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98 Tex. L. Rev. Online 1 (2019-2020)

handle is hein.journals/seealtex98 and id is 1 raw text is: Texas Law Review Online Volume 98 Article A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment William J. Acevest Abstract In Timbs v. Indiana, the Supreme Court held the Eighth Amendment's prohibition on excessive fines was incorporated and applied to states through the Due Process Clause of the Fourteenth Amendment. While the decision was unanimous, the concurring opinions offered a revealing reflection of past constitutional battles and an intriguing vision of future conflicts. Both Justices Gorsuch and Thomas suggested resurrecting the Privileges or Immunities Clause as a more appropriate vehicle than the Due Process Clause for applying the prohibition on excessive fines to states. Justice Thomas took this proposal one step further. He suggested the Privileges or Immunities Clause should be used instead of the Due Process Clause to address all fundamental rights. This would not be a simple exchange of constitutional sources to guide incorporation; the actual scope offundamental rights would also be affected. Unlike the Due Process Clause, Justice Thomas found the Privileges or Immunities Clause to be more grounded in history and tradition, thereby offering the Court a guiding principle for distinguishing 'fundamental rights that warrant protection from nonfundamental rights that do not. The Privileges or Immunities Clause would allow for the application of the Eighth Amendment's prohibition on excessive fines to states. But under this T William J. Aceves is the Dean Steven R. Smith Professor of Law at California Western School of Law. Iam grateful to Erwin Chemerinsky and Jessica Fink for their thoughtful comments. Andrea Alberico, Regina Calvario, Sara Emerson, Lillian Glenister, Warsame Hassan, and Ash Kargaran provided excellent research assistance. All errors are my own.

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