The First Amendment of the Bill of Rights states: “Congress shall make no law respecting establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ...”
These words constitute among the most recognized statement of fundamental legal rights in the history of the world.
But, you may ask, on its face, the First Amendment specifically prohibits only Congress from establishing a religion or interfering with its free exercise, or abridging free speech. What’s to stop a state legislature or municipality from doing so?
The answer goes back to 1868, when the Fourteenth Amendment to the Constitution was adopted.
The Fourteenth Amendment, consisting of a whopping two sentences, states in the relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law …”
Ah yes, the famous “privileges and immunities” and “due process” clauses, two of the massive and immutable granite pillars of American jurisprudence.
And since the enactment of the Fourteenth Amendment, the Supreme Court has relied upon it in a series of decisions to impose the fundamental freedoms of the Bill of Rights upon state and local government power, by what has become known as the “Incorporation Doctrine.”
The Incorporation Doctrine has been held by the Supreme Court to impose on state and local government authority, through the Fourteenth Amendment due process clause, those rights within the Bill of Rights that are “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”
• Freedom of religion, and the guarantee against establishment thereof (First Amendment).
• Freedom of speech and the press (First Amendment).
• The right to keep and bear arms (Second Amendment).
• Freedom from unreasonable search and seizure, and the applicability of the exclusionary rule to exclude unlawfully seized evidence (Fourth Amendment).
• Protection from double jeopardy (Fifth Amendment).
• The privilege against self-incrimination and the requirement of a Miranda warning in enforcement thereof (Fifth Amendment).
• The right to a public trial before an impartial jury in criminal cases (Sixth Amendment).
• The right to both confront witnesses and compel by subpoena power witnesses in a criminal trial (Sixth Amendment).
• The right to counsel in criminal cases (Sixth Amendment).
• Protection against cruel and unusual punishment (Eighth Amendment).
By the same token, certain rights and protections in the Bill of Rights have been held to be not incorporated and imposed in state and local proceedings, but only apply to federal cases.
These rights include the right to indictment by a grand jury (Fifth Amendment); the right to jury trial in civil cases (Seventh Amendment); and protection against excessive bail (Eighth Amendment), although many states have laws that contain these provisions.
And just last week, the Supreme Court decided a case on whether the Eighth Amendment right to protection from excessive fines should be imposed upon the state of Indiana.
It seems one Tyson Timbs received a drug conviction in Indiana for which he received a sentence of one year of home detention, five years of probation, a court-supervised addiction treatment program, and his $42.000 Land Rover, that he had purchased with life insurance money when his father died and was seized by the state under a civil forfeiture proceeding. Noting that the value of the seized motor vehicle was more than four times the maximum fine allowed for the offense for which he was convicted, he appealed the taking of his vehicle.
The Indiana Supreme Court determined that the Eighth Amendment prohibition on excessive fines was not applicable to this action by the state of Indiana, and upheld the forfeiture.
The U.S. Supreme Court reversed, and said protection against this type of thing provided for by the Eighth Amendment is indeed “fundamental” and “deeply rooted”, and held that the state of Indiana acted in violation of Mr. Timbs’ constitutional rights in taking his vehicle.
This court’s decision was unanimous, with both the so-called “conservative” and “liberal” members joining in the result.
It was a good day for Mr. Timbs, and a bad day for the state of Indiana. Strike a blow for civil rights, and against government overreaching.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.