Opinion: The Supreme Court ruling on ‘excessive fines’ has an Easter egg for libertarians

Coming to the relief of victims of over-policing — and following the advice of the Los Angeles Times editorial board — the Supreme Court ruled unanimously Wednesday that the 8th Amendment’s ban on “excessive fines” applies to the states as well as the federal government. It joins most other guarantees in the Bill of Rights that have been “incorporated” against the states through the 14th Amendment that was added to the Constitution after the Civil War.

The court sided on that constitutional question with Tyson Timbs, an Indiana man whose $42,000 Land Rover SUV was seized in a civil forfeiture action after he pleaded guilty to selling $225 worth of heroin to undercover police officers. The state said the SUV had been used to transport heroin.

Although the purchase price of the vehicle was more than four times the maximum $10,000 fine assessed against Timbs for his drug conviction, the Indiana Supreme Court ruled that it didn’t violate the 8th Amendment because that amendment’s ban on excessive fines didn’t apply to state action.

The U.S. Supreme Court rightly reversed that decision. Writing for the majority, Justice Ruth Bader Ginsburg concluded that the ban on excessive fines qualified as one of the protections that must apply to the states because it is “fundamental to our scheme of ordered liberty” and “deeply rooted in this nation’s history and tradition.”

All nine justices agreed that the ban on excessive fines was extended to the states through the 14th Amendment. But two justices — Neil Gorsuch, who joined Ginsburg’s majority opinion, and Clarence Thomas, who didn’t — raised a question that captivated legal nerds as soon as the decision came down:

Exactly which language in the 14th Amendment does the work of incorporating the 8th Amendment’s ban on excessive fines against the states? This might seem like a dry technical question, but it has important political and policy implications, especially for libertarians who believe the Supreme Court should be more aggressive in protecting economic rights.

Section 1 of the 14th Amendment says:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

Typically when the Supreme Court has incorporated one of the amendments in the Bill of Rights against the states, it has focused on the language in the 14th Amendment about depriving people of liberty without due process of law. It has fastened on the same language in protecting “unenumerated” rights such as sexual privacy.

In her majority opinion, Ginsburg wrote: “With only a handful of exceptions, this court has held that the 14th Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the states.”

But “due process of law” seems an odd phrase to pluck out for incorporation purposes, partly because it’s about legal process, not substantial rights. (The Supreme Court in employing it has had to make use of a mind-boggling concept called “substantive due process,” which implies that some rights are so fundamental that there is no fair process that could result in their deprivation.)

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To the ordinary reader, another phrase in Section 1 of the 14th Amendmemt — the command that no state shall make a law abridging the “privileges or immunities of citizens of the United States” — seems a better fit.

But there’s a problem: In 1873, in the so-called Slaughterhouse Cases, the Supreme Court defined the “privileges or immunities of citizens of the United States” extremely narrowly. Essentially, the court said, the phrase required states to respect only privileges flowing from federal citizenship.

In recent years, however, some activists and legal scholars have called for the Supreme Court to reinvigorate the Privileges or Immunities Clause — and at least two members of the court seem to have been listening.

In 2010, citing the due process clause, the Supreme Court in an opinion by Justice Samuel A. Alito Jr. ruled that the 2nd Amendment’s right to keep and bear arms applied to the states. Thomas concurred in the result, but wrote a separate opinion suggesting that “a more straightforward path” to that result would be a holding that the right to bear arms was incorporated through the privileges or immunities clause.

In Wednesday’s forfeiture case, Thomas again wrote separately and again promoted the alternative route of incorporation through the privileges or immunities clause. But a second justice also (sort of) joined the chorus. Although he signed Ginsburg’s opinion, Gorsuch, a Trump appointee, wrote separately that “as an original matter … the appropriate vehicle for incorporation may well be the 14th Amendment’s Privileges or Immunities Clause, rather than, as this court has long assumed, the Due Process Clause.”

What difference does it make which clause the court cites so long as it rules that states as well as the federal government are bound by the Bill of Rights?

Here’s why a comeback for the privileges or immunities clause could have real significance:

The court has used the due process clause to apply the Bill of Rights to the states and also to protect the right of personal privacy (a right the court said in Roe vs. Wade is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”). But since the 1930s it hasn’t been sympathetic to claims that economic regulations violate due process, upholding those that pass a “rational basis” test.

Some who argue that the court should reinvigorate the privileges or immunities clause see the clause as doing more than incorporating the Bill of Rights. They also see it as a way to protect economic rights such as the right to pursue a profession without the burden of state licensing requirements. It’s notable that the losing plaintiffs in the Slaughterhouse Cases included butchers who were harmed economically when the state of Louisiana awarded a monopoly on slaughtering cattle in New Orleans to a single company.

So when two Supreme Court justices see the long-dormant privileges and immunities clause as a valuable and perhaps neglected provision of the 14th Amendment, that’s significant — though not, for now, transformative. They will need at least three recruits to breathe new life into the clause.

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