Supreme Court expands scope of excessive fines clause

This may be the case of the year in the Supreme Court, barring some Mueller-related case involving Trump. The Supreme Court holds that the excessive fines clause of the Eighth Amendment applies to the states and not just the federal government.

The case is Timbs v. Indiana, issued on February 20. You probably didn't know the excessive fines clause did not apply to the states prior to this decision. You probably didn't even know we had an excessive fines clause to begin with. But we do, and it prohibits the government from really sticking it to criminal defendants, such as in this case, where Timbs pleaded guilty in state court to drug dealing and the government took his Land Rover SUV, which he purchased from a family inheritance but which the authorities said he used to distribute drugs. The SUV cost $42,000, more than four times the maximum fine.

When the Bill of Rights were originally drafted in 1791, they only applied to the federal government. The states were free to do what they wanted without any constraints under the Bill of Rights, which include the rights of free speech and religion, our beloved Second Amendment, and all the criminal procedure protections set forth in the Fourth through Eighth Amendments. After the Due Process Clause of the Fourteenth Amendment was ratified following the Civil War, the Supreme Court began to incorporate parts of the Bill of Rights into that amendment, holding that they regulate state behavior, which is why small towns cannot violate free speech even though the First Amendment explicitly regulates Congress. Incorporation has been a slow process, as the Court only recently held the Second Amendment regulates state and local governments. It now gets around to the excessive fines clause of the Eighth Amendment, and as Notorious RBG says, "for good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties," such as when excessive fines are used to retaliate against political enemies.

Justice Thomas concurs, stating that what really incorporates the excessive fines clause against the states is the Privileges and Immunities Clause of the Fourteenth Amendment, which states, "no state shall make or enforce any law which abridge the privileges or immunities of citizens of the United States." While in Thomas' view the Court has narrowed the scope of the P & I clause, litigants have had to enforce rights against the states by other means, including the Due Process Clause. The problem with that, Thomas says, is that the Due Process Clause only speaks to "process" and the Court has "struggled to define" what substantive rights it actually protects. What happens under this vague constitutional provision is the Court has little to work with in defining rights, creating some of the Court's most notoriously incorrect decisions," including Roe v. Wade and Dred Scott v. Sandford. Yes, Justice Thomas ranks Roe among the worst cases ever, along side Dred Scott, considered the most racist and worst Court ruling of all-time.