The 14th Amendment changed the relationship between individuals and the states, establishing that state borders should have no bearing on federally protected rights. Indiana purports to want constitutional specificity regarding excessive fines. It will have it by June.

In determining when fines are excessive, courts must adopt something akin to Justice Potter Stewart’s famous axiom concerning obscenity : You know excessiveness when you see it. Justices who fancy themselves “originalists” should acknowledge that those who wrote and ratified the Bill of Rights understood that courts were going to have to give content to the concept of excessiveness (as well as to cruelty and unusualness in punishments, and unreasonableness regarding searches and seizures, and other open-textured constitutional language). Doing so is not judicial “activism”; it is judging. Failing to do so is a dereliction of the duty to enforce constitutional guarantees.