Following is a lightly edited transcript of The New York Sun’s “interview” with the Eighth Amendment; it’s the first interview with a member of the Bill of Rights since we interviewed the Fifth Amendment.
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EIGHTH AMENDMENT: Am I permitted to take off this blasted mask?
The SUN: Have you had your vaccination?
EIGHTH: Actually, I have constitutional immunity. It’s illegal to infect me.
SUN: Then by all means. And thanks for coming in. I wanted to ask you about Ghislaine Maxwell, who is going on trial Monday in the United States District Court in Manhattan on charges that she helped procure young women for Jeffrey Epstein.
EIGHTH: How can I help you?
SUN: Well, the accusations are serious indeed, and we carry no brief for Ms. Maxwell. Why, though, has she had to spend the last 16 months in a dank jail cell at the Brooklyn Detention Center, with rats running around and — at least according to her lawyers — guards shining flashlights in her eyes in the middle of the night? Isn’t bail a right?
EIGHTH: You tell me.
SUN: Well, you’re listed smack in the Bill of Rights. Should they have called it the Bill of Non-Rights?
EIGHTH: You think the right to bail is given in the Bill of Rights? Take a look at the language.
EIGHTH: So you see, the Amendment itself doesn’t establish the right. It’s pre-existing. All the Amendment does is prohibit the government from requiring “excessive” bail — from a person, by the way, who is entitled to the presumption of innocence. Have you talked to Bill Blackstone on this?
SUN: He doesn’t use e-mail.
EIGHTH: He could give you the background — “ancient common law, before and since the conquest,” and all that. He likes to carry on about the “dubious interval.” That’s the term he uses for the span between an arrest and the end of a trial. He certainly had a gift for the memorable phrase.
SUN: No argument on that. If you could sum up his position on bail, though ...
EIGHTH: The right was presumed under law. “All felonies were bailable,” I think is how Blackstone bruited it. Except murder.
SUN: Have Ms. Maxwell’s lawyers contacted you?
EIGHTH: You know I’m not going to answer that. I will say I was peeved when the judge in Ms. Maxwell’s case told the jury pool that “jury trials are part of the bedrock of American democracy.” As if the Sixth Amendment right to a jury trial trumps — pardon the expression — the right to reasonable bail? Four times Judge Alison Nathan ruled against bail for Ms. Maxwell.
SUN: I see you’re shaking your head.
EIGHTH: Even John Gotti got bail. Harvey Weinstein, Bill Cosby, Bernard Madoff ...
SUN: What about the Supreme Court?
EIGHTH: What about it?
SUN: I’m thinking about United States v. Salerno.
EIGHTH: I remember it. Organized crime case. I try not to take these things too personally.
SUN: It was Chief Justice Rehnquist — right? — who wrote the opinion saying courts could deny bail if the prosecution proved there was no other way to ensure “the safety of any other person and the community”? Does that apply here?
EIGHTH: Ms. Maxwell offered $28.5 million in bail, didn’t she? Plus home detention and electronic monitoring?
SUN: Right but prosecutors worried about her having three passports ...
EIGHTH: Stop carping. She also offered to drop her citizenship in France and the United Kingdom.
SUN: What about Judge Nathan getting nominated to the Second Circuit? Should a judge with such a cramped view of your right to bail get a promotion like that?
EIGHTH: On that head, I’ll just plead the Fifth.