by John Grove
When the Bill of Rights was ratified in 1791, its provisions only restricted the actions of the federal government, not the state governments. This was confirmed by the Supreme Court several decades later in a case called Barron v. Baltimore, in which a man claimed the city of Baltimore and state of Maryland had denied his Fifth Amendment rights. A unanimous Court found that a state could not be found to have violated the Fifth Amendment because it did not apply to it.
In the twentieth century, however, the Court began to apply the Bill of Rights to states through a process known as incorporation. To do this, the Court uses the Fourteenth Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” (emphasis added). The Fourteenth Amendment was specifically focused on state activity and limited the manner in which states could interact with their citizens. (More on the language of the Fourteenth Amendment below). The Court has found that, at the very least, there are certain rights which are so fundamental and so firmly rooted in our history that they cannot be denied by the states without violating these Fourteenth Amendment protections. Most provisions in the Bill of Rights have been incorporated, but up until last week, the portion of the Eighth Amendment which forbids the imposition of excessive fines was an exception.
Tyson Timbs was arrested and pled guilty to dealing heroin. At the time of his arrest, police seized his Land Rover which was used in his criminal activities. The state of Indiana then used a process known as civil forfeiture to permanently take possession of the vehicle. Civil forfeiture is a civil (non-criminal) proceeding in which the state seizes property that is suspected to have been involved in some sort of criminal activity. The Land Rover was worth around $42,000, which is four times the amount of the maximum fine allowable for the crime Timbs was convicted of.
The Constitutional Question and the Arguments
The Court was tasked with deciding 1) whether the excessive fines clause applies to state governments, and 2) whether civil forfeiture constitutes a “fine.”
Timbs argued that the seizure of his vehicle was a violation of the Eighth Amendment protection against excessive fines which is applied to the states through the Fourteenth Amendment. Civil forfeiture, he argued, has the effect of a fine, even if its purpose is not entirely punitive. The value of the Land Rover was significantly higher than any allowable fine and was therefore “excessive.”
Indiana, on the other hand, argued that the excessive fines clause does not apply to the state at all, as it has never been incorporated. Even if it should be incorporated, moreover, the state argued that civil forfeiture should not be included in the application to the states, as there is no significant historic tradition of prohibiting civil forfeitures. in other words, even if the excessive fines clause is fundamental and deeply rooted in our history, a right against civil forfeiture is not.
The court unanimously sided with Timbs, and officially applied the excessive fines clause to the state governments. Justice Ginsburg wrote the opinion and noted the deep historical roots of protections against excessive fines dating back to Magna Carta in 1215, the English Bill of Rights in 1689 (which the Eighth Amendment copied verbatim), and many similar state constitutional provisions. As to the idea that civil forfeiture was not part of that historically rooted right, Ginsburg dismissed the approach: “In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed – not each and every particular application of that right – is fundamental or deeply rooted.” The Court had already applied the excessive fines clause to civil forfeitures undertaken by the federal government. There was no reason to exclude them from the right when applied to the states.
The Interesting Side Issue:
As noted above, the Fourteenth Amendment includes both the Privileges or Immunities Clause and the Due Process Clause. Textually speaking, the former seems to suggest the logic of incorporation: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In 1873, however, the Supreme Court ruled that the Privileges and Immunities Clause did no more than restate the equal right all citizens had when it comes to the areas of our political life controlled by the federal government. As such, it chose not to incorporate the Bill of Rights. When the Court did begin to incorporate those rights, they chose to do so using the Due Process Clause, which states “nor shall any State deprive any person of life, liberty, or property, without due process of law.” In using the Due Process Clause to protect specific rights, the Court applies what is called “substantive due process” – the idea that there are some substantive rights (as opposed to procedural ones) that are so fundamental to free government that to deny them is to deny due process of law.
Justice Clarence Thomas has long held that the Court has been using the wrong part of the Fourteenth Amendment all along. He issued a concurring opinion which agrees with the outcome of the cases but argues that rights like the one against excessive fines, are made applicable to the states by the Privileges or Immunities Clause, while the majority of the Court appealed to the Due Process Clause. Timbs, he notes, did not make any claim that he had been denied a proper process: “He does not argue that the Indiana courts failed to ‘proceed according to the law of the land’… or that the State failed to provide ‘some baseline procedures’…His claim has nothing to do with any ‘process’ ‘due’ him.” Rather, he claimed that he was denied an immunity guaranteed to citizens of the United States. While Thomas has made similar arguments in the past on his own, he now has a companion in his unlikely quest to change the standard, as Justice Neil Gorsuch also wrote a concurrence indicating his general agreement with Thomas’s view.
The Court’s opinion can be read in full here.