![]() While Timbs involves incorporation of the Bill of Rights and the prohibition on excessive fines, the case also highlights the ongoing debate regarding substantive due process, fundamental rights, and even reproductive autonomy. This Article examines the Court’s decision in Timbs and its broader implications for the protection of fundamental rights. But under this approach, other rights, such as abortion or same-sex marriage, would not be considered privileges of “American citizenship” entitled to constitutional protection. Unlike the Due Process Clause, Justice Thomas found the Privileges or Immunities Clause to be more grounded in history and tradition, thereby offering the Court a guiding principle for distinguishing “‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” The Privileges or Immunities Clause would, therefore, allow for the application of the Eighth Amendment’s prohibition on excessive fines to states. This would not be a simple exchange of constitutional sources to guide incorporation the actual scope of fundamental rights would also be affected. He suggested the Privileges or Immunities Clause should be used instead of the Due Process Clause to address the existence of fundamental rights. Justice Thomas took this proposal one step further. Both Justices Gorsuch and Thomas suggested resurrecting the Privileges or Immunities Clause of the Fourteenth Amendment as a more appropriate vehicle than the Due Process Clause for applying the prohibition on excessive fines to states. While the Court’s decision was unanimous, the concurring opinions offered a revealing reflection of past constitutional battles and an intriguing vision of future conflicts. still litigating incorporation of the Bill of Rights. As Justice Gorsuch wryly noted during oral argument in Timbs, “And here we are in 2018 . . . To most scholars and jurists, this represented a constitutional anomaly. ![]() Until this decision, four provisions in the Bill of Rights had not yet been incorporated through the Due Process Clause and, therefore, were not conclusively applicable to states: (1) the Third Amendment’s prohibition on quartering of troops in homes (2) the Fifth Amendment’s right to a grand jury indictment in criminal cases (3) the Seventh Amendment’s right to a jury trial in civil cases and (4) the Eighth Amendment’s prohibition on excessive fines. According to a unanimous Court, this safeguard is “‘fundamental to our scheme of ordered liberty,’ with ‘dee root in history and tradition.’” Timbs is historically significant because the Court addressed one of the last remaining provisions of the Bill of Rights to be incorporated and applied to state and local governments. Supreme Court held the Eighth Amendment’s prohibition on excessive fines was incorporated and applied to states through the Due Process Clause of the Fourteenth Amendment. In the realm of the Fourteenth Amendment, rights and privileges are a distinction with a difference. Renouncing over a century of precedent would result in the radical transformation of constitutional law and the weakening of fundamental rights. The consequences of resurrecting the Privileges or Immunities Clause at the expense of the Due Process Clause are troubling and far-reaching. Unlike the Due Process Clause, Justice Thomas found the Privileges or Immunities Clause to be more grounded in history and tradition, thereby offering the Court a guiding principle for distinguishing “fundamental rights that warrant protection from nonfundamental rights that do not.” The Privileges or Immunities Clause would allow for the application of the Eighth Amendment’s prohibition on excessive fines to states. ![]() He suggested the Privileges or Immunities Clause should be used instead of the Due Process Clause to address all fundamental rights. ![]() Both Justices Gorsuch and Thomas suggested resurrecting the Privileges or Immunities Clause as a more appropriate vehicle than the Due Process Clause for applying the prohibition on excessive fines to states. While the decision was unanimous, the concurring opinions offered a revealing reflection of past constitutional battles and an intriguing vision of future conflicts. Indiana, the Supreme Court held the Eighth Amendment’s prohibition on excessive fines was incorporated and applied to states through the Due Process Clause of the Fourteenth Amendment. A Distinction with a Difference: Rights, Privileges, and the Fourteenth AmendmentĪrticle - by William J.
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