A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment
In Timbs v. Indiana, the Supreme Court held the Eighth Amendment’s prohibition on excessive fines was incorporated and applied to states through the Due Process Clause of the Fourteenth Amendment. While the decision was unanimous, the concurring opinions offered a revealing reflection of past constitutional battles and an intriguing vision of future conflicts. Both Justices Gorsuch and Thomas suggested resurrecting the Privileges or Immunities Clause as a more appropriate vehicle than the Due Process Clause for applying the prohibition on excessive fines to states.
Justice Thomas took this proposal one step further. He suggested the Privileges or Immunities Clause should be used instead of the Due Process Clause to address all fundamental rights. This would not be a simple exchange of constitutional sources to guide incorporation; the actual scope of fundamental rights would also be affected. Unlike the Due Process Clause, Justice Thomas found the Privileges or Immunities Clause to be more grounded in history and tradition, thereby offering the Court a guiding principle for distinguishing “fundamental rights that warrant protection from nonfundamental rights that do not.” The Privileges or Immunities Clause would allow for the application of the Eighth Amendment’s prohibition on excessive fines to states. But under this approach, other rights, such as abortion or same-sex marriage, would not be considered privileges of “American citizenship” entitled to constitutional protection.
The consequences of resurrecting the Privileges or Immunities Clause at the expense of the Due Process Clause are troubling and far-reaching. Renouncing over a century of precedent would result in the radical transformation of constitutional law and the weakening of fundamental rights. In the realm of the Fourteenth Amendment, rights and privileges are a distinction with a difference.
98 Tex. L. Rev. Online (2019)