The Fifth Amendment to the Constitution appeared on The Bob Zadek Show chiefly as a constraint on federal power, invoked in three distinct contexts: the ban on double jeopardy, the guarantee of due process, and the Takings Clause. Across the episodes, host Bob Zadek and his guests treated the amendment less as a body of criminal-procedure doctrine than as a structural limit on what governments — state and federal — may do to persons and property.
Double jeopardy and federal hate crimes legislation
In a July 2009 episode on hate crimes legislation, Bob Zadek framed federal criminal law as an intrusion on a domain reserved to the states, saying that states had since the country’s founding determined what acts are crimes and set punishment. He described hate crimes legislation as violating core principles of federalism and as creating class and group identification and a bidding war among pressure groups seeking inclusion on a list of lives deemed more valuable Hate Crimes Legislation (2009).
Guest Jacob Sullum added a further objection: with the legislation passed by both houses of Congress and likely to be enacted, he said it created a double jeopardy problem Hate Crimes Legislation (2009).
Zadek then explained the constitutional text for the audience, quoting the Fifth Amendment’s guarantee that no person shall be subject for the same offense to be put twice in jeopardy, and stated that one cannot be tried twice for the same act. He described the hate crimes legislation as creating a new federal crime such that a person tried and acquitted at the state level could be tried again by the federal government for the same crime — in his example, for “messing with” a gay person, a transgender person, or a Jew Hate Crimes Legislation (2009).
Sullum explained why this would not be treated as double jeopardy by the Supreme Court: because two different governments, two different sovereigns, are involved, the Court has said this is in effect two different crimes even though the underlying behavior is exactly the same. He noted that U.S. attorneys retain discretion to retry a person acquitted in state court, and Zadek called the arrangement a violation of a core principle of the Constitution Hate Crimes Legislation (2009).
Due process and property: civil asset forfeiture
An October 2011 episode with Mike Riggs of Reason magazine took up civil asset forfeiture — laws that Zadek and Riggs discussed as allowing law enforcement to seize property from innocent citizens without criminal charges, creating incentives for policing for profit. Zadek opened by invoking the colonial cry of no taxation without representation as a protest against government taking property without the consent of the governed, and quoted the Constitution’s guarantee that no person shall be deprived of life, liberty, or property without due process of law Cops Are No Better Than Criminals (2011).
The episode’s own topic list names the Fifth Amendment alongside the Fourth Amendment, due process, and the Henry Hyde Amendment Cops Are No Better Than Criminals (2011). The excerpts available from this episode end in the middle of Zadek’s definition of civil asset forfeiture, so the discussion’s specific Fifth Amendment arguments are not preserved in the source material.
The Takings Clause and the raisin case
In a June 2015 episode, Baylen Linnekin discussed Horne v. USDA, in which, he said, the Supreme Court ruled that week that the Raisin Administrative Committee violates the Takings Clause of the Fifth Amendment, leaving the Hornes and other raisin handlers free to do what they want with their raisins Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).
Zadek described the underlying program as a confiscation whose purpose was to manage the retail price of raisins: growers turning excess raisins over to the committee so prices remain high, with the committee disposing of them and sharing profits — a cartel-like manipulation of grocery-store raisin prices. Linnekin called that an accurate telling and noted similar programs for other fruits and vegetables and for spearmint oil Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).
Linnekin recounted that roughly half of the Hornes’ raisin crop, worth hundreds of thousands of dollars, was ordered seized, and that the Hornes claimed an unconstitutional taking under the Fifth Amendment’s Takings Clause and sued. Zadek supplied the first round’s holding: the government could not require payment of a fine of about three-quarters of a million dollars as a condition of getting into court. Linnekin agreed, saying other constitutional concerns would have been raised by requiring a fine to appear in court Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).
Linnekin said the past week’s ruling held that personal property such as raisins is protected by the Takings Clause in the same way as real property like a home, that this was essentially a reiteration of history, and that the Raisin Administrative Committee was now in shaky constitutional territory Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015). He traced the Takings Clause’s food connection from Magna Carta through a 1641 food law in Massachusetts, and said James Madison was familiar with British wartime seizures of colonists’ food without compensation. Zadek added that Washington also took colonists’ food but insisted on compensation and wrote notes instructing that farmers be paid for livestock taken to feed his troops Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).
Due process and gun control
An October 2018 episode with David Harsanyi touched the Fifth Amendment in the context of firearms regulation. Harsanyi said that two years earlier Democrats had sought to prohibit people who had ever been on a secret government terror watch list — about a million Americans — from owning a firearm ever in their lives without due process. He also described California laws allowing a neighbor who is frightened to call the police, who take a gun away, with due process coming afterward [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Harsanyi characterized these measures as attacks on the Second Amendment, “but the Fourth and the Fifth” as well. He added that such laws inhibit law-abiding people rather than criminals and that gun owners should not have to explain what they do with guns [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]. Zadek developed an analogy to prior restraint in speech — a license required in advance to prevent illegal speech — which he called “gun control in a nutshell” [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Judicial independence and procedural rights
A June 2021 episode with Philip Hamburger on court packing raised the Fifth Amendment by implication rather than by name. Hamburger described a system in which, as he put it, judges fearful of their bench fail to protect rights: he asked what the point of a judicial system is if one cannot have an unbiased judge, must go before an administrative so-called judge, lacks a right of confrontation of witnesses and the burdens of proof on the government, and if the government can demand documents without a judicial warrant or subpoena or deny a jury Philip Hamburger on Court Packing (2021). These procedural guarantees span several amendments, including the Fifth, though the excerpt does not name the amendment in connection with them.
Across episodes
The excerpts show no single thesis about the Fifth Amendment being argued and revised. Instead, each episode invokes a different clause against a different power: double jeopardy against federal hate crimes prosecution in 2009, due process against civil forfeiture in 2011, the Takings Clause against a New Deal raisin program in 2015, due process against gun-control measures in 2018, and procedural rights against judicial timidity in 2021.
What the sources do not cover
The excerpts do not supply the text of most of the Fifth Amendment, its ratification history, or the doctrines of self-incrimination and grand juries. They do not state the holding or amendment analysis of Horne v. USDA beyond the Takings Clause characterization given by Linnekin, nor the content of the hate crimes bill at issue. The civil asset forfeiture excerpt breaks off mid-sentence in Zadek’s definition, and the court packing excerpt ends mid-sentence in Hamburger’s answer, so neither discussion’s conclusion is available here.