Comment by jaredklewis
7 years ago
To start, I am totally horrified by civil forfeiture, so please no one construe this as defending it.
But our personal opinions aside, I don't think the Indiana Supreme court decision is really very surprising from a legal perspective. The eight amendment is selectively incorporated and the excessive fines clause is not incorporated. The 14th amendment gave the courts the justification they needed to incorporate parts of the bill of rights, but for better or worse, not everything in the bill of rights has been incorporated yet, and there is nothing the Indiana supreme court can do about that.
It would certainly exceed their legal jurisdiction for a state court to decide that a federal constitution amendment is incorporated.
And while I hope this case prompts SCOTUS to fully incorporate the 8th amendment, we should also be demanding more of our state governments. Federalism gives states the power. The power to do bad, but also the power to do good. Why is that we so often have to depend on federal courts to protect our rights?
Why don't the legislators of Indiana provide protections against excessive fines in their own constitution, and why do their citizens not demand it? We all want the SC to swoop in and save the day, but we should also face these questions and figure out what we need to do as a society to change this.
The eight amendment is selectively incorporated and the excessive fines clause is not incorporated.
Interesting - what does "incorporation" mean in this context?
> The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment.
https://www.law.cornell.edu/wex/incorporation_doctrine
The linked document contains a table explaining which parts of the bill of rights have been incorporated.