The Bill of Rights protects discrete, enumerated liberties. But it also protects “our scheme of ordered liberty” by serving the Constitution’s larger, interlocking machinery. McDonald v. City of Chicago, 561 U.S. 742, 764 (2010) (emphasis removed). Accordingly, when deciding whether to incorporate one of its protections against the States, this Court should consider the effect on other enumerated rights.
Here, incorporating the Excessive Fines Clause will bolster the rights protected by the First Amendment. That is because state regulators have threatened outrageous fines for even minor, technical violations of campaign finance provisions. As a result, the threat of excessive fines itself works to chill protected expression.
This is troubling because courts cannot directly address the fines themselves. Instead, until this Court incorporates the Excessive Fines Clause, they must take a detour through the hopelessly complex law governing campaign finance, choosing among and applying the mosaic of standards articulated by this Court in the First Amendment context. That approach is inefficient and fails to provide the protections clearly anticipated by the Eighth Amendment’s text.
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