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Timbs and Substantive Due Process
Andrew Hyman

The issue of substantive due process is now again before SCOTUS in Timbs v. Indiana. That case involves incorporation of the Eighth Amendment’s Excessive Fines Clause against the states.  
The last time SCOTUS incorporated a substantive provision of the Bill of Rights against the states was when it incorporated the Second Amendment in 2010.  Justices Scalia and Thomas were absolutely right to reject the doctrine of “substantive due process," at least insofar as it is used to do more than incorporate the Bill of Rights, in that case of McDonald v. Chicago (2010).  Justice Thomas supported incorporation of the Bill of Rights against the states while correctly deeming substantive due process (SDP) to be unconstitutional; indeed, SDP is the Article III branch’s favorite way to circumvent the political actors empowered by Articles I, II, and the Tenth Amendment.  In contrast to Thomas, Scalia said: “Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights ‘because it is both long established and narrowly limited.’”  I do not believe that Scalia’s approach there is ultimately sustainable, because nothing in the constitutional text suggests that the Due Process Clause means one thing in incorporation cases and another thing in other cases, and also because every SCOTUS case can be viewed as narrowly limited to its context, but in any event Scalia rejected substantive due process outside the incorporation cases.
For many of us who view the original public meaning of the Constitution's text as the ultimate legal precedent that is supreme even with respect to egregiously wrong precedents of the Supreme Court, hope springs eternal that the Court will turn to the clause of the Fourteenth Amendment that was actually intended to support incorporation of the Bill of Rights against the states, and that is the Privileges or Immunities Clause (championed by Justice Thomas in the McDonald case).  My co-blogger Michael Ramsey wrote at this blog: “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.”  That's absolutely correct.  
It’s a good sign that the petitioner in Timbs has asked the Court to look favorably upon incorporation via the Privileges or Immunities Clause.  We are no longer at a point where incorporation of the Bill of Rights via the Privileges or Immunities Clause would be "so great a departure from the structure and spirit of our institutions" as the Court feared in Slaughter-House (1872), so there is no longer any need to shy away from this clause and its implications.  Those implications are not nearly as extensive as the limitless expanse of power that the Court has granted itself by developing substantive due process.  As the Court wrote in Slaughter-House, rights under the Privileges or Immunities Clause must be traceable to "the Federal government, its National character, its Constitution, or its laws."  Because the right to be free of excessive fines is obviously traceable to the Eighth Amendment of the Constitution, that ancient right is suitable for incorporation against the states under the Privileges or Immunities Clause.
As I have written previously at this blog, it is a myth that the Supreme Court utilized substantive due process (SDP) in the abominable pre-Civil War case of Dred Scott v. Sandford, and so not even that awful case should be used as any sort of precedent for the SDP doctrine.  It is also a myth that the Republican Party employed substantive due process in its party platforms of 1856 and 1860.  And it is a myth that the great English jurist Edward Coke supported anything like SDP, which instead is primarily a product of judicial good intentions gone wrong long after the Fifth and Fourteenth Amendments were written and adopted.
Indiana’s reply brief in Timbs states that moving away from SDP would harm non-citizens because only citizens would be protected, but that is incorrect in view of the Equal Protection Clause (EPC).   As I have previously written about the Privileges or Immunities Clause, “the word ‘citizens’ limits the beneficiaries of the clause (although the EPC may allow non-citizens to benefit as well).”  So I am going to keep on hoping that SCOTUS will loosen its grip a little, and let democracy do the policy-making in this country, even when the issues are gravely serious and require the use of conscience, unless those issues have already been resolved constitutionally.
There is a kind of quid pro quo that early political leaders of the United States had with the U.S. Supreme Court.  Alexander Hamilton described it in Federalist 78: judicial opinions must earn the respect of the other branches by satisfying certain minimal standards, and otherwise "the efficacy of its judgments" can be prevented by the other branches. Among those minimal standards that the framers expected the judiciary to maintain is that “nothing would be consulted but the Constitution and the laws" and furthermore "an irreconcilable variance" must exist between a statute and the Constitution to justify preferring the latter over the former.  The doctrine of substantive due process in my view violates this quid pro quo because it has virtually no basis in the words of the Fifth and Fourteenth Amendments, but rather is the result of wishful judicial thinking and mindless adherence to flawed precedents.