Page:Timbs v. Indiana.pdf/10

Rh makes sense to scrutinize governmental action more closely when the State stands to benefit”). This concern is scarcely hypothetical. See Brief for American Civil Liberties Union et al. as Amici Curiae 7 (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”).

In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U. S., at 767 (internal quotation marks omitted; emphasis deleted).

The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted.

In Austin v. United States, 509 U. S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. Austin arose in the federal context. But when a Bill of Rights protection is incorporated, the protection applies “identically to both the Federal Government and the States.” McDonald, 561 U. S., at 766, n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin, the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument is not