« Michael Dorf on Originalism's Bait and Switch
Michael Ramsey
| Main | Evan Bernick: Envisioning Administrative Procedure Act Originalism
Michael Ramsey »


Timbs and the Privileges or Immunities Clause
Chris Green

Yesterday the Supreme Court granted certiorari in Timbs v. Indiana, a case asking "[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment." Unlike the Court's last incorporation case, McDonald v. Chicago, the petitioners did not separate out the Fourteenth Amendment's clauses in the question presented, so the Court's failure to rewrite the question presented in terms of only the Due Process Clause did not make waves. But there is reason to think that the case may feature significant discussion of the Privileges or Immunities Clause, rather than merely due process. Timbs and his Land Rover are represented by the Institute for Justice, which advocated a Privileges or Immunities Clause revival in McDonald. Further, the Timbs petition included a brief ode to the "dignity and glory of American citizenship" from Justice Harlan's Plessy dissent. 

Most importantly, there are several compelling reasons--reasons beyond a general opposition to due substance--to think the Due Process Clause does not ban excessive fines (or excessive punishments generally). 

First, the due process clause was based, of course, on language first formulated in 1354 as elaborations of the law-of-the-land provisions in chapter 39 of Magna Charta.  But Magna Charta also contains a separate excessive-fines provision in chapter 20. It would be odd if chapters 20 and 39 were redundant. Blackstone's discussion of excessive fines at 4 Commentaries 378-79 quotes the Latin of chapter 20 at length, but the law-of-the-land provision of chapter 39 and the due-process language of 1354 are entirely absent. Lawful authority to impose a sentence is one thing; excessiveness is another.

Second, while Blackstone condemns disproportionate death sentences (death imposed for "light and trivial causes") at 1 Commentaries 133-34, he classifies them as tyrannical only "in an inferior degree," and distinguishes them from the sort of lawless, varsity-level "highest degree tyrannical" situations that Magna Charta chapter 39 and the 1354 due-process guarantee would forbid.

Third, the Bill of Rights itself condemns excessive fines in the Eighth Amendment separately from the due process clause of the Fifth; like the 20/39 redundancy problem above, I have found no one suggesting that these two provisions were redundant.

Fourth (an issue I am investigating in detail this summer), 1862 discussions of the Second Confiscation Act sharply distinguish arguments against the act's harshness--the fact that it applied even to rank-and-file rebels--from Fifth Amendment objections to the procedures involved in its in rem proceedings. Harshness itself did not, as such, violate due process.

Fifth, disproportionate sentences of slavery were taken by Republicans in 1866 to be consistent with the Thirteenth Amendment's "duly convicted" requirement, which in turn was equated whenever the issue was discussed with a requirement of conviction by due process of law.

Moreover, moving to the Privileges or Immunities Clause for a ban on excessive fines may be more attractive to the Court in Timbs than it was in McDonald

There would be no need in Timbs to adjudicate among the four most plausible candidates for a basic-rights component to the Clause, or the relationship of such a component to an equal-citizenship requirement (the issues I address here and here). These four most plausible approaches for basic privileges that must be given to all citizens of the United States are (a) rights in the Bill of Rights or elsewhere in the text of the federal constitution as limits on the federal government, (b) rights prevalent in 1868, when the Fourteenth Amendment was adopted, (c) morally-genuine rights, and (d) rights prevalent today, at the time we are applying the Clause. 

A right against excessive fines is what we might call a four-fecta: it (a) appears in the Bill of Rights, (b) was prevalent in 1868 (35 of 37 state constitutions, according to Calabresi & Agudo's study), (c) is a morally-genuine right, simply because it is expressed with the moral term "excessive," and (d) is prevalent today (50 of 50 state constitutions, as conceded by Indiana in its opposition to certiorari).

Accordingly, the Court in Timbs need not decide which of these approaches is the right approach under the Privileges or Immunities Clause. It need only decide that the Due Process Clause is a singularly inappropriate vehicle for a ban on excessive punishment, for reasons like those above, and that the Privileges or Immunities Clause contains a basic-rights guarantee in one of these four basic forms, any of which would support a ban on excessive fines.  Each part of this argument is an easy lift.  A fully-briefed resolution of which approach to basic rights under the Privileges or Immunities Clause is proper could then wait for later cases posing a clear conflict between approaches focusing on 1791, 1868, moral reality, or consensus today. 

Note (added 7/5): the initial version of this post referred to the excessive-fines provision in chapter 14 of Magna Charta; this was its chapter number in the 1297 codification (in which the law-of-the-land provision, for instance, moves from chapter 39 to chapter 29). Originally, however, the excessive-fines provision was in chapter 20; see, e.g., here. We can speak either of 14/29 redundancy in 1297 or 20/39 redundancy in 1215, but not 14/39, as the original post did; this mixes 1297 with 1215.