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 recently, 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) 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.
The court has long relied on the doctrine of “substantive due process” — due process produces nonarbitrary outcomes — to protect rights. 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) as to nullify it.
What else would a revived Privileges or Immunities Clause protect? Certainly economic liberty, including the right to earn a living unburdened by unreasonable occupational licensure laws.
