More than 200 years of after the American people adopted the Constitution and Bill of Rights, the Supreme Court has never had a case forcing it to decide whether the Excessive Fines Clause of the Eighth Amendment—which provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”—gives citizens a right against the federal government only, or whether it is a right they have against state and local governments as well. The Supreme Court over the next year will decide that important constitutional question in Timbs v. Indiana.
Throughout the 1900s, the Supreme Court decided most questions about the Bill of Rights through “substantive due process,” an approach to the Constitution found nowhere in the text or history of the Supreme Court of the Land. This process, which applies to both citizens and noncitizens, has imposed upon the nation constitutional rights to abortion and other “implied rights” that the American people never voted for.
In its amicus brief filed on September 11, the ACRU urges the Supreme Court to apply the right against excessive bail to the states through the Privileges or Immunities Clause of the Constitution which applies only to U.S. citizens, sidestepping a process that has plunged the judiciary into deciding all sorts of controversial social issues that the American people never placed in the hands of unelected judges to decide. This approach is the one required by the original public meaning of the U.S. Constitution, and further supports the American First agenda.