Short Article on How the Supreme Court Incorporated the Excessive Bail Clause in a Footnote

The Eighth Amendment has three clauses in it, two of which are odd.  The not odd clause is the “cruel and unusual punishment” clause, which is very famous and everyone sort of knows about and everything.  But the Amendment also has the “excessive fines” clause and the “excessive bail” clause.  The latter states that “Excessive bail shall not be required.”  That’s sure quirky.

Anyway, apparently there had been some question up until recently about whether this clause applied to limit the states as well as Congress.  In the constitutional law parlance of our times, the question was whether the Excessive Bail Clause had been incorporated against the states through the due process clause of the fourteenth amendment.

In this article, Professor Samuel Wiseman explains and discusses how the Supreme Court settled the issue in a footnote in the recent case of McDonald v. City of Chicago, the case that importantly incorporated the Second Amendment’s right to bear arms against the states.  You should read this article because it is short and also it is good.


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