Many sports have what they call a “silly season”, a period of time when rumors fly and it seems the news is full of silly stories. I’ve come to think that any time the supreme Court is in session is my silly season. That’s because it seems just when I think I’ve found the silliest argument or opinion of the court, they come up with a newer, sillier one.
Today’s silliness deals with topics I’ve covered before, the Incorporation Doctrine and Civil Asset Forfeiture.
The silliness in question this time comes from oral arguments in the supreme Court case Timbs v. Indiana (17-1091). Mr. Timbs was arrested in Indiana on multiple drug charges, eventually pleading guilty to one charge of felony dealing and one charge of conspiracy to commit theft, in exchange for the state dismissing the remaining charge. After accepting the plea, the trial court sentenced Timbs to six years, five of which were to be suspended. Timbs also agreed to pay fees and costs totaling approximately $1,200. The state also sought the forfeiture of Mr. Timbs’ Land Rover under state Civil Asset Forfeiture law. (Oyez.org) The trial court denied the state’s request, noting that the maximum fine the law allowed in Mr. Timbs’ case was $10,000 while the vehicle in question was purchased for approximately $42,000. The court said such a forfeiture was grossly disproportional to the seriousness of the offense. (Oyez.org) Eventually the case came before the Indiana Supreme Court, who overturned both the trial judge and the court of appeals decision. They did so because:
“The United States Supreme Court has never enforced the Excessive Fines Clause against the States, and we opt not to do so here.
The framers’ original conception was settled long ago that the Bill of Rights applies only to the national government and cannot be enforced against the States.”…
To date, the Supreme Court has incorporated most of the first eight amendments—with a few notable exceptions:
First of all, the supreme Court of the United States does not enforce the law, they issue opinions on cases that come before them, supposedly based on the law. Second, the idea that the writers of the Bill of Rights meant for it to apply only to the central government is pure fiction, as I show in my article on the Incorporation Doctrine. The fact that the supreme Court of the United States routinely ignores the Constitution does not absolve the Supreme Court of Indiana of their responsibility to uphold the U.S. Constitution under the Supremacy Clause.
Mr. Timbs appealed to the supreme Court, asking if the Eighth Amendment applied to the states, and oral arguments were heard on November 28, 2018. Mr. Hottot, attorney for Mr. Timbs, not only stated the salient point, but showed the silliness of today’s legal education:
The freedom from excessive fines applies to the states because it is deeply rooted in our nation’s history and traditions and fundamental to our scheme of ordered liberty.
This is the idea of “selective incorporation”: The theory that the first 10 amendments to the Constitution apply only to the federal government, not the states. Justice Gorsuch tried to get the idea of incorporation off the table by asking Mr. Fisher, the Indiana Solicitor General,
General, before we get to the in rem argument and its application to this case, can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states. Whether this particular fine qualifies because it’s an in rem forfeiture, another question. But can we at least get the — the theoretical question off the table, whether you want to do it through the Due Process Clause and look at history and tradition, you know, gosh, excessive fines, guarantees against them go back to Magna Carta and 1225, the English Bill of Rights, the Virginia Declaration of Rights, pretty deep history, or whether one wants to look at privileges and immunities, you might come to the same conclusion. Can we at least — can we at least agree on that?
Mr. Fisher did not appear to agree:
Well, I think, with respect to in personam, the answer is yes, but you — you have to take into account — and this is the methodology of McDonald. You have to take into account the history and traditions of the right being claimed.
Later in the same exchange,
JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?
MR. FISHER: Well, again, that depends.
JUSTICE GORSUCH: I mean, most — most of these incorporation cases took place in like the 1940s. And here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, General.
You may be asking, what’s so silly about this case and the exchange between the lawyers and the justices? Apparently, while the trial and Indiana appeals court can read the U.S. Constitution, no one on the supreme Court of the United States can. The supposedly brightest legal minds in the country could not find:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
How much clearer does it need to be? The Eighth Amendment is part of the U.S. Constitution, therefore it is the supreme law of the land and the judges in every state are bound to it. Apparently, the justices of the supreme Court of the United States do not feel they are bound to the Constitution they swear to support.
I would laugh at the lengths lawyers and justices will go to find an answer, if it wasn’t so tragic that they cannot read the answer that should be right under their noses. How can you claim to uphold the law when you ignore the supreme law of the land? How can people laud their legal minds when the simplest of answers eludes them? Worst of all, how can we all bow to such foolish judgments? Sadly, until we figure out how to read and apply the Constitution for ourselves, we will be ruled by this lawless and arrogant board of Constitutional illiterates.
