Page:Timbs v. Indiana.pdf/14

Rh , concurring in the judgment.

I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.

The Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” “On its face, this appears to grant… United States citizens a certain collection of rights–i.e., privileges or immunities–attributable to that status.” McDonald v. Chicago, 561 U. S. 742, 808 (2010) (, concurring in part and concurring in judgment). But as I have previously explained, this Court “marginaliz[ed]” the Privileges or Immunities Clause in the late 19th century by defining the collection of rights covered by the Clause “quite narrowly.” Id., at 808–809. Litigants seeking federal protection of substantive rights against the States thus needed