Timbs v. Indiana
“You have a really nice business there… it would be really terrible if something were to happen to it.”
When the Mafia makes a statement like that it is scary.
When it comes from the government it is downright terrifying.
The Framers were also keenly aware of this.
The goal with the Framers was to establish a Constitutional framework that enshrined the concept of limited government, a government that was given specific enumerated powers and nothing more. Even within the debates of the Framers there was a tension to expand the powers of the federal government (See the arguments between Jefferson and Hamilton.). Regardless of those who sought a stronger centralized government, all understood that power is not a static concept.
The Framers understood that once limited power had been granted to a body, the impetus would be for the that body to constantly expand the scope of its control.
One of the interesting ways the Framers sought to place a check against governmental abuse of the individual was the Eighth Amendment.
The Amendment reads: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Clearly this is a right of the people (as opposed to a right of the State as articulated in the Tenth Amendment).
It is also a right that protects you from federal actions that may impose excessive bail, fines, or cruel and unusual punishments. State actions, notwithstanding their own individual Constitutions, are free to set high bail, fine you to the moon, and cruelly and unusually punish you.
The Fourteenth Amendment, ratified after the Civil War, incorporated “fundamental rights” directly into State Constitutions.
The funny thing is… the “excessive fines imposed” is a phrase that has never been directly incorporated.
As a result, State governments have become “for profit” industries, fining people (often poor people) as a way of raising revenue without legislatively passing taxes.
With the Supreme Court case of Timbs v. Indiana, slated to be heard next year, that will hopefully change.
(If you have arrived here from our newsletter continue reading here…)
One of the biggest issues I have… and yes, gun owners, this is going to directly apply to us… is when the State uses fines as a means of establishing a social policy.
The State essentially makes the argument: We don’t like X. We don’t have the legislative ability, either Constitutionally or politically, to ban X. We want it to be as burdensome as possible to engage in X, so we will establish economic penalties associated with the performance of X.
So, who ends up taking the brunt of this? Those who have the least ability to pay. Essentially, they must avoid any potential of being drawn into X for the economic repercussions that could occur.
It also sets up an odd philosophical conundrum to those who would benefit from the imposition of those fines.
Say the “fine” for smoking in a no-smoking zone is $5000. (Excessive? Perhaps.) Let’s say the funds generated from this activity are earmarked for cancer research. If people avoid smoking, they are robbing the funding mechanism that pays for cancer research. Does this then mean that it is morally mandated that you should smoke in no-smoking zones as a means of generating cancer research funding?
Smoke ‘em if you got 'em! You need to do it!
For the children!
The Constitution sets up a framework for limited government with specifically enumerated powers. When government has a pecuniary interest in the collection of revenue that goes beyond the enumerated powers of the government, you have the recipe for tyranny. Hopefully, the Supremes will agree and incorporate the excessive fines clause of the Eighth Amendment.
If not… well, imagine what beautiful government programs we will be able to have without State fear of that pesky Bill of Rights.