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Timbs v. Indiana
Andrew Hyman

Co-blogger Chris Green is correct that substantive due process is not a valid basis for incorporating the Excessive Fines Clause against the states, and he is also correct that using the Privileges or Immunities Clause (PIC) would be a valid way to do it.  But getting judges to use PIC instead of substantive due process would be very difficult by being so ambiguous about what PIC means.

Chris Green suggests for SCOTUS to acknowledge that one of the four most plausible interpretations of PIC is that it protects “morally-genuine rights.”   In my view, such an interpretation is implausible as an original matter, and dangerously so because it would basically authorize the Court majority to substitute its sense of morality in place of the good (or bad) sense of hundreds of millions of voters and legislators regarding every issue that the Court majority believes is too important for the American people to deal with.  Moreover, the strategy of being ambiguous about the meaning and scope of PIC did not work out well in McDonald v. Chicago, and it probably would not work out well in Timbs v. Indiana.

Here are the four most plausible interpretations of what PIC protects per Chris Green: “(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.”  In my view, (b), (c), and (d) are all much less plausible than (e): longstanding fundamental rights of U.S. citizens that federal law has protected throughout federal jurisdiction for many generations including today.  This interpretation (e) parallels the very longstanding, correct, and prevalent understanding of the Comity Clause in Article IV (also called the Privileges and Immunities Clause); the Comity Clause extends rights that are already recognized but only if those rights have been enjoyed by citizens during many preceding generations.  This understanding of the Comity Clause is a reasonable reading of the text of that Clause, consistent with the famous reading by Justice Washington upon whom the 39th Congress heavily relied in 1866, and PIC can be read in a parallel way.  

I have some uncertainty as between (a) and (e), but they are both way more plausible than (b), (c), or (d).  After all, (b) and (c) do not require prevalence today, (c) and (d) do not require any long-term prevalence, and none of (b), (c), or (d) focus on prevalence in federal rather than state law even though the language of PIC plainly focuses on rights emanating from federal rather than state citizenship.

Telling the Court that PIC means either (a) or (e) would cut the ambiguity in half.   It would thus reduce the Court’s trepidation, and enhance the chances that the presently-defunct PIC will be resuscitated.

MICHAEL RAMSEY ADDS:  More on Timbs from Ilya Somin at Volokh Conspiracy, here.