Excessive Bail

              The topic of discussion for this Constitution Monday comes from the Eighth Amendment to the Constitution of the United States:  “Excessive bail shall not be required….”  If the crime is one that includes the right to bail, the arrested person has the right to be released without paying excessive bail. 

                W. Cleon Skousen explained that “`Excessive’ bail is requiring a prisoner to put up a bond which is so high that he cannot possibly provide it and thereby regain his freedom pending the date of the trial.  Of course, a heavy bail or refusal to grant bail to a person who has committed a serious crime or is otherwise dangerous to the community may be considered `reasonable and necessary.’.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 711.)

                David F. Forte of The Heritage Foundation explained that the “text of the Eighth Amendment derives from the 1689 English Bill of Rights, redacted in the Virginia Declaration of Rights and recommended by the Virginia ratifying convention.  The English version used the world `bail ought not be required’ as opposed to the amendment’s `bail shall not be required,’ the latter reflecting James Madison’s insistence that the amendments be legally enforceable and not mere hortatory statements.  When considering the amendment, one Member of Congress thought the wording unclear.  Nevertheless, Congress approved the language by a strong majority, perhaps because its phrasing had such a solid pedigree.”  (See The Heritage Guide to the Constitution, p. 363.)