Unique ruling by Supreme Court is thought-provoking

There have been many memorable — and eventually consequential — Supreme Court dissents that affirmed principles that, in time, commanded a court majority. It is, however, rare that a justice’s opinion concurring ina unanimous ruling is more intellectually scintillating and potentially portentous than the ruling itself. This happened recently when the court dealt with an Indiana civil forfeiture case in which a man’s $42,000 Land Rover was seized by the state as part of his punishment for a drug offense (selling $225 of drugs to undercover officers).

In an excellent decision, the court held that the Constitution’s Eighth Amendment ban on “excessive fines” applies to states. The court has explicitly applied most of the Bill of Rights’ protections, piecemeal, against states’ actions. The court’s standard has been that a particular protection must be “deeply rooted” in the nation’s history and “fundamental to our scheme of ordered liberty.” The court said that the Eighth Amendment’s proscription of excessive fines should be incorporated, as the amendment’s other two proscriptions (“excessive bail” and “cruel and unusual punishments”) have been. The court has long relied on the doctrine of “substantive due process” to protect rights. This reliance came about because, in an 1873 decision, the court effectively nullified a more straightforward — and capacious — guarantee. Ratified in 1868, the 14th Amendment’s protection of Americans’ “privileges or immunities” was written during the Southern suppression of the economic liberties and other rights of freed slaves. The clause was intended to protect the full panoply of national rights. But just five years later, the court construed the clause so narrowly (as protecting a few “national” rights, such as access to navigable waterways and federal subtreasuries) as to nullify it.

Justice Clarence Thomas again argued for righting this wrong. He said that the phrase “substantive due process” is “oxymoronic,” and that the court, struggling to extract substance from process, has engaged in a process without a discernible principle — distinguishing “fundamental” rights meriting protection from undeserving lesser rights. This distinction has no basis in the Constitution’s text or structure, and leaves the court free to improvise new rights and ignore others. Thomas demonstrates that the ban on excessive fines has a long pedigree.

In a concurrence, Justice Neil Gorsuch almost endorsed Thomas’ argument: “[T]he 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.” Gorsuch cited Yale law professor Akhil Amar’s book “The Bill of Rights,” in which Amar notes that if those who wrote and ratified the clause merely meant to apply against the states the Bill of Rights, they could, and presumably would, have said so. Thomas, who correctly regards stare decisis — the principle of deciding cases by adhering to precedents — as less than sacramental, has for many years been 20 percent of a potential court majority for resuscitating the Privileges or Immunities Clause. America might be moving closer to a more robust role for an engaged judiciary in protecting a more spacious conception of the rights attached to national citizenship.