Reining In Excessive Fines

Yesterday the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution — which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — imposes limits on the abilities of state and local governments to seize assets and property and impose financial penalties.  And the Court’s ruling applying the “excessive fines” clause of the amendment to state and local governments was a unanimous one, which is a welcome development in our era of increasingly divided politics.

gettyimages-1066751830The case involved an Indiana man who was arrested for selling several hundred dollars’ worth of heroin, had his $42,000 Range Rover seized as part of the process — even though the maximum fine for his crime was $10,000 — and sued to get his car back.  The Indiana Supreme Court ruled that the “excessive fines” clause of the Eighth Amendment did not apply to the states, even though the “excessive bail” and “cruel and unusual punishment” clauses have long been applied to the states.  The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, disagreed.

The decision yesterday addresses a significant real world issue — namely, how far can states and local governments go in imposing monetary penalties and seizing property from people who violate the law . . . or, in some cases, are only accused of violating the law.  Because raising taxes isn’t popular with voters, state and local governments have increasingly looked to aggressive forfeiture practices to fund part of their operations.  Briefs filed in the Supreme Court noted that more than half of municipal and county agencies who participated in a survey said reliance on forfeiture profits was a “necessary” part of their budgets, and that, in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures. And the aggressive penalties aren’t limited to drug offenses.  One brief in the Supreme Court, for example, described how a $100 ticket for a red-light violation in California results in another $390 in fees.

In holding that the excessive fines clause applies to the states and local governments, Justice Ginsberg noted that “[e]xorbitant tolls undermine other constitutional liberties,” and added:  “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Now that the states know that they can’t impose excessive fines, it will be up to the courts to determine whether the aggressive property forfeiture and fining practices, like the seizure of the Range Rover, are “excessive” or not.  We’ll have to see how that works out, but for now it’s nice to know that Americans have another constitutional protection against potentially overreaching governmental actions.

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Thanks Be To The Essential Man

Lately I’ve been reading a lot of histories and biographies dealing with the American Revolutionary War period and its aftermath.  It’s a fascinating story — and a lot more interesting than the tale of the inevitability of American greatness that we learned in grade school, junior high and high school, long ago.

b4477220555e36e85915d487ac63b5c8One point that has struck me repeatedly as I’ve read is that American independence, and the later welding of the different colonies into a single nation, was a very close call.  There were many instances, during the Revolutionary War, during the Articles of Confederation period, and then as the new nation started to function under the Constitution, when the whole American idea easily could have foundered and the 13 colonies and states could have fractured forever.  The war itself, against the greatest power on earth and fought with a fifth column of Tories opposing the overthrow of British rule, could easily have been lost.  And after the war, as the country stumbled forward into a new, post-colonial world, it became clear that the “Founding Fathers” held to a lot of different notions of what a country should look like, the colonies were wracked by debt that irresponsible politicians were unwilling to pay, and always the scourge of slavery threatened to drive a wedge between the colonies and break them apart.

Inevitably, these near-misses were resolved in significant part through one man:  George Washington.  During the Revolutionary War he was the general who was selected by acclaim and whose reputation for leadership and integrity helped to keep the colonial forces together through repeated disasters.  After the War ended, his willing support of a constitutional convention, and his service as the President of the convention — elected unanimously, of course — gave crucial credibility to the effort to reinvent the government.  And when the new Constitution was finally written, and the new government was ready to start, Washington’s reluctant agreement to serve as the first President — where he deftly mediated between the opposing viewpoints of Jefferson, Adams, Madison,  Hamilton, and others, steered a middle course between the agrarian dreamers and the hard-headed mercantilists, and kept the country functioning, credit-worthy, and out of a war with the British or entanglement with the French Revolution — permitted his thoughtful, deliberate, and typically selfless judgment to set the course for the new nation and establish the many precedents and protocols that have guided the leaders of our country down to the present day,

170px-stuart-george-washington-constable-1797Read biographies of any of the other leaders of early America and you will always see George Washington as a key part of the story, as the figure who had to be persuaded to lend crucial credibility to the cause, as the ultimate decisionmaker, and as the one person who enjoyed heartfelt support from the rock-bound coast of New England, through the mid-Atlantic states, all the way south to the red clay of Georgia.  These days it’s fashionable to poke fun at Washington for his teeth and his careful ways, and to characterize him as a plodder in comparison to the brilliance of the Jeffersons and Hamiltons, but in reality, in the early days of the American experiment, George Washington was the essential man.  The description of Washington as the “Father of His Country” is apt, but it actually may not go far enough in capturing the importance of his central role in holding the early republic together, time and again.  He was the key figure who helped turn 13 squabbling colonies into the United States of America.

This Independence Day, I’m going to reflect for a bit on how very fortunate our country was to have George Washington when and where it did.

Happy Independence Day!

A Government Too Big For Its Britches

The Department of Justice’s decision to covertly collect significant amounts of phone call data of the Associated Press is just another sign that we live in a country where the government has grown too big for its britches.

According to a letter sent by the AP to the Department of Justice protesting the action, the DOJ secretly gathered information about AP phone calls for two months.  The records include outgoing calls made on more than 20 telephone lines, including general telephone lines and a fax at AP offices in Hartford, Connecticut, New York City, Washington, D.C., and the U.S. House of Representatives, as well as records related to the calls of five reporters and an editor.  Although the government has not said why it collected the records, the five reporters and editor worked on an AP story about a CIA operation in Yemen that foiled a terrorist plot to blow up a plane and the Department of Justice is conducting a criminal investigation of the leak that led to the story.  The White House was unaware of the subpoenas and the gathering of phone records because the Department of Justice handles such actions independently.

Of course, reporters aren’t immune from prosecution if they commit criminal acts — but due regard for the First Amendment requires that any intrusion into news-gathering be strictly limited and carefully targeted, based on a particularized showing of need.  It’s hard to see how the DOJ action conformed to such restraints.  Finding out who the AP called goes to the heart of news-gathering, and collecting records on more than 20 phone lines used by AP employees hardly seems targeted or sensitive to First Amendment issues.  Instead, it seems like a fishing expedition — and perhaps one specifically designed to chill vigorous exercise of First Amendment rights.  And, of course, the veil of secrecy that the DOJ places over criminal investigations, and the lack of involvement by the White House, will make it difficult to hold people accountable for the action.

Stories about overreaching government employees and lack of accountability have become all too commonplace.  I think it’s one reason why many people have turned to the Constitution and the Bill of Rights, hoping that the the written words will serve to restrain governmental excesses.  As the DOJ action in this instance show, however, written words have an effect only if people are paying attention to them.  How many of the DOJ employees who approved the broad collection of AP phone records, in their zeal to catch a leaker, really gave serious thought to what their actions were doing to the AP’s First Amendment rights?

In Line For History

Usually, we associate people camped out in lines for days with hot rock concerts, or huge basketball games, or Black Friday special sales.  In Washington, D.C., however, people have been waiting in line since Friday for seats to watch the U.S. Supreme Court.

This week, the Court will hear argument on two cases that may — and I emphasize may — resolve the constitutional status of same-sex marriage.  On Tuesday, in Hollingsworth v. Perry, the Court will address Proposition 8, a state constitutional amendment banning same-sex marriage that California voters passed in 2008.  On Wednesday, in United States v. Windsor, the Court will examine the federal Defense of Marriage Act, a 1996 statute that prevents same-sex couples from enjoying benefits, such as filing joint tax returns, that are available to “traditional” married couples.

Proponents of gay marriage hope the Court will use the cases to declare that different treatment of same-sex marriages violates the equal protection clauses of the Constitution.  As is often the case with Supreme Court cases, however, procedural issues may be decisive.  In the California case, a threshold issue is whether the conservative groups seeking to defend Proposition 8 have legal “standing” to do so, which will require the Court to consider whether the groups have a real stake in the outcome or are officious intermeddlers who won’t be personally affected by resolution of the dispute.  Another key question is which “standard of review” the Court should apply, with much tougher scrutiny being given, for example, to laws that discriminate on the basis of race than to laws that simply regulate economic activity.  The Obama Administration is urging the Court to apply a heightened level of scrutiny to laws that address gender orientation.

Lurking below are the “big picture” notions that only the Supreme Court can truly consider.  Should the Constitution be read strictly, according to “original intent” and the social mores that prevailed at the time its amendments were adopted, or is it a more flexible document that can evolve to encompass cultural changes?  If the latter approach is taken, how do you keep the Constitution from being read with such elasticity that it loses any intrinsic meaning and simply becomes whatever a majority of nine justices might declare?  And if you conclude that the Constitution does protect “gender orientation,” can you write your opinion in a way that would allow courts and legislators to draw principled distinctions between same-sex marriage and other forms of personal commitment between consenting adults — such as polygamy?  Often the Court decides cases narrowly precisely to avoid have to address these kinds of broad and difficult questions.

There’s a reason people are willing to endure days of the blustery late-March weather in Washington, D.C. to get a seat for these arguments.  This week, history will be made in the solemn Supreme Court oral argument chamber.

Waiting On The Court

Deep in the marbled chambers of the majestic Supreme Court building, members of the High Court and their clerks are hard at work on the opinion — or more likely, opinions — to be published when the Court decides the constitutionality of the “health care reform” legislation.  The opinion(s) will be issued within the next week or two as the Court wraps up its work for the year.

The issues swirling around President Obama’s signature legislative achievement have dropped off the public’s radar screen recently, but you can bet that they remain front and center at the White House, the Romney campaign headquarters, and on Capitol Hill.  Whether the Supreme Court upholds the statute, or strikes it down in whole or in part, its decision will be like a bomb going off in the middle of the presidential campaign.  I can’t remember another situation like this, where the Supreme Court will decide the constitutionality of major, controversial legislation — and do so only a few months before a presidential election in which the Court’s decision itself will almost certainly be an issue.

The timing of the Court’s decision will be interesting for two reasons.  First, both carefully scripted campaigns will be knocked off message, for a few days at least, and will be required to respond on the fly to the Court’s decision and the stated rationale for that decision.  The unpredictability of the Supreme Court’s decision means we might just get an honest, candid reaction from a candidate or a Congressman for a change — before the talking points get drafted and everyone adheres to the accepted party line for their side.

Second, and more important, Supreme Court opinions are serious documents written by serious people.  The Justices know their opinions will be carefully read and critiqued, for their intellectual and legal merit, immediately and for decades to come.  They will be working to make those opinions as persuasive and carefully reasoned as possible.  The opinions will address fundamental issues about the structure of our government and the extent of federal power, taking into account the language of the Constitution, the history of our republic, and the decisions of prior Courts.  They will grapple with those issues in a sober, respectful manner, with the majority and dissenting opinions acknowledging, and responding to, each other.  What a refreshing change from the shouting, bullet point blather that passes for political discourse these days!

This will be an exciting time for our country and our Constitution.  It’s another reason for us to step back, admire the foresight of the Framers, and see that our 225-year-old Constitution still works, and works well.

Balance Of Powers 101

Last week’s oral arguments before the Supreme Court about the Affordable Care Act — and the questions from Justices that suggested skepticism about the law’s constitutionality — seem to have caught some people off guard and caused them to make some very odd statements about how our government works.

Today, for example, President Obama said:  “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  He added:  “And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”

I’m confident that the President — who graduated from one of the country’s best law schools — can’t possibly believe those statements, because they reflect a profound misunderstanding of the balance of powers that exists under the Constitution.  For more than two centuries, it has been well established that the Supreme Court is the ultimate arbiter of whether a law violates the Constitution.  And, since a federal statute becomes a law only if it has passed both houses of Congress and been signed by the President, declarations of unconstitutionality necessarily will occur only after a “majority of a democratically elected Congress” — and often a “strong majority” at that — has approved the law.

Indeed, the whole idea of judicial review is that the democratically elected members of Congress and the President might be swayed by the popular passions of the day, and therefore only judges appointed for life who are removed from politics should determine whether a statute contravenes the Constitution.  To be sure, it’s not a power the Supreme Court has used routinely, but over the last two centuries the Court has not hesitated to strike down statutes that are found to be unconstitutional.  The Court’s power to do so therefore is, quite literally, not “unprecedented.”

Obviously, the President hopes the Court will rule that the Affordable Care Act is constitutional and enforceable.  However, he does our system a disservice by suggesting that the Supreme Court would be overreaching if it decided to the contrary.  If the Supreme Court takes that step, it is simply exercising one of its constitutional powers — just as President Obama and Congress did in enacting the law in the first place.  That’s how our system is supposed to work.

It’s Their Loss

A recent study reported that fewer nations are modeling their constitutions on the U.S. Constitution.  In the ’60s and ’70s, new constitutions were patterned on the American version, but that apparently is no longer the case.

The explanation for this trend is that our Constitution is miserly when it comes to guaranteeing “rights.”  Popular “rights” found in other constitutions, but not ours, include women’s rights, the right to work, the right to education, and the right to strike or unionize.  On the other hand, our Constitution provides for the right to keep and bear arms, whereas most modern constitutions do not.

The implication of the study is that our Constitution is somehow passe.  In the “rights race,” we’re falling behind!  We’re not keeping up with modern trends followed by enlightened nations everywhere!

Is anyone really troubled by this?  Ours was the first true written constitution, and it has served us well.  Other nations have them because our form of government has served as a model.  But there is a big difference between writing words on paper and actually living up to the concepts they express.  History shows that lofty ideals often are written in the otherwise ignored “constitutions” of repressive regimes.

Let’s not forget, either, that our Constitution was designed to sketch our government, its officers, and its functioning in broad strokes, allowing for flexibility and development over time.  In contrast, the “constitutions” described in the study sound more like statute books that leave little room for creativity and the need to respond to unexpected circumstances — like a crappy economy that interferes with the “right to work.”  The Greek Constitution, for example, includes “right to work” provisions.  How’s that working out for Greeks these days?

So, I don’t care if our Constitution has fallen out of favor with the camp followers who are drafting constitutions these days.  I’ll listen when their so-called “constitutions” have endured for 225 years, survived a civil war, and allowed their countries to become the most prosperous, democratic countries on Earth.