Yesterday the Supreme Court issued its decision in Timbs v. Indiana, the case asking whether the Eighth Amendment's excessive fines clause applies against the states through the Fourteenth Amendment. As widely predicted, the decision was unanimous in the affirmative. Also as predicted (at least on this blog) there was lots of originalism in the opinions.
Justice Ginsburg's opinion for eight Justices (all except Thomas) contains an extensive historical account. Here is part of it:
The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning Ferris, 492 U. S., at 271. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”)....
Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. E.g., The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris, 492 U. S., at 267. When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689).
Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Moving to the drafting of the Fourteenth Amendment:
An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008).
Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. See, e.g., Mississippi Vagrant Law, Laws of Miss. §2 (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g., id. §5; see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to “replicate, as much as possible, a system of involuntary servitude”). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124.
Justice Gorsuch wrote a one-paragraph concurrence, the principal point being to avoid fully endorsing incorporation through the due process clause:
As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. See, e.g., post, at 1–3 (THOMAS, J., concurring in judgment); McDonald v. Chicago, 561 U. S. 742, 805–858 (2010) (THOMAS, J., concurring in part and concurring in judgment) (documenting evidence that the “privileges or immunities of citizens of the United States” include, at minimum, the individual rights enumerated in the Bill of Rights); Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509 (2007); A. Amar, The Bill of Rights: Creation and Reconstruction 163–214 (1998); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986). But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.
(Congratulations to my cross-town colleague and law school classmate Bryan Wildenthal (Thomas Jefferson) for the citation to his classic article on originalism and incorporation).
Justice Thomas wrote a long concurrence in the judgment repeating his view (from McDonald v. City of Chicago) that the privileges or immunities clause is the correct basis for incorporation. From the introduction:
I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.
From his attack on substantive due process:
Because this Clause speaks only to “process,” the Court has “long struggled to define” what substantive rights it protects. McDonald, supra, at 810 (opinion of THOMAS, J.). The Court ordinarily says, as it does today, that the Clause protects rights that are “fundamental.” Ante, at 2, 3, 7, 9. Sometimes that means rights that are “‘deeply rooted in this Nation’s history and tradition.’” Ante, at 3, 7 (quoting McDonald, supra, at 767 (majority opinion)). Other times, when that formulation proves too restrictive, the Court defines the universe of “fundamental” rights so broadly as to border on meaningless. See, e.g., Obergefell v. Hodges, 576 U. S. ___, ___–___ (2015) (slip op., at 1–2) (“rights that allow persons, within a lawful realm, to define and express their identity”); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”). Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” McDonald, supra, at 811 (opinion of THOMAS, J.). And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v. Wade, 410 U. S. 113 (1973); Dred Scott v. Sandford, 19 How. 393, 450 (1857).
And then on privileges or immunities:
When the Fourteenth Amendment was ratified, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’” Id., at 813. Those “rights” were the “inalienable rights” of citizens that had been “long recognized,” and “the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against interference by the States. Id., at 822, 837. Many of these rights had been adopted from English law into colonial charters, then state constitutions and bills of rights, and finally the Constitution. “Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in [the Bill of Rights] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.” Id., at 818.
The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right. The historical record overwhelmingly demonstrates that it was.
The opinion then reviews the historical record in more detail than the majority, but essentially to the same effect.
One point of interest in Justice Thomas' concurrence is that, as the last quote above shows, he does not seem to accept that the privileges or immunities clause automatically incorporates all of the enumerated rights of the Bill of Rights against the states. Thus he may believe that some Bill of Rights rights are not incorporated and, of greater significance, he may be more open to finding that some rights, not listed in the Bill of Rights but considered fundamental at the time the Fourteenth Amendment was adopted, are applicable to the states.
Ilya Somin has further thoughts at Volokh Conspiracy here.