Many Americans are surprised to learn that not all provisions of the Bill of Rights are applied against states, as they are to the federal government. It took the 14th Amendment in 1868, and work still underway, to apply or “incorporate” the Bill of Rights, one by one, to the states. In an argument Wednesday, the two newest Supreme Court justices seemed incredulous and impatient about the slowness of the process, reports the National Law Journal. “Here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” said Justice Neil Gorsuch. He was addressing Indiana Solicitor General Thomas Fisher, who was arguing against a broad incorporation of the Eighth Amendment’s ban on excessive fines, citing the long history of government seizure of personal property.
Justice Brett Kavanaugh added, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?” Some scholars including Reagan Attorney General Edwin Meese in the 1980s said the incorporation doctrine was “constitutionally suspect” and based on “intellectually shaky foundation.” Only a handful of Bill of Rights provisions remain unincorporated, including the right to be indicted by a grand jury, the right to have jurors from the defendant’s state, and the right to a trial in civil cases. The Gorsuch and Kavanaugh comments made it likely that the court will incorporate the excessive fines clause, which has been a cause celebre for libertarian groups like the Institute for Justice. The institute represents Tyson Timbs, an Indiana man whose $42,000 Land Rover was seized by police after he was arrested for trafficking a small amount of illegal drugs. The vote for Timbs might be unanimous, though Chief Justice John Roberts asserted that seizing property that was an “instrumentality that was part of the crime” is a longstanding practice.