US Supreme Court Justice Ruth Bader Ginsburg speaks at the New York Law School, February 6, 2018

We all remember from our constitutional law classes that the federal Bill of Rights originally did not apply to the states. It was through the process of “selective incorporation” that the United States Supreme Court, by a case-by-case process over the years, decided which of the amendments, and even which of the clauses within amendments, would be “incorporated” through the Due Process Clause of the 14th Amendment so as to apply to the states. The most important amendment that has not been applied to the states by the Supreme Court is the Seventh Amendment right to trial by jury in civil cases. In addition, the Eighth Amendment's “excessive fines” clause had never been applied to the states until February of this year.

Timbs v. Indiana was a case dealing with a civil forfeiture matter in which Timbs' $42,000 vehicle was seized in connection with a drug offense for which the maximum fine was only $10,000. Justice Ginsburg, in a very instructive opinion for the unanimous court, reviewed the grounds over the years on which the court had decided that amendments were “fundamental to our scheme of quartered liberty,” with “deep roots in our history and tradition.” In the 2010 decision of McDonald v. Chicago, the court had found, similarly, that the Second Amendment, after many years of an alternative view, was appropriate to be applied to the states.

Justice Ginsburg noted that when the 14th Amendment was ratified in 1868, “the constitutions of 35 of the 37 States—accounting for over 90% of the U.S. population—expressly prohibited excessive fines.” She concluded that the case for incorporation was “overwhelming.” The court reversed the decision of the Indiana Supreme Court and remanded for further consideration now that the Excessive Fines Clause was applicable.

Justices Gorsuch and Thomas concurred in the judgement.

Here in New Jersey, we have been protected from excessive fines since the Constitution of 1844. Article I, ¶ 12. However, until now we have not had a companion protection under the federal Constitution. We welcome this important addition to our federal jurisprudence.