A version of this article originally appeared in the Daily Caller.
Justice Clarence Thomas has demonstrated anew that he is the sole consistent originalist on the Supreme Court.
In last Wednesday’s ruling in Timbs v. Indiana, SCOTUS unanimously held that the Eighth Amendment’s protection against excessive fines — intended to bind only the federal government — is enforceable against state governments as well. The decision draws state civil asset forfeiture under federal judicial scrutiny.
There is no question that state and local governments have abused civil asset forfeiture. That’s one reason the Independence Institute filed a “friend of the court” brief favoring the defendant in the case.
Eight justices, in an opinion written by Justice Ruth Bader Ginsburg, held that the protection against excessive fines applies to the states because the 14th Amendment bans states from depriving persons of “life liberty, or property, without due process of law.” The majority thereby extended a constitutional doctrine fostered by progressive courts during the 20th century: that the 14th amendment Due Process Clause serves as a catchall for a multitude of other rights.
But this doctrine makes no sense. For one thing, it doesn’t mesh with the constitutional text: The Bill of Rights lists “due process” as only one of many protections. Furthermore, the historical meaning of “due process” was rather narrow. It meant only that if the government proceeds against you for some reason, it must follow existing law and cannot make up new rules as it goes along. The due process guarantee supplemented the Constitution’s ban on ex post facto laws.
The idea that “due process” contains other rights is also the source of the fatuous notion of “substantive due process,” by which the court regularly injects itself into legislative policy. (The abortion case of Roe v. Wade is one example.) Most of the current justices received their positions on the understanding that they would not engage in that kind of adventurism.
Although Justice Thomas agreed that the protection against excessive fines applies to the states, he was the only member of the court to do so on plausible originalist grounds. He pointed out that the 14th Amendment prohibits states from “abridg[ing] the privileges or immunities of citizens of the United States.” He concluded that “privileges or immunities” meant “rights,” including the protections in the Bill of Rights.
His conclusion avoids “substantive due process” and it has at least some historical evidence to support it.
In my view, however, the evidence that “privileges or immunities” means “Bill of Rights” is not fully persuasive. A Supreme Court decision issued a few years after adoption of the 14th amendment concluded that it did not. Moreover, elsewhere in the Constitution, the words “privileges” and “immunities” refer only to government-granted entitlements.
Nevertheless, many legal writers have fallen in love with the idea that “privileges or immunities” means “the Bill of Rights.” They have struggled for years to find historical evidence in support. But for the evidence to be persuasive, one has to find it pervading the entire legislative ratification record for the 14th amendment, and no one seems to have examined that entire record. A partial survey covering eleven state legislatures concluded that the ratifiers did not intend “privileges or immunities” to refer to the Bill of Rights.
In my view, the most likely understanding of the amendment’s ratifiers was that “privileges” and “immunities” meant primarily federal statutory protections for former slaves.
Finally: There is a better originalist argument for the result in the Timbs case than the argument Justice Thomas made. There some historical basis for believing the Founders thought of the protection against excessive fines as a “privilege” rather than a right. The Bill of Rights actually was, in the founding-era phrase, a “bill of rights and privileges,” and the Excessive Fines Clause is located in the portion of the Bill that protects privileges. Perhaps the 14th Amendment Privileges or Immunities Clause does not encompass the entire Bill of Rights, but does include protection against excessive fines.
On its face, the Timbs decision is a victory for freedom because it potentially curbs civil asset abuse. The longer-term implications are more troubling. The decision places yet another area of state policymaking under the supervision of the federal courts. It also expands the already bloated power of Congress, because when you expand the scope of the 14th Amendment, you expand the enforcement power the amendment grants to Congress.
Look out for members of Congress citing Timbs as a way to justify supervising yet another part of American life.