in Congress to propose it. So so I guess the thinking was that you know, it would, if you went back to a second convention to make these changes, it was very unlikely it would work out. You'd never get the unanimity that you needed, even among those who were otherwise for ratifying the Constitution. But if you if you went amendment by amendment and put them through after the Constitution was, it was much more likely. And that turned out to be the case. And Madison, who was part of setting up that deal with John Hancock of Massachusetts, Madison goes follows through on that. And the way he prepares what to ratify, what to propose in Congress, in the first Congress in 1789, is he he takes all these suggestions that are made by the state ratifying conventions. Because the state, what the states start to do, the state ratifying conventions start to do is saying, well, we ratify and we propose these changes. And so Madison collected all of them. 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 that would change the Constitution, change its basic institution, and he left those out. But others were things that he thought, well, we could live with this, or we didn't mean to take this away anyway. And those are the things he left in on the whole. But just compensation, interestingly, was something he was very serious about, but which was not, but it was not mentioned by any of the state ratifying conventions. He puts it in. I don't think it completely doesn't fit, right? Because they had just said in the due process clause, you can't take away property without due process of law. And now they're making clear that on the matter of eminent domain, the ability of the state to take private property, it can be done, but there has to be just compensation. And by implication, that means you get to go before a jury, that would have been the due process to have a jury determine what's the value of the property that's being taken. So government can take it if there's a public use. But even though the individual may not want it taken, you know, you don't want, you don't want your front law, your front lawn to disappear to widen the road, but everybody else needs a wider road. And so you gotta, well, not quite that you have to suck it up, you know, it's not quite that you just have to sacrifice your land. You get to be paid for your land and paid for it at its real value as determined by a jury. So I can see how it fits, even though it it is not about trials per se, exactly. But then again, the due process clause, if you look at its later history, ends up being about a lot of things beyond just the process within a trial, and to be about precisely these basic questions of justice in regard to your right to your own property and to your liberty and your own freedom of action, as opposed to the power of government to uh regulate your life and take your stuff. Uh go ahead. Yeah.

SPEAKER_00: 17:30

I was gonna ask about the Seventh Amendment if you're ready for that, but if you still have other things to say. So the Seventh Amendment talks about jury trials. And when I was teaching, my students always thought it was so funny that they put a dollar amount in there, right? That it can't, it shall exceed$20. And they they always would giggle and whatever else. So, can you give us a what why does it matter to have jury trials in civil lawsuits within the Bill of Rights?

SPEAKER_01: 17:59

Yeah, that's good. So so the original constitution doesn't say anything about civil juries, and it it just speaks of the criminal jury. But the civil jury was also at the time of the founding considered important. In fact, Tocqueville says that the civil jury is really the key to the importance of the democratic element of self-governance that's involved in the juries, because there are more civil trials than there are than there are criminal trials, really. And and uh and so this was taken as a matter that really mattered. Also, it was a consideration that you could sue the government if they had stepped out, if they'd done something to you. You can't sue them to go after the government's treasury itself, but if government officers, that's called uh sovereign immunity, the principle that you can't do that. That comes up in the 11th Amendment. So next week or the week after, or whenever you get to that in your uh series. But but but you can, you can, or at least you could, sue government officials who acted outside their authority and harmed you. Now the courts have instituted doctrines of they've extended immunity to police officers and others in a way that sort of abrogated that. But in the original, the back at the time of the founding, that was what you did if uh a government official had exceeded his charge. If, for example, he searched your property without a warrant, you could sue that individual himself for having done that. And um, so I think one of the reasons, at least what the historians say about the Seventh Amendment, is it's also protecting against government as well as protecting individuals in their disputes with one another. And by the way, don't presume individual disputes with one another are just this neighbor against that neighbor. That actually is not going to end up in federal court. That's just gonna be a state matter. But civil suits are really important in the regulation of uh economic life still today. So, for example, you'll feel you'll you'll find uh suits about toxic substances that get into the water supply or or or that or suits about dangerous, uh dangerous objects that have been manufactured with defects and sold. Sometimes these are big class action suits and involve a lot of people today, and they're one of the chief ways in which big corporations are held to account. And it's they're held to account by ordinary people, as it were, in jury trials where medical malpractice, right? I mean, medical malpractice suits will often go before a jury. And even when you know the doctors might want to say, uh, well, we have our own commissions, we're policing ourselves and we're taking care of things. You still have to be able to convince a jury, if you can convince a jury that the doctors were negligent and that their practice really wasn't looking out for you, that's when you can collect for damage that was done. Uh the big trunking companies, right? That have the lawyers on the billboards all over. I don't know about where you're listening, whether they're all over the company. But down where I am, they're about the only people on the billboard now, or uh billboards are the lawyers, but they're there precisely because of uh serious damage that can be done to individuals. And civil suits are our remedies for those damages. We don't go before the the the highway the highway administrator who decides how much we get for in compensation for an accident. No, that's a civil matter, and it's brought before a jury. If there's someone at fault that through their negligence or or or or or other uh malfeasance has uh caused us damage. And so that's a serious thing. The civil jury is a serious thing. And you know,$20 was something then, it's a lot less now. It's less less now than it was 10 years ago. But uh but but one way or another, the point is that if the if if the uh it's a it's a higher amount now in practice, because I think the clause has been read to be uh to be variable in that way, or at least to to still require a congressional statute. And it gets invoked because there were not common law suits that were direct in federal law, but these would be suits between citizens of different states, because this the federal courts originally have jurisdiction over matters of federal law, and they have jurisdiction in cases between citizens of different states, even if the only thing at issue is state law, and most common law is state law, or all common law state law nowadays. And so, for example, if I'm in Louisiana, if I get uh hit by a truck from Texas in Louisiana, it's under Louisiana law, but but the the maybe we put it the other way around. If I'm in Texas, so I'm in Texas, I drive to Texas and I get hit by some big truck, and I feel I've got a damage suit against that person, I might not trust that the Texas judges won't favor the Texans. So I would have a right to go to federal court if enough money is at issue and uh try before presumably a neutral arbiter who's not in a court that's not from the state of Louisiana or the state of Texas, although I guess the jury is going to be chosen from one or the other. So so that's that's civil civil law cases really do matter, and but they matter precisely under this so-called diversity jurisdiction. That's called the diversity jurisdiction of the federal courts. Nowadays, when there's lots of federal statutory law and regulatory law, I think most of the business of the federal courts is actually under federal law. Let's say statutes made by the federal government. But in the early days of the republic, when there wasn't as much federal law, most of the business of the federal courts was actually diversity jurisdiction suits between citizens of one state and citizens of another state. And what they're seeking to do is preserve the right of trial by jury in those cases. Now there's some dispute over whether that meant preserve the right of trial by jury as it stood at that period of time in 1789 or 1791 when the amendment was ratified, or whether it means whatever the state provides, if the state provides a role of a trial by jury in that case, the federal government has to as well. And the general rule has been, uh as I understand it, has been 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 floating thing where, so to speak, state law can change the constitution in that way. But it shows something about how important at the time of the founding the right of trial by jury was to Americans, precisely what to those Americans who were skeptical of the Constitution, even though they then decide to go along with it, provided these rights are sort of locked into place.

SPEAKER_00: 25:15

Dr. Stoner, you took three pretty big amendments and distilled them down for us to really like kind of get that overview and a general understanding. So thank you so much for that. I have pages of notes because they're big amendments, you know, and so there are things we didn't talk about.

SPEAKER_01: 25:36

Privilege against self-incrimination, for example. That's a really important one. That goes back anciently in English law. So if you've ever watched the movies about or the plays or the stories of St. Thomas More when he was held uh tried for uh treason against the king, he did not respond until after he was convicted. Uh, and he was basically invoking his privilege against self-incrimination. He didn't respond. He he felt he didn't have to respond. I'm sorry, he he said, This is why I don't have to take the oath. You can't force me to speak an oath. That's what he didn't do. He he said, You can't force me to say the oath. And the privilege against self-incrimination was the same thing. The government can't force you to say words that you don't wish to say. You have control of your own mind and your own speech in that way. So that's an important part of it. And probably if we dug into double jeopardy, I mean, are they all every every part of these amendments uh could could lead to uh a whole session uh of the podcast. But it's they're they're well worth digging into and they really matter, and they've all had, or many of them have had a complicated jurisprudence since the time of the American founding.

SPEAKER_00: 26:52

Thank you so much. I I