AS is widely known, in June 2010 the Supreme Court issued its opinion in McDonald v. City of Chicago, holding that the Due Process Clause of the Fourteenth Amendment makes the Second Amendment binding on the states.1 The strong public and scholarly interest in the case is due, in large part, to the controversial nature of the right that was incorporated, but also to excitement (at least among scholars) over the first incorporation in roughly forty years.2 Despite this broad interest, one feature of McDonald appears to have gone so far unnoticed:3 the right to keep and bear arms is not the sole provision of the Bill of Rights that the opinion incorporates, for the first time, against the states. This oversight is understandable, however, because while the incorporation of the Second Amendment prompted over two hundred pages of opinions, the incorporation of the second provision, the Excessive Bail Clause of the Eighth Amendment, required only a footnote.

To be fair, scholars' oversight with respect to Eighth Amendment incorporation is also understandable because the distinction being drawn here is a fine one. Whereas previously the Court had gone no further with respect to the Excessive Bail Clause than to say that it had "been assumed" to apply to the states through the Fourteenth Amendment,4 McDonald—citing a case in which neither party had even raised an Eighth Amendment issue—unequivocally places the prohibition against excessive bail among the incorporated rights rather than among those still in constitutional limbo.5 If there is any meaningful difference between these statuses—and most,6 though certainly not all7 scholars appear to have thought that there was—then, after pausing to solemnly mark the explicit guarantee of another of our constitutional liberties against infringement by state and local governments, it remains to wonder how the Court could have been so cavalier.

Part of the answer to the footnote puzzle, of course, must surely be that after years of assuming it to be the case, the Court felt it so obvious that the Fourteenth Amendment applies the Excessive Bail Clause to the states that it was unnecessary to wait for the issue to be presented. Such a feeling would be understandable: employing the standards reaffirmed in McDonald, the issue seems nearly free from doubt. If "the presumption of innocence, secured only after centuries of struggle, would lose its meaning" unless the "right to bail before trial is preserved,"8 then the prohibition against excessive bail would certainly seem to be "fundamental to our scheme of ordered liberty and system of justice," and "deeply rooted in this Nation's history and tradition."9 A skeptic might question whether a right that only forty-two percent of felony defendants are able to exercise10 can truly be fundamental, but if more proof were needed, then the fact that "[a]ll thirty-seven state constitutions in 1868—every last one—provided that excessive bail shall not be required in criminal cases" should suffice.11

Another, less happy part of the explanation of the McDonald Court's incorporation-by-footnote, though, may be that the issue largely escaped the Court's attention because the Excessive Bail Clause, as interpreted by the Court, has so little force that it simply does not matter very much whether it applies to the states or not. Even for the Bill of Rights, the Clause is a model of succinct ambiguity. As Representative Samuel Livermore of New Hampshire said in the congressional debate over the Bill of Rights, "The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges?"12 Livermore, of course, did not carry the day; it fell to the courts, and ultimately the Supreme Court, to provide answers to these very basic questions: how are we to determine what amount of bail is "excessive" (or appropriate) for a particular defendant? With reference to what principles or objectives?

On one hand, the Clause could be read as a check on both the judiciary and the legislature, guaranteeing that bail will not be excessive in light of some implicit conception of the legitimate uses of pretrial detention—perhaps only in capital cases,13 or when necessary to the functioning of the judicial process.14 On the other hand, the Clause may also be read as leaving the legislature free to determine whether and under what circumstances bail should be allowed. Under such a construction, the Clause serves only to prevent judges from setting bail higher than necessary to achieve whatever goal the legislature has sought to achieve.15

The Supreme Court largely resolved these questions in 1987 in United States v. Salerno, when it considered a facial challenge to the provisions of the Bail Reform Act of 1984 allowing detention for dangerousness.16 The Court, after a brief textual and historical analysis, declined to decide whether the Eighth Amendment puts any limit on "Congress' power to define the classes of criminal arrestees who shall be admitted to bail," but concluded that "[t]he only arguable substantive limitation of the Bail Clause is that the Government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil."17 It then held that "when Congress has mandated detention on the basis of a compelling interest" such as preventing crime by arrestees, "the Eighth Amendment does not require release on bail."18 While it may be an overstatement to say that the Court's interpretation has left the Excessive Bail Clause "below the level of a pious admonition,"19 it is not merely coincidental that it remains "one of the least litigated provisions in the Bill of Rights."20

With respect to challenges to legislative restrictions on pretrial release (assuming they exist), the goal blessed by Salerno—ensuring the safety of the community (including, perhaps, safety from economic harm)21 —is broad enough by itself to allow detention for most felonies. After all, if the government's interest in averting danger can help justify imprisoning the convicted for years,22 it would seem, in most cases, to justify detaining the presumptively innocent. Put another way, it is difficult to put a value—whether measured in dollars or in days of pretrial detention—on the prevention of crime, and courts seem unlikely to second-guess a legislature on such a calculation except in extremely unusual cases. Nor does the Eighth Amendment appear to impose many limits on how dangerousness is determined: under the Bail Reform Act of 1984, judges must consider a wide range of factors when determining whether to detain a defendant pretrial, including, among others, "the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties," and "the nature and seriousness of the danger to any person or the community that would be posed by the person's release."23 And while the Bail Clause may still prevent individual judges from imposing conditions greater than necessary to accomplish the legislature's goal, normal avenues of appellate review already serve this purpose. Thus, as things stand, the Excessive Bail Clause protects the accused-but-not-yet-convicted from only the most extreme legislatures and courts, and the most careless.24

Given the relative lack of controversy surrounding the Excessive Bail Clause of the Eighth Amendment, even the most optimistic of bail scholars would not have expected the Supreme Court to produce two hundred pages of opinion when the issue of its incorporation was settled. But even Eeyore would have confidently predicted the question would receive a paragraph or two—in a case actually presenting the question. The fact that it did not tells us much about its present status.

Preferred citation: Samuel Wiseman, McDonald's Other Right, 97 Va. L. Rev. In Brief 23 (2011), http://www.virginialawreview.org/inbrief/2011/05/30/wiseman.pdf.

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McDonald's Other Right | Essay by Samuel Wiseman