The facts of Timbs v. Indiana, a case which literally asks whether the state of Indiana can ignore an entire provision of the Bill of Rights, are as tragic as they are familiar.

According to his attorneys, Tyson Timbs became addicted to opiods after he was prescribed them to alleviate persistent pain. After his prescription ran out, he turned to drug dealers. Eventually, he started selling heroin to earn the money he needed to feed his addiction.

In total, Timbs sold about $385 worth of heroin to undercover police officers. He was sentenced to spend a year on “home detention” living with his aunt, followed by five years of probation. Also, in a separate legal proceeding, a court ordered him to forfeit the $42,000 Land Rover he bought with life-insurance proceeds after his father died.

The Indiana law authorizing this forfeiture is so broad it would be comic if it wasn’t for its impact on people who commit very minor crimes. If you drive your car in Indiana “for the purpose of . . . dealing in a schedule I, II, or III controlled substance,” the state can seize that vehicle. Indeed, mere possession of “cocaine or a narcotic drug” can result in seizure.


Buy a single crack rock while driving? Lose your car. Transport a couple of marijuana brownies that you intend to sell to your college buddies? Lose your car.

Yet the core issue in Timbs is not whether this extraordinarily broad seizure law is constitutional or not (an Indiana trial court, for what it is worth, concluded that it could not constitutionally be applied to Mr. Timbs). The core issue is whether the state of Indiana has to bother with the Eighth Amendment’s prohibition on “excessive fines” in the first place.

Incorporation

So, why would a state be able to simply ignore a provision of the Bill of Rights? The answer lies in the odd history of states’ rights, and the even odder history of the Supreme Court making a mockery of the Fourteenth Amendment.

For most of the Constitution’s first century, the Bill of Rights applied only to the federal government. “These amendments,” the Supreme Court held in an 1833 decision, “contain no expression indicating an intention to apply them to the State governments.” Thus, states were free to enact speech codes or to take people’s property or to inflict cruel and unusual punishments, so long as the state’s own constitution permitted such violations.


After the Civil War, however, the nation ratified three new amendments intended to fundamentally shift the balance of power between the states and the federal government. According to Rep. John Bingham, the primary author of the Fourteenth Amendment, one purpose of this amendment was to compel states to comply with “the first eight amendments to the Constitution of the United States.”

Yet, for decades, the Supreme Court treated much of the Fourteenth Amendment as a nullity — or, worse, as a tool conservative business owners could use to attack labor regulation. Over the course of more than a century, however, the Court slowly held that most of the Bill of Rights are “incorporated” against the states through the Fourteenth Amendment’s statement that no state may deny anyone “liberty” without due process of law.

This process of incorporation happened piecemeal, through individual cases holding that specific provisions of the Bill of Rights apply to the states. Currently, a handful of these constitutional provisions remain unincorporated, including “(1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines.”

Which brings us back to Timbs. Timbs is an excessive fines case. It asks the courts to hold that seizing someone’s $42,000 car is too stiff a penalty for Mr. Timbs’ minor drug offenses — and therefore that this sanction violates the Eighth Amendment. But that argument only works if Indiana is bound by the Eight Amendment’s prohibition on excessive fines.

“Ordered liberty”

In theory, the Supreme Court has relied on vague and esoteric tests to determine whether a right should be incorporated against the states. As the Court explained in McDonald v. City of Chicago, the question is whether a particular right is “fundamental to our scheme of ordered liberty” or whether the right is “deeply rooted in this Nation’s history and tradition.”


In practice, however, the Court views the incorporation doctrine expansively, holding that nearly all of the Bill of Rights applies to the states. McDonald, for example, concluded that the right to bear arms is fundamental to our scheme of ordered liberty even though the United States got along just fine without an individual right to bear arms until the Supreme Court held, for the first time, that such a right exists in 2008.

It is likely, in other words, that there are at least five votes on the Supreme Court who will agree that the entire Eighth Amendment applies to the states. Decisions holding that a particular right is not incorporated are the rare exception, not the rule.

Indeed, the state of Indiana appears to recognize that arguing that it should be entirely immune from the prohibition on excessive fines is a non-starter. While Timbs’ lawyers spend much of their brief establishing that this prohibition has deep historical roots — among other things, Timbs’ brief argues that “Magna Carta imposed an early check on the king’s power to fine” — Indiana’s brief takes a different tactic, effectively trying to shrink the scope of the right to be free from such fines.

The thrust of Indiana’s brief is that the right against excessive fines does apply at all to state efforts to seize a private citizen’s property. In that brief, we learn of “the notable The Louisa Barbara case,” an 1833 federal district court decision holding that “an enormously valuable, nearly four-hundred-ton vessel” could be seized because its “178 passengers exceeded the limit by a single traveler.”

According to the state, “The Louisa Barbara illustrates the harsh consequences

that may result from the traditional rule that even the property of an innocent owner could be susceptible to in rem forfeiture.” The right to be free from outlandish property seizures, according to Indiana, simply isn’t rooted in our nation’s traditions. If you’ve got a joint in your glove box, the state can take your car.

It’s an audacious argument, and one that’s hard to square with precedent. The Supreme Court held a quarter-century ago, in Austin v. United States, that “the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property” that are intended to punish an individual. Indiana argues that, even if the Clause does apply to forfeitures, that portion of the Clause cannot be incorporated against the states. It’s an argument that, if embraced by a majority of the Court, would render the Eighth Amendment useless in the vast majority of asset forfeitures.

Indiana’s argument is also a test of just how willing the Court’s new conservative majority is to toss out longstanding practices just because someone points to a few historical documents. Over the course of the last century, the Supreme Court applied a strong presumption in favor of incorporation — even if it often did not admit openly that it was doing so. And Austin seems to preclude treating property seizures differently than any other fine.

Nevertheless, Indiana appears to rest its case on the hopes that a new Supreme Court, infatuated with originalism and contemptuous of precedent, will act as if all of these past decisions do not exist. That’s not an especially likely outcome, but one can never rule out the power of contempt for precedent in the Roberts Court.