I discussed the case of Timbs v. Indiana in my article Incorporation Insanity. Well, the court has released its opinion, so I wanted to follow up with you here.
As a reminder, the case before the court asked the question of whether the Eight Amendment was “incorporated” to the states under the 14th Amendment’s due process clause. In short, Justice Ruth Bader Ginsburg wrote that yes, in the 9-0 opinion of the court, the Eighth Amendment’s protections against excessive fines did apply to the states. I discuss the details behind the Selective Incorporation Doctrine in the Incorporation Insanity article, but one interesting point did come up in this opinion.
Both Justices Gorsuch and Thomas wrote concurring opinions where they agree with the outcome, but not the method, of the majority. According to these two justices, it’s the 14th Amendment’s Privileges and Immunities Clause rather than the Due Process clause that protects Mr. Timbs. While I believe the Selective Incorporation Doctrine is flawed, I agree with Justices Gorsuch and Thomas that this is a question of Mr. Timbs immunity from excessive fines and not where they were applied with or without due process.
Studying Constitutional Law at law school and we are going over the selective incorporation doctrine of the Bill of Rights. My question is: Why doesn’t the Supremacy Clause in Article VI make the Bill of Rights automatically incorporated into the states? How can a state violate one of the Bill of Rights and get away with it, without dealing with the Supremacy Clause? Why do you need to even get to the 14th Amendment? Just curious. Thanks!!
That was the point of my articles the Incorporation Doctrine and Incorporation Insanity. The idea that the Bill of Rights does not apply to the states appears to come from the SCOTUS case Barron v. Baltimore, but nothing in Chief Justice Marshall’s opinion points to a legal reasoning for this, only his stated opinion that this is what the Founding Fathers wanted. Furthermore, severing the Bill of Rights from the rest of the Constitution is a violation of Article V’s amendment process which states that all amendments “shall be valid to all Intents and Purposes, as Part of this Constitution” once they are ratified.
If you don’t mind me asking, you are studying Constitutional Law in law school, do your studies include a class on the Constitution itself?
No, we are just going over the structure of the Government with regards to the Constitution. i.e. Judicial Review, Legislative Powers, Executive Powers, and State Powers.
I do agree that the Barron v. Baltimore case was ruled wrong, and don’t agree with Chief Justice Marshall’s reasoning. It seems to me, in some of the early incorporation cases that the court’s were trying to balance “federalism” and maintaining some sovereignty to the States. But in doing so they were violating the Constitution. I’m only a 1L, so my knowledge of the subject is very limited at this moment.
I agree that the courts were tying to balance state vs. central government rights, but ignored the Constitution when it was inconvenient. An “ends justify the means” mentality has led to a lot of bad decisions from the courts and the various governments as well.
If your studying Judicial Review, have you read the opinion in Marbury v. Madison yet? I found it quite interesting how different the actual language reads after years of being told that it “established the concept of judicial review” for so many years.