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Timbs Tomorrow
Michael Ramsey

Tomorrow the Supreme Court will hear oral argument in Timbs v. Indiana, a case of likely originalist interest.  Here is the SCOTUSblog preview

[T]he Supreme Court will hear oral argument in the case of Tyson Timbs, an Indiana man who lost his Land Rover after his conviction on state drug charges. A state trial court agreed with Timbs that requiring him to forfeit his car went too far, violating the Eighth Amendment’s ban on “excessive fines,” but that won’t be the issue before the justices. Instead, the question is whether the Eighth Amendment applies to state and local governments at all. The justices’ eventual answer will be important not only for Timbs, who hopes to get his $42,000 car back, but also for those state and local governments, for which fines and forfeitures have become a key source of revenue.

It may come as a surprise to readers that the entire Bill of Rights – the first 10 amendments to the Constitution – does not automatically apply to the states. But the Bill of Rights was originally interpreted as applying only to the federal government. Beginning in the 20th century, however, the Supreme Court ruled that some (and eventually most) provisions of the Bill of Rights apply to the states through the Constitution’s 14th Amendment, which – among other things – bars states from depriving anyone “of life, liberty, or property, without due process of law.” Most recently, in 2010, the Supreme Court ruled that the Second Amendment’s right to bear arms applies fully to the states because it is “deeply rooted in this Nation’s history and tradition”; in a footnote, Justice Samuel Alito observed that the court had not decided whether the Eighth Amendment’s ban on excessive fines applies to the states.

As the preview goes on to describe, Timbs' argument is strongly historical: 

In the Supreme Court, Timbs argues that protection from excessive fines has a long history in our legal tradition, dating as far back as the reign of King Henry II, who ruled England in the 12th century. When the Eighth Amendment was ratified in the 1790s, Timbs notes, nine of the 13 states at the time had constitutional provisions guarding against excessive fines. By the time the 14th Amendment was ratified in 1868, all of the states included protection from excessive fines in their constitutions, and all but two of the 37 states did so using language that mirrored the language of the federal constitution’s excessive fines clause.

Moreover, Timbs adds, the 14th Amendment was passed to combat the tactics deployed by southern states in the years after the Civil War to oppress their African American citizens, including a variety of fines and forfeitures. For example, Alabama law imposed a fine of up to $1,000 and six months in jail for performing an interracial marriage, while teaching at African American schools without a special license was punishable by a fine of up to $500 in Florida.

Ilya Somin has more at Volokh Conspiracy, with this observation: 

Rejecting incorporation of the Excessive Fines Clause would be an extreme anomaly at a time when the Court has already incorporated both the rest of the Eighth Amendment (which forbids "excessive bail" and "cruel and unusual punishment"), and also every other provision of the Bill of Rights that protects property rights. It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not....

Agreed.  Once one accepts incorporation (as I think most originalists do, although under the privileges or immunities clause rather than the due process clause), it's hard to see why the excessive fines clause should not be incorporated.  Perhaps sensing that, Indiana has a different response.  From SCOTUSblog again: 

For its part, Indiana suggests that the excessive fines clause doesn’t apply to Timbs’ case at all because he is complaining about the forfeiture of  property used to violate the law, known as an “in rem” forfeiture,  which was not traditionally regarded as a penalty. The excessive fines clause, Indiana contends, applies only to payments imposed as punishment. This is consistent, the state explains, with the problem that the excessive fines clause was intended to target, which was “to prevent judges from incarcerating individuals on the basis of unpayable discretionary fines.”

But even if the excessive fines clause does extend to in rem forfeiture, the state continues, there is no reason to interpret the clause to apply to the states. To make that determination, the state argues, the Supreme Court shouldn’t look generally at whether there is a right to be free of excessive fines, but instead should look at the specific right that Timbs is asserting – the right to be free of forfeitures of property whose value far outweighs the seriousness of the crime. And there is no deeply rooted historical tradition supporting such a right, the state maintains. To the contrary, property forfeitures have been common in U.S. law, even when the consequences have been “draconian” and even when the owner of the property is innocent. For example, a 400-ton ship was forfeited in the 19th century for having one more passenger on board than allowed by federal law.

Despite the often harsh results of forfeitures, the state continues, courts did not apply the excessive fines clause (on either the state or federal level) to property forfeitures until 1992, over two centuries after the ratification of the Constitution and 124 years after the ratification of the 14th Amendment, which “strongly implies that no one understood the Excessive Fines Clause to impose a proportionality requirement on these forfeitures.” Further evidence that no one thought that the excessive fines clause applied to forfeitures, the state adds, can be found in the fact that property owners had challenged the constitutionality of forfeitures under other provisions in the Constitution, such as the right to a jury trial or due process, but not the excessive fines clause.

There's a good possibility of a left/right alliance in Timbs' favor, at least on the threshold question of whether the clause is incorporated.  As SCOTUSblog also notes: 

Timbs came to the Supreme Court with one of the most diverse collections of allies in recent memory – everyone from the conservative watchdog Judicial Watch and the U.S. Chamber of Commerce, which bills itself as “world’s largest business organization,” to the American Civil Liberties Union and the Southern Poverty Law Center, which told the Supreme Court that state and local governments are using fines and forfeitures to generate money to pay for the criminal justice system without having to raise taxes. Another “friend of the court” brief supporting Timbs came from the Foundation for Moral Law, which describes itself as a public-interest group “dedicated to the defense of God-given liberties and the strict interpretation of the Constitution.” 

But (much as I distrust forfeiture, basically for the reasons Professor Somin explains) it seems like Indiana might have a point about the historical distinction between fines and forfeitures.  I have not seen a fully persuasive response to the state's argument on this point.