Notwithstanding the drama surrounding the Brett Kavanaugh nomination, the U.S. Supreme Court opened a new term this week with a docket of important cases, including one that has earned little public attention but presents an issue that states' rights advocates long have viewed as the ultimate escape from the Bill of Rights. Timbs v. Indiana (Dkt. 17-1091) arises out of Indiana's seizure of a $42,000 Land Rover an Indiana man used to sell $385 worth of heroin. In response to the man's claim that the forfeiture of his luxury vehicle violated the Eighth Amendment provision barring “[e]xcessive fines,” the Indiana Supreme Court joined the Supreme Courts of Montana, Mississippi, and Michigan in holding that the Eighth Amendment's Excessive Fines Clause simply does not apply to the states.

That there is any question about the applicability of a Bill of Rights provision to the states may strike many as odd, given that enforcement of the Bill of Rights against states and localities is a staple of our modern legal system. Indeed, the Supreme Court has held that most provisions of the Constitution's first eight amendments do apply to the states, but the court long ago rejected the notion the Bill of Rights applies across the board to the states, some important provisions remain unenforced against the states, and the Court just eight years ago issued a major ruling on the applicability of a deeply controversial Bill of Rights provision to the states.

'Incorporating' the Bill of Rights

As evidenced by the opening words of the Bill of Rights—the First Amendment's command that “Congress shall make no law …”—the adoption of the Constitution's first 10 amendments in 1791 was directed at the federal government. And in 1833 the Supreme Court expressly rejected the claim that the Bill of Rights reached the states in Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833).

It was not until the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments in the aftermath of the Civil War that the court seriously examined the application of federal constitutional protections vis-à-vis the states. The issue arose in the 1872 Slaughter-House Cases, 83 U.S. 36 (1872), where the court addressed a challenge by butchers who objected to a Louisiana statute that consolidated all New Orleans slaughtering operations into a single facility. Beyond arguing that the law created a monopoly, the butchers challenged it on constitutional grounds, asserting the law violated their individual right to pursue their trade and therefore maintain their livelihoods.

The court's majority opinion, which speaks eloquently of the country's anguish over slavery and the near destruction of the Union, grappled with the issue of the constitutional rights citizens had against the federal government as opposed to the rights they had against their own states. On this point, the court looked specifically at the Fourteenth Amendment—enacted in 1868—and its “privileges and immunities” clause, which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Having concluded that earlier language in the Fourteenth Amendment created two distinct forms of citizenship—one of the United States and, separately, one of a state—the court relied on the fact that the Privileges and Immunities Clause speaks only of “citizens of the United States” to conclude that its restriction on the states implicated only a narrow set of rights “fundamental” to the notion of a federal government as opposed to the entire Bill of Rights. Otherwise, the court noted ironically, it would be transformed into a “perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”

Despite flatly rejecting a broad view of the Privileges and Immunities Clause, the court still outlined a number of rights it deemed within the narrow set of rights that could be enforced against the states. These included the “right to peaceably assemble and petition for the redress of grievances,” “the privilege of the writ of habeas corpus,” and the “right to use the navigable waters of the United States, however they may penetrate the territory of the several states.”

Though the Slaughter-House Cases long have stood for the proposition that the states are not categorically bound by the first eight amendments, the court long ago abandoned its view that the Privileges and Immunities Clause governs the inquiry. Rather, it has shifted its analysis to the Fourteenth Amendment's Due Process Clause, which provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” And the inquiry has become one of determining whether a provision of the Bill of Rights is “incorporated” through the Due Process Clause so as to apply to the states.

Under this Due Process Clause framework, the court since the Slaughter-House Cases has found that most Bill of Rights provisions do apply to the states. As of the late 1960s—the last time the Supreme Court squarely addressed an incorporation issue before 2010—the Due Process Clause had been found to encompass the Fifth Amendment protection against double jeopardy, the Sixth Amendment right to a jury trial in a criminal proceeding, and, in the words of the court,

the right to compensation for property taken by the State; the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy, and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses.

The standards governing whether a specific provision is incorporated via the Fourteenth Amendment's Due Process Clause are quite broad. For instance, in an incorporation case from 1968, the court noted a variety of formulations it had employed when assessing incorporation of Fifth and Sixth Amendment rights: “The question has been asked whether a right is among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' whether it is 'basic in our system of jurisprudence,' and whether it is 'a fundamental right, essential to a fair trial.'”

Incorporating the Second Amendment

Having not squarely addressed the issues in decades, the Supreme Court returned to incorporation in 2010. Two years earlier the court had issued its seminal ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), holding the Second Amendment encompassed the right of an individual to possess a handgun in the home. But Heller did not present an incorporation issue because the District of Columbia is treated as a federal entity for purposes of the Bill of Rights. And following Heller, lower courts had refused to apply its Second Amendment holding to states and localities on the grounds that the Second Amendment was not incorporated. For instance, in Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), a Second Circuit panel that included then-Judge, now-Justice Sotomayor dismissed a Second Amendment challenge to a New York Penal Law provision criminalizing the possession of certain weapons:

The Supreme Court recently held that [the Second Amendment] confers an individual right on citizens to keep and bear arms. It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle.

In McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court ended that approach with the most thorough modern discussion of incorporation the Court has offered. As an initial matter, a plurality of the court—comprised of the conservative Justices minus Justice Thomas—refused to revisit the narrow privileges and immunities approach of the Saughter-House Cases, adhering instead to the subsequently adopted due process approach: “For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter–House holding.”

Turning to the due process analysis, the conservative Justices—including Justice Thomas—held that the Second Amendment indeed was incorporated to the states. After surveying the evolution of the due process approach, the court summarized the prevailing analysis as follows: “[W]e must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as we have said in a related context, whether this right is 'deeply rooted in this Nation's history and tradition.'” With such an amorphous framework, the conservative Justices had no trouble articulating a history that depicted the right to own a gun as central to American liberty. Notably, the Justices ironically invoked widespread efforts to disarm freed blacks in the antebellum South in service of their enthusiastic embrace of a broad Second Amendment.

Looking Forward

Following McDonald, the Bill of Rights' provisions the Supreme Court has not yet found to be incorporated on the states are few but important: the Sixth Amendment right to a unanimous jury verdict, the Third Amendment protection against quartering of soldiers, the Fifth Amendment's grand jury requirement, the Seventh Amendment's right to a jury trial in civil cases, and the Eighth Amendment's protection against excessive fines. It is this last protection that now is before the court in the Timbs case involving forfeiture of the Land Rover.

It seems inconceivable, particularly in light of the liberal standards governing incorporation and the extent of incorporation the Supreme Court has recognized, that the court could now would draw a line at the Excessive Fine Clause. Nonetheless, with the prospect of a deeply conservative majority controlling the court for decades to come, it is perhaps equally conceivable that that majority might revisit the entire notion of incorporation as a way to drastically curtail the reach of the Bill of Rights.

In rejecting incorporation of the Excessive Fines Clause in Timbs, the Indiana Supreme Court gave voice to the fundamental states' rights tension underlying incorporation:

Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated. An important corollary is that Indiana has its own system of legal, including constitutional, protections for its citizens and other persons within its jurisdiction. Absent a definitive holding from the Supreme Court, we decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.

Should an aggressively conservative majority of the Supreme Court move to root its constitutional analysis in a states' rights philosophy, the Timbs case could be a starting point for rolling back the incorporation jurisprudence that has made possible the full sweep of the Bill of Rights.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at [email protected].