Notwithstanding the drama surrounding the Brett Kavanaugh nomination, the U.S. Supreme Court opened a new term this week with a docket of important cases, including one that has earned little public attention but presents an issue that states’ rights advocates long have viewed as the ultimate escape from the Bill of Rights. Timbs v. Indiana (Dkt. 17-1091) arises out of Indiana’s seizure of a $42,000 Land Rover an Indiana man used to sell $385 worth of heroin. In response to the man’s claim that the forfeiture of his luxury vehicle violated the Eighth Amendment provision barring “[e]xcessive fines,” the Indiana Supreme Court joined the Supreme Courts of Montana, Mississippi, and Michigan in holding that the Eighth Amendment’s Excessive Fines Clause simply does not apply to the states.

That there is any question about the applicability of a Bill of Rights provision to the states may strike many as odd, given that enforcement of the Bill of Rights against states and localities is a staple of our modern legal system. Indeed, the Supreme Court has held that most provisions of the Constitution’s first eight amendments do apply to the states, but the court long ago rejected the notion the Bill of Rights applies across the board to the states, some important provisions remain unenforced against the states, and the Court just eight years ago issued a major ruling on the applicability of a deeply controversial Bill of Rights provision to the states.

‘Incorporating’ the Bill of Rights