ShareThis Page
George Will: Broadening rights of national citizenship | TribLIVE.com
George F. Will, Columnist

George Will: Broadening rights of national citizenship

806467_web1_ScotusTrans
The Supreme Court.

WASHINGTON

There have been many memorable — and eventually consequential — Supreme Court dissents that affirmed principles that, in time, commanded a court majority. It is, however, rare that a justice’s opinion concurring in a unanimous ruling is more intellectually scintillating and potentially portentous than the ruling itself.

This happened last week, when the court dealt with an Indiana civil forfeiture case in which a man’s $42,000 Land Rover was seized by the state as part of his punishment for a drug offense (selling $225 of drugs to undercover police officers) for which the maximum fine is $10,000.

In an excellent decision, the court held that the Constitution’s Eighth Amendment ban on “excessive fines” applies to states. The court has explicitly applied (“incorporated”) most of the Bill of Rights’ protections, piecemeal, against states’ actions. The court’s standard has been that a particular protection must be “deeply rooted” in the nation’s history and “fundamental to our scheme of ordered liberty.”

The court said that the Eighth Amendment’s proscription of excessive fines should be incorporated, as the amendment’s other two proscriptions (“excessive bail” and “cruel and unusual punishments”) have been. Writing for the court, Ruth Bader Ginsburg said that such fines violate the 14th Amendment’s guarantee that people shall not be deprived of life, liberty or property without “due process of law.”

The court has long relied on the doctrine of “substantive due process” — due process produces nonarbitrary outcomes — to protect rights. This reliance came about because, in an 1873 decision, the court effectively nullified a more straightforward — and capacious — guarantee. Ratified in 1868, the 14th Amendment’s protection of Americans’ “privileges or immunities” was written during the Southern suppression of the economic liberties and other rights of freed slaves. The clause was intended to protect the full panoply of national rights. But just five years later, the court construed the clause so narrowly (as protecting a few “national” rights, such as access to navigable waterways and federal subtreasuries) as to nullify it.

Last week, Justice Clarence Thomas again argued for righting this wrong. He said that the phrase “substantive due process” is “oxymoronic,” and that the court, struggling to extract substance from process, has engaged in a process without a discernible principle — distinguishing “fundamental” rights meriting protection from undeserving lesser rights. This distinction has no basis in the Constitution’s text or structure, and leaves the court free to improvise new rights and ignore others. Thomas demonstrates that the ban on excessive fines has a long pedigree, before and since the American Founding, which should place it among Americans’ privileges or immunities.

In a one-paragraph concurrence, Justice Neil Gorsuch almost endorsed Thomas’ argument: “[T]he appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this court has long assumed, the Due Process Clause.” Gorsuch cited Yale law professor Akhil Amar’s book “The Bill of Rights,” in which Amar notes that if those who wrote and ratified the clause merely meant to apply against the states the Bill of Rights, they could, and presumably would, have said so. Hence it is reasonable to think that, properly construed, the clause denotes a richer menu of rights, encompassing those in Anglo-American legal traditions and state constitutions, and not ignoring the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Thomas , who correctly regards stare decisis — the principle of deciding cases by adhering to precedents — as less than sacramental, has for many years been 20 percent of a potential court majority for resuscitating the Privileges or Immunities Clause. With Gorsuch, who last week suggested that the privileges or immunities of U.S. citizens “include, at minimum, the individual rights enumerated in the Bill of Rights” (emphasis added), there would be 40 percent of such a majority. America might be moving closer to a more robust role for an engaged judiciary in protecting a more spacious conception of the rights attached to national citizenship.

George Will is a columnist for The Washington Post and can be reached via email.

TribLIVE commenting policy

You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.

We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.

While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.

We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers

We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.

We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.

We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.

We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.