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 in a unanimous ruling is more intellectually scintillating and potentially portentous than the ruling itself. This happened last week, 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 police officers) for which the maximum fine is $10,000.
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 (”incorporated”) 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. Writing for the court, Ruth Bader Ginsburg said that such fines violate the Fourteenth Amendment’s guarantee that people shall not be deprived of life, liberty or property without “due process of law.”
The court has long relied on the doctrine of “substantive due process” — due process produces nonarbitrary outcomes — 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.
Last week, 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, before and since the American Founding, which should place it among Americans’ privileges or immunities.
What else would a revived Privileges or Immunities Clause protect? Certainly economic liberty, including the right to earn a living unburdened by unreasonable occupational licensure laws. There would be ample additional scope for the protection of rights by courts guided by the clause’s premise, which is: American government’s primary task is the protection of rights, aka privileges or immunities, which, as the Ninth Amendment stipulates, are not exhaustively enumerated in the first eight amendments.
In a one-paragraph concurrence, Justice Neil Gorsuch almost endorsed Thomas’s 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. Hence it is reasonable to think that, properly construed, the clause denotes a richer menu of rights, encompassing those in Anglo-American legal traditions and state constitutions, and not ignoring the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
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. With Gorsuch, who last week suggested that the privileges or immunities of U.S. citizens “include, at minimum, the individual rights enumerated in the Bill of Rights” (emphasis added), there would be 40 percent of such a majority. 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.
Contact George Will at georgewill@washpost.com
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