Essay: The Fourteenth Amendment and the Eighth Amendment

Thesis: The Fourteenth Amendment, which protects rights that are “fundamental to the Nation’s history and tradition,” makes the Eighth Amendment right against excessive fines and cruel and unusual punishments applicable to the states.
Two questions still remain, both provoked by the textual similarity between §1’s Privileges or Immunities Clause and Article IV, §2. The first involves the nature of the rights at stake: Are the privileges or immunities of “citizens of the United States” recognized by §1 the same as the privileges and immunities of “citizens in the several States” to which Article IV, §2 refers? The second involves the restriction imposed on the States: Does §1, like Article IV, §2, prohibit only discrimination with respect to certain rights if the State chooses to recognize them, or does it require States to recognize those rights? I address each question in turn.
To answer a constitutional question, we would first peruse stare decisis. In the process of incorporating “fundamental” rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. This results in the Court’s seemingly contradicting opinion.
In Browning-Ferris Indus. v. Kelco Disposal and Copper Indus. v. Leatherman Tool Group, Inc., we sought determine whether or not the Fourteenth Amendment provided an appropriate vehicle to make both the Excessive Fines and Cruel and Unusual Punishments Clauses applicable to the states.
In Furman v. Georgia, the Court applied the Eighth Amendment’s prohibition against “cruel and unusual” punishment at the state level in 1972, the same treatment was not extended to the Excessive Fines Clause.
In Copper Indus. v. Leatherman Tool Group, Inc., we have declared that compensatory damages redress the concrete loss that a plaintiff has suffered by reason of the defendant’s wrongful conduct, but punitive damages are private fines intended to punish the defendant and deter future wrongdoing. A jury’s assessment of the former is essentially a factual determination, but its imposition of the latter is an expression of its moral condemnation.
Thus, in Browning-Ferris Indus. v. Kelco Disposal, we determined that when no constitutional question is raised, states have broad discretion in imposing criminal penalties and punitive damages.
However, as the Fourteenth Amendment’s Due Process Clause imposes substantive limits on the States’ discretion, the Eighth Amendment’s prohibition against excessive fines and cruel and unusual punishments is applicable to the States in Furman v. Georgia.
What complicates the case is Justice’s ruling in Chicago:
The relevant constitutional line, then, is imprecise. The cases in which such limits are imposed involve constitutional violations predicated on judicial determinations that the punishments were grossly disproportionate to the gravity of the offense. In determining whether or not that line has been crossed, the Court has focused on the same three criteria: (1) the degree of the defendant’s reprehensibility or culpability; (2) the relationship between the penalty and the harm to the victim caused by the defendant’s actions; and (3) the sanctions imposed in other cases for comparable misconduct.
This criteria has similarly been used in United States v. Bajakajian, as the court held that the government’s ability to extract fines is a punitive measure which constitutes a “fine” under the Eighth Amendment, therefore must be limited by the Excessive Fines Clause.
However, since such concepts require a case-by-case application, independent review is necessary if the Court is to control and clarify legal principles.
Furthermore, we acknowledge the volume of precedents that have been built upon the substantive due process framework, and we further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means.
In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante, at 37, 42–44 (plurality opinion)—a term the Court has long struggled to define.
Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.
Nothing in this Court’s jurisprudence suggests that McDonald can be fairly read as indicating that this Court has concluded that the Excessive Fines Clause is inapplicable to the states—quite the opposite is the case. See, e.g., Hall v. Florida, 134 S. Ct. 1986, 1992 (2014) (stating that the Eighth Amendment’s prohibition on excessive bail, on excessive fines, and on cruel and unusual applies to the states).
Since previous cases show conflict of interest and ambiguity, we turn to the constitutional principles proposed by the framers. The entitlement to be free from excessive fines is a fundamental right that predates and undergirds both the Eighth and the Fourteenth Amendments, and rights that are “fundamental to the Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment.
The Fourteenth Amendment, drafted into the Constitution after the Civil War, was meant to effect a radical constitutional transformation, imposing upon the states an obligation to respect the individual liberties enumerated in the Bill of Rights.
By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship, regardless of race.
Further complicating this task, the ex-Confederate states remained defiant in their suppression of former slaves and their persecution of those who had opposed secession through the use of Black Codes, despite the promise of individual liberties guaranteed by the Fourteenth Amendment. Nevertheless, the framers’ intentions still stand.
The Court also reads that the right against excessive fines and cruel and unusual punishments was one such “fundamental” and “deeply rooted” right.
The legal pedigree of this principle as a judicially enforceable right can be traced from the Eighth Amendment in 1215, beginning with our country’s English roots.
Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights.
For the founders, the principles of moderation and proportionality embodied in this guarantee were not only a matter of plain justice and fundamental right, they were also necessary for the maintenance of a free and civilized society. This was because the founders (rightly) believed that excessive punishment not only injured the aggrieved person, but also coarsened society as a whole.
By codifying this principle in the Constitution, moreover, the framers ensured that judges would be able to serve as a necessary check on harsh legislation and overzealous prosecution.
In refusing to analyze whether the excessive fines clause applies to the states, the Indiana Supreme Court ignored its obligation to enforce the U.S. Constitution.
The Indiana Supreme Court in this case aligned itself with that minority view, relying on a sentence of “dicta” from McDonald v. City of Chicago, while acknowledging an open break with other jurisdictions. Unless and until this Court “authoritatively” holds that the Excessive Fines Clause is incorporated against the States, the Indiana Supreme Court announced that it would “decline to find or assume incorporation”—or even engage with the incorporation analysis.
The Indiana Supreme Court below said “no,” acknowledging that it was deepening a split of authority that would ultimately have to be addressed by this Court. Like the other state courts that have held that the Excessive Fines Clause does not apply to the states, however, the Indiana Supreme Court’s decision was not based on an analysis of the meaning of the Constitution or this Court’s incorporation jurisprudence. Instead, it grounded its conclusion on a single fact: that this Court had not yet “definitively decided” the question.
The Indiana Supreme Court acknowledged that its holding broke from the weight of authority. The court further acknowledged that “our colleagues on the Court of Appeals and the trial court may be correct in foretelling where the Supreme Court will one
The Indiana Supreme Court gave no attention to the underlying constitutional issue, concluding instead that the wiser course of action was simply to “decline to find or assume incorporation until the Supreme Court decides the issue.”
It gave only two, conclusory reasons for this decision. First, it read this Court’s acknowledgement that it had “never decided whether the . . . Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause” as somehow indicating that this guarantee did not apply to the states.
The Indiana Supreme Court disregarded the Supreme Court’s finding as pure dictum.
Everyone deserves equal protection
Social Standpoint