Supreme Court considers scope of Bill of Rights
J. Scott Applewhite/AP

WASHINGTON – December 15 is Bill of Rights Day. The Bill of Rights protects our most cherished rights, including free speech, freedom of religion, and trial by jury.

But the Bill of Rights starts with the words “Congress shall make no law.” It doesn’t say “The states shall make no law.”

In 1833, the U.S. Supreme Court ruled the Bill of Rights means what it says. It limits the federal government, but not the states.

And so, well into the 19th century, Massachusetts forced its residents to join a church. Massachusetts eventually repealed that law, but not because of the U.S. Constitution.

In November, the U.S. Supreme Court heard argument in Timbs v. Indiana. The Timbs case questions whether one particular right in the Bill of Rights limits the states. But the Timbs argument hinted at the court’s readiness to apply all the Bill of Rights against the states.

Tyson Timbs was addicted to hydrocodone, an opioid. When his prescription ran out, he turned to heroin. Timbs also tried selling heroin. His final sale went to undercover cops.

It was Timbs’s first offense. So the trial judge sentenced him to one year’s house arrest and five years’ probation and ordered him to pay $1,203 in fees and costs.

But that didn’t end the matter.

Under Indiana law, a private law firm, for a share of the proceeds, can seize and sell property used in a crime — as long as most of the take goes to the state.  To meet the cops for his expected drug deal, Timbs drove his $42,000 Land Rover SUV, bought with proceeds from his father’s life insurance. After Timbs’s arrest, a private law firm sued to take his SUV. The law firm argued Timbs had used his SUV in the commission of a crime.

The Constitution’s Eighth Amendment prohibits “excessive fines.” The Supreme Court has ruled the federal government’s taking of property used in a crime can violate this prohibition.

Compared with a sentence of house arrest and probation, Timbs argues taking his $42,000 SUV amounts to an “excessive fine.” But the Indiana Supreme Court ruled the Eighth Amendment’s ban on “excessive fines” doesn’t apply to Indiana.

So Timbs relies on the 14th Amendment. That amendment prohibits states from denying to American citizens any “privileges or immunities” of American citizenship. Timbs argues some of the most important “privileges” and “immunities” of American citizenship are in the Bill of Rights.

But in 1876, in one of its first cases under the 14th Amendment, the High Court ruled these “privileges or immunities” don’t include the Bill of Rights, not even the First Amendment.

Almost 50 years later, the Supreme Court changed its mind — sort of. In 1925, for the first time, the court suggested the 14th Amendment protects freedom of speech. But the court didn’t change its understanding of citizenship’s “privileges or immunities.” Instead, the court said the amendment’s ban on taking anyone’s life, liberty, or property without “due process of law” protects freedom of speech against state interference.

Since 1925, the court has gradually interpreted the 14th Amendment’s “due process” clause to extend most of the Bill of Rights to the states.  Most recently, in 2010, ruling the due-process clause includes the Second Amendment’s protection of gun rights, the court threw out a local gun-control law.

As an alternative argument, Timbs relies on these cases and on the due-process clause.

But whatever the theory, the U.S. Supreme Court has never declared that all of the Bill of Rights applies to the states. For example, the Seventh Amendment guarantees trial by jury in civil (non-criminal) cases — but not in state courts. Similarly, the Supreme Court has never ruled the states must comply with the Eighth Amendment’s ban on “excessive fines.”

Most of the argument before the Supreme Court revolved around whether the taking of Timbs’s SUV constitutes an “excessive fine.” It’s not a “fine” to take property involved in a crime, argued the Indiana solicitor general. Even if it is, asked Justice Samuel Alito, how can anyone consider a fine of $42,000 — the value of Timbs’s SUV — “excessive,” when Indiana law, and the U.S. Constitution, would’ve permitted sentencing Timbs to six years in prison?

More far-reaching issues also arose.

For years, conservatives resisted applying any of the Bill of Rights to the states.  But the right-wing position has shifted.  In the Timbs argument, even the court’s newest justices, Trump appointees Neil Gorsuch and Brett Kavanaugh, wondered whether — in Kavanaugh’s words — it’s “too late in the day” to argue anything in the Bill of Rights applies only against the federal government and not against the states.

For those seeking to expand constitutional protection, this marks an achievement, the likely end of a centuries-old debate.

But the struggle continues.  Though conservatives now concede the Bill of Rights limits the states, many on the right base that conclusion on the 14th Amendment’s protection of the “privileges” and “immunities” of U.S. citizenship, not on that amendment’s due-process clause.  Timbs’s own brief to the court argues “the right to be free from excessive fines ranks among those rights of citizenship” protected by the 14th Amendment’s privileges-or-immunities clause.

But, as Justice Ruth Bader Ginsburg pointed out during argument, the due-process clause protects everyone.  Using the privileges-or-immunities clause would limit the Bill of Rights to U.S. citizens, and deny its protections to non-citizen immigrants.

This issue bears watching, and could someday lead to widespread denial of constitutional rights to non-citizens.

A decision is expected in 2019.


David Sobelsohn
David Sobelsohn

David Sobelsohn is the Supreme Court correspondent for Press Associates Inc. (PAI), the union news service in Washington D.C. Sobelsohn's career has combined organizing and politics with teaching and scholarship.