Excessive Bail

Discussing whether the prohibition on excessive bail can remedy the bail system’s discrimination against those with low-income. Looking to historical sources and explaining that the Excessive Bail Clause includes some of the most ambiguous language in the Bill of Rights. 

Discussing the right to bail in Founding-Era state constitutions, statutes, and colonial America. Arguing that recent attempts to “reform” bail deny accused persons a “fundamental textual right of longstanding tradition.” 

Assessing whether the Excessive Bail Clause binds both courts and Congress and whether it creates any substantive right to bail. Arguing that the 1984 Bail Reform Act violates the constitutional purpose of the clause. Tracing the origins of the excessive bail clause to the 17th century and the “petition of right” in old England.

Explaining that the bail provision was enacted as originally proposed by Madison and the Senate committee and that there was little discussion about it. Discussing the backdrop of English legal history as informative of the prohibition on excessive bail.