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

Free speech includes the right to be silent

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political view might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flowing arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in a matter of days.

Today the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree. Justice Samuel Alito writes in the 5-4 opinion:

The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” … The right to eschew association for expressive purposes is likewise protected. … (“Freedom of association … plainly presupposes a free­dom not to associate”) … (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constella­tion, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services was an unconstitutional impingement on free speech. The ruling overturned a 9th U.S. Circuit Court of Appeals ruling.

Justice Clarence Thomas wrote in the majority opinion:

Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly “alters the content” of petitioners’ speech.

A little more than a week ago in a 7-2 ruling the court held the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion and free speech.

Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.

“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against (Masterpiece Cakeshop owner Jack) Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”
Shortly thereafter the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.
The state of Nevada, under the direction of Attorney Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.
Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

Lame-duck Democratic Rep. Ruben Kihuen sent an email saying, “It is disappointing that today’s Supreme Court decision will allow unlicensed facilities to continue misleading women about the health care services they provide. No woman seeking accurate information about her health care options should be lied to, shamed, or denied access to basic medical care. This ruling is a huge setback in our nation’s fight to protect and advance women’s rights and will make it harder for women to access the health care services they need. We must continue fighting to ensure that every woman has the right to make her own health choices and has access to the full range of options.”

Laxalt’s political campaign sent out an email crowing about the two most recent court ruling and rubbing Sisolak’s nose in it:

The Supreme Court has reaffirmed that the government cannot force Nevadans to advocate political positions against their beliefs. We know Steve Sisolak disagrees. Steve said it was “shameful” when Adam visited a Nevada pregnancy care center, and he favors zero restrictions on abortion — a position to the left of most Nevada Democrats. He is benefiting from the government union in this case, AFSCME, that is running over a million dollars in attack ads against Adam right now — attack ads that PolitiFact has called “false.”

These were great victories for free speech. Adam protected pregnancy care centers from a radical California law that would have forced these pro-life centers that offer care for pregnant women to advocate for policies they disagree with. Adam protected workers from being forced to give up their wages to a government union that pays for political lobbying and advertising that they may disagree with.

Steve Sisolak’s fringe agenda is being exposed. This is a great week for freedom of speech in Nevada, and a terrible week for Steve Sisolak’s radical political machine.

Anti-abortion activists celebrated outside the Supreme Court on Tuesday. (Reuters pix via NYTimes)

 

Supreme Court opinion tells Nevada judges to stop dabbling in campaign speech

A Monday Supreme Court opinion should send a message to Nevada judges. The court reversed and remanded a case out of Ohio that involved a law making it a crime for any person to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not” during the course of a political campaign.

Recently a Nevada judge forced a state Senate candidate in the Republican primary to stop running a television commercial saying his opponent was a supporter of Harry Reid.

A group called the Susan B. Anthony List attempted to erect a billboard in Ohio during the 2010 election season criticizing Rep. Steve Driehaus for voting for ObamaCare and thus supporting taxpayer-funded abortion. Driehaus got the Ohio Elections Commission to threaten the billboard company and the billboard was never posted.

Susan B. Anthony List sued saying the law abridged its First Amendment rights.

Writing the high court’s unanimous opinion, Justice Clarence Thomas said a “Commission panel here already found probable cause to believe that SBA (Susan B. Anthony) violated the statute when it stated that Driehaus had supported ‘taxpayer-funded abortion’ — the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners’ intended speech is ‘arguably proscribed’ by the law.”

Bill Raggio, center, was a Republican for Reid and was supported in his bid to retain a Republican leadership position by Ben Kieckhefer. (Sun file photo)

Considering ObamaCare dictates the coverage of abortifacients, the statement about tax-payer funded abortion might well be considered true by many.

Just as Nevada state Senate candidate Gary Schmidt’s claims about opponent Ben Kieckhefer were not proven untrue merely by the absence of his name on a list of Republicans for Reid. No one has found any evidence he supported Reid’s opponent, while he told a newspaper reporter he intended to support Reid backer Bill Raggio’s bid to retain a Republican leadership position.

But the judge in the case wrote, “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements.” Being associated with our senior U.S. senator can do that.

Truth in an election campaign is not something for a commission or a judge to decide. That is for the voters to determine. There may yet be further court proceedings in this matter.

Justice Thomas also noted:

“The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the ‘practical effect’ of the Ohio false statement scheme is ‘to permit a private complainant … to gain a campaign advantage without ever having to prove the falsity of a statement.’ … ‘[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.’ … Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, ‘such a determination itself may be viewed [by the electorate] as a sanction by theState.'”

Driehaus lost. Kieckhefer won.