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

handle is hein.journals/seealtex98 and id is 1 raw text is: 

Texas Law Review Online

Volume  98


A   Distinction with a Difference: Rights,

Privileges, and the Fourteenth Amendment

William J.   Acevest

     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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