Judge Neil Gorsuch testifies March 21, 2017, before the Senate Judiciary Committee during the second day of his confirmation hearing to replace the late Justice Antonin Scalia at the U.S. Supreme Court. Photo: Diego M. Radzinschi/ALM

Many Americans are surprised to learn that not all of the provisions of the Bill of Rights are applied against states, as they are to the federal government.

It took the 14th Amendment, ratified in 1868, and hard work that is still underway, to apply or “incorporate” the Bill of Rights, one by one, to the states.

At an oral argument Wednesday, the two newest U.S. Supreme Court justices seemed incredulous and impatient about the slowness of the process.

“Here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Justice Neil Gorsuch said at one point. “Come on, General.”

He was addressing Indiana Solicitor General Thomas Fisher, who was arguing against a broad incorporation of the Eighth Amendment's ban on excessive fines, in part because of the long history of government seizure of personal property, regardless of how severe it may seem.

Justice Brett Kavanaugh jumped in to support Gorsuch, asking, “Why do you have to take into account all of the history, to pick up on Justice Gorsuch's question? Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

They were remarkable statements, given that some scholars and lawyers including former Reagan administration Attorney General Edwin Meese III in the 1980s said the incorporation doctrine was “constitutionally suspect” and based on “intellectually shaky foundation.” Meese later said he made those remarks to stir debate. By the way, only a handful of Bill of Rights provisions remain unincorporated, including the right to be indicted by a grand jury, the right to have jurors from the defendant's state, and the right to a trial in civil cases.

The Gorsuch and Kavanaugh comments also seemed to make it likely that the court will in fact incorporate the excessive fines clause, which has been a cause celebre for libertarian groups such as the Institute for Justice, which advocates against government overreach, including by law enforcement.

In Timbs v. Indiana, the case argued Wednesday, the institute represented Tyson Timbs, an Indiana man whose $42,000 Land Rover was seized by police after he was arrested for trafficking a small amount of illegal drugs. His brief recounts excessive fines in America through centuries, including the modern-day trend toward police using forfeiture as a revenue-producing policy.

Justice Sonia Sotomayor seemed troubled by the trend. “Are we trying to avoid a society that's like the Star Chamber?” she asked Wednesday. “And if we look at these forfeitures that are occurring today … many of them seem grossly disproportionate to the crimes being charged.”

The vote in favor of Timbs, who wants his Land Rover back, might be unanimous, though Chief Justice John Roberts Jr. asserted that seizing property that was an “instrumentality that was part of the crime” is a longstanding practice. “This is how [Timbs] got to the deal place and how he carried the drugs,” Roberts said. “I think it's pretty well established your car can be forfeited.”

Tibbs' lawyer Wesley Hottot said Tibbs' transport of drugs in his car was incidental to his using the car to get around in a rural area. Hottot agreed that an instrumentality of the crime could be subject to forfeiture. “It is not, however, well established that that would necessarily not be excessive.”

 

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