This morning, the United States Supreme Court issued a ruling that the Fourteenth Amendment applies the “Excessive Fines Clause” of the Eighth Amendment to the states. We have been following this case closely since oral argument last November because, at the core, the case involved a “states rights” assertion by the state of Indiana that the clause only applied to actions of the Federal government.  Similar arguments had been used to undermine the applicability of other provisions of the Bill of Rights to the states including the Establishment Clause which some have asserted only applied to actions of the Federal government.

The opinion was drafted by Justice Ruth Bader Ginsburg and agreed to by all members of the Court with Justice Gorsuch and Justice Thomas filing separate concurring opinions.  Both Justice Thomas and Justice Gorsuch argued that the “Privileges and Immunities Clause” rather than the “Due Process Clause” were the stronger Fourteenth Amendment protection. However, since 1872, the Supreme Court has held that the Privileges and Immunities Clause are limited to areas governed by the federal government, not to states.  (See Slaughterhouse Cases, 83 U.S. 36 (1872).

In previous cases, Justice Thomas has argued that the Due Process Clause of the Fourteenth Amendment has been too broadly interpreted and guaranteed “rights” that were not intended by the framers.  The Privileges and Immunities Clause further only applies to citizens of the United States, not “any person” as defined within the Due Process Clause.  This has significant implications with respect to the current immigration debates.

Justice Thomas’ concurrence leans heavily on English history to argue that, regardless of the Fourteenth Amendment, the prohibition on excessive fines was understood as a general right of citizenship as 37 states had statutes prohibiting excessive fines before the 14th Amendment was ratified.  It is also noteworthy that at the same time, many states did not have language mirroring the Establishment Clause.

Case Caption:  Timbs v. Indiana (No. 17-1091, Decided 2/20/2019)

For case background, see “Supreme Court to decide whether Excessive Fines Clause applies to states“, ReligiousLiberty.TV (11/29/2018)

Amendment XIV, Section 1: “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.”


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