Thomas, J., concurring in judgement
the House of Representatives, Senate, and President,” or judges acting “contrary to justice.” Id., at 467–468.
For all the debate about whether an explicit prohibition on excessive fines was necessary in the Federal Constitution, all agreed that the prohibition on excessive fines was a well-established and fundamental right of citizenship. When the Excessive Fines Clause was eventually considered by Congress, it received hardly any discussion before “it was agreed to by a considerable majority.” 1 Annals of Cong. 754 (1789). And when the Bill of Rights was ratified, most of the States had a prohibition on excessive fines in their constitutions.[1]
Early commentary on the Clause confirms the widespread agreement about the fundamental nature of the prohibition on excessive fines. Justice Story, writing a few decades before the ratification of the Fourteenth Amendment, explained that the Eighth Amendment was “adopted, as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts,” when “[e]normous fines and amercements were… sometimes imposed.” 3 J. Story, Commentaries on the Constitution of the United States §1896, pp. 750–751 (1833). Story included the prohibition
- ↑ 2 Del. Const., Art. I, §11 (1792), in 1 Federal and State Constitutions 569 (F. Thorpe ed. 1909); Md. Const., Decl. of Rights, Art. XXII (1776), in 3 id., at 1688; Mass. Const., pt. 1, Art. XXVI (1780), in id., at 1892; N. H. Const., pt. 1, Art. 1, §XXXIII (1784), in 4 id., at 2457; N. C. Const., Decl. of Rights, Art. X (1776), in 5 id., at 2788; Pa. Const., Art. IX, §13 (1790), in id., at 3101; S. C. Const., Art. IX, §4 (1790), in 6 id., at 3264; Va. Const., Bill of Rights, §9 (1776), in 7 id., at 3813. Vermont had a clause specifying that “all fines shall be proportionate to the offences.” Vt. Const., ch. II, §XXIX (1786), in id., at 3759. Georgia’s 1777 Constitution had an excessive fines clause, Art. LIX, but its 1789 Constitution did not. And the Northwest Ordinance provided that “[a]ll fines shall be moderate; and no cruel or unusual punishments inflicted.” §14, Art. 2 (1787)
