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.
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.
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.
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.)
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.
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.
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.
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.)
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.)
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.
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.
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.
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...
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'.
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.
As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?
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".
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..)
This mismatch results in some of this derisive language in the U.S.
Gonna need numbers on that mate, because everything I've read suggests conservatism is correlated with reduced amount, degree and frequency of charitable behaviour.
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.
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.
> 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.
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.
> 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.
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.
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."
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.
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.
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..
Liberal judge == living constitution
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.
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.
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.
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
They do this all the time...in nearly every decision...It's literally their job to question the correctness of the judicial process...
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 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.
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.
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.
>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.
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.
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.
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.
Somewhat irritatingly, I (and a large number of other American Citizens) cannot ever become president because we were not citizens at birth.
I'll not argue as to the correctness or morality of such a requirement.
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.
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.
There's a clause that explicitly bans religious tests for federal public office, and a landmark SCOTUS case clarified that state governments cannot do this either.
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”.
I do that all the time.
“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."
“So help me god” is not part of it, despite some tradition. Not all presidents have used bibles or sworn to a god.
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.
Quite the opposite. The first amendment's establishment clause prohibits the government from "establishing" a religion, i.e., forcing religious on someone.
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.
Hundreds of US law professors disagree with you about that respect.
No, it really doesn't. It takes backing from powerful politicians and/or lobbyists. Respect doesn't enter into it.
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.
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.
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.
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.
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.
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.
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 .)
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. Appeals to that cast go to the circuit court, 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) .
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.
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
- 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.
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.
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.
> 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.
It isn't, on its own, a final judgment on the case, but that doesn't mean it lacks force of law.
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
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.
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.
It has to be less illegal to defend yourself from authority if you feel you're in danger.
I read the official decision from the state court 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.
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.)
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.
But that doesn't really constitute a good argument that there is a Latin word for telephones.
I know this is probably not meant to be funny, but for whatever reason, in reading it, I couldn't help but laugh.
You can help out too: https://ij.org/support/give-now
I believe cruel and unusual punishment would have come up in method of execution cases, but not sure of the case.
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.
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.
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.
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.
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. 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.
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. 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.
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.
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
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.
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!!
Why couldn't a similar system work well in the US?
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.
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.
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.
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.)
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.
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.
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.)
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).
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
This video will make you angry -https://m.youtube.com/watch?v=rE3j_RHkqJc
Would that be such a bad thing?
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.
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.
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?
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.
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 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.”
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.
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”.
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.
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.
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.
Therefore any time you a preventing an entity with a mouth from speaking, you are by definition preventing a person from speaking.
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?
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).
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.
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).
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.
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.
Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.
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.
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.
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.
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."
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 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.
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?
I really hate that usage of the word.
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.
Cannot they already do this to some limited extent (and perhaps are even required to do so)? For example, laws concerning voting.
Others are only for citizens (and EU citizens, but via a strange legal method), but the most fundamental ones state "Everyone", not "every citizen".
Smart move. :-)
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 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.
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 average ruling in a single minor case today is longer than the entire Constitution.
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.
"... 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)."
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?
"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."
"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.” "
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.
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.
From the ruling:
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.
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.
"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."
So resident aliens are not protected?