No, the rest of the court found the the excessive punishment protection of the eighth amendment was applied to the states through the Due Process Clause of the 14th Amendment as an essential right and therefore a component of “liberty” as used in the due process clause.
Thomas disagrees with this fairly conventional incorporation argument and the idea of the protection as a fundamental right, but feels instead that a protection against excessive fines is part of the “privileges and immunities of citizens of the United States”. This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
All of the justices view it as excessive punishment, Thomas just thinks only US citizens are protected by the federal Constitution against excessive punishment by state governments, whereas the majority thinks states are Constitutionally prohibited from inflicting excessive punishment on people.
> This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
That's the outcome, but I don't think that's the intent. The reason why Thomas wanted to go via the Privileges Clause rather than the Due Process Clause is because he represents a faction in jurisprudence that believes that the latter was historically inappropriately used in lieu of the Privileges or Immunities Clause in general.
If you dig into the history of that argument, it does kinda make sense - we have plain language in 14A speaking about states not allowed to deny rights to citizens, and we have historical record of the intent behind it. The reason why it's not used as intended is because in the infamous Slaughter-House Cases, SCOTUS essentially ruled it to be a nullity. Later, when the pendulum swung towards instead of reverting that decision and giving teeth to the Privileges or Immunities Clause, they made an elaborate construct of substantive due process from the Due Process Clause to allow for incorporation without a reversal.
The mainstream argument is that it's good enough, and that trying to revive the Privileges or Immunities Clause is simply not worth it - which is why it hasn't been referenced by SCOTUS in decisions for a long time. Nevertheless, there have always been judges that believe it to be wrong, and those judges would supply minority opinions referencing it. This generally correlates with textualism (and hence opposition to substantive due process, which is an inherently anti-textualist notion) - which is the case for Thomas as well - but is not limited to that crowd.
> Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.
This is because the Constitution is supposed to be an enumeration of what the government is allowed to do. The limitations are there to narrow the scope of those enumerated powers. In this context, enumerating most rights of citizens would have been redundant. The enumerated citizen rights were those that could be affected by the powers the government was granted.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
> Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time, particularly when corporations comparatively have no hurdles at all over the same geographic region. Getting 50 of anything to do something at the same time is nearly impossible. If we want to do something about many significant, widespread problems, we need the power of a centralized Federal government. As the saying goes, the Constitution is not a suicide pact.
Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
No, I don't think that adding more representatives would help the problem, but our political system, invented in the 18th century, is nearly overwhelmed by the sheer volume of people in this nation.
> I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time
To what extent do we actually need to have all states do exactly the same? It's a common argument, but there are many independent sovereign states out there that are smaller than many of US states, and they're doing fine solving their national problems despite their size. Sometimes - quite often - that happens with cooperation with other states, but such cooperation does not require an overarching government entity.
Sure, that means that US would not be a state in a sense that, say, France is a state, with a strong national identity and uniform politics. But does it have to be? I would argue that there is no truly democratic way to rule 300 million people from a single center, and decentralization is key to real democracy. Conversely, I don't see why my ideas and values have to be pushed on someone in the opposite corner of the country, but not, say, across the border into Canada.
> As the saying goes, the Constitution is not a suicide pact.
Whose saying? Last time I remember hearing that everywhere, it was to justify stuff like the PATRIOT Act and other post-9/11 abuses.
> Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.
> The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.
Part of the reason the issue has gotten out of hand is the relative weakness of states to enforce the cost of negative externalities on business. As soon as one state passes regulations, it’s too easy for many companies to pack up and leave for ‘greener’ pastures where the politicians would rather tout economic improvement at the expense of those negative externalities. As a result, problems like this often end up hoisted to the next level of government to solve issues in a more equal manner.
Just look at the ways cities were tripping over themselves to look attractive to Amazon for HQ2 to see this phenomenon in action.
But that is also true of countries. For large transnationals (who are the most abusive) especially, I don't think it makes a big difference.
OTOH, if that is the key problem, then why not make feds an arbiter specifically for such externalities? i.e. they'd be the ones establishing whether something negative is actually happening, measuring the impact, and imposing some remedy (either cease and desist or compensation, depending on which one is appropriate).
If we're talking about AGW, say, and carbon tax, then let's have the feds tax the states proportionally to their total carbon output. The states can then pass those carbon taxes onto their residents in various ways - and how exactly they are allocated is then a matter of state policy - but it has to add up.
No, I don't think that adding more representatives would help the problem
I think it would. Along with creating more slots for minority candidates to get elected in. There's also the matter of the cost of lobbying. Right now lobbying is dirt cheap because you can spend a very little amount of money to influence one representative and that one vote in congress can have a huge effect. If there were more people voting in congress the value of that one person would be reduced. The lobbyist would have to work to get multiple congressmen to have the same influence which makes bribery less cost effective than it currently is.
For most issues, there is really no need for all 50 states to act at once. In practice, the federal government exercises it's extraconstitutional authority for all kinds of things which could be done much better at the state level.
For instance, making drugs illegal (accounts for most federal prisoners) and running social welfare programs (accounts for most federal spending).
If something really is an important power the federal government must have (maybe some kinds of environmental regulation powers?), then make an amendment that clearly scopes the boundaries of that new power.
Well then, how does the EU (whose central authority is extremely limited in scope compared to the US Federal Government, and whose member states are still meaningfully sovereign separate countries) manage to thrive so well?
Why couldn't a similar system work well in the US?
Have you not heard Europeans talk about the EU? Pretty much everyone agrees that it's slow, cumbersome, and doesn't address a lot of problems quickly enough. It's also significantly more complex[0] by further dividing the executive position, compared to the American system, and it's only got 28 states.
Sadly most people, who lack a grounded understanding of Anglo-American legal tradition, revert to their native frame of reference where the law is just another tool of the local powers to inflict their will. It is only in the Anglo-American tradition that law is understood as a restraint on the power of the sovereign, rather than a tool of the sovereign. This is the primary philosophical distinction between the common law and the various civil codes.
This is because the Constitution is supposed to be an enumeration of what the government is allowed to do.
This is simply not true. The Founders lived through the Articles of Confederation, in which the founding document explicitly enumerated the only powers the government would have. The Constitution was an explicit rejection of that philosophy, and was intended to create a government with broad powers. The point of the Bill of Rights was to place limits on those broad powers.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
This is also not true. A great many of the Founders considered the 10th Amendment to be meaningless fluff added only to mollify the slave-owners who wanted restrictions on the Federal government's ability to curtail their ownership of slaves.
That's only true if you use the definition of "broad powers" that was used back when the Constitution was written - which is very different from what it is today.
And all of those broad powers they wanted the government to have, were explicitly written into the text of the Constitution. Sometimes it was deliberately vague, like the Commerce Clause (although if you showed our modern jurisprudence on that to people who wrote it, they would be horrified). And in the Federalist Papers, there are several instances where some bit in the Constitution is explained as, "yes, this is rather broad, but the government needs it for real world reasons". But it is always enumerated.
The First Congress passed the Sedition Act, which was an extremely broad set of laws that would have essentially nullified the First Amendment. The first several Congresses passed extremely broad laws regulating commerce that were ultimately narrowed by the courts. This all despite having numerous members of the Constitutional Convention among their ranks.
It's pretty clear from the laws the First and Second Congress passed that they had an even broader definition of "broad powers" than we do today. (And by the way, the Federal Papers have no legal authority in US law. They're interesting from a historical perspective because they documents an attempt by one politician to sway the opinion of the general public, but they don't form any part of the corpus of American jurisprudence.)
Alien and Sedition Acts were widely panned when they were passed, specifically because many people saw them as unconstitutional. What they proved is that people aren't particularly respectful of the same constitution they wrote, but little else.
I'm well aware that the Federalist Papers aren't law. The reason why I mentioned them is that they come from the party that was anti-Articles, pro-Constitution and pro-strong federal government. So reading them gives you an idea of what they meant by "strong federal government", and what they considered to be out of bounds.
The Sedition Act, passed by the First Congress (consisting of many members of the Constitutional Convention), for starters, which was a huge restriction on free speech.
The multiple attempts by former CC members to pass anti-slavery legislation in Congress in the many decades leading up to the Civil War.
There are a number of other examples, well covered by a number of primary and secondary sources.
The founding fathers didn't think the government granted you rights. They thought you already had rights by virtue of being a human being and it was the government's job to protect and not infringe upon those rights.
> The constitution really clearly delineates between "persons" and "citizens."
It uses at least three different terms, citizens, persons, and “the people” (and the last is the most common where it concerns rights). The precise boundaries of the latter is fairly hotly contested, and the Courts to date haven't given precise guidance (it is clearly broader than citizens and narrower than persons, but the exact boundary is murky; the US DoJ has often advocated for a definition of citizens and some subset of lawfully admitted aliens, possibly only LPRs, but others have taken other positions.)
I hate the notion that citizens don't have privileges, because otherwise citizenship is worthless. Obviously the natural rights of all persons ought to be respected.
What makes you say that the ability to vote is the most important privilege? For example, I'd happily give up my right to vote before my right to legal due process. I'd rather live in undemocratic Singapore than in somewhere with free elections but widespread corruption and poor rule of law like India, Turkey, or Mexico.
Because your right to vote ultimately affects all those other rights. With enough people voting for such, protection for rights can be repealed, or even ignored outright.
Not really, since a lot of them are pretty unpopular. For example, things like "making it illegal to burn the flag" or "stopping Neo-Nazis from marching" poll very well in the US -- people would happily vote to get rid of freedom of speech if they could.
As for rule of law, there are examples of non-democracies with solidly developed rule of law, like present-day Singapore and Hong Kong, or Britain in the 19th century (and before).
You keep confusing the terms. You say "privilege to vote" in one sentence and "right to vote" in another. Constitution sees due process as a right of "persons", and ability to vote as a "right of citizens".
How important is this privilege if I can maliciously control how you vote?
Now imagine the good we can do with real electoral reform (Democrats idea of repealing citizens United is a meager start, but weak lip service to real reform)
Due Process mostly applies to persons, not just citizens.
In some cases the possessor of a right is not identified. E.g., the 1st, 2nd, and 3rd amendments do not specify whether they apply to all persons in U.S. jurisdictions or just citizens. These are the ones that are most likely to be unavailable to non-U.S. persons. E.g., non-U.S. persons are generally not permitted to keep and bear arms within the U.S.
Note also that corporations are 'people' but not 'citizens' and would likewise be disenfranchised from the protections provided by the bill of rights and the constitution when it came to state law.
edit: there seems to be some lawyering about the difference between the meaning of 'people' and 'persons' that I do not understand at this time.
Interesting. Did the SC (in an 1888 case) not say: "Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."
And does 1 USC not also say:
"In determining the meaning of any Act of Congress, unless the context indicates otherwise—
the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"
as well? I'm not sure how to align those statements with your comment. Perhaps it's a subject that only someone with a law degree can discern the meaningful difference between the claims?
That's just not true. Corporations have been recognized as legal persons in the US for well over a century prior to Citizens United, in both judicial precedent and federal statutes.
I agree with what I assume you believe - that this ought not be the case, and corporations should be more restricted in their rights than natural persons. But simply claiming it to be so is willful ignorance.
The legal fiction of corporate personhood does not grant them all the rights of a natural person. For example, in SCC Acquisitions, Inc. v. Superior Court, the California Court of Appeal ruled that corporations did not have a constitutional right to privacy, despite the California constitution extending privacy rights to all people.
Corporations are "legal persons" in the sense that the same rules apply to them as to people in some areas where that makes sense.
This is mostly a practical matter, so instead of writing a duplicate set of laws for corporations and people, the legislators have said that "for these laws, just apply laws to corporations as you would to people".
Corporations are exactly didtinxt legal persons and that's the central point of incorporation.
> the Supreme Court has never found that they are
It has, in fact, found that they are legally persons and that is the whole point of corporations (though the first cases to do so use the term “individuality” for what a modern writer might term “personhood”.) Key early cases include Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819); Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet 21 U.S. 464 (1823); and Providence Bank v. Billings, 29 U.S. 514 (1830).
But, beyond these early cases using language that might be mistaken by a modern reader, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888), the court, in addressing the 14th amendment, found that “[u]nder the designation of ‘person’ there is no doubt that a private corporation is included.”
All people are persons, but not all persons are people. I enjoy Stewart, Colbert and Oliver as much as the next person (vernacular usage, not legal), but they've done a lot of damage to the national discourse on this topic.
> All people are persons, but not all persons are people
People is a plural of person (persons is also a plural of persons); all persons are people just as all people are persons, the two terms are in this use synonyms (people also has a singular use.)
Not all people or persons are part of “the people” as that is used in some Constitutional provisions, but 14th Amendment due process rests on the definition of “person”, not “the people”, and in any case the Supreme Court has found that the distinguishing feature of “the people” is attachment to the national community, not natural (as opposed to artificial/juridical) personhood, so U.S. corporations are, Constitutionally, all of “persons”, “people”, and included within “the people”.
> the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
I believe current law is that people have the right to peaceably assemble only for the purpose of petitioning the government for a redress of grievances.
> A corporation, is, by definition, a group of people, yes.
No, it's not. It is, legally, a single person. It is not a group of people, though one or more other people (all or some of which may also be corporations, governments, or other legal persons that are not natural persons) have authority to direct it as laid out in its charter. But the corporation is not, and is clearly and legally distinct from, any and all those people, individually or in any combination.
> noncitizens necessarily do not enjoy the privileges and immunities of citizens.
Would you have more reading on this? It's something I've wondered about but never really come across a comprehensive answer to. What rights do noncitizens not have that citizens do?
FYI, the term "U.S. persons" == U.S. citizens and permanent residents.
The only rights that permanent residents don't have are: a) the right to vote, b) the right to have their permanent residency not revoked for cause (e.g., committing a serious crime). Permanent residents get to become citizens after some time.
Non-permanent residents have fewer rights, and which rights they don't have is generally a matter of law, not Constitution, except that they have all the rights of Due Process guaranteed by the Constitution (i.e., by far the most important ones for them to have), at least as to criminal prosecutions, and often as to civil suits. A typical example would be the right to keep and bear arms, which non-residents generally do not have in most States. I suppose even First Amendment rights might be curtailed for non-residents, though I suspect at most only freedom of association would be, and only indirectly.
But most of the Bill of Rights (the 4th through the 8th Amendments) deals in Due Process, and these rights are available to all persons in the U.S., except perhaps as to immigrant law itself (e.g., a non-resident alien may have much less recourse to fight deportation than they and anyone else might have to fight a conviction).
Well, I'm not sure what you consider obvious or not, but those are the most important ones.
From Wikipedia, some other examples are the right to be considered for federal employment (most Federal Government jobs being closed to non-citizens), access to US consular officials if arrested abroad, and exemption from certain real estate taxes[1].
I guess when I talked about rights I was really thinking about protections from the government rather than about liberties or privileges like serving in or voting for the government -- like the one against excessive fines that was mentioned.
> The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.
AFAICT, the Federal courts have not generally adopted this view (though it is popular in some circles, particularly the US Department of Justice); ruling less specifically that the term “the people” instead “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
Thomas disagrees with this fairly conventional incorporation argument and the idea of the protection as a fundamental right, but feels instead that a protection against excessive fines is part of the “privileges and immunities of citizens of the United States”. This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
All of the justices view it as excessive punishment, Thomas just thinks only US citizens are protected by the federal Constitution against excessive punishment by state governments, whereas the majority thinks states are Constitutionally prohibited from inflicting excessive punishment on people.