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Neil Gorsuch, Civil Asset Forfeiture, and the Original Meaning of the 14th Amendment

Where does Justice Gorsuch stand on the Privileges or Immunities Clause?

C-SPANC-SPANWhen President Donald Trump nominated Neil Gorsuch to the U.S. Supreme Court back in January 2017, I observed that one of the biggest unanswered questions about Gorsuch's jurisprudence was where he stood on the crucial debate among conservative and libertarian legal thinkers over whether the Supreme Court should revive and enforce the original meaning of the Privileges or Immunities Clause of the 14th Amendment. Now, thanks a major civil asset forfeiture case that SCOTUS heard last week, we may finally get an answer to that question.

The case is Timbs v. Indiana. At issue is that state's efforts to seize a $40,000 Land Rover LR2 via civil asset forfeiture from a man named Tyson Timbs. Timbs was arrested on drug charges and sentenced to one year home detention and five years probation. A few months after his arrest, the state also moved to seize his car. But a state trial court rejected that forfeiture proceeding on the grounds that it would be "grossly disproportionate to the gravity of [Timbs'] offense" and therefore in violation of the Eighth Amendment to the Constitution, which forbids the imposition of "excessive fines."

But the state lucked out at the Indiana Supreme Court, which held that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment."

It was that question—does the Excessive Fines Clause apply against the states?—that the Supreme Court tackled last week. Justice Gorsuch wasted little time before jumping in.

"Here we are in 2018," an exasperated-sounding Gorsuch told Indiana Solicitor General Thomas Fisher, and we're "still litigating incorporation of the Bill of Rights. Really? Come on, General."

Since the late 19th century, the Supreme Court has been applying—or incorporating—the various provisions contained in the Bill of Rights against the states via the 14th Amendment, which says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." In other words, if the Free Speech Clause of the First Amendment applies against the states (it does), then the Excessive Fines Clause of the Eighth Amendment deserves the same treatment.

Now here is where things start to get interesting. "We all agree that the Excessive Fines Clause is incorporated against the states," Gorsuch said during the Timbs oral arguments. But he then acknowledged that not everyone on the Court agrees on exactly how it should be done. "Whether you want to do it through the Due Process Clause and look at history and tradition," he continued, "or whether one wants to look at privileges and immunities, you might come to the same conclusion."

Gorsuch was likely thinking about McDonald v. Chicago, the 2010 case in which the Court confronted these questions: Does the Second Amendment right to keep and bear arms apply against the states via the 14th Amendment, and if it does apply, is that because the right to keep and bear arms is a privilege or immunity of U.S. citizenship, or because it is one of the liberties protected by the Due Process Clause?

The Court ultimately ruled 5-4 in favor of Second Amendment incorporation. But only four justices (Roberts, Scalia, Kennedy, Alito) embraced the Due Process Clause. In a lone concurrence, Justice Clarence Thomas argued that fidelity to the original meaning of the 14th Amendment required incorporation via the Privileges or Immunities Clause instead.

What explains this split among the Court's right-leaning justices? The short answer is the fear of "judicial activism." Some conservatives worry that if the Supreme Court embraces the Privileges or Immunities Clause, that clause will then be used to justify greater judicial meddling in future cases. Thomas, by contrast, waved away those concerns in his McDonald concurrence. "The mere fact that the [Privileges or Immunities] Clause does not expressly list the rights it protects," he wrote, "does not render it incapable of principled judicial application."

Timbs v. Indiana has rekindled this conflict. Once again, the Court must decide if and—more importantly—how to apply a provision of the Bill of Rights against the states. Thomas, it is safe to say, has not changed his position. So that's one vote for the Privileges or Immunities Clause in Timbs. But where does Gorsuch stand? When the Court issues its ruling later this term, we may hopefully find out at last.

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  • ||

    But where does Gorsuch stand?

    I'm not sure how that really matters, except to ConLaw geeks like yourself. Roberts & Alito are never going to jump on the P&I bandwagon. And I doubt Kav would either.

  • BigT||

    No one would ever accuse Kavanaugh of jumping on....

    Oh, wait...

  • Bubba Jones||

    I am unclear on how excessive fines would violate due process? The state seems to have a clear process for taking stuff.

  • Brett Bellmore||

    That's why they invented "substantive" due process, where they claim you didn't get due process even when every detail of procedure was followed, if they don't like the outcome.

  • Bubba Jones||

    Why wouldn't excessive fines simply be banned by the constitutional ban on excessive fines?

    Or the 4th amendment ban on unreasonable seizure?

  • ||

    Because, precedent!

  • UnrepentantCurmudgeon||

    "Substantive due process" never really gained any traction though it sounded good at the time

  • Rossami||

    Due Process means more than just dutifully following a written process for stealing your stuff. Due Process includes having a realistic opportunity to contest the taking. Filing the Vogon planning charts and demolition orders in basement of the local planning department in Alpha Centauri doesn't cut it.

  • UnrepentantCurmudgeon||

    "Due process" was defined by one SCOTUS judge (Holmes or Cardozo, I think) as "that process which is due". In general that boils down to "notice and the opportunity to be heard". That is certainly never a feature of asset forfeiture in the first instance; contesting the forfeiture generally puts the burden on the person whose assets were seized. I would say as a rule that is a denial of due process.

  • malbuff||

    That's not what "due process of law" means.

  • Brett Bellmore||

    There's basically no question that the 14th amendment was supposed to incorporate our rights via the P&I clause, with the due process clause only guaranteeing general procedural fairness, not rights as such.

    But it seems the Supreme court was reluctant to admit that the Slaughterhouse decisions where entirely wrong, so rather than correcting their misinterpretation of the P&I clause, they came up with due process incorporation.

    It makes a difference, because only citizens are entitled to P&I, while everybody who happens to be in the country is entitled to due process.

  • loveconstitution1789||

    Always good insight Brett.

  • a ab abc abcd abcde abcdef ahf||

    Both opponents and proponents of the 14th Amendment agreed that it applied the Privileges and Immunities to the states; they only disagreed about whether that was a good thing.

    Along comes Slaughterhouse 8 (?) years later and disagreed, saying it only applied to Federal rights (right to travel on waterways or some such nonsense), not the Bill of Rights, and by then Reconstruction was in full swing, the Republicans had moved on, and nobody gave a shit.

    One of their worst decisions ever. IANAL but I classify it as worse than Dred Scott, since it so plainly upended what everyone had agreed on just 8 years earlier. Blatant politics.

  • John||

    It is not worse than Dred Scott. Dred Scott created what amounted to universal slavery. If a southerner can own land in the North and send his slaves to work on them and keep them as slaves, then every state is a slave state.

    That said, the Slaughterhouse cases have had a much more lasting effect than Dred Scott. Dred Scott was the equivilent of an accute and nearly fatal disease that lasted but a few years. The Slaughterhouse cases or more like some lingering but nonfatal illness like diabetes.

  • a ab abc abcd abcde abcdef ahf||

    Dred Scott at least was based on the original 60 year old Constitution and after 60 years of legal slavery. Slaughterhouse upended something just 8 years old. The legal chicanery was far worse and far more blatantly political.

  • John||

    Dred Scott was based on nothing except Justice Taney's hatred of the North and hatred of blacks. There is nothing in the Constitution that implied that all blacks were subject to enslavement at any time or that Northern states were required to recognize Southern slavery rights within their own borders.

  • a ab abc abcd abcde abcdef ahf||

    60 years of precedent allowed slavery. That's why Dred Scott wasn't near the betrayal of Slaughterhouse.

  • Brett Bellmore||

    60 years of precedent allowed slavery, but the Dred Scott ruling didn't stand for the idea that slavery was constitutional. It stood for the idea that blacks had never been and never could be citizens. Which was simply a judicial lie, Taney made it up of whole cloth.

    Before Dred Scott, slaves were, incidentally, almost all black, but slavery was not legally a matter of race at the federal level, whites could be slaves, blacks could be free. After Dred Scott, slavery became, legally, a matter of race, and even free blacks lost the rights of citizenship by Supreme court decree.

    But the truth is that they're both, Dred Scott and the Slaughterhouse cases, so awful that there's little point in distinguishing between them.

  • Fist of Etiquette||

    If the McDonald dissenters side with the plaintiff here, will they choose Privileges and Immunities? Or will they even have to choose?

  • KevinP||

    Deep felt thanks to President George H W Bush for putting Justice Clarence Thomas on the court. While Justice Thomas may not be a libertarian, he has far more fidelity to our constitution and rule of law than anyone else on the court.

  • Alcibiades||

    Amen to that.

  • Rock Lobster||

    Arguably the best thing GHWB ever did in an official capacity. Certainly one of the greatest SC appointments ever. For that he deserves great credit.

  • Brett Bellmore||

    In a sense the Democrats deserve some credit, because their effort to keep Thomas off the court was so egregiously awful, (Unequaled until Kavanaugh.) that Thomas became a changed man. He's became the "honey badger" Justice, he just doesn't give a damn what people think.

    I think it's possible that if he'd been treated fairly, he might have been less resolute.

  • Rock Lobster||

    That's entirely possible. The episodes with Robert Bork, Clarence Thomas, and of course, Brett Kavanaugh are all wonderful examples of leftist moral relativism as applied in the real world to assassinate the character of real people. I hope that many more people now the depths to which the left (i.e. Democrats) is willing to sink to impose and protect their collectivist, anti-liberty agenda.

  • Rock Lobster||

    ... that many more people now *see and understand* the depths to which the left...

    As others have observed, an edit button would be nice.

  • Wise Old Fool||

    Yep Republican politicians have never shown anything but the most upstanding morals when implementing the will of the voter and upholding the Constitution at all times. Democrats bad, BAD!

  • malbuff||

    Well, Mr Irrelevancy, I suggest you cite a specific instance where GOP lawmakers behaved in similar manner toward a Supreme Court nominee.

  • Rock Lobster||

    Way to broaden the discussion beyond the topic for no discernible reason other than to defend the Democrats, but fair enough. Even a Wise Old Fool ought to be able to distinguish bad from worse. That you cannot do so suggests you should drop "Wise" from your screen name in favor of "Senile."

  • loveconstitution1789||

    I am excited about a new Thomas, Gorsuch, and possibly Kavanaugh (I think he will shift more originalist because the attacks on him during confirmation) power group.

    This group of 2 or 3 might be enough to sway Roberts and Alito toward better rulings that destroy bad precedent and are more originalist.

    I suspect that Lefties foresee this danger and its why they are scared shitless that RBG will croak and be replaced by Trump soon.

  • FreeRadical||

    Wow! Trump would be President and a Supreme Court justice at the same time. What a fun spectacle that would be.

  • CE||

    Don't put it past him.

  • loveconstitution1789||

    People dont like that Trump will replace RBG.

  • TapDancingXenomorph||

    I certainly hope that's the case for Kavanaugh, although I'm sure that's being too optimistic.

  • fdog50||

    I think that soon "legal commentators", including some at major law schools, who will argue that the votes of Gorsuch and Kavanaugh are illegitimate because one is a "known sexual abuser and rapist" and the other benefitted from a "stolen seat". These arguments will be taken seriously by TV hosts as a means to urge future presidents and legislators to ignore a 5-4 ruling in which Gorsuch and Kavanaugh are in the majority.

  • DarrenM||

    RBG will remain on the court until Jan. 21, 2021, even if she has to be mummified.

  • BigT||

    Trump can replace the corpse in his 2nd term!! Yet ANOTHER reason to keep America great.

  • CE||

    She'll need to hang on for 4 years past that, until Cortez is president.

  • malbuff||

    He's been dead for 500 years and besides, he's not a natural-born citizen.

  • I am the 0.000000013%||

    Wait - she hasn't been already!?

  • TapDancingXenomorph||

    True that. HW deserves a lot of shit, but if we're praising Trump for Gorsuch we have to give Bush due for Thomas.

  • FreeRadical||

    Indiana seems like a somewhat libertarian state. I wonder if Indiana's Supremes purposely decided to base their decision on the non-incorporation angle because they knew it would go to the federal Supremes.

    That gives them an opportunity to rule on some pretty fundamental and old things that need to be corrected. Plus, I think it's technically true that it hasn't been incorporated so it was a correct decision anyway.

  • itsjustbob||

    I am not a lawyer, but what if Timbs drove a beater? Would the state go to such lengths to steal his vehicle? Is Timbs being more harshly punished than the run of the mill drug salesman?

  • CE||

    Exactly. The S Court should throw out asset forfeiture, entirely.

  • Uncle Jay||

    As I have stated many times on this blog, what the little people have should be shared with our obvious betters ruling over us.
    For too long we have been selfish by not sharing our cars, our TV's, our homes and our wives with those who make the rules, regulations, and enforce the laws. We must rid ourselves of the delusional and anti-communal attitudes that still haunt us in the Neanderthal stages that we have left behind in our country's capitalist stage. We should gladly give until we have no more to those who take the time, trouble and expense to oppress us daily. We must enjoy the communal spirit of giving unto others as they taken from us, like our liberties, civil rights and freedoms.
    So let's all give these wonderful people our bank accounts, our homes, our computers and our children to show our appreciation for all the suppression they have bestowed upon us in a cheerful and grateful manner.

  • Observant||

    Amen, multiple time over & over....

  • Observant||

    oops: times

  • Sebastian Cremmington||

    The 2A is a federalism provision like the Establishment Clause so it makes no sense to incorporate it. Scalia's Heller opinion is so convoluted and absurd that it didn't need to be incorporated—Scalia purported that the Framers limited the right to self defense to citizens in federal territories!?! How can "the right of the people...shall not be infringed" only concern the militia in federal territories?? Does that mean we were not a "free polity" until 2008??

    The reality is states had constitutions with language similar to the 2A but consistently regulated guns so Scalia needed a pretext to avoid that inconvenient truth while also keeping up the appearance of originalism/strict constructionalism. Fortuitously a law school professor with a 206 IQ developed an interest in gun rights so he crafted the underlying rationale for Heller...ipso facto—the plain-spoken 2A was interpreted through the brain of a 206 IQ that didn't want to work for NASA.

  • AZ Gunowner||

    gawd what blather.

    Really, there just isn't any response to this sh&t except to say go someplace else with it.

  • Sebastian Cremmington||

    The 2A is soooooo plain-spoken that it was necessary for a guy with a 206 IQ to tell little old me what it means because I'm a dumb dumb. Lol. ;)

  • para_dimz||

    I always wondered if the court's reluctance to find a right to "fill in the blank" in P&I and in the 9th do actually come from it's desire to avoid making law. Strange that, as it has splashed in that muddy puddle numerous other times. But I do agree that it should not make law or find rights. It begs the question, how would these P&I's and "others retained" find their way into recognizance before the court and by extension the rest of the parts of governments, local, state and federal?
    Had I a power to answer that I would say, first, it is not a power given to any part of government to delineate such a list. Both the 14th and the 9th refer to the citizens and the people, respectively. I think it is a power left to us to fill in the blank. That's best done by exercising and asserting, probably getting arrested and tried. At this point, trial, among our peers would I place the appellate power to ascertain privileges, immunities and unenumerated rights. I can find no other place that might take place that is with fidelity to the whole document.

  • retiredfire||

    In the Original, unamended document: Article 6, Clause 2:
    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.
    Don't know why this hasn't been applied to any state law, that is in conflict with the COTUS.
    This seems like a prohibition to the states, as described in the 10th Amendment.
    Of Course IANAL, but common sense says...

  • CE||

    You don't have to fill in the blanks with a long list. Everything else not listed is already on the list, per the 9th.

  • PG23COLO||

    The idea that anyone can find the "original meaning"of the 14th Amendment, or of any constitutional or statutory provision, is an idea created to enlist support for a particular interpretation by pretending that it is logical to rely on the authority of the unknowable intent of an unquantified and unidentifiable group of people.

    The fact is - the meaning of any law will be twisted to suit the values and purposes of whoever is interpreting it. A prime example - the "originalist" Scalia reinterpreting or ignoring long-established election law precedents in a manner which resulted in the Supreme Court determining that George W. Bush would be President. Scalia and 4 had the votes, thus they picked the President.

  • Sebastian Cremmington||

    Exactly, that is why the average IQ of Supreme Court clerks and influential law school professors is probably 145 at least. Why are such high IQs necessary to interpret laws?? Are the laws being drafted by legislators that like making up riddles? It is a mystery that will never be solved...;)

  • BlueCollarCritic||

    This abuse of property confiscation by the government is not limited to drug dealers. There's plenty of examples where persons who committed no crime had their property seized because they had something the cops wanted. At the bare minimum all asserts seized must NOT be allowed to benefit the party doing the confiscating.

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