The Status of the Bill of Rights

Today’s oral argument in Times v. Indiana strongly suggest that the Supreme Court will incorporate the Excessive Fines Clause of the Eighth Amendment. On the eve of Bill of Rights Day, the comments from Justice Gorsuch and Justice Kavanaugh were especially interesting.

Justice Gorsuch said at one point: “[Most of the incorporation cases took place in the 1940s. … And here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Justice Kavanaugh added: “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

These comments indicate that there is nothing left to selective incorporation except the selective grant of certiorari. In other words, in practice the Supreme Court accepts that everything in the Bill of Rights is fundamental  The few provisions that remain outside of that circle (for example, grand juries and civil juries) will only remain unincorporated because the Court will choose not revisit its nineteenth century cases that so held.  The Bill of Rights has scaled the constitutional heights in the way that John Bingham and Justice Hugo Black foresaw long ago.


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1 Response

  1. Joe says:

    The journey didn’t go much further than it did at the end of the Warren Era.

    The Fines Clause not being incorporated is semantics — excessive fines clearly is understood as a due process concern & the Supreme Court said it was incorporated in dicta in a case earlier this century before Justice Alito said otherwise in McDonald v. Chicago.

    The 3A was in effect incorporated by its reference in Griswold v. Connecticut but it’s special wording results it finding a case to do so mostly a thought experiment though a book on the BOR found a NY case. The 2A also was a special case given how it was understood; was handled anyhow.

    So, yes, that leaves juries including the unanimous jury requirement which might be the next thing to go unless Oregon changes it’s law. The Supreme Court didn’t require that but it was the Burger Court before they did so 4-1-4 (Powell applied it to the federal government). The complexities of civil juries went back to the Founding and affected the jury provision in Article III.

    So, that leaves the grand jury which I don’t think the Supreme Court has any desire to touch given the diversity of the states on the question. But, if Gorsuch wants to write a dissent from denial of cert. on the question, be my guest.