The Supreme Court ruled the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the 14th Amendment’s Due Process Clause. Justice Ginsburg wrote the Court’s opinion for the unanimous ruling, which creates a new legal right for Americans. They may now successfully argue that a state or local fine or seizure violates their rights by being excessive.
…the police can essentially seize your property and make you sue them to get it back.
Like so many others have before him, Tyson Timbs became addicted to his prescription opioids. He took to using heroin when he couldn’t afford pills, then agreed to sell some to finance his habit. He sold heroin twice, both times to police officers in Indiana. Since he used his vehicle to facilitate the sale, the state tried to seize it. Though it was only a couple hundred dollars’ worth of dope and the maximum fine the law allowed was $10,000, the state claimed it could seize Timbs’ then year-old Land Rover, which was worth close to $40,000.
When Police Are the Thieves
State and local government agents often seize property and claim it was either being used illegally or was purchased with ill-gotten gains. Staggering though it may seem if you don’t already know, the police can essentially seize your property and make you sue them to get it back. The outrageous behavior of many state and local government actors is exceedingly well documented. It was, however, never deemed unconstitutional because the Eighth Amendment had not been incorporated against the states.
Since Timbs used an inheritance to buy the vehicle, Indiana could not argue that he purchased it with drug sales proceeds – a typical response to a takings challenge. Indiana, however, claimed the authority to confiscate any car used in a crime. Asked explicitly if the state could confiscate a million-dollar Bugatti because its driver was speeding five MPH over the posted limit, the state’s solicitor general said yes!
When the Bill of Rights was ratified, it was in recognition of rights held against the federal government, and it guaranteed they would not be violated at that level. These enumerated rights were not protections against state governments or their creations (counties, cities, etc.). It wasn’t until after the 14th Amendment passed, fundamentally altering the original relationship between the federal government and the states, that the Supreme Court started incorporating these rights against the states.
The Court has done so on an ad hoc basis, slowly whittling away the remaining amendments in the Bill of Rights not incorporated against the states. Grand Jury presentment requirements as well as a right to jury trial in civil cases remain amongst those yet to be included.
Thomas & Gorsuch vs. RGB
While the Court ruled unanimously for Timbs’ incorporation claim, there was no such unity in the reasons. Justice Thomas wrote a concurring opinion, in which he objected to Ginsburg’s incorporation rationale:
I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.
Justice Thomas’ opinion goes on at length to detail why the Court should base its reasoning for this judgment on the Privileges and Immunity Clause of Article 4 of the Constitution. Justice Gorsuch wrote a brief opinion of his own, stating:
As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.
That rationale discussion is part of a larger battle over the 14th Amendment and what is called the Slaughter-House cases, a series of rulings that essentially gutted economic liberty claims against states. Libertarian-leaning jurists generally want to see the Slaughter-House cases overturned, and the Privileges and Immunities Clause reanimated as a real basis for challenging the state and local laws that crush economic liberty. Liberals and big government conservatives, on the other hand, must cringe at the idea that government interference with commercial activity might implicate Constitutional rights.
Tyson Timbs is doing well in recovery these days. He was represented by the Institute for Justice, a public interest law firm founded by Clint Bolick, who is now a Justice on the Arizona Supreme Court. Bolick’s view of Slaughter-House sums it up for those of us in the limited government set: It destroys “one of the most sacred and central rights of Americans: economic liberty, the right to pursue a business or occupation free from arbitrary or excessive government regulation.”
Will the court turn to recognize the Privileges and Immunities Clause? Not if the liberals and establishment conservatives rule the day.
The Supreme Court did not actually say the seizure of the Land Rover was excessive, mind you. They simply ruled that state seizures, fines, and penalties must not be excessive due to the new incorporation. They sent the case back down to the lower courts for a ruling on whether this seizure does, in fact, violate Tyson Timbs’ rights against excessive fines now protected under the Eighth Amendment.
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