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What's Excessive?
Michael Ramsey

If, as seems likely, the Supreme Court rules that the Eighth Amendment's excessive fines clause applies against the states, courts will have much more need to decide what fines are excessive -- see this Bloomberg column by Stephen Carter: No One Likes Excessive Fines, But No One Can Define Them, Either.  (Of course, courts already face this issue for federal crimes).  This is an enterprise in which I doubt originalism can be much help.  My guess is that there was not an extensive set of precedents defining excessiveness as applied to fines in the mid-nineteenth century (or the late eighteenth century).  And "excessive" seems to be a word that necessarily entails something of a judgment call, based on an assessment of particular facts.

I don't see that as a problem, though, either for originalism or for modern law.  If I'm right about the relative lack of definition of excessiveness at the time the clause was enacted, it seems plausible to read the clause (in its original meaning) as something of a delegation to future courts to apply their case-specific sense of excessiveness to cases that come before them.  If that is the best original reading of the clause, modern originalists should not hesitate to read and apply it in that way.

Of course, modern courts might want to develop some guidelines, or even bright-line rules, to constrain judicial discretion in finding excessiveness, so that similar cases are treated similarly.  Some of these might come from the clause's original meaning, as historical inquiry might show that some levels of fines or types of fines were clearly included in, or clearly excluded from, the "excessive" category.  But assuming the historical practice was fairly thin, the historical inquiry can't do all the work.  So courts, if they develop constraining rules, won't be applying rules found in the original meaning.  

Some people might call this "construction."  Others might perhaps say the courts are using discretion given to them by the clause's original meaning.  Or it might be called interstitial rulemaking of a common law nature.  Whatever it is called, my point is that it shouldn't be seen as a departure from, or a problem for, originalism.