Page:Timbs v. Indiana.pdf/16

Rh Court’s due process approach to incorporating fundamental rights against the States. Petitioner argues that the forfeiture of his vehicle is an excessive punishment. He does not argue that the Indiana courts failed to “ ‘proceed according to the “law of the land”–that is, according to written constitutional and statutory provisions,’ ” or that the State failed to provide “some baseline procedures.” Nelson v. Colorado, 581 U. S. ___, ___, n. 1 (2017) (, dissenting) (slip op., at 2, n. 1). His claim has nothing to do with any “process” “due” him. I therefore decline to apply the “legal fiction” of substantive due process. McDonald, 561 U. S., at 811 (opinion of ).

When the Fourteenth Amendment was ratified, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’ ” Id., at 813. Those “rights” were the “inalienable rights” of citizens that had been “long recognized,” and “the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against interference by the States. Id., at 822, 837. Many of these rights had been adopted from English law into colonial charters, then state constitutions and bills of rights, and finally the Constitution. “Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in [the Bill of Rights] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.” Id., at 818.

The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right. The historical record overwhelmingly demonstrates that it was.