An Analysis of Preventative Detention, its Problems, and its Solution

It is Thursday, July 10, 2015, and Sandra Bland of Naperville, Illinois, has just been pulled over.1 On Saturday, Ms. Bland’s bond is set, and she must pay 515 dollars to make bail.2 She does not have the money, so she calls family and friends.3 They start a plan to raise money, but by Sunday there simply is not yet enough for bond.4 According to individuals in nearby cells, Ms. Bland spends Sunday sobbing and saying that she cannot deal with being locked up.5 On Monday, she refused breakfast and placed two requests for additional telephone calls; she was twice denied.6 One hour after the second request, Ms. Bland was found dead.7 She never bonded out.

Two provisions of the Bill of Rights that exist in tension with one another are “excessive bail shall not be required,”8 and “nor shall any person . . . be deprived of life, liberty, or property, without Due Process of law.”9 The current interpretation of the bail provision as allowing preventative detention should raise the eyebrows of both scholars and regular citizens. The insistence that this detention is not punitive10 is likely little solace to the accused as he is led away by the uniformed guard and locked in his cage in the penitentiary. While Sandra Bland was not preventively detained via our bail system, and rather bail was presumably used to secure her presence at trial, her case illustrates the horror and pain this practice can inflict on the minds of the people subjected to it.11 Whether a person is detained for failure to pay bail, or if they are preventively detained, that detention inflicts violence upon his mind and body.

Though it may appear that the acceptance of preventive detention as our interpretation of the Eighth Amendment is a consistent status quo, this was not always the most commonly held view. Our current view was not the dominant one for a long time in the United States, and did not begin to form in earnest until the late 1970s through the ‘80s.12 The questions this raises are likely the same questions thought of by the accused as he is led to his cell: why is excessive bail prohibited, but no bail at all acceptable? Furthermore, the accused may wonder: how can the inherent violence of the cell be inflicted upon me before I am found guilty at trial?

In answering these questions, this Note begins by delving into the foundation of our current understanding of Due Process and bail. This includes analyzing the history of bail and Due Process, before dealing with specific cases that have shaped the way bail and Due Process interact with one another. Next, this Note analyzes two articles, one by Professor Randy E. Barnett and one by Professor Kurt T. Lash, which provide new ways of looking at the Ninth Amendment. Following this analysis, I will recommend that the way to square the Due Process Clause with the protection against excessive bail is through a federalism solution, found in Professor Lash’s article, that will not only place the right to bail in the correct hands, but also situate it such that it does not conflict with a person’s right to Due Process.

II. Background

In order to understand the tension between these two provisions it is important to understand the myriad forces that caused our criminal justice system to be brought into this position. First, this Note briefly describes some of the turning points in the history of bail. Second, it quickly delves into the history of Due Process. Third, this piece addresses the seminal case of United States v. Salerno, which established preventive detention as a constitutionally sanctioned practice in the United States.13 Finally this section ends with an analysis of Wisconsin v. Constantineau, which addresses the deprivation of Due Process through the improper implementation of regulatory schemes.14

A. A Brief History of Bail

Our history of bail begins a long time before the 1980’s; in fact, it began before the birth of the United States itself. As Professor Amar explains, “in the late eighteenth century, every schoolboy in America knew that the English Bill of Rights’ 1689 ban on excessive bail . . . arose as a response to the gross misbehavior” of an infamous federal judge who used his power to “abet[] government tyranny.”15 It is important to recognize what goal and application bail had at this time. In the United States, bail was meant to ensure that the accused would appear in court when required, in order to undergo the process of determining guilt.16

In response to growing fears of the accused committing crimes while on release on bail, Congress changed the existing laws with the Bail Reform Act of 1984, which allowed courts to detain defendants predicted to commit a future crime.17 Many circuits upheld this Act as constitutional, while the Second Circuit held that this preventive detention violated the Due Process Clause.18 With the case of United States v. Salerno,19 the transformation was complete. In Salerno, the Court held that the Bail Reform Act, in its authorization of preventative detention, did not violate Due Process because it was not punishment before trial, but instead was a regulatory measure.20 This added an additional function to the historical use of bail; now, not only would the government use it to ensure the trial took place, but it would also use bail to prevent future crime which might otherwise occur.21 Changes in how the government uses bail have had a great effect on the nation’s criminal justice system. From the late 1990’s through the early 2000’s, the United States went from releasing sixty-two percent of defendants prior to trial, to only releasing forty percent.22

B. A Brief Background of Due Process

“Due Process” was already an idea in formulation long before the birth of the United States. Ideals similar to those we espouse can be found in the Magna Carta, which declared that no freeman was to be “‘imprisoned’ . . . ‘exiled or in any way destroyed,’ ‘nisi per legale judicium parium suorum vel per legem terre’ (‘except by the lawful judgment of his peers or [and] by the law of the land’).”23 Similar provisions were incorporated into the laws of the colonies, such as Massachusetts and New York.24 In 1791, the Fifth Amendment as we know it was ratified.25 Early arguments about Due Process law dealt with how tied it was to the “traditional view” that the Fifth Amendment Due Process Clause provided little restraint on the legislature or anything outside of some procedural protections.26 Therefore, although Due Process existed in some conceptually recognizable form prior to the founding of the United States, our modern interpretation has changed much over the years.27

In our modern history, we find some essential elements to Due Process such as the right to liberty, to a fair trial, and to the presumption of innocence.28 These interests, however, are balanced against the preservation of the judicial process; Due Process is typically not thought to be violated when a bail determination is made to protect the fair trial.29 In other words, a fair trial is an essential function, and an individual not only has a right to a fair trial, but is obliged to not destroy that fair trial through improper conduct such as evidence or witness tampering.

It is important to understand Due Process not only in the context of when it was created, but also in the context of the modern reading of that amendment. In this, we can see that the tension between Due Process and bail’s preventive detention do not have to be read as inherent in the provisions themselves, but instead may be the product of a wrong turn somewhere down the road. When a person is subject to preventive detention, this strains our modern understanding of procedural Due Process; this can be seen in the case United States v. Salerno, where preventive detention became fully evolved.30

C. United States v. Salerno

Understanding the curious case of Mr. Salerno begins with the reasoning of the Second Circuit. The Second Circuit found the Bail Reform Act’s “‘. . . authorization of pretrial detention [on the ground of future dangerousness] repugnant to the concept of substantive Due Process, which [they] believe[d] prohibit[ed] the total deprivation of liberty simply as a means of preventing future crimes.”31 This articulates a basic understanding of our criminal justice system: that we punish individuals for what they have done, not what we fear they may do.32

The Supreme Court analyzed two arguments advanced by the Respondents in the Salerno case: (1) that preventive detention violates the Due Process Clause; and (2) that it violates the Eighth Amendment’s prohibition of excessive bail.33 This analysis of the Salerno case will focus first on the issue of Due Process, before moving on to the issue of excessive bail.

1. Salerno Due Process

The Respondents alleged that preventive detention violated substantive Due Process because the detention “constitute[d] impermissible punishment before trial.”34 In determining whether detention under the Bail Reform Act was regulatory or punitive, the Court first questioned whether Congress expressly intended to impose punishment.35 The Court then employed an analysis that “turn[ed] on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’” 36

The Court began by summarily disposing of the notion that Congress intended to expressly impose punishment via preventive bail.37 The dissent voiced few misgivings on this particular portion of the majority opinion.38 The Court concluded that the Act was a regulatory measure after determining that Congress “perceived pretrial detention as a potential solution to a pressing societal problem” and that “preventing danger to the community is a legitimate regulatory goal.”39 In deciding this, the majority pointed to the limits that the Bail Reform Act imposed, including detention only for particular crimes, entitlement to a hearing, maximum lengths of detention, and housing requirements for detainment. 40 Further, the majority balanced the interests of the government against the interests of the individual, and found that the government interest in preventing crime was the priority where “the arrestee . . . presents a demonstrable danger to the community.”41

2. Salerno Excessive Bail

The foundation of the Court’s opinion can be found where the opinion states that “[the excessive bail] Clause, of course, says nothing about whether bail shall be available at all.”42 The majority of the Court believed that “when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail.”43 In other words, excessive bail may not be imposed, but disallowing bail entirely is allowed.

3. Marshall’s Dissent

The majority’s understanding of the excessive bail portion of the Eighth Amendment seems to run directly contrary to the eighteenth century schoolboy’s understanding of what a ban on excessive bail was meant to do: prevent tyranny, especially in the form of tyrannical judges.44 The idea that this protection would be fortified in its purpose of seeking to keep suspects from fleeing, but not in the face of preventive detention, seems inherently fallacious. One imagines a redcoat breaking down the door of one of the Sons of Liberty and whisking him away for what he may do in the future. The purpose of preventing that person’s commission of future crime seems to be a poor manifestation of the spirit of the protection against tyranny.

This skepticism is found in Justice Marshall’s dissent:

[t]his case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future.”45

Justice Marshall noted some significant problems with the majority decision; namely, that deeming preventive detention to be merely regulatory was problematic,46 and that distinguishing between excessive bail and no bail at all was ineffective.47

Justice Marshall’s problem with defining preventive detention as regulatory rather than punitive was that it did not solve the problem––regulatory or not, preventive detention irreparably damages the right to be presumed innocent prior to proof beyond a reasonable doubt at trial.48 Meanwhile, to damage the presumption of innocence is to damage Due Process.49

Justice Marshall’s problem with distinguishing between excessive bail and denial of bail was that “[i]t would be mere sophistry to suggest that the Eighth Amendment protects against the former decision, and not the latter,” due to the fact that “[w]hether the magistrate sets bail at $1 million or refuses to set bail at all, the consequences are indistinguishable.”50

The majority and the dissent in Salerno ultimately highlight this tension very well; the opinions demonstrate the difficulty of squaring the requirement of Due Process with the shield of bail, and, by extension, the sword of preventive detention that has sprung out of that protection. In Salerno, though the majority attempted to resolve this tension, others beyond just those justices who dissented were left with a sour taste in their mouths; others share the dissenting justices’ belief that the majority opinion exacerbated the tension rather than resolved it.51

D. Wisconsin v. Constantineau, its Progeny, and the Attachment of Due Process

Wisconsin v. Constantineau addressed an Act which provided that certain people “may in writing forbid the sale or gift of” alcohol to a person who “‘by excessive drinking’ produces described conditions or exhibits specified traits, such as exposing himself or family ‘to want’ or ‘becoming dangerous to the peace’ of the community.”52 The Chief of Police, without a hearing, posted in all liquor stores that Constantineau was forbidden from being sold or gifted alcohol.53 The question the Supreme Court deemed most important was whether such posting was “such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard.”54

In essence, this was a discussion of when an individual’s right to Due Process should attach. In a case such as this, where it is not clear that the person is being punished, or whether the person is truly being forced to give up their liberty,55 the question becomes most difficult, but also most relevant. The Court recognized that “due process comes into play” when “the State attaches ‘a badge of infamy’ to the citizen.”56 This is not unlike the claim made in the Salerno dissent that, because the presumption of innocence was damaged—or in other words, “the badge of infamy” was affixed—Due Process was involved. 57 The Constantineau court explicitly said “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.”58 At no point in the decision does the Court speak of the actual destruction of Constantineau’s reputation.59 Even if the notice did nothing but confirm her reputation in the community as an alcoholic, the badge of infamy would be affixed nonetheless, and the right of Due Process would attach along with it.60 Due to this attachment, the Court found that Constantineau experienced a violation of Due Process, and thus prevailed in the Supreme Court.61 The Court recognized that “[o]nly when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.”62

This ruling was later clarified in Paul v. Davis, a Supreme Court case decided five years after Constantineau.63 In the Davis case, the police attached the name and photograph of Edward Davis to a flyer that they distributed to local businesses to warn of potential shoplifters.64 Mr. Davis had been charged with shoplifting, but the case was dismissed shortly after the flyer was circulated.65 Upon receiving a reprimand by his employer, who saw the flyer, Mr. Davis brought his action to court claiming that the flyer, similar to the posting in Constantineau, had damaged his reputation and therefore deprived him of a liberty protected by the Fourteenth Amendment.66 The Supreme Court immediately disposed of the notion that “every legally cognizable injury which may have been inflicted by a state official acting under ‘color of law’ establish[es] a violation of the Fourteenth Amendment.”67 Further, the Court decided that reputation is not a “candidate for special protection” under the more general rights of “liberty” and “property” as recognized in the Fourteenth Amendment. 68 The Court, however, created a caveat: when “more tangible interests such as employment” are implicated, reputation may be sufficient to invoke the Due Process Clause.69 The Court then turned the analysis back on Constantineau. It found that because Constantineau had a right bestowed by the state to buy alcohol, and the posting “significantly altered her status as a matter of state law” in that regard, as well as defamed her, these two injuries “justified the invocation of procedural safeguards.”70 Examining a further example, the Court acknowledged its previous holding that when a State gives “parolees the right to remain at liberty” they cannot “alter the status of a parolee because of alleged violations of these conditions” without adhering to the requirements of the Due Process Clause.71 It would seem logically consistent that if a parolee cannot have their liberty taken away without Due Process attaching, neither could a presumably innocent individual’s freedom be taken away without the same.

The tension between Due Process and preventive detention via denial of bail are evident through the cases displayed above, along with the histories of those important provisions in the Bill of Rights. We allow judges to make preliminary determinations of potential for future crimes and allow them to lock up defendants on that basis, but disallow locking them up on a similar determination for past crimes. Through mental gymnastics, the courts have managed to hold that preventing a crime that has not even occurred yet is permissible regulation, but the exact same action for a crime already committed is punishment prior to trial—a violation of Due Process. The Second Circuit’s disagreement with this fundamental determination prior to Salerno, and the ongoing discussion among legal academia about bail and its difficult relationship with Due Process indicate that the strain the Salerno decision inflicted on our legal process left a scar that will not fade.72 In the next section, this Note analyzes two articles that address the Ninth Amendment and Federalism, which may provide a potential solution to this tension.

III. Analysis

The idea that the Due Process Clause is a function of the separation of powers is not an entirely new concept. 73 While the concept of separation of powers—as many young citizens in the United States understand it—refers to a horizontal separation of powers between the legislature, executive, and judicial branches of the federal government, it also refers to a vertical separation of powers that is no less important. The vertical separation of powers, or Federalism, separates powers between the federal government and the state government; but the underlying concepts of Federalism also inform our understanding of other limitations and divisions, such as those found in the Ninth Amendment.74

The goal of this analysis is to find a space to place bail such that it makes sense within a reading of the Eighth Amendment75 and the Fifth Amendment Due Process Clause,76 in order to resolve the tension between the two amendments. This analysis seeks to find the resolution of this tension in Federalism utilizing the Ninth Amendment;77 for the Ninth Amendment provides guidance on how enumerated rights, such as the right to Due Process or the right to be free of excessive bail, should not be construed to disparage other unenumerated rights, such as the right to personal liberty.78 Before arriving at that recommendation, however, this Note analyzes two articles that will provide the tools to make sense of the Ninth Amendment, which will in turn serve as the lens through which we solve the problem of bail and ease the tension between the Fifth and Eighth Amendments.

A. Retained Rights

The Ninth Amendment requires that the “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” 79 An important question in unpacking the Ninth Amendment is what is a “retained” right? By definition, “a retained right is a right withheld from government control. The opposite of a retained right is an assigned right—one delegated to government control.”80 But more specifically, what kinds of rights fall within the zone of retained rights? Professor Barnett contends that a retained right, as stated in the Ninth Amendment, is a “reference to natural rights” such as personal and economic liberty, a conclusion he arrives at through analyzing the historical record.81 Professor Lash finds that retained rights could stretch even further than that: “the ‘other rights’ of the Ninth potentially include all rights capable of being retained by the people, whether natural, positive, individual, majoritarian, collective or even governmental.”82 In other words, retained rights are at least as expansive as personal rights, but can stretch to almost any right conceivably retained by the people.

B. Two Schools of Thought on the Ninth Amendment

The differences between Professors Lash and Barnett discussed above illustrate the elusiveness of the Ninth Amendment in discerning its true meaning. In order to formulate a better understanding of the Ninth Amendment, this piece explores the fundamental differences between the reasoning of both professors.

1. Professor Randy Barnett’s Individual Natural Rights

Barnett’s key emphasis is that the Ninth Amendment particularly includes individual natural rights.83 These rights “amount to a general presumption against government interference with an almost infinite range of private conduct that does not, in turn, interfere with the rights of others.”84 Barnett derives his understanding of the Ninth Amendment from the “original public meaning” of the text, focusing on what regular people would have understood that Amendment to mean at the time of its ratification. 85 In short, Barnett’s understanding of the Ninth Amendment is that it protects individual private conduct.

2. Professor Kurt Lash’s Federalism

Lash’s understanding of the words “others retained by the people” in the Ninth Amendment is that these words “declare that all nondelegated powers and rights are retained by the people who may delegate them to their respective state governments as they see fit.” 86 In this, the Ninth Amendment is a specific guard against negative encroachment of federal power.87 As one of Lash and Barnett’s peers, Professor Louis Seidman, states, “[w]hereas the Tenth Amendment prohibits the exercise of unenumerated federal powers, the Ninth prohibits the broad interpretation of the enumerated powers.”88 In contrast to Barnett deriving his understanding from “original public meaning,” Lash describes himself as a “popular sovereignty” originalist, which “led him to give ‘special consideration and weight to the concerns and understanding of those who debated and ratified the text.’”89 Contrary to Barnett, Lash’s understanding of the Ninth Amendment is that it protects the right of people to exercise local self-government.

C. What Happens to a Retained Right?

These rights are inherently outside of the scope of the control of the federal government. The powers of the federal government are enumerated in that they are limited to those expressly stated. All other powers, according to the Tenth Amendment, go to the States or to the people.90 The rights that are “withheld from the federal government and under the control of the people on a state-by-state basis” can then be assigned by the people to their respective state governments, also “on a state-by-state basis.”91

D. Bail as a Retained Right

Is bail a retained right under this analysis? It is important to note that the English law upon which the Eighth Amendment based its origins never allowed protection from danger to the community as an acceptable reason to deny bail; nor was that an acceptable reason to deny bail for the vast majority of our country’s history up until the 1980s.92 In fact, most state constitutions had a provision stating that “all persons shall be bailable.”93 Without any positive power of the government to hold a person prior to trial, except where necessary and proper to ensure the efficacy of its other enumerated powers, the right to bail may be considered retained by the people.

Is preventative detention acceptable as necessary and proper? It is understandable that the federal government has the power to deny bail if the suspect is a flight risk. They have the power to hold a federal trial, and therefore must be able to set up a system to ensure the presence of the defendant, or to ensure the witnesses and evidence that will be used in the trial will not be destroyed. Of course, if bail or a bail deposit is used to ensure the presence of the person at trial, that bail cannot be excessive. Yet, in the specific case of denying bail entirely for a reason not related to securing the integrity of the trial, but instead as a preventative detention for potential future crime, it seems this is a right retained. Justification cannot be found in the typical sources for Federal Criminal Law, or other enumerated powers.

Further, the fact that the protection from excessive bail exists in the Eighth Amendment does not disparage the right to bail generally. Just because the excessive portion is expressly prohibited, that says nothing about other unenumerated rights.94 Under the Ninth Amendment analysis described above, it is possible that bail could be seen as a retained right, as a product of the right to personal liberty. This would seem consistent with the Supreme Court’s analysis in Paul v. Davis.95 While bail could still be regulated, as a right it could not be destroyed.96 This would mean that the right would ensure that defendants have some form of bail, except as necessary to ensure the integrity of the trial, and that pursuant to the Eighth Amendment the bail will not be excessive.

IV. Recommendation

The goal in this is to resolve the tension between the Fifth and Eighth Amendment. Based upon the analysis above, and new developments in the understanding of the function of Ninth Amendment, bail should be considered a part of the retained right to personal liberty.97

A rebuttal may be made to the argument above by looking to Professor Lash’s article. In this article Lash says,

[c]ourts do not violate the Ninth Amendment, however, if they limit the scope of substantive due process to textual rights such as those listed in the first eight amendments to the Constitution . . . the precise content of such rights must be identified through an act of interpretation focused on that particular clause and not on the basis of the Ninth Amendment.98

Why would Due Process be implicated with a right not enumerated in the constitution? Due Process plays a different role in this analysis than actually prescribing a particular course of action. It supplies a tension with the Eighth Amendment insofar as it is in disagreement with imprisonment for future crimes. The actual solution to this tension is not found in the Due Process Clause, but in the Ninth Amendment.

In considering bail to be a part of that retained right for the Ninth Amendment, it is important to be precise. Denial of bail would be allowed, and even required, when it is necessary and proper to ensure the effective function of the federal trial. When it does not serve that purpose, however, and instead serves the purpose of preventative detention, it infringes upon the retained right of personal liberty.

The differences between Lash and Barnett in where to place that retained right are as subtle as they are significant.99 If we were to follow Barnett, bail would be a retained right, exercised at an individual level.100 Therefore even states and local governments could not create rules for issues like preventative detention, as this would infringe on individually retained rights. On the other hand, Lash’s interpretation allows for more flexibility. Since Lash’s interpretation allows for retained rights to be legislated on at the state and local level, this would give communities the opportunity to decide for themselves whether inherently difficult ideas like preventative detention are acceptable to them.101 At that point, preventative detention, and bail more broadly, would be a right of the people, and could be delegated on a state-by-state basis.

This would reduce the tension between the Amendments in three ways. First, applying principles of Federalism would allow for the core purpose of bail to be preserved. This purpose was to prevent tyranny in the form of judges. 102 By requiring bail in some form at the federal level, the likelihood of a tyrannical judge imposing a de facto punishment prior to a finding by a jury is greatly reduced. Second, this would lessen the likelihood of the circumvention of excessive bail by denying bail. As the dissent in Salerno pointed out, the difference between excessive bail and denial of bail is essentially nothing. 103 By ensuring bail in some form, the spirit of the protection against excessive bail will be more perfectly preserved. Third, and most importantly, Due Process would be preserved by disallowing incarceration prior to a guilty verdict. One of the largest issues in Salerno was the court incarcerating a presumably innocent person for a potential future crime.104 Since this practice would be put to rest at the federal level, but may still be delegated to the states by the people on a state-by-state basis, it will not necessarily be gone. It will, however, be removed as a practice of the federal government, where the risk of tyranny is greatest.

V. Conclusion

The tension between our current understanding of bail in the Eighth Amendment, and the Due Process Clause in the Fifth, has not evaporated over time. Public outcry about crimes committed while out on bail provoked legislative and judicial reform in the 1980s, which was a turning point in the way our justice system viewed bail. In order to resolve the tension between our Eighth and Fifth Amendments, it is important to go back to the understanding of bail that we had prior to the Bail Reform Act of 1984, and remove preventative detention as a federal justification for denial of bail. In doing so, we can be informed by the Ninth Amendment, and the retained right of personal liberty that goes along with it. We will not only resolve a tension in the Amendments, but preserve key values of the United States’ justice system, such as the presumption of innocence and punishment only for crimes actually committed.

*  J.D. 2017, University of Illinois College of Law. B.A. 2014, English, Michigan State University. I would like to thank the editors, members, and staff of the University of Illinois Law Review for assisting me with this publication. I would also like to thank Professor Jason Mazzone, for his excellent instruction, without which writing this piece would have been impossible. Finally, I would like to thank my family for their love and support.

1. Debbie Nathan, What Happened to Sandra Bland?, The Nation (April 21, 2016), available at

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. U.S. Const. amend. VIII.

9. U.S. Const. amend. V.

10. United States v. Salerno, 481 U.S. 739, 746–47 (1987).

11. See Nathan, supra note 1.

12. See infra notes 15–22 and accompanying text.

13. 481 U.S. 739 (1987).

14. 400 U.S. 433 (1971).

15. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 87 (1998).

16. § 761 Right to Bail or Other Release, 3B Fed. Prac. & Proc. Crim. § 761 (4th ed.).

17. Id.

18. Shima Baradaran, Restoring the Presumption of Innocence, 72 Ohio St. L.J. 723, 749 (2011) (citing United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir. 1986).

19. Salerno, 481 U.S. 739.

20. Id. at 751–52.

21. Id.

22. Baradaran, supra note 18, at 725.

23. Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 428 (2010) (quoting William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 375 (2d ed. 1914)).

24. Id. at 435.

25. Id. at 446.

26. Id. at 454–55.

27. Id. at 512.

28. Baradaran, supra note 18, at 755; see also, United States v. Agurs, 427 U.S. 97, 107 (1976).

29. Baradaran, supra note 18, at 763.

30. See 481 U.S. 739 (1987).

31. United States v. Salerno, 481 U.S. 739, 744 (1987) (quoting United States v. Salerno, 794 F.2d 64, 71–72 (2d Cir. 1986)).

32. Id. at 745.

33. Id. at 746.

34. Id.

35. Id. at 747.

36. Id. (internal citations omitted).

37. Id.

38. See id. at 759–60.

39. Id. at 747.

40. Id.

41. Id. at 748–51.

42. Id. at 752.

43. Id. at 754–55.

44. See supra notes 14–15 and accompanying text.

45. Salerno, 481 U.S. at 755.

46. Id. at 760 (“The majority proceeds as though the only substantive right protected by the Due Process Clause is a right to be free from punishment before conviction. The majority’s technique for infringing this right is simple: merely redefine any measure which is claimed to be punishment as “regulation,” and, magically, the Constitution no longer prohibits its imposition.”).

47. Id. at 760–61.

48. See id. at 766.

49. Id. at 763; see also Taylor v. Kentucky, 436 U.S. 478, 485–86 (1978); Estelle v. Williams, 425 U.S. 501, 503 (1976).

50. Salerno, 481 U.S. at 760–61.

51. See, e.g., Laurie L. Levenson, Detention, Material Witnesses & the War on Terrorism, 35. Loy. L.A. L. Rev. 1217 (2002); Marian E. Lupo, Comment, United States. v. Salerno: A Loaded Weapon Ready for the Hand, 54 Brook. L. Rev. 171 (1988); Robert Webster Oliver, Bail and the Concept of Preventative Detention, N.Y. St. B.J. 8, 12 (1997); see also Donald W. Price, Crime and “Regulation”: United States v. Salerno, 48 La. L. Rev. 743, 753 (1988).

52. 400 U.S. 433, 434 (1971) (quoting Wis. Stat. § 176.26 (1967)).

53. Id. at 435.

54. Id. at 436.

55. See id. at 436–37.

56. Id. at 437 (internal citation omitted).

57. United States v. Salerno, 481 U.S. 739, 763–67 (1987).

58. Constantineau, 400 U.S. at 437.

59. See generally id.

60. See Aaron H. Caplan, Nonattainder as a Liberty Interest, 2010 Wis. L. Rev. 1203, 1217–18 (2010) (“The real liberty in the case was the right not to have the chief of police control, on his own say-so, whether Constantineau could engage in otherwise lawful activity.”).

61. Constantineau, 400 U.S. at 436 (“The only issue present here is whether the label or characterization given a person by ‘posting,’ though a mark of serious illness to some, is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard. We agree with the District Court that the private interest is such that those requirements of procedural due process must be met.”).

62. Id. at 437.

63. Paul v. Davis, 424 U.S. 693 (1976).

64. Id. at 695.

65. Id. at 696.

66. Id. at 696–97.

67. Id. at 699.

68. Id. at 701.

69. Id.

70. Id. at 708–09.

71. Id. at 711 (citing Morrissey v. Brewer, 408 U.S. 471 (1972)).

72. United States v. Salerno, 481 U.S. 739 (1987); United States v. Salerno, 794 F.2d 64 (2d Cir. 1986).

73. See, e.g., Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672 (2012).

74. Kurt Lash, The Ninth Amendment and the Original Bill of Rights, PrawfsBlawg (Sept. 5, 2009),

75. U.S. Const. amend. VIII.

76. U.S. Const. amend. V.

77. U.S. Const. amend. IX.

78. See Randy E. Barnett, Does the Constitution Protect Economic Liberty?, 35 Harv. J.L. & Pub. Pol’y 5, 6–7 (2012).

79. U.S. Const. amend. IX.

80. Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 Stan. L. Rev. 895, 910 (2008) (emphasis added).

81. See Barnett, supra note 78, at 5–6.

82. Lash, supra note 80, at 910.

83. Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev. 1, 3 (2006); see also Louis Michael Seidman, Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism, 98 Cal. L. Rev. 2129, 2131 (2010).

84. See Seidman, supra note 83, at 2132.

85. See Barnett, supra note 83, at 6.

86. Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331, 337–38 (2004) (emphasis added).

87. See id. at 376.

88. See Seidman, supra note 83.

89. Id. at 2136.

90. U.S. Const. amend. X.

91. See Lash, supra note 80, at 914.

92. Wayne R. LaFave, et al., 4 Criminal Procedure § 12.3(c) (4th ed. 2016).

93. Id.

94. See Lash, supra note 80, at 907.

95. See generally 424 U.S. 693 (1976).

96. See Paul, 424 U.S. at 710; see also Barnett, supra note 78, at 5–6.

97. Id.; see also Lash, supra note 80, at 910.

98. See Lash, supra note 80, at 927.

99. See supra Part III.B. See also generally Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty: A Response to a Textual-Historical Theory of the Ninth Amendment, 60 Stan. L. Rev. 937 (2008).

100. See Barnett, supra note 78, at 5–6.

101. See Lash, supra note 80, at 910.

102. See Amar, supra note 15, at 87.

103. United States v. Salerno, 481 U.S. 739, 760–61 (1987).

104. Id. at 755.

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