Why the Eighth Amendment really applies to the states

The Supreme Court finally settled the matter and said the Eighth Amendment prohibition against excessive fines applies to the states as well as the federal government — including civil asset forfeitures.

The court ruled that Indiana essentially imposed an excessive fine when it seized a man’s $42,000 Land Rover, which was worth four times the maximum fine of $10,000 for selling cocaine.

What the hell took so long? And there is an interesting aside in the quibbling about just why the Eighth applies.

The 14th Amendment was specifically passed after the Civil War to prevent the states from denying the rights enumerated in the Bill of Rights.

The opinion of seven members of the court was that the “due process” clause means that states are prohibited from denying rights, but Clarence Thomas and Neil Gorsuch demurred and argue that the applicable clause is the one that states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …”

Yes, it is splitting hairs, since the result is the same, but one could argue the Land Rover owner got “due process,” but he definitely was denied his “privileges and immunities” against excessive fines.

Justice Thomas writes in his concurrence:

Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” … And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v.Wade … Dred Scott v. Sandford …

The present case illustrates the incongruity of the Court’s due process approach to incorporating fundamental rights against the States. Petitioner argues that the forfeiture of his vehicle is an excessive punishment. He does not argue that the Indiana courts failed to “‘proceed according to the “law of the land” — that is, according to written constitutional and statutory provisions,’” or that the State failed to provide “some baseline procedures.” … His claim has nothing to do with any “process” “due” him. I therefore decline to apply the “legal fiction” of substantive due process. …

When the Fourteenth Amendment was ratified, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’” … Those “rights” were the “inalienable rights” of citizens that had been “long recognized,” and “the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against interference by the States. … Many of these rights had been adopted from English law into colonial charters, then state constitutions and bills of rights, and finally the Constitution. “Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in [the Bill of Rights] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.” …

The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right. The historical record overwhelmingly demonstrates that it was.

Thomas went on to point out several examples of how some states had passed laws that imposed excessive fines specifically against blacks — the very thing the 14th was intended to remedy.

Clarence Thomas

28 comments on “Why the Eighth Amendment really applies to the states

  1. Deleted says:

    I’m as interested in Uncle Justice Thomas’ quote about how libel laws need to be reconsidered.

    You realize your “originality” hero who lied about his income so he could cast the deciding vote in Citizens Untied on behalf of the group that paid him off wants, no, IS BEGGING some right wing clown to send a case up to the right wing activists so they can reverse Sullivan?

    How’s about that Thomas?

  2. JOHN EDWARDS says:

    I am glad to see the Supreme Court banish this outrage.

  3. It is not libel if it is true. And most public figures don’t have a reputation that can be damaged by news accounts.

  4. Rincon says:

    The Conservative Court got it right this time. Three cheers!

    Sullivan needs reversing. Sloppy reporting can be every bit as damaging to our republic as the malicious kind. Besides, how does one prove malice? I, myself, would accept that a liberal misreporting about a conservative or vice versa, can be presumed to have malice against any member of the other team, but the courts generally make the burden of proof essentially insurmountable in these sorts of cases.

  5. Sullivan does also include reckless disregard, which is sloppy reporting.

  6. Rincon says:

    It does, indeed. From what little I understand though, the courts are loathe to interfere with free speech, even from those who routinely ignore reasonable standards. In some ways, this is good. Having the courts penalize every reporter that does sloppy work – in the opinion of the court, of course – could easily prove dangerous for democracy, as evidenced by the frequent use of the courts in this manner by many autocrats in the world.

    Public condemnation of those peddling mistruths is probably the best answer. Unfortunately, so many of us root for our team that we actually condone misreporting, as long as it supports our team. Liberals never seem to fault MSNBC and Conservatives never seem to fault Fox News – a great misfortune for our country.

  7. Anonymous says:

    Rincon I beg to differ here because it’s not that liberals refuse to condemn the media, it’s that the far right wing has CREATED the divide between “right wing and left wing media”.

    After they spent year attacking ALL media as “left wing” and invented “their own” far right wing media company, they used that corporation as their one true example of a fair and balanced station (snicker out effing loud) and continued to attack every other outlet for news as liberal lies.

    So if every other non-far right lunatic segment of the population, pointed out the absolute lies foisted on them by this phony faux propaganda site, it hardly counts as “both sides choosing their team” it just means that liberals, and everyone else on the planet, got fed up with hearing the nonsensical bullshit from the right wing about “all media being liberal” and full of lies, and decided to point out some truly reprehensible lies by the far right wing.

    And credit given where credit is due, those far right wing lunatics have at least ruined things for everyone now because people more and more are aimply throwing their hands up, as you seem to be doing in some ways, and just saying “they’re all a bunch of liars”.

    See, this accomplishes for the right EXACTLY what they demonstrated they’ve wanted all the time; a world where no one can pretend to know anything. It’s just what they wanted the public to think when the tobacco companies were under attack and they trotted out some far right wing scienticians, who pretended, for a big sweaty pocketful of dollars that “the scoence was unsettled” about whether cigarettes caused cancer. That worked so well, they are doing the same thing now for climate change. That’s working so well, they doing the same thing with gun control (how many times do we witness here Thomas and the gang beatin down ANY suggestion about ANY effort to contain gun violence by arguing that there’s no showing it would do any good?

    This constant argument that “you can’t trust anyone cause no one knows anything” means that THEY get to do anything they want because hey…”no one knows whether what I’m doing is good or bad (climate change may actually be a great thing? And who says the world needs insects anyway, or plants, or animals, or water…etc. Etc. Etc)

  8. Rincon says:

    I have to agree that the right wing media, and the left wing media are reprehensible for their slanted excuse for journalism, and that the right wing side seems to be better funded, but I have to agree that in some areas, the mainstream media is biased to the left.

    For example, in the case of veterinarians, the professional journals frequently, and the mainstream media occasionally, trot out the fact that male veterinarians make substantially more (on the order of about 20%, if I remember correctly) per year than female vets, but conveniently often neglect to put those figures in terms of dollars per hour. If men on average, work longer hours than women, would it be any surprise that they make more? That’s so sloppy that I have to call it biased. BTW, for new graduates, the difference in income per hour is only 3%, a number that may (or may not) be accounted for by lifestyle differences between the sexes on average.

    They also rarely mention that fact that the difference of incomes is greater for practice owners than for employed vets. Isn’t it possible that the same factors which make female practice owners poorer than their male counterparts might also apply to the employed vets? There is also only the occasional mention, but no outrage, that only 20% of today’s veterinary students are men. If statistics are to run the game, isn’t that one a whopper? The media all but neglects these elephants in the room. The real problem though, is that the mainstream media often claims that women are routinely discriminated against in other fields, based solely on the statistics and rarely examine any possible explanations for this other than employer bias.

    Another example is the Black Lives Matter movement. I believe it’s came about because although perhaps 15% of our population is black, something like 32% of the people killed by cops are black. This of course, is out of proportion, but what about the fact that I believe it’s 41% of the people who kill cops are black? The media almost always ignores this. It also is inconsistent in its logic. More than 95% of the people killed by cops are male, but somehow, no one questions that this also, is out of proportion.

    It’s certainly possible that the police are biased against black males, but that should not be concluded from the death statistics. There are more examples, but you’re probably tired of reading by now.

  9. Anonymous says:

    Well put, Rincon. I take some pride in myself for turning you on to mediabiasfactcheck.com
    That site has certainly helped me find and evaluate sources from wherever they come.
    And it clearly shown our major media outlets do lean to the left, though many unbiased outlets are found, it really helps knowing what the “bend” is when reading a story from any given site.
    Fact checking sites were not enough because they concentrate on single stories rather than the whole outlet behind any given story.
    I love it when people claim Snopes and/or Politifact (and the rest) are biased. They all get attacked from conservative and liberal alike.

    Pretty clear, from this discussion, who really wants to the division to stay alive, eh?
    (calling Justice Thomas “uncle Thomas” is a bit racist, hmm?)

  10. Steve says:

    And, again, this “feature” sucks.

  11. Rincon says:

    Some feature, eh?

    I hope others can also agree that Mediabias and some of the fact checking Web sites are trustworthy (Thanks again for pointing the way to them). Unfortunately, there are those who consider them to be a product of the grand left wing or right wing conspiracy, or whatever they call it. In cultlike fashion, many trust only their fellow radical. All we can do is try to minimize the harm they cause. Luckily, most people know a radical flake when they see or hear one.

  12. Steve says:

    It’s crazy when I have friends I like whose politics are completely extreme, but in every other place they are really great people.
    I have been using Snopes since its inception, they never lead me wrong.
    All anyone can do is spread the fact checking places and hope for the best.
    I am glad you took to the facts checkers, Rincon.

    Of course, opinion is a completely different animal, so back to the mud bogs!

  13. Anonymous says:

    Rincon you made an interesting point and it ties directly to one I was trying to make earlier.

    It is impossible, given the limitations of space, money, interest, and other factors, to lay out every single fact, that could relate to a particular issue, which would make a full understanding of the issue more possible. But this does NOT mean, in my opinion at least, that failing to include all these facts demonstrates some bias on the part of the writer.

    It MIGHT but there are so many other explanations for writing a…leaner story, that attributing bias to the story about “taxes” or the “tax refunds” is just dumb and lazy and done here with a plain old effort to smear the left (go figure).

    And as to your claim about blacks killing cops, that statistic, even assuming it’s true which I don’t, means little unless more information is included like say what percentage of interactions between cops and citizens happen between cops and blacks? Or how many interactions with blacks and cops result in the cop drawing a weapon and threatening the black citizen? These numbers are so totally without context that no rational conclusion can be drawn.

    Just saying.

  14. Anonymous says:

    “It MIGHT but there are so many other explanations for writing a…leaner story, that attributing bias to the story about “taxes” or the “tax refunds” is just dumb and lazy and done here with a plain old effort to smear the left (go figure)”

    Charged wording intended to foster division.

  15. Steve says:

    Arrgh. Tho, accidentally, the “feature” may have offered a useful error.

    “It MIGHT but there are so many other explanations for writing a…leaner story, that attributing bias to the story about “taxes” or the “tax refunds” is just dumb and lazy and done here with a plain old effort to smear the left (go figure)”

    Charged wording intended to foster division.

  16. Rincon says:

    It is unusual for Fox News or MSNBC to outright lie. The main reason that we can agree that they (or at least one of them) are biased is their selection of stories to cover or ignore (or bury), and their highly selective presentation of information. Any source presenting such biased information while claiming to cover the news and failing to mention any underlying ideology on their part is irresponsible in my view, and is a propaganda outlet, deserving scorn by all fair minded people.

    Perhaps I wasn’t listening in school, but it seems to me that journalistic ethics once dictated that the news be covered impartially and that anything biased or presenting only a single view was to be properly labeled as an editorial. That’s gone, but what’s upsetting to me is that most of our citizenry condones the unlabeled propaganda that we see today, mostly if it supports their team.

  17. Rincon says:

    I believe you have just made my point, Anonymous. The fact that you doubt the truth of the figures I presented underscores the poor coverage of this information by the media. It didn’t even ring a bell for you, suggesting that you have never seen it before. For what it’s worth, here it is from the first source I happened to find:

    “There were 304 officers killed in ambush attacks from 1980 to 2013, with 371 offenders involved in those deaths. The percentage of black and white offenders in ambushes were about the same: 44 percent were white, and 43 percent were black.”
    Interestingly, the article in the Washington Post demonstrates their own bias in the conclusion: “Police officers were killed in ambush attacks by just as many black offenders as white offenders in the past three decades. There are no simple conclusions or trends that can be gleaned from the database alone, but it provides context that based on the raw numbers, officers are no more likely to be killed by black offenders than white offenders.”

    So, when African Americans, which represent only 15% of our population, kill just as many cops (in ambushes), their conclusion is that, “…officers are no more likely to be killed by black offenders than white offenders.” Not false, but extremely misleading.

    For the entire article, go to https://www.washingtonpost.com/news/fact-checker/wp/2015/01/09/are-black-or-white-offenders-more-likely-to-kill-police/?utm_term=.261189054905

    “And as to your claim about blacks killing cops, that statistic, even assuming it’s true which I don’t, means little unless more information is included like say what percentage of interactions between cops and citizens happen between cops and blacks?”

    Now that there is a factual basis for my figure, Much of the Black Lives Matter movement is based on statistics (Black men killed doesn’t coincide with the numbers in the population) without, as you said, more information. Without those statistics, which also lack more information, the movement becomes mostly based on anecdote. What’s good for the goose is good for the gander.

  18. Rincon says:

    Now, Virginia’s first lady is being accused of – oh my God – handing cotton to black children. Here’s the only real information from NBC on what actually happened:
    “Northam handed out the cotton while showing students an adjacent cottage to the residence that had once served as a kitchen, asking them to imagine picking the crop as enslaved Africans.”

    Really? That’s it? Maybe I just don’t get it. Is there disrespect here that I’m missing? Would an African American have been criticized for doing the same thing? Methinks not. Only white people can be chastised for alluding to skin color in any way, respectful or not.

    This reminds me of multiple times when friends have stumbled over themselves trying to refer to someone, who was not present, but a member of a large group, without knowing their name. They’ll say he’s tall and athletic or something like that, which may might match 15 other people, but assiduously avoid saying the person is African American, even though there are only two in the entire group of say, 100. Only in America would the mere mention of a person’s race be considered racism. Extreme political correctness loses votes for liberals. Big mistake.

  19. Steve says:

    Said it many times now, Rincon. Today’s liberal is very different from the liberal born of the Vietnam era.
    Today’s liberals are more about division and power than about change through tolerance and acceptance.

  20. Anonymous says:

    Rincon I’ve read most of what you’ve written here and while I disagree with some of it, and agree with some other, what you wrote above seems out of character.

    By that I mean forget the content, it’s not like you to use what one person said or does to label an entire group. Personally I’d say what the governors wife did was reprehensible insensitive and just plain old dumb. Whether she’s a racist or not I guess is up in the air but I can understand people believing that this insensitivity might lead to that conclusion about HER. But anyone believing that about her, doesn’t mean that everyone feels the same way.

    Almost be like saying all republicans got to be as racist as the former governor of Maine who just came out today and decried the loss of white power if something happens to the Electoral College.


  21. steve says:

    Probably one of the reason the guy is an EX governor…especially in the case of the state of Maine.
    The population is more Libertarian than R or D.

  22. Steve says:

    Lousy freaking feature.
    Now, gotta be careful using the “enter” key.

  23. Anonymous says:

    Rincon I wonder if this counts as racism in your book?

    “Craig said the stop and the tow were both lawful, but the Snapchat video was where the encounter “went bad.” The video shows the woman walking away in freezing temperatures with the captions, “Celebrating Black History Month” and “What black girl magic looks like.”


  24. rincon says:

    If you feel any better, I believe the video is racist to say the least, because it berates someone by insulting their race. Teaching African American children about the significance of slavery with no evident lack of respect should not be considered racially insensitive, even if a white woman does it. As I asked, would an African American adult have been criticized for doing the same thing?

    “Almost be like saying all republicans got to be as racist as the former governor of Maine who just came out today and decried the loss of white power if something happens to the Electoral College.” I would laugh if it wasn’t so sad. The former governor seems to be advocating the electoral college as an affirmative action program for whites. But this is apples and oranges. The Governor’s wife wasn’t talking power politics and no one is generalizing the group that she is in. She seems to have just have been trying to clarify for these children, the meaning and significance of slavery in our country. Where is the insult here? Are white people supposed to be prohibited from referring to race in any way? It makes me hesitate to even write my view here for fear that the liberal thought police will come and try to destroy me for daring to even question political correctness.

  25. Anonymous says:

    Why the hell was Steele stills a cop after being criminally convicted of beating his girlfriend and (apparently illegally) firing a weapon way the fuck back in 2008?
    Any criminal conviction should have removed from any police force long before he shot those vids and (basically) tortured that woman.

    But, par for the course, it takes a politically incorrect action to get a cop yanked from the force.

    And THAT is the really damning story our liberal believer has just posted a link too, not one of racism (tho it does play a part) the story is one of the impenetrable “blue shield” in real force countrywide doing real damage to the real police, the majority of the police. Steele is a criminal multiple times over and “patrick” pushes this as though to paint all who are not “liberal” enough in his measure as the same kind of criminal.

    Shame on you Patrick. Shame.

  26. Steve says:

    And, again. The feature just sucks.

  27. Rincon says:

    You could always just be Anonymous also. I don’t think we’ll have any trouble differentiating the two of you 🙂

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