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U.S. Supreme Court Puts Limits on Police Power to Seize Private Property (nytimes.com)
1426 points by ComputerGuru 33 days ago | hide | past | web | favorite | 423 comments



The important thing to understand about this case is the background and what the SCotUS actually ruled on. It's actually rather narrow ruling even if it is extremely important. The court exercised judicial restraint here, and made the minimum ruling necessary.

Timbs was convicted of possession/sale/whatever, jailed for a year, and fined $1,200. The state confiscated his Range Rover as well.

Timbs sued or appealed the confiscation by Indiana, which he he could prove he didn't buy with drug money. The judge of the lower court of Indiana agreed.

The state appealed the judge's ruling. The Indiana Supreme Court reversed the lower court's decision, ruling that the 8th Amendment did not apply to the states.

The SCotUS unanimously disagreed and vacated the Indiana Supreme Court's ruling. The 8th Amendment does apply to the states. However, that's all that they ruled upon. They didn't not rule on whether or not confiscating the SUV was an excessive fine, and remanded the case back to the Indiana state courts.

Now the state of Indiana will be given an opportunity to prove in Indiana court that confiscating the SUV is not an excessive fine. That seems unlikely, however, since the charge Timbs was convicted of carried a statutory maximum fine of $10,000, well below the value of the SUV.


I find this very remarkable about American legal system. The supreme court could have technically showed some bleeding heart by not showing judicial restraint. Instead they just did their job. Americans must thank this judicial culture.


Yes actually. The courts aren’t there to set law, that is for the legislature. Also by limiting their ruling to the narrowest ruling they can, they keep decisions as local as possible. Courts handle exceptional circumstances, and it’s important they not rule too broadly, else there can be huge overarching unintended side effects of their ruling.

The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.


>The courts aren’t there to set law, that is for the legislature

I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one.

Case law is just as much part of the law as statutes are.

This is the fundamental difference between common law systems and civil law systems.

https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...


These days there is so much statutory law in the developed world that this distinction is fading away. Yes, it’s technically possible for a common law court to grant a new form of relief that isn’t derived from legislation or binding precedent (eg. the Mabo decision in Australia), but these days the common law is really a ‘god of the gaps,’ and if the courts aren’t satisfied with the common law remedies available 200 years ago or created later by statute, they have very little power to create new remedies. Of course, written laws are always open to interpretation in both the common and civil law system, and that’s what happened in this case (the written law being the U.S. Constitution).


It's not really a 'meme', it just uses a shorthand for 'statutory law' which is what most people think of when they they see 'law'.


> It's not really a 'meme'

It is, in fact, a self-replicating unit of behavior.

(It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)


That’s like claiming any knowledge is a meme. Kinda destroys the meaning if it just means any time someone repeats a fact.


This is the original meaning given by Dawkins in The Selfish Gene. The word ‘meme’ is more than a repeated fact – first, it doesn’t have to be a fact, and second, it suggests that our culture is the result of evolution in an environment where memes are selected for reproductive fitness (‘virality’).


I've read the Selfish Gene and loved it, but I had NO idea that meme originated from that book. I must have skimmed that paragraph. Thank you for this!


If I'm remembering the book correctly, it's discussed at some length in a later chapter; maybe the last chapter.


> That’s like claiming any knowledge is a meme.

No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.


Any knowledge capable of self-replication is a meme.



Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws".

There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.


>Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws".

Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices.

District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.


> Isn't the difference here that Federal courts can't create law, only rule on constitutional matters.

Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)


The federal courts can create law solely because overruling them is nigh impossible. The Supreme Court exists to rule on constitutional matters, but it is merely the final arbiter and uses that to its advantage based on case law they made for themselves.

Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic.

When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency.

The courts can also overrule itself in a future court case.

(The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)


[flagged]


Underneath the parent comment -- which linked a Wikipedia article with some educational material on case law vs statutory law vs common law etc -- there are a number of comments like this which just show users didn't even bother to read a Wikipedia page, but were happy to tell the world how it works in their own minds.

Maybe there is some important lesson about people here. I think today people think of themselves as above those of the past who took intellectual shortcuts to understanding the world and came to preposterous models of reality. But then you can see just how intellectually lazy people are still today, yet at the same time how hard it is to convince them.


I find it incredibly ironic that the person's user name is KorematsuFred given the context.


A big difference between programming and law is that the programmers ultimate incentive is independent of the processors incentive. In law and politics there are multiple agents each with their own incentives, so it is extremely important to uniformize the application of the law (in order to be equal before the law). That nearly all systems do provide leeway for the judge (anglosaxon common law emphasizes this and civil law doesnt, so it's more arguing appearances) is not because it is a feature, but because the law is not that exactly specified. One could imagine each precedent by a judge to be accompanied by a democratic consultation, since in a democracy the people are supposed to govern themselves. While this could allow rampant democratic discrimination (both on factors which are recognized discriminative properties: skin tone, religion, ...; but also on factors not yet recognized as discriminative properties), it would also provide a means for proving our voting behaviour to be discriminative in some sense. In this way unintentional discrimination can be highlighted and corrected.

For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.


On reading, this sounds a lot to me like "trial by a jury of one's peers", only the response to the system being (choked for democratic consultations / having massive court backups and shortage of jurors) has unfortunately so far been mostly public apathy, and people being pushed into accepting plea deals / waiving their rights for a jury trial in many cases.

EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all.

It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.


the current choking of the courts (with most proceedings and exact reasonings out of view of the public) has zero effect on the bigotedness of the populace, so the populace does not change attitudes. Observe how slowly for example racism dissipates. I posit that this would dissipate much faster if a direct democracy was being chocked with back and forth punishing and nonpunishing identical counts, because then it would become full frontal what we are doing. Many of the most bigoted divisive fractions of society would simply feel how they can no longer adress more important matters as long as they have to spend time toggling their votes for settings back and forth on the basis of the in- or out-groupness of some defendant... So the bigots would become apathic to keeping up toggling those specific settings to enforce their bigotry, and get on with their lives.

Currently it is the status quo that is choking the news, which is not what I propose...

I don't read snark in your comment btw... I value your contribution

It's like alphabetization, typically after introduction of one person one vote, people become alphabetic, because by the point the populace has made it clear elitism on this facet (voting) is over, the status quo has every incentive to at least educate the populace in reading and writing...

Similarily, I expect moves toward direct democracy (by popular force) to change the behaviour of the elites and the status quo such that "the brutes who will now unavoidably rule us, should at least enjoy a higher level of education with regards to law and so on", and asking questions about law, finding answers, navigating the law, ... will become standard course curricula for the bulk of the populace in high school...


> The courts aren’t there to set law, that is for the legislature.

They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.


And then there's common law, which is essentially judge-made law.

Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.


The problem is one of semantics. Law is an ambiguous term and commentators have different interpretations--let's appreciate the irony for a second.


Ha, good point. It's worth knowing the difference between law and statute...


"I say I say I say: Statutory law is not law". This kind of negativity is questionable.


That is excellent analogy. This then boils down to globalism vs fractal localism.


> showed some bleeding heart

As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?


It seems likely the person you are replying to has english as a non-first language and may be using this phrase incorrectly.


Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense.


> Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense.

That is a laughably bias interpretation. The phrase "bleeding heart" is used as an insult, suggesting the targets lack reason and are completely guided by their feelings. Your descriptions paints those you disagree with as mustache-twirling cartoon villain caricatures and comes off about as genuine as "They hate us for our freedom".


Well, you disagree with me, and call my opinion 'bias', i.e. 'biased'. (Leaving aside the gratuitous 'laughably'.) You presumably see yourself as 'not biased'. (Nice work if you can get it.) I think 'bias' used like that doesn't make a lot of sense. Every person speaking their mind can be called 'biased' by someone who doesn't agree, but that doesn't really get us anywhere, does it. It's primarily a way of disguising (to yourself) that you're saying "You're wrong and I'm right".

Yes, 'suggesting the targets lack reason', which if they had it, I suppose, would make them more in agreement with the criticizer. (In this neo-con-ruled world people who use the term 'bleeding heart' see themselves as 'realists', i.e. follow the pronouncements of the local economist, think-tank, party-back-room guru etc without much considering the actual effects on people or the world. Money, or votes, is the prize. Everywhere is obsession with 'efficiency' and 'growth'. It's hardly noticed how many people hate their work, or that growth is unsustainable, or what's happening to the planet. We have no idea where we're going but are obsessed with getting there efficiently. But that's rant for another place..)


Don’t have data about the right in Australia, but in the U.S., the term arises due to the prevalence of virtue signaling by left leaning Hollywood that doesn’t align with the reality of all the statistics pointing to far greater levels of charity as a percentage of income/wealth exhibited by those on the ‘right’.

This mismatch results in some of this derisive language in the U.S.


> due to the prevalence of virtue signaling by left leaning Hollywood that doesn’t align with the reality of all the statistics pointing to far greater levels of charity as a percentage of income/wealth exhibited by those on the ‘right’.

Gonna need numbers on that mate, because everything I've read suggests conservatism is correlated with reduced amount, degree and frequency of charitable behaviour.


Also, virtue signaling is common among self-described conservatives. I don't know what a MAGA hat is, if not a tangible virtue signal.


Anytime you get an opportunity to reduce the overreaching powers of the state, that's a good thing! Today, we on the right have Trump, tomorrow there'll be someone on the left as president and that won't make us happy and vice-versa.


It's a welcome check on the Executive and Legislative branches.

Anyone can become President, and anyone can become a lawmaker.

It takes a lifetime of respect to earn a seat on the Supreme Court bench.


> It takes a lifetime of respect to earn a seat on the Supreme Court bench.

No, it just takes the support of the President and a sufficient number of Senators. Of which, by your own argument, anyone can become either; there is either more of a filter than you’d like to pretend on the political branches, or less than you’d like to pretend on the judiciary.


>> It takes a lifetime of respect to earn a seat on the Supreme Court bench.

> No, it just takes the support of the President and a sufficient number of Senators.

You're kinda both right. The legal mechanism says that "a lifetime of respect" isn't necessary, but the norms that have evolved around its use say otherwise.

Recent history demonstrates (in the extreme) that norms aren't inviolable, but I think the ones around the competency of Supreme Court confirmees is stronger than most.


The problem with SCOTUS is its reputation, which is dragged down by basically everything else in our politics. When politicians (on both sides of the aisle) openly talk about "liberal judges" and "conservative judges", and promise to appoint the kind that will rule the way they and their constituents want (as opposed to ruling according to what the law says) - and then those same people actually nominate or confirm appointees - it's hard to treat SCOTUS as some kind of cathedral where everybody is beyond reproach. Now it's just politics.


It's such a tragedy how much the actions of the SC are generalized and sound-bited by politicians and the media. If you go out and read the arguments they all give they are really quite elegant, especially when compared with the sheer stupidity of some of the debates that take place a block over


Yea... But I think this comment puts them in better light than perhaps is deserved. There are arguments SCOTUS are not defenders of the constitution. Look at Clarence Thomas's dissent on Gonzalez vs Raich, where somehow SCOTUS defended the Fed's oppressing someone for growing their own medical marijuana... In a state with legal medical marijuana. There is no constitutional basis for that. Using the Commerce Clause is laughable, at best. Like Thomas said, if the government can persecute you for growing a plant for your own consumption, inside your own home, to treat your own ailments, then they can persecute you for anything. I mean, what the fuck is that ruling even, honestly?

In other words, I think you are right that they are mostly-removed from the liberal vs conservative circus... But they are not really removed from those anti-constitutional and anti-liberty politics which both those parties defend.


There's a quote right in the Wikipedia article which talks about the practical reasoning and historical basis for the decision:

> Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.


I am aware of Wickard v Filburn as it is regarded as a particularly, historically bad ruling, and obviously set precedent for this case.

Did you actually read this? Have you read any parts of the constitution?

Federal powers are constitutionally enumerated, and those which are not are reserved for the states.

The premise of this discussion you've quoted here -- that the feds have the duty to centralize command and control authority over modest home production of plants for one's own consumption -- is obviously not the intent of the constitution, nor is it remotely American, nor remotely consistent with liberty.


If reading to my children reduces aggregate demand for audiobooks, and therefore could impact interstate market prices, is reading to my children interstate commerce?


Pretty much.

The current legal definition seems to make the assumption that when the founders sat around writing the constitution, one of them looked up and asked for a nice punchy way to say "the complete domain of reality from the ground to the infinite reaches of the heavens above" and the reply was "oh, just say interstate commerce."


> In a state with legal medical marijuana

umm.. not familiar with this case, but:

from a federal position there is no such thing as legal marijuana, and from a constitutional position federal law trumps state law -

which is not to say i disagree about the sheer human folly of regulating the existence of plants via legislation.


Federal law trumps state law when they're in conflict. There's no conflict between federal law saying that it's illegal, and state law not saying that it's illegal. And when state legalizes it, all that means is that they're repealing state laws making it illegal.

The case itself wasn't about whether federal law trumps state law, though. It was about whether the federal law in question is constitutional in the first place - i.e. that the federal government has authority granted to it by the Constitution to prohibit a person growing marijuana plants for their own private consumption (i.e. not for sale, and especially not for sale across state lines, which would then obviously be "interstate commerce"). The plaintiff was arguing that since it's personal use and not interstate commerce, it's out of scope of the federal law. The reason why state law was relevant is to show the exact nature of harm suffered - if not for federal law, the plaintiff would have access to medical marijuana to alleviate his pain.

SCOTUS upheld an earlier decision from Wickard v. Filburn, which basically states that any production and consumption is "interstate commerce", because it affects market prices - if you grow something for your own use, you're not buying that something on the market, the reasoning went. I suggest reading about both decisions, just to see how ridiculous some of our legal reasoning is. And then keep in mind that those decisions are the only thing that makes many federal laws constitutional - it's not just drug prohibitions, but e.g. the Civil Rights Acts.

So both the left and the right have a stake in maintaining this interpretation - both want to be have broad regulatory authority on the federal level, just for different reasons. It doesn't make it any less flawed or ridiculous, but I wouldn't consider it an example of partisan court bias.


you definately sound informed on this case for sure and i'm certainly not

but it seems like there are 2/3 threads being comingled in the case:

a) illegality of marijuana itself b) interstate commerce-related issues pertaining to private growth

the 'b' parts you mention definately seem like flawed, unconstitutional reasoning (e.g. expanding the definition of commercial and therefore regulated to include things that actually arent)

as for 'a' - "And when state legalizes it, all that means is that they're repealing state laws making it illegal."

this can't be true true - otherwise there would be no regulation/taxes on dispensaries, etc. in legalization states, which there certainly is..

so it's not like there is a federal law and a 'blank' at the state.. there are contradicting state laws treating it as legal, and federal ones which say it is illegal..


The federal law requires b or it isn't valid. The only reason the Feds are allowed to regulate drugs at all is through 'b' and the ICC.


Well there are liberal and conservative judges, but not in the sense that lines up with party talking points.

Liberal judge == living constitution


Don't downvote the parent - he's just pointing out that meanings of words depend on the context. If you look at it strictly in SCOTUS context, and use the dictionary definition of "conservative" rather than treating it as a partisan political label, a "conservative" judge is the one that tries to introduce as little innovation as possible - i.e. an adherent of originalism and textualism. Conversely, then, a "liberal" judge is the innovator, the one who actively seeks new meanings.


I'm not convinced that "originalism and textualism" is the same thing as "little innovation". The claims of originalists to divine the meaning of the text, and how that meaning applies to new objects and social structures that did not exist at the time, often strike me as remarkably innovative -- in a sense they would find pejorative.

The "conservative" judges votes align extremely well with each other and with the wishes of the political party that nominated them -- which is itself frequently not "conservative" in the sense of "conserving" something. In both cases, the claim to "conservatism" strikes me as having a lot more to do with group identity than any consistent ideology or approach.


That's because we actually do have a partisan SCOTUS, with all that entails. Words like "originalism" and "textualism" - or "living constitution" for that matter - are mostly thrown around to justify certain partisan positions, and ignored with others. I wouldn't consider Scalia to have been an originalist, for example.


That's because, by and large, it also takes considerable respect in practice to become a President or Senator (sure, you can find a few exceptions, but you can for the Supreme Court, too, and there have been a lot fewer Supreme Court justices than Senators and Presidents combined.)


Convention has proven, especially recently, not to be a great thing on which to stand the propriety of a nation.


I think that's the wrong conclusion. Norms and conventions are expedients. To have to put such things into law is really inefficient and even questionable whether they too would hold up in the face of systemic corruption. The right conclusion is the importance of character assessment skill in an electorate.


I am from India and Indian courts are nothing but bunch of old men sermonizing everyone else. They often have barely read law, believe in extraordinary processes and completely arbitrary legal doctrines such as "constitutional morality" that compels them to actually ignore the law.

Digging deep I realize that this is because most of them will retire at 60 after which they either seek lucrative jobs from their political masters or they want to appear on TV debates as "experts". They have even reserved a lot of jobs for their own kind post-retirement. A number of institutions in India can only have "retired judge" as their chief.

Even though there are strong arguments why judges in USA too should have term limits or retirement age, I think there are these issues in our blindspot that need attention too.


As another indian, I disagree with your stark negative characterisation of the indian judiciary. While I do agree that there are corrupt judges, and judges who acts as puppets for their political masters, this is a phenomenan common with every country (with varying degrees, and we in India perhaps do have it worse than others - a reflection of our very confused society currently going through a cultural and political disruption and change).

On the flip side, the higher courts of our judiciary do have eminent jurists, who are respected internationally. India is considered to have the most powerful judicary in the democratic world. And in my opinion, they have used this power judiciously to make more far-reaching changes to empower our democracy than abused it.

I do have criticisms too (for e.g., I don't like the idea of judges appointing judges as it upsets the delicate balance of power between the executive and the judiciary), but I recognize that despite their shortcomings they do a pretty decent job - in fact much better than most judiciaries of the developed democratic world when it comes to protecting the rights of indian citizens.


Look up "the switch in time that saved the nine".


It’s the same in the US

The masses are bought in and ignore it

Not one of the judges on the SC questions the correctness of the process

They just regurgitate the things they’ve been taught and studied

There is no more outside the box consideration of the system here than there is in India

And this forum is just as emotionally blind to it as all the others


Not one of the judges on the SC questions their place the correctness of the process

They do this all the time...in nearly every decision...It's literally their job to question the correctness of the judicial process...


You can also read their published opinions to see exactly how they came to a conclusion.


They question the correctness of decisions made by the US judiciary system from inside the system

They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases

Not the correctness of the US judiciary system itself

Thomas Jefferson advocated for a system that would allow future generations to reasses it’s Constitution and laws, and adjust as necessary

We got James Madison’s version of government, who described the Senate as a legislative body to protect the rich minority from the poor majority. Thus the justice system evolved over time only assessing laws and building its existence on questions of property rights and ownership.

Not saying it’s scandalous or wrong but it’s only concerned with internal consistency, like India.

Look at how the GOP is largely pushing a platform that’s hundreds of years old, with an outcome that resembles the way things were before the New Deal

It’s just old guys advocating for their personal feelings. Exactly what the person from India said :shrug:


>They question the correctness of decisions made by the US judiciary system from inside the system

> They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases

> Not the correctness of the US judiciary system itself

It's literally their job to do work within the system. The SCotUS is explicitly restricted to interpreting the laws that already exist and were passed by existing legislatures. If you want massive, sweeping changes in the structure and nature of a law, you need to go to the legislature or otherwise pick up rifle and start a revolution. It is not the job of SCotUS to create new law. That's why they get so much flack for "legislating from the bench" when they make sweeping decisions. They're not supposed to do that, and they typically only do when making rulings surrounding the Constitution itself and it's Amendments.


We must also remember that once we accept the position that SCOTUS can create new law, it can go both ways and not sure your way.

Thomas Sowell and Walter Williams both give examples of poker. Imagine a standard Poker game where everyone knows the rule, some win some lose and yet there are no fights. Change the Poker game rules such that the dealer can change the rules at his whim and we will have fights (even though the dealer might not actually affect anyone's earnings).

SCOTUS not going out of their way is good for society.


SCOTUS can't create new legislation. But in a common law system like the US, where court decisions are part of the legal framework, simply issuing a court ruling can result in the creation of new "law."


>Thomas Jefferson advocated for a system that would allow future generations to reasses it’s Constitution and laws, and adjust as necessary

And that’s exactly what we got. I urge you to look into what the legislative branch does and look into constitutional amendments. The system changes all of the time.

Based on your description of the GOP, you sound upset that the country isn’t more socialist. That’s hardly related to the representatives having the ability to change laws.


Reply to sibling since it’s dead:

>Then why do the laws not reflect the wishes of the public?

This isn’t a direct democracy. The law reflects the super majority of the representatives/senators or the majority of the representatives/senators and the president.

The entire purpose of that is to prevent small majorities from steamrolling in laws. 60% for legalization or whatever topic you want isn’t enough to make a federal law changes if the majority isn’t spread around all of the states as well.

Obama didn’t even want gay marriage when he went into office. People elected him again anyway. I think most of your confusion comes from the fact that you don’t understand representative democracies.


On top of that is the partisan system in congress. Even legislation which could garner a majority of the senate will not be given a vote unless it has the support of a majority of the party in power.

And then even on top of that, the majority leader won't allow a vote unless he thinks the president will support it.

So there are multiple levels something has to go through before it can even get a vote.


Respect is not quite the word I'd use. Yes you have to put in your time, but politics play just as much a role in SCOTUS appointments as any other branch. The major difference is that the appointees do not pander to the public for votes, rather they pander to those we have voted into office.


Even including recent events, I think the actual judicial track record of the Supreme Court proves its legitimacy. These people put huge amounts of research, thought, and reasoning into their decision.

Every single person will have some sort of bias. We are all human. Sometimes the court will 'lean' left, sometimes it will lean right. Over the years it has been an anchor of reason and stability that is very much appreciated by this American.


"These people put huge amounts of research, thought, and reasoning into their decision."

What makes you think the judges are the ones who actually do all that research, thought, and reasoning? They all have a staff to do that for them.


>Anyone can become President

Somewhat irritatingly, I (and a large number of other American Citizens) cannot ever become president because we were not citizens at birth.


I wasn't aiming for absolute technical accuracy and don't think it was expected. I'm well aware of the specific technical limitations related to age, time living in the US, and citizenship requirements.

I'll not argue as to the correctness or morality of such a requirement.


>I wasn't aiming for absolute technical accuracy and don't think it was expected.

I understand. It's just something that is frustrating. Having two classes of citizenship is something that affects many parts of life, especially if you decide on a career doing anything that requires a security clearance.


We have more than two classes.

Ask anyone "convicted" of a felony. "Accused" of a mental disorder.

I put the scare quotes because most convictions are plea bargains that the accused are bullied into by prosecutors and police stacking and inflating charges and the overall lack of competent and affordable legal representation.

Laws are being passed now that permit the suspension of constitutional rights without due process if you are accused of or ever seek help for many mental disorders.

Sensationalistic fear of the 'boogeyman' has destroyed many of our political processes.


Is there not also a weird clause where you have to agree in the existence of a supreme being (it can be any supreme being, I think) because otherwise you can't take the oath of office? I suppose an atheist is very unlikely to become president of the US any time soon, but I always wondered what would happen if one did get voted in.


I certainly don't think so.

There's a clause that explicitly bans religious tests for federal public office[1], and a landmark SCOTUS case clarified that state governments cannot do this either[2].

1: https://en.m.wikipedia.org/wiki/No_Religious_Test_Clause

2: https://en.m.wikipedia.org/wiki/Torcaso_v._Watkins


> Is there not also a weird clause where you have to agree in the existence of a supreme being (it can be any supreme being, I think) because otherwise you can't take the oath of office?

No, in addition to the clause which directly prohibits religious tests, there is no clause which does anything like that; the required oath or affirmation is:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

No supreme being required or even directly relevant. You may be confusing the Presidency with Alcoholics Anonymous, which requires acknowledging a “higher power”.


> You may be confusing the Presidency with Alcoholics Anonymous

I do that all the time.


No. Several presidents were sworn in using documents like the Constitution and the Magna Carta instead of the Bible.


No, that’s not a thing.

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

That’s it.

“So help me god” is not part of it, despite some tradition. Not all presidents have used bibles or sworn to a god.

https://en.wikipedia.org/wiki/Oath_of_office_of_the_Presiden...


Several of the Founders we're not even Christian, hence Adams calling Paine a "filthy athiest" (untrue: he was a Deist).


There are states outlawing atheists from holding state offices, but the oath of office for US president does not contain religious references. It is specified in the Constitution.

Oaths of office for other federal positions do contain the phrase "so help me God," but so far as I know there has never been a problem omitting it; I had several friends in Federal service do so.


I'm sure the congress would find a workaround if that came to be. Perhaps you'd just have consider it (the swearing in) just a part of the ceremony and not part of a belief? Of course, an atheist zealot would probably have an issue with that, but I imagine the kind of atheist to get elected would be the pragmatic kind.


> Is there not also a weird clause where you have to agree in the existence of a supreme being ... ?

Quite the opposite. The first amendment's establishment clause prohibits the government from "establishing" a religion, i.e., forcing religious on someone.


Probably the single smartest decision the founding fathers made was to separate church and state.


People here commenting that the last point isn't valid are ironically demonstrating just how much respect the bench requires.

Thankfully, blind allegations with no substantiation aren't enough to ruin a whole careers worth of earned respect.


> Thankfully, blind allegations with no substantiation aren't enough to ruin a whole careers worth of earned respect.

And apparently, neither is lying during your sworn testimony to Congress.


Yes good point. Kavanaugh's appointment showed us that if you aspire to be a SC judge you better make sure you behave well right from your teens. Some dubious instant from 30 years ago might come to hurt you.


The sexual assault allegations addressed by the reopening of his confirmation hearing for the Supreme Court seem to have made everyone forget the fairly blatant perjury about his role in Bush Admin torture policy in his confirmations hearings for the D.C. Circuit that was addressed (but let slide) in the first round of his Supreme Court confirmation hearings.


True. There were many serious concerns about his competence as a judge which were not even discussed and everyone focused on his sex life.


I would probably argue that it didn't show us that at all.


> a whole careers worth of earned respect

Hundreds of US law professors disagree with you about that respect.

https://www.theguardian.com/us-news/2018/oct/02/brett-kavana...


> It takes a lifetime of respect to earn a seat on the Supreme Court bench.

No, it really doesn't. It takes backing from powerful politicians and/or lobbyists. Respect doesn't enter into it.


It has in general, but not lately.


>It takes a lifetime of respect to earn a seat on the Supreme Court bench.

If that were true, more justices would ascend to the court quite close to their deaths. In reality, it's maybe half a life, less if you subtract youth.


This comment doesn't seem to of been made with the last 3 or so years of history in mind.


I'm sure lots of women would not agree with your last statement.


Minus the odd occasion of sexual assault [1].

1: https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...


*alleged


Even if 'alleged', this should have been enough to stop the confirmation until it was properly investigated. Or frankly, it should have stopped it outright.

Few positions are more important, and fewer still require a higher standard of morality than a supreme court position. Why settle for less than a spotless record? The person should be beyond reproach, so much so that an invalid allegation could be easily dismissed(during the confirmation, or any time afterwards).

You are placing someone in a position where they are able to influence lives of countless people, with repercussions that can span generations.


No, you're right: highly respected and professionally stable women often go out of their way to drag themselves and their reputations through the mud to have no effect on the nomination and subsequent appointment of a Supreme Court Justice. That makes perfect sense.


She also instantly became a hero to nearly half the country and made hundreds of thousands in a gofundme. It's not all bad


Was her reputation damaged? Did she expect no effect?


The second statement is false.

How much a candidate raises has been correlated to ability to win.

That eliminates anyone that can’t raise money.

And Kavanaugh’s nomination casts doubt on the third statement. You can be a vile POS, but become a SCOTUS judge so long as you’re networked with the right people.


>How much a candidate raises has been correlated to ability to win.

Key word being correlated. Winners raise more money in large part because people donate to candidates they think will win. So your third statement is technically true, but in a very uninteresting way that you probably didn't intend.


Correlated != caused. As candidates gain popularity they always bring in more money.


The amount of restraint shown depends largely on the issue and justices. One of the most infamous overreaches was the Dred Scott case where the court went way beyond the issue at hand and essentially decided the case was invalid because of the defendant’s race.


Now if we could only do something about the police stealing stuff from people who aren't even accused of breaking the law.


And why is it a good thing that they didn't rule on the other merits of the case, such as clarifying that a confiscation of a $45000 car is "excessive" for a crime with a maximum fine of $1200?


IANAL, which should be evident, but..

The lower courts already felt the fine was excessive, but declined to rule so because they felt they were not subject to the 8th amendment. The Supreme Court ruled that they were in fact subject to the 8th amendment, and sent the case back to the State court to re-evaluate under the new guidance.

The Supreme court generally tries to rule as precisely and efficiently as possible. Since the most prominent question under their jurisdiction was the application of the 8th amendment to the states, they ruled on that issue and remanded for the remainder of the case to be resolved by the lower case with the 8th amendment applied.

Now the lower court, which is a perfectly capable entity, will rule on the case, applying the 8th amendment as directed by the Supreme Court. If the lower court then rules the fine was not excessive, that ruling as well would be subject to review by the higher court.

But it was not necessary at this time for the Supreme Court to rule on this as the ruling on the 8th amendment will permit the lower court to do it's job and re-evaluate.


It's standard operating procedure for the court.

They usually make the narrowest possible decisions, only in cases they felt they had to take (usually because of disagreements below, sometimes due to time considerations), and remand to lower courts to work out details left undecided.

In this case the holding leaves very little room for the lower courts to make any decision other than that the $45k property or equivalent value must be restored to the plaintiff. I suppose Indiana might want to take the $8800 between the $1200 and the max fine ($10k), but that would invite further pointless expense and embarrassment by having their rulings overturned by Federal courts, so I would bet the plaintiff gets the $45k back. I suppose the plaintiff may want interest too, but there's not enough value in that for them, but the State will surely fight that tooth an nail, especially if the courts decide that all (or many) civil asset forfeiture cases are now to open to being revisited, as the States (or their cities) will be on the hook for enormous amounts of money, and interest on that will be a lot too.


Probably because what constitutes excessive is going to be a fairly arbitrary and subjective amount at any point in time and depending on the person in the case. I don't think that's what's really the meat of the argument. The 8th amendment not applying to states however is a huge deal as its a pretty clear violation of the 14th amendment and its broader intentions.


Not American here, but would SCotUS even be able to rule on anything outside of their narrow window? My impression was that they only rule on constitutional issues. I guess that's why they vacated the rest. When it gets to that level, is there any oversight to ensure that they don't go beyond the boundaries of their mandate?


I think that norms are what are keep them most things in check and to preserve legitimacy they rule mostly on constitutional issues but I'm sure they can review any ruling in lower courts that they like or even overturn old rulings as they see fit. They cannot write new law as that is explicitly congress but they could take cases and interpret them broadly or narrowly to skew the desired result. If they tried to write laws themselves presumably they would be ignored or removed either via impeachment or by physical force. In a situation where parties are adhering to the rules then either congress can pass new law to clarify intent (and probably fight again) or pass an amendment to constitution or states could call constitutional convention to overrule an undesired court ruling.


The SCotUS has extremely broad leeway in it's decision making. Any court case can rise to the SCotUS, but the SCotUS also has the power to deny hearing any case it wants.

The Supreme Court has original jurisdiction (that is, the first court the case must be heard in) in a very narrow set of circumstances defined by the US Constitution (in Article III): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction."

However, the Constitution goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (More here [0].)

So, for state courts (which try violations of state or municipal law, which are the vast majority of cases), you would have your original jurisdiction court (civil court, criminal court, etc.). If the case is appealed, it goes to the state appellate court. If that decision is appealed, it goes to the state supreme court. If that decision is appealed, it goes to the SCotUS. Not all states have both a supreme court and a designated appellate court. Some cities also have their own courts for municipal laws (New York and Chicago both do) but they work the same basic way and I believe they appeal to state appellate courts.

For federal courts (which try violations of federal law or that occur on federal land or that cross state lines, but also any trial in Washington, D.C., because the federal government regulates that), you start at the district court[1]. Appeals to that cast go to the circuit court[2], and appeals to that go to the SCotUS.

There is no appealing a decision by the SCotUS. It would require an act of Congress, Constitutional Amendment, or a completely different trial where the SCotUS reversed it's prior decision. This has happened, most famously in Plessy v. Ferguson (1896) (legalized racial segregation) was overturned by Brown v. Board of Education (1954) [3].

[0]: https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_S... [1]: https://en.wikipedia.org/wiki/United_States_district_court [2]: https://en.wikipedia.org/wiki/United_States_circuit_court [3]: https://money.howstuffworks.com/10-overturned-supreme-court-...


High-effort comment.

I would add some from libertarian or socially-liberal inclinations have criticized SCOTUS as becoming tyrannical in a sense that some socia policy was constitutionally-intended to be "experiments" by the states--something SDOC is championed.

I think a good example of this is the political economy of healthcare, which in my opinion should be handled by the states.


As an interesting side note, they don't have to rule only on constitutional issues. They used to quite regularly hear big-news criminal cases.


The SCOTUS rules on all sorts of controversies. Most often they rule on matters of procedure and statutory construction. Sometimes they rule on constitutional matters. Most cases that come to the SCOTUS are not momentous but boring, but occasionally there is a momentous case.

The SCOTUS has, for some time now, been very good at doing the following:

  - waiting until there is a "circuit split"
    (meaning lower courts deciding the issue
    differently) on some kind of controversy
    before hearing appeals
  - then making the narrowest possible ruling
    (emphasis on possible),
  - thus often leaving some issues undecided so
    that lower courts may develop jurisprudence
    on the matter further before the SCOTUS need
    clarify,
  - which then allows the SCOTUS room to maneuver
    if they make bad decisions (the SCOTUS does
    not like to overrule earlier decisions,
    something they call "stare decisis", meaning
    what is decided is decided),
  - and they do this by remanding to lower courts
    to decide things the SCOTUS left undecided.
In this case the SCOTUS did not decide whether the plaintiff should get his property (or equivalent value) back. There's little doubt now that the Indiana courts will decide that the plaintiff must get his property back, and if not, the very first Federal court to hear an appeal will do so, because this follows from today's decision, but the Court did not decide this. Nor did the Court decide whether Indiana could take the balance of the seized property and the fine up to the maximum fine -- this is less clear, but since there is a conviction, sentence, and fine on record, it seems difficult to change the fine ex-post just to minimize the State's liability and/or change the then-defendant's punishment, for that ship has sailed.

As to oversight, yes there is, but it goes un-exercised now for a long time. Federal judges are appointed for life, but they can be left without a court or without a jurisdiction, the various courts' jurisdictions (including the SCOTUS'!) can be narrowed statutorily, court sizes can be changed -- all of this by simple majorities of both houses of Congress and Presidential approval (or veto override). There's also two ways to amend the Constitution to change SCOTUS decisions. But none of these things have been attempted in decades. The last time there was an attempt to use statutory avenues was in the 30s, when FDR tried to pack the SCOTUS, and the Senate killed the project. Before that we'd have to go back to the income tax amendment (the 16th), and before the Reconstruction Amendments (13th, 14th, and 15th).

The most notable case I'm aware of when Congress did away with courts for political reasons, was way back when Thomas Jefferson was President. Congress then closed about half the federal district courts and left as many judges court-less. Congress has changed the size of the SCOTUS, including shrinking it, from time to time, though I think all of that was in the 18th and 19th centuries, and never did they pack the court -- it was always changes of +-1 or +-2.

There's always a risk of court packing. It seems strange that the Constitution allows it by simple majority -- it feels like a bug.

A number of politicians have threatened to pack the court the first chance they get. Given our rather nowadays-frequent wave elections, it could very well happen. The filibuster in the Senate will be no protection for the minority in the Senate the day it comes to packing the court anymore than the filibuster stands for nominations to the court (it no longer does). But it's also not guaranteed to happen. It will be very costly to whichever party does it, and since we've had so many wave elections in recent decades, any court packing scheme simply might not last.


You are correct that they didn't rule on it. But they did write an opinion that was highly suggestive of what the particular finding in this case should have been. It doesn't carry the weight of law, but it isn't nothing, either.


Oh, definitely. It was a minimal ruling, but it's still a landmark.

Honestly, though, this case is so perfect that I almost wonder if the Supreme Court of Indiana didn't rule the way they did just to force the issue.


That's roughly what they did, though they also said "hey, we're the Supreme Court of this state, and we're not just going to give it to them." Here is the money shot from the Indiana Supreme Court opinion:

> A second option is to await guidance from the Supreme Court and decline to find or assume incorporation until the Supreme Court decides the issue authoritatively. We choose this latter, more cautious approach for two reasons. First, although the Supreme Court has addressed this issue only in dicta, its statement in McDonald that the Clause has not been incorporated is entitled to more weight because it is the Court’s most recent. Second, Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated. An important corollary is that Indiana has its own system of legal, including constitutional, protections for its citizens and other persons within its jurisdiction. Absent a definitive holding from the Supreme Court, we decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.


The more I follow SCOTUS rulings the more I think this happens quite often.


There's a thing called "forcing a circuit split," which is a precondition for SCOTUS cert, but AFAIK it's usually a strategy by parties to a case (see: forced-birth organizations), not judges.

https://en.wikipedia.org/wiki/Circuit_split


It does, in fact, carry the weight of law (not just in the instant case but in every case to which it's ruling is applicable in every US federal and state court at every level, other than the US Supreme Court itself.)

It isn't, on its own, a final judgment on the case, but that doesn't mean it lacks force of law.


> Timbs sued or appealed the confiscation by Indiana, which he he could prove he didn't buy with drug money.

Shouldn't the burden of proof of financing lie with the state before property possession is carried out? It is unfair for the defendant to prove the source of funds for his own property


People have been saying that stuff for years. Unfortunately, this affects mostly folks doing illegal things or those accused of them, making the public at large have little incentive to fix it.


The crucial detail is that civil forfeiture works by suing the property, not its owner. The owner is just an "interested party" and has limited standing to fight the seizure. It's mind-blowingly bizarre.

https://en.wikipedia.org/wiki/Asset_forfeiture#United_States


The state did prove that Timbs and committed the crime he was being fined for, the question at hand is whether the state can take away his car.

One reason might have been if it was the proceeds of drug-dealing. But that reason is not relevant since he could prove otherwise (let alone whether the burden of proof is/should be on him).

The other reason is simpler: States can fine people for stuff, but (according to the USSC) the fine can't be excessive.


This is why evil will always win, because good is dumb.

Or more precisely, evil people will happily violate entire tranches of law while the good people are stuck prosecuting one case at a time, painfully establishing precedent by precedent, and in the meantime the world has moved on.


Blame it on police and military fetishization. At the end of the day, if you resist authority trying to take your shit illegally, it will come to blows. If you choose to defend yourself against them, you are now very much on the wrong side of the law.

It has to be less illegal to defend yourself from authority if you feel you're in danger.


On a practical level that doesn't seem very viable in a "mountain lion vs housecat" way. Accountability is certainly needed though.


I am surprised that the Indiana Supreme Court ruling basically upheld that the Bill of Rights doesn't apply to states in the absence of specific SCOTUS rulings. Can you imagine if individual states felt they have the right to suppress free speech or the press?

I read the official decision from the state court[0] but it's a bit dense for me to get through. It seems like a legal punt, of sorts, in the hopes that SCOTUS would pick up the case.

I'd love to hear someone more qualified break down the state decision.

[0] https://www.leagle.com/decision/ininco20171102267


The US Supreme Court decided many decades ago that the Bill of Rights doesn’t apply wholesale to the states. Instead they held that each right has to be analyzed separately to determine if it should apply to the states. This principle is called “selective incorporation”.

At this point most of the rights have been incorporated and only a few have specifically not been incorporated, most notably the right to a grand jury indictment. The excessive fines clause was one of the stragglers that hadn’t been decided either way. (The third amendment probably never will be decided.)


Actually the third amendment has already been decided as incorporated. :)

See https://en.m.wikipedia.org/wiki/Engblom_v._Carey


Only in the 2nd circuit, I guess, but good call.


State Supreme Courts can't incorporate parts of the constitution against their own laws, this is the role of SCOTUS. It's not a matter of will or desire; it's a matter of jurisprudence.


Unrelated question, but who is paying for all these lawyers? Timbs himself out of his pocket?


Wikipedia says he was represented by the Institute for Justice.

https://en.wikipedia.org/wiki/Timbs_v._Indiana

Otherwise, yes, Timbs would have to pay. You can file a petition to ask the court to waive your court costs (there's a Latin legal term for it that I believe means "with pockets turned out" or "with pockets empty" but I can't remember it), but your lawyer's time isn't covered by that.


I think in forma pauperis is the phrase you're looking for (but its literal meaning isn't what you suggest).


That is it, yes.


For reference, in forma pauperis means "in the shape of a poor man"; pockets aren't mentioned. As far as I'm aware, the Romans didn't have pockets and so there would be no way to express the concept in Latin.


Latin was the international language of Europe for almost a thousand years after the collapse of the Roman Empire, during which time many scientific advancements were made. There are plenty of Latin words for things that didn't exist in Antiquity.


There are tiny communities who use recreational Latin today. Here's the Vicipaedia article on the telephonum: https://la.wikipedia.org/wiki/Telephonum

But that doesn't really constitute a good argument that there is a Latin word for telephones.


Given that telephone is Ancient Greek (though obviously coined more recently), I don't see why there shouldn't be a Latin word for it.


Thank you, beautiful refutation of an argumentative quarralous, I would even say bad faith, assertion, which we see entirely to often now imo.


I had no idea this existed, and you just made my day with it.


> As far as I'm aware, the Romans didn't have pockets and so there would be no way to express the concept in Latin.

I know this is probably not meant to be funny, but for whatever reason, in reading it, I couldn't help but laugh.


Others have more specific answers, but more broadly if you have a case that's Supreme Court worthy there are numerous organizations willing to step in to represent your side. The ACLU is sort of built on this principle.


pro bono. I think IJR is involved in this: https://ij.org/report/policing-for-profit/


More generally, I believe that by the time a cases nears the level of the Supreme Court, legal fees typically become less of an issue in practice. There are many orgs on bath sidee that fund cases with important precedent, and plenty of great lawyers willing to argue for free since it's so prestigious.


Institute for Justice: https://ij.org/about-us/

You can help out too: https://ij.org/support/give-now


Sounds like they made a very broad ruling (that the 8th Amendment does apply to the states) and left the narrow rulings (about the specifics of the case) to other courts.


Had the 8th Amendment not been considered to have been incorporated before this?


The excessive fines clause hadn't, probably in no small part because states would argue "this is a reasonable fine" rather than "we're allowed to give unreasonable fines."

I believe cruel and unusual punishment would have come up in method of execution cases, but not sure of the case.


>Justice Thomas agreed with the result in the case, Timbs v. Indiana, No. 17-1091, but said he would have gotten to the same place by a different route. While the majority relied on the due process clause of the 14th Amendment, Justice Thomas said he would have ruled “the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the 14th Amendment.”

I was going to comment that the real biggest legal problem with civil forfeiture is how it circumvents due process, but it sounds like that was the actual ruling given by the supreme court. I think the title of the article disagrees with the last paragraph. It was actually Justice Thomas who wanted to rule that it constituted excessive punishment, while the rest of the court ruled that it constituted a breach of due process.


No, the rest of the court found the the excessive punishment protection of the eighth amendment was applied to the states through the Due Process Clause of the 14th Amendment as an essential right and therefore a component of “liberty” as used in the due process clause.

Thomas disagrees with this fairly conventional incorporation argument and the idea of the protection as a fundamental right, but feels instead that a protection against excessive fines is part of the “privileges and immunities of citizens of the United States”. This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.

All of the justices view it as excessive punishment, Thomas just thinks only US citizens are protected by the federal Constitution against excessive punishment by state governments, whereas the majority thinks states are Constitutionally prohibited from inflicting excessive punishment on people.


> This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.

That's the outcome, but I don't think that's the intent. The reason why Thomas wanted to go via the Privileges Clause rather than the Due Process Clause is because he represents a faction in jurisprudence that believes that the latter was historically inappropriately used in lieu of the Privileges or Immunities Clause in general.

If you dig into the history of that argument, it does kinda make sense - we have plain language in 14A speaking about states not allowed to deny rights to citizens, and we have historical record of the intent behind it. The reason why it's not used as intended is because in the infamous Slaughter-House Cases, SCOTUS essentially ruled it to be a nullity. Later, when the pendulum swung towards instead of reverting that decision and giving teeth to the Privileges or Immunities Clause, they made an elaborate construct of substantive due process from the Due Process Clause to allow for incorporation without a reversal.

The mainstream argument is that it's good enough, and that trying to revive the Privileges or Immunities Clause is simply not worth it - which is why it hasn't been referenced by SCOTUS in decisions for a long time. Nevertheless, there have always been judges that believe it to be wrong, and those judges would supply minority opinions referencing it. This generally correlates with textualism (and hence opposition to substantive due process, which is an inherently anti-textualist notion) - which is the case for Thomas as well - but is not limited to that crowd.


The constitution really clearly delineates between "persons" and "citizens." I hate the notion that none of the protections apply to noncitizens.

Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.


> Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.

This is because the Constitution is supposed to be an enumeration of what the government is allowed to do. The limitations are there to narrow the scope of those enumerated powers. In this context, enumerating most rights of citizens would have been redundant. The enumerated citizen rights were those that could be affected by the powers the government was granted.

Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.


> Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.

I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time, particularly when corporations comparatively have no hurdles at all over the same geographic region. Getting 50 of anything to do something at the same time is nearly impossible. If we want to do something about many significant, widespread problems, we need the power of a centralized Federal government. As the saying goes, the Constitution is not a suicide pact.

Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.

No, I don't think that adding more representatives would help the problem, but our political system, invented in the 18th century, is nearly overwhelmed by the sheer volume of people in this nation.

[0]: https://en.wikipedia.org/wiki/United_States_congressional_ap...


> I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time

To what extent do we actually need to have all states do exactly the same? It's a common argument, but there are many independent sovereign states out there that are smaller than many of US states, and they're doing fine solving their national problems despite their size. Sometimes - quite often - that happens with cooperation with other states, but such cooperation does not require an overarching government entity.

Sure, that means that US would not be a state in a sense that, say, France is a state, with a strong national identity and uniform politics. But does it have to be? I would argue that there is no truly democratic way to rule 300 million people from a single center, and decentralization is key to real democracy. Conversely, I don't see why my ideas and values have to be pushed on someone in the opposite corner of the country, but not, say, across the border into Canada.

> As the saying goes, the Constitution is not a suicide pact.

Whose saying? Last time I remember hearing that everywhere, it was to justify stuff like the PATRIOT Act and other post-9/11 abuses.

> Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.

The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.


> The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.

Part of the reason the issue has gotten out of hand is the relative weakness of states to enforce the cost of negative externalities on business. As soon as one state passes regulations, it’s too easy for many companies to pack up and leave for ‘greener’ pastures where the politicians would rather tout economic improvement at the expense of those negative externalities. As a result, problems like this often end up hoisted to the next level of government to solve issues in a more equal manner.

Just look at the ways cities were tripping over themselves to look attractive to Amazon for HQ2 to see this phenomenon in action.


But that is also true of countries. For large transnationals (who are the most abusive) especially, I don't think it makes a big difference.

OTOH, if that is the key problem, then why not make feds an arbiter specifically for such externalities? i.e. they'd be the ones establishing whether something negative is actually happening, measuring the impact, and imposing some remedy (either cease and desist or compensation, depending on which one is appropriate).

If we're talking about AGW, say, and carbon tax, then let's have the feds tax the states proportionally to their total carbon output. The states can then pass those carbon taxes onto their residents in various ways - and how exactly they are allocated is then a matter of state policy - but it has to add up.


    No, I don't think that adding more representatives would help the problem
I think it would. Along with creating more slots for minority candidates to get elected in. There's also the matter of the cost of lobbying. Right now lobbying is dirt cheap because you can spend a very little amount of money to influence one representative and that one vote in congress can have a huge effect. If there were more people voting in congress the value of that one person would be reduced. The lobbyist would have to work to get multiple congressmen to have the same influence which makes bribery less cost effective than it currently is.


For most issues, there is really no need for all 50 states to act at once. In practice, the federal government exercises it's extraconstitutional authority for all kinds of things which could be done much better at the state level.

For instance, making drugs illegal (accounts for most federal prisoners) and running social welfare programs (accounts for most federal spending).

If something really is an important power the federal government must have (maybe some kinds of environmental regulation powers?), then make an amendment that clearly scopes the boundaries of that new power.


> it's extremely difficult to get 50 states to jump forward at the same time

The great thing with this system is that it's extremely difficult to get 50 states to jump backwards at the same time.

Some places will always remain sane, even in the darkest hours. That is the greatness of a decentralized system!!


Well then, how does the EU (whose central authority is extremely limited in scope compared to the US Federal Government, and whose member states are still meaningfully sovereign separate countries) manage to thrive so well?

Why couldn't a similar system work well in the US?


Have you not heard Europeans talk about the EU? Pretty much everyone agrees that it's slow, cumbersome, and doesn't address a lot of problems quickly enough. It's also significantly more complex[0] by further dividing the executive position, compared to the American system, and it's only got 28 states.

[0]: https://en.wikipedia.org/wiki/European_Union#/media/File:Org...


Sadly most people, who lack a grounded understanding of Anglo-American legal tradition, revert to their native frame of reference where the law is just another tool of the local powers to inflict their will. It is only in the Anglo-American tradition that law is understood as a restraint on the power of the sovereign, rather than a tool of the sovereign. This is the primary philosophical distinction between the common law and the various civil codes.


This is because the Constitution is supposed to be an enumeration of what the government is allowed to do.

This is simply not true. The Founders lived through the Articles of Confederation, in which the founding document explicitly enumerated the only powers the government would have. The Constitution was an explicit rejection of that philosophy, and was intended to create a government with broad powers. The point of the Bill of Rights was to place limits on those broad powers.

Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.

This is also not true. A great many of the Founders considered the 10th Amendment to be meaningless fluff added only to mollify the slave-owners who wanted restrictions on the Federal government's ability to curtail their ownership of slaves.


That's only true if you use the definition of "broad powers" that was used back when the Constitution was written - which is very different from what it is today.

And all of those broad powers they wanted the government to have, were explicitly written into the text of the Constitution. Sometimes it was deliberately vague, like the Commerce Clause (although if you showed our modern jurisprudence on that to people who wrote it, they would be horrified). And in the Federalist Papers, there are several instances where some bit in the Constitution is explained as, "yes, this is rather broad, but the government needs it for real world reasons". But it is always enumerated.


The First Congress passed the Sedition Act, which was an extremely broad set of laws that would have essentially nullified the First Amendment. The first several Congresses passed extremely broad laws regulating commerce that were ultimately narrowed by the courts. This all despite having numerous members of the Constitutional Convention among their ranks.

It's pretty clear from the laws the First and Second Congress passed that they had an even broader definition of "broad powers" than we do today. (And by the way, the Federal Papers have no legal authority in US law. They're interesting from a historical perspective because they documents an attempt by one politician to sway the opinion of the general public, but they don't form any part of the corpus of American jurisprudence.)


Alien and Sedition Acts were widely panned when they were passed, specifically because many people saw them as unconstitutional. What they proved is that people aren't particularly respectful of the same constitution they wrote, but little else.

I'm well aware that the Federalist Papers aren't law. The reason why I mentioned them is that they come from the party that was anti-Articles, pro-Constitution and pro-strong federal government. So reading them gives you an idea of what they meant by "strong federal government", and what they considered to be out of bounds.


Can you provide some evidence for your last paragraph?


The Sedition Act, passed by the First Congress (consisting of many members of the Constitutional Convention), for starters, which was a huge restriction on free speech.

The multiple attempts by former CC members to pass anti-slavery legislation in Congress in the many decades leading up to the Civil War.

There are a number of other examples, well covered by a number of primary and secondary sources.


The founding fathers didn't think the government granted you rights. They thought you already had rights by virtue of being a human being and it was the government's job to protect and not infringe upon those rights.


> The constitution really clearly delineates between "persons" and "citizens."

It uses at least three different terms, citizens, persons, and “the people” (and the last is the most common where it concerns rights). The precise boundaries of the latter is fairly hotly contested, and the Courts to date haven't given precise guidance (it is clearly broader than citizens and narrower than persons, but the exact boundary is murky; the US DoJ has often advocated for a definition of citizens and some subset of lawfully admitted aliens, possibly only LPRs, but others have taken other positions.)


I hate the notion that citizens don't have privileges, because otherwise citizenship is worthless. Obviously the natural rights of all persons ought to be respected.


Citizens have the most important privilege: the ability to vote.


What makes you say that the ability to vote is the most important privilege? For example, I'd happily give up my right to vote before my right to legal due process. I'd rather live in undemocratic Singapore than in somewhere with free elections but widespread corruption and poor rule of law like India, Turkey, or Mexico.


Because your right to vote ultimately affects all those other rights. With enough people voting for such, protection for rights can be repealed, or even ignored outright.


Not really, since a lot of them are pretty unpopular. For example, things like "making it illegal to burn the flag" or "stopping Neo-Nazis from marching" poll very well in the US -- people would happily vote to get rid of freedom of speech if they could.

As for rule of law, there are examples of non-democracies with solidly developed rule of law, like present-day Singapore and Hong Kong, or Britain in the 19th century (and before).


You keep confusing the terms. You say "privilege to vote" in one sentence and "right to vote" in another. Constitution sees due process as a right of "persons", and ability to vote as a "right of citizens".


And hold government office.


How important is this privilege if I can maliciously control how you vote?

Now imagine the good we can do with real electoral reform (Democrats idea of repealing citizens United is a meager start, but weak lip service to real reform)

What we have now - First Past The Post Voting - https://www.youtube.com/watch?v=s7tWHJfhiyo

Range Voting - https://www.youtube.com/watch?v=e3GFG0sXIig

Single Transferable Vote - https://www.youtube.com/watch?v=l8XOZJkozfI

Alternative Vote - https://www.youtube.com/watch?v=3Y3jE3B8HsE

Mixed-Member Proportional Representation - https://www.youtube.com/watch?v=QT0I-sdoSXU

Electoral reform is just step 1, something we can all come together for. Something no one could possibly be against.

How about if I control who can be voted for?

Of course it matters - https://m.youtube.com/watch?v=Erph1L_XwVQ

bonus video:

This video will make you angry -https://m.youtube.com/watch?v=rE3j_RHkqJc


Citizens have the special privileges of voting, being President, and having guaranteed reentry to the country.


> otherwise citizenship is worthless

Would that be such a bad thing?


For citizens.


Due Process mostly applies to persons, not just citizens.

In some cases the possessor of a right is not identified. E.g., the 1st, 2nd, and 3rd amendments do not specify whether they apply to all persons in U.S. jurisdictions or just citizens. These are the ones that are most likely to be unavailable to non-U.S. persons. E.g., non-U.S. persons are generally not permitted to keep and bear arms within the U.S.


Note also that corporations are 'people' but not 'citizens' and would likewise be disenfranchised from the protections provided by the bill of rights and the constitution when it came to state law.

edit: there seems to be some lawyering about the difference between the meaning of 'people' and 'persons' that I do not understand at this time.


Corporations are not people, and the Supreme Court has never found that they are -- this soundbite is a misunderstanding of Citizens United v. FEC.


Interesting. Did the SC (in an 1888 case) not say: "Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."

And does 1 USC not also say:

"In determining the meaning of any Act of Congress, unless the context indicates otherwise—

the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"

as well? I'm not sure how to align those statements with your comment. Perhaps it's a subject that only someone with a law degree can discern the meaningful difference between the claims?


That's just not true. Corporations have been recognized as legal persons in the US for well over a century prior to Citizens United, in both judicial precedent and federal statutes.

I agree with what I assume you believe - that this ought not be the case, and corporations should be more restricted in their rights than natural persons. But simply claiming it to be so is willful ignorance.


The legal fiction of corporate personhood does not grant them all the rights of a natural person. For example, in SCC Acquisitions, Inc. v. Superior Court, the California Court of Appeal ruled that corporations did not have a constitutional right to privacy, despite the California constitution extending privacy rights to all people.

https://www.natlawreview.com/article/court-holds-corporation...


Corporations are "legal persons" in the sense that the same rules apply to them as to people in some areas where that makes sense.

This is mostly a practical matter, so instead of writing a duplicate set of laws for corporations and people, the legislators have said that "for these laws, just apply laws to corporations as you would to people".

...or that's how I've had it explained to me.


> Corporations are not people,

Corporations are exactly didtinxt legal persons and that's the central point of incorporation.

> the Supreme Court has never found that they are

It has, in fact, found that they are legally persons and that is the whole point of corporations (though the first cases to do so use the term “individuality” for what a modern writer might term “personhood”.) Key early cases include Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819); Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet 21 U.S. 464 (1823); and Providence Bank v. Billings, 29 U.S. 514 (1830).

But, beyond these early cases using language that might be mistaken by a modern reader, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888), the court, in addressing the 14th amendment, found that “[u]nder the designation of ‘person’ there is no doubt that a private corporation is included.”


Corporate personhood has a very long history in the US.

https://en.wikipedia.org/wiki/Corporate_personhood


people =/= person.

All people are persons, but not all persons are people. I enjoy Stewart, Colbert and Oliver as much as the next person (vernacular usage, not legal), but they've done a lot of damage to the national discourse on this topic.


> All people are persons, but not all persons are people

People is a plural of person (persons is also a plural of persons); all persons are people just as all people are persons, the two terms are in this use synonyms (people also has a singular use.)

Not all people or persons are part of “the people” as that is used in some Constitutional provisions, but 14th Amendment due process rests on the definition of “person”, not “the people”, and in any case the Supreme Court has found that the distinguishing feature of “the people” is attachment to the national community, not natural (as opposed to artificial/juridical) personhood, so U.S. corporations are, Constitutionally, all of “persons”, “people”, and included within “the people”.


They are people associating freely, however, which is protected under the First Amendment.


> the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

I believe current law is that people have the right to peaceably assemble only for the purpose of petitioning the government for a redress of grievances.

It sounds wrong, but there it is.


That's part of a longer list of rights. Clearly they are not all about petitioning the government.


> corporations are 'people'

A corporation, is, by definition, a group of people, yes. And those people who make up the group have rights that are protected by the constitution.

Or in other words, a corporation is the plural form of the word 'person', in many situations.


> A corporation, is, by definition, a group of people, yes.

No, it's not. It is, legally, a single person. It is not a group of people, though one or more other people (all or some of which may also be corporations, governments, or other legal persons that are not natural persons) have authority to direct it as laid out in its charter. But the corporation is not, and is clearly and legally distinct from, any and all those people, individually or in any combination.


What I am saying is, that a corporation does not have a mouth. Only people have mouths.

Therefore any time you a preventing an entity with a mouth from speaking, you are by definition preventing a person from speaking.


> noncitizens necessarily do not enjoy the privileges and immunities of citizens.

Would you have more reading on this? It's something I've wondered about but never really come across a comprehensive answer to. What rights do noncitizens not have that citizens do?


FYI, the term "U.S. persons" == U.S. citizens and permanent residents.

The only rights that permanent residents don't have are: a) the right to vote, b) the right to have their permanent residency not revoked for cause (e.g., committing a serious crime). Permanent residents get to become citizens after some time.

Non-permanent residents have fewer rights, and which rights they don't have is generally a matter of law, not Constitution, except that they have all the rights of Due Process guaranteed by the Constitution (i.e., by far the most important ones for them to have), at least as to criminal prosecutions, and often as to civil suits. A typical example would be the right to keep and bear arms, which non-residents generally do not have in most States. I suppose even First Amendment rights might be curtailed for non-residents, though I suspect at most only freedom of association would be, and only indirectly.

But most of the Bill of Rights (the 4th through the 8th Amendments) deals in Due Process, and these rights are available to all persons in the U.S., except perhaps as to immigrant law itself (e.g., a non-resident alien may have much less recourse to fight deportation than they and anyone else might have to fight a conviction).


For example: the right to vote, the right to run for elected office, the right to enter US territory and remain there indefinitely.


I meant beyond the obvious right to vote and be in the country etc.


Well, I'm not sure what you consider obvious or not, but those are the most important ones.

From Wikipedia, some other examples are the right to be considered for federal employment (most Federal Government jobs being closed to non-citizens), access to US consular officials if arrested abroad, and exemption from certain real estate taxes[1].

[1]: https://en.wikipedia.org/wiki/Foreign_Investment_in_Real_Pro...


I guess when I talked about rights I was really thinking about protections from the government rather than about liberties or privileges like serving in or voting for the government -- like the one against excessive fines that was mentioned.


Right to vote(though this can be stripped from felon citizens), right to peaceable assembly, right to bear arms.

The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.


> The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.

AFAICT, the Federal courts have not generally adopted this view (though it is popular in some circles, particularly the US Department of Justice); ruling less specifically that the term “the people” instead “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).


Justice Thomas has been fighting a long battle trying to restore the Privileges or Immunities Clause of the 14th amendment after it was effectively removed from the constitution in the Slaughter-House Cases. He'll often issue dissents or concurrences just to raise the issue of the Privileges or Immunities Clause.

The Institute For Justice (who argued this case, somewhat coincidentally) has a podcast about the 14th Amendment called Bound By Oath. They talk in depth about the Slaughter-House Cases and The Privileges or Immunities Clause in the third episode if anyone is interested in learning more.


Of course using the P&I clause has important implications.

Here's a twitter thread about it: https://twitter.com/MDAppeal/status/1098244852721115136

Tl;dr It means that the incorporation only applies to CITIZENS, not persons. So citizens united wouldn't apply to the states, but neither would the bill of rights to non-naturalized immigrants with regards to the states.


Background on the Slaughterhouse Cases: https://www.thirteen.org/wnet/supremecourt/antebellum/landma...


Thomas would quite happily overturn this line of reasoning just to get the government back to the business of just enforcing contracts. I'm sure he'd be happy to let workers sign themselves into slavery again. Daniel Webster must be applauding from his grave.


That’s not quite right. The Bill of Rights originally only applied to the federal government, until after the civil war when the 14th amendment was passed. Since then the clause in that amendment saying no one can be deprived of life or liberty without due process has been interpreted to mean most of the bill of rights also applies to the states. This ruling said as much for the 8th amendment prohibitions on excessive fines.

Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.


As a permanent resident who lives in the US, the idea that basic protections of law should only apply to citizens is terrifying. It's not the same outcome at all. Due process is afforded to "persons".


Quite recently, we have had two Presidents claim that non-citizens had no right to challenge their imprisonment by the United States (Bush in Gitmo and Obama on Bagram AFB in the Middle East) who ran smack into a Supreme Court that found their actions unconstitutional.

The notion that Constitutional protections cannot apply to non-citizens is simply not true, even when applied to non-citizens being held by the US off of US soil.


I understand this and I'm heartened that the Supreme Court majority continues to find that. I was getting at the distinction between what the majority ruled; that excessive fines are a breach of due process, which applies to all "persons", and the comment that Justice Thomas would have preferred to arrive at the 'same outcome' on the basis that it was a breach of the 'privileges or immunities of citizens of the United States’.

My point is that those are different outcomes, not the same; one protects me - a person in the US who is not a US citizen - and the other does not. The difference is also a furtherance of a generally authoritarian idea that non-US-citizens should have not equal protection under the law.


Speaking as another non-citizen, you should be concerned that something as important as protection of rights of non-citizens, hinges in its entirety on a very convoluted and non-obvious reading of the Due Process Clause of 14A.


Quite recently, we have had two Presidents claim that non-citizens had no right to challenge their imprisonment by the United States

No, the argument was that foreign terrorists and other non-state enemy combatants were not "subject to the jurisdiction" of the US legal system (because they weren't on US soil when captured, and as non-state combatants that weren't covered by any treaties to which the US was a party) and thus also not afforded its protections. However, as a matter of international law, a country generally has legal jurisdiction over any person physically present in the country, whether present legally or otherwise, excepting specific diplomatic personnel (as defined by local law or treaty).

This was the reason for holding them indefinitely in an military facility located in another country. However, under US law, military facilities are considered US soil, and so persons being held in US military facilities are subject to the jurisdiction (and protection) of the US legal system.


In the case of non-citizens being held outside of any US jurisdiction, what court has standing to rule? Where would I file a case if I had one?

This reminds me a bit of the Roman concept of the pomerium. Anything outside of the arbitrary line deciding what was Rome and what wasn't, was "anything goes."


Nobody. But US military facilities are considered US soil and thus US jurisdiction.

In the SCOTUS rulings on Guantanamo, SCOTUS went further and stated that they would have ruled the same way if it had been a CIA facility instead of a military facility, so long as Cuba had granted the CIA permission to exclusively use the land for its own purposes.


The 14th Amendment's Equal Protection Clause ("nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws") means aliens are afforded the same protections as citizens.


This reads to me as a way for the authors of the amendment to narrow any potential loopholes in the protection of the newly freed slaves at the time. All persons born in the United States are citizens of the United States. However, this says nothing about whether or not you are a citizen of the particular state you were born in. So potentially, a state could deny equal protection under the law (protections under state law or infringe upon federally protected rights) if this clause mentioned "citizens", rather than "persons". "Citizen" could be misinterpreted or (mal-interpreted) to mean citizen of the state in question. Additionally, it could apply to a non citizen resident/visitor of a state. If I am a citizen of Pennsylvania and am I work in New York, New York must provide me with the same protections under the law as they would provide a citizen of New York. The 14th amendment did not have immigrant aliens in mind but rather was narrowly focused on newly freed slaves who were before it ratification citizens of no place at all. So when we speak of "aliens", we must keep in mind that while it applied to "aliens" today, it was not meant to protect the rights of foreign "aliens" in particular.


I find this argument a bit weak. Ratification of an amendment is a big process and I find it hard to believe that no-one realized the implications of the 14th amendment beyond it's impact on former slaves. People realized the implications, and went forward with the text anyhow. Otherwise, you have to assume that everyone involved was just completely ignorant to the implications of the text written as is, which is a claim you'll need to provide a great deal more backing for me to believe.


The 13th, 14, and 15th amendments were specifically written for the special case of newly frees slaves.

The 14th amendment was ratified in 1868. The total population of the US in 1870 was around 38 million. The total number of immigrants was around 2 million. The slave population was around 5 million.

The implications of the 14th amendment are clear today and they may even have been clear then. Nevertheless the most pressing, most politically salient issue was the newly freed slaves. In one day (the day after ratification) the United stares gained 5 million new citizens.

I would not be surprised at all if the people involved at what time were a tad bit myopic, with respect to the problem at hand.


It is an assumption of ignorance on a massive and universal scale that is beyond reasonable. There is too many people involved to assume this was not considered. It's the same problem as assuming the moon landing was faked. The position that noone involved considered birthright centizenship beyond slavery is ludicrous. All those state legislatures, all those senators, all those house representatives, all their staffs plus the best legal minds available to the office of the president and your claim is not a single one of them realized birthright citizenship would apply to people who weren't former slaves? That is a ludicrous amount of doubt in human imagination.

EDIT: In fact in 1860, the us census measured 4.1 million people not born in the United States. Is your claim honestly that while the census actively measured this, not a single person realized what birthright citizenship would mean for the children of those 4.1 million non-natives?


>aliens

I really hate that usage of the word.


No, it means that states must have a pretty good reason for treating aliens differently, but the fact that an act which would otherwise be within their power is federally prohibited when targeting citizens but not aliens—the outcome of a Privileges and Immunities basis for incorporation rather than the more historically common Due Process one—may itself be sufficient to allow a distinction.

I mean, your basic argument is that Thomas is just pointlessly making semantic disagreements with the majority that would have no effect on this or any other conceivable case because either basis for incorporation produces exactly the same result not only on the present case but all possible cases. While I have a low opinion of Thomas, it's not quite that low.


The basic protections do apply to both citizens and legal residents - the issue is, if convicted a non-citizen may have their right to abode removed, and be deported.


Indeed. If they can successfully rebind the Bill of Rights as applied to states based on P&I instead of the due process clause, the Bill of Rights may evaporate for non-citizen immigrants. A state(i.e. Republican ones) may then pass discriminatory laws for which the Bill of Rights no longer applies against.


> may then pass discriminatory laws for which the Bill of Rights no longer applies against.

Cannot they already do this to some limited extent (and perhaps are even required to do so)? For example, laws concerning voting.


No country on Earth affords equal rights to citizens and non-citizens. If this "terrifies" you, I encourage you to reflect on your fears and whether some of them may be disproportionate to reality.


Parent said "protections" and referred to "due process", not the broader topic of "rights". So, yes, non-citizens don't, e.g., get to vote. On the other hand, if they get arrested, the same standards of evidence apply as for a citizen.


Germany provides many Basic Rights to everybody.

Others are only for citizens (and EU citizens, but via a strange legal method), but the most fundamental ones state "Everyone", not "every citizen".


Same with Sweden. For example, Allemansrätten (Freedom to Roam) applies to alla människor (or all people), not just citizens.


Right. It's mentioned in every tourist guide I've seen about Sweden, and it is drawing outdoor types to the country.

Smart move. :-)


So, in other words, Germany provides different rights for citizens and non-citizens. Which is what the GP was saying.

Not having basic protections for non-citizens would be rather worrying, but let's not act like the mere existence of a difference is worth freaking out about.

EDIT: To be clear, I'm not suggesting that Justice Thomas's concurrence not providing these protections to non-citizens would be a good thing. I'm just saying that 'non-citizens should have the same rights as citizens' isn't a position held by any country on the planet.


In the context of this particular case, it sounds like the ruling by the majority protects non-citizens from having their property taken by the police, while Justice Thomas’s concurrence would not.

In my opinion, not having your property taken unfairly by the police is more of a basic right everyone should enjoy, rather than a special right afforded to citizens like voting.


> No country on Earth affords equal rights to citizens and non-citizens.

That's fine, but affording no rights to non-citizens would be highly problematic. Some argue the Constitution doesn't protect the rights of illegal immigrants, for example, but it makes clear distinctions by using "persons" in some spots and "citizens" in others.

Persons have a right to due process. Citizens have a right to vote. The difference is very important.


The Constitution is really quite bad at making things clear. Arbitrary rhetorical flourishes became the turning points of precendential cases, because quill and parchment made it hard to express ideas clearly.

The average ruling in a single minor case today is longer than the entire Constitution.


> That's fine, but affording no rights to non-citizens would be highly problematic.

Which is why we have the status quo: the vast majority of rights enjoyed my U.S. citizens and residents are enjoyed by aliens, with some discretion.


Everyone should have basic protections, or "fundamental" rights. Those are things that exist as a matter of basic human decency. Nonbasic rights are more like privileges, and they can apply discriminately.


A relevant recent case: the 9th circuit allowed to stand a federal law that limits 2nd amendment rights for certain non citizens unlawfully present in the US:

"... The panel affirmed a conviction for possessing a firearm while being an alien unlawfully in the United States in violation of 18 U.S.C. § 922(g)(5)(A)."

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/08/15...


> Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.

Do you read anything into this? Is there a reason a justice would prefer to highlight the excessive fines provision over the due process protections?


Abortion. And immigration.

"This may seem like a minor niggling point. It's not.

The Court's recognition of a right to abortion has been rooted in the Due Process Clause. Thomas & Gorsuch's concurrences document their opposition to grounding substantive rights in that corner of the 14th am."

https://twitter.com/stevenmazie/status/1098242972162768901

"Thomas and Gorsuch announce that they would incorporate Bill of Rights through the Privileges or Immunities Clause, not the Due Process Clause. This is a wonky distinction, but one with huge stakes for immigrants. Due Process Clause protects “persons.” P or I protects “citizens.” "

https://twitter.com/imillhiser/status/1098238933719240704


RBG herself is well known to be in favor of a different grounding. If Roe is weakened or overturned, let's test that case on its merits.


Wouldn't this completely screw over corporations? Or do we have some other mechanisms that will continue to protect them from these abuses them but not other types of "persons"?


Corporations in general have the constitutional protections that people acting in a group have. Corporate personhood is just a convenient legal fiction.

For example corporations don't have a right to free speech because they are "persons" but because we extend the rights of the individuals who make up the group to the group itself.


> we extend the rights

The constitutional basis for that is not secure.

It's not obvious that your right to free speech extends to secretly paying someone else to speak.

If I leave an iPod in a public park playing a speech, the authorities can remove or disable the iPod, not a violation of my speech rights.


I'm pretty sure they can also remove you; what they can't do is remove you based on the content of your speech, but then again I doubt they can have a policy of only removing iPods playing political speeches with certain viewpoints.


The due process issue was tangential.

From the ruling[1]:

The court did not address the Clause’s application to civil in rem forfeitures, nor did the State ask it to do so. Timbs thus sought this Court’s review only of the question whether the Excessive Fines Clause is incorporated by the Fourteenth Amendment.

[1] https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf


Its guidance for future rulings in the lower courts.


> Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.

It's the same outcome in this case, but it is rather different in the broader effect; not all people subject to punishment by states are citizens of the US.


It's actually a different part of the same sentence.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


For the curious, this is called the "incorporation doctrine".


> privileges or immunities of citizens of the United States

So resident aliens are not protected?


In the WSJ article[0], RBG appears to agree explicitly with Thomas as well.

0. https://www.wsj.com/articles/supreme-court-rules-against-exc...


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