Excessive Fines

Arguing that the Excessive Fines Clause of the Eighth Amendment should be applied to economic sanctions issued by criminal and juvenile courts. Providing analysis of colonial and Founding-Era court records regarding fines. Concluding that a “fine” is a deprivation of something that has economic value in punishment for a public offense and that “excessive” should be judged by proportionality principles.

Critiquing Justice Scalia’s originalism in Harmelin v. Michigan, which held that the original meaning of “cruel and unusual” did not include a proportionality requirement. Noting that Scalia looked to the Excessive Fines Clause because he thought it more clearly embodied a proportionality principle. Arguing that the original meaning of the Clause also requires analyzing excessiveness relative to an individual’s ability to pay.

Arguing that the original meaning of the Excessive Fines Clause incorporates the English principle of salvo contenemento suo (“saving his contentment” or livelihood). Recognizing that, in the common law, this principle mandated that a defendant could not be fined an amount that exceeded his ability to pay. Arguing that the Eighth Amendment incorporates this principle by drawing on an understanding of excessive fines during the Founding Era.

Arguing that the Eighth Amendment’s Excessive Fines Clause should also apply to punitive damages in civil cases. Analyzing the historical development of the Excessive Fines Clause to argue that this understanding comports with the political theory underlying the Eighth Amendment.