Thomas, J., concurring in judgement
on excessive fines as a right, along with the “right to bear arms” and others protected by the Bill of Rights, that “operates, as a qualification upon powers, actually granted by the people to the government”; without such a “restrict[ion],” the government’s “exercise or abuse” of its power could be “dangerous to the people.” Id., §1858, at 718–719.
Chancellor Kent likewise described the Eighth Amendment as part of the “right of personal security… guarded by provisions which have been transcribed into the constitutions in this country from magna carta, and other fundamental acts of the English Parliament.” 2 J. Kent, Commentaries on American Law 9 (1827). He understood the Eighth Amendment to “guard against abuse and oppression,” and emphasized that “the constitutions of almost every state in the Unio[n] contain the same declarations in substance, and nearly in the same language.” Ibid. Accordingly, “they must be regarded as fundamental doctrines in every state, for all the colonies were parties to the national declaration of rights in 1774, in which the… rights and liberties of English subjects were peremptorily claimed as their undoubted inheritance and birthright.” Ibid.; accord, W. Rawle, A View of the Constitution of the United States of America 125 (1825) (describing the prohibition on excessive fines as “founded on the plainest principles of justice”).
C
The prohibition on excessive fines remained fundamental at the time of the Fourteenth Amendment. In 1868, 35 of 37 state constitutions “expressly prohibited excessive fines.” Ante, at 5. Nonetheless, as the Court notes, abuses of fines continued, especially through the Black Codes adopted in several States. Ante, at 5–6. The “centerpiece” of the Codes was their “attempt to stabilize the black work force and limit its economic options apart from plantation
