Why the Eighth Amendment really applies to the states

Justice Thomas writes in his concurrence:

By Thomas Mitchell

Justice Thomas writes in his concurrence:

The Supreme Court finally settled the matter and said the Eighth Amendment prohibition against excessive fines applies to the states as well as the federal government — including civil asset forfeitures.
The court ruled that Indiana essentially imposed an excessive fine when it seized a man’s $42,000 Land Rover, which was worth four times the maximum fine of $10,000 for selling cocaine.
What the hell took so long? And there is an interesting aside in the quibbling about just why the Eighth applies. The 14th Amendment was specifically passed after the Civil War to prevent the states from denying the rights enumerated in the Bill of Rights.
The opinion of seven members of the court was that the “due process” clause means that states are prohibited from denying rights, but Clarence Thomas and Neil Gorsuch demurred and argue that the applicable clause is the one that states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …”
Yes, it is splitting hairs, since the result is the same, but one could argue the Land Rover owner got “due process,” but he definitely was denied his “privileges and immunities” against excessive fines.
Justice Thomas writes in his concurrence: Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” … And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v.Wade … Dred Scott v. Sandford …
The present case illustrates the incongruity of the Court’s due process approach to incorporating fundamental rights against the States. Petitioner argues that the forfeiture of his vehicle is an excessive punishment. He does not argue that the Indiana courts failed to “‘proceed according to the “law of the land” — that is, according to written constitutional and statutory provisions,’” or that the State failed to provide “some baseline procedures.” … His claim has nothing to do with any “process” “due” him. I therefore decline to apply the “legal fiction” of substantive due process. …
When the Fourteenth Amendment was ratified, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’” … Those “rights” were the “inalienable rights” of citizens that had been “long recognized,” and “the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against interference by the States. … Many of these rights had been adopted from English law into colonial charters, then state constitutions and bills of rights, and finally the Constitution.
“Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in [the Bill of Rights] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.”

The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right. The historical record overwhelmingly demonstrates that it was.
Thomas went on to point out several examples of how some states had passed laws that imposed excessive fines specifically against blacks — the very thing the 14th was intended to remedy.

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