NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–1091

															_________________

															TYSON TIMBS, PETITIONER v. INDIANA

															on writ of certiorari to the supreme court of
indiana

															[February 20, 2019]

															Justice Ginsburg delivered the opinion of the
Court.

															Tyson Timbs pleaded guilty in Indiana state
court to dealing in a controlled substance and conspiracy to commit
theft. The trial court sentenced him to one year of home detention
and five years of probation, which included a court-supervised
addiction-treatment program. The sentence also required Timbs to
pay fees and costs totaling $1,203. At the time of Timbs’s arrest,
the police seized his vehicle, a Land Rover SUV Timbs had purchased
for about $42,000. Timbs paid for the vehicle with money he
received from an insurance policy when his father died.

															The State engaged a private law firm to bring a
civil suit for forfeiture of Timbs’s Land Rover, charging that the
vehicle had been used to transport heroin. After Timbs’s guilty
plea in the criminal case, the trial court held a hearing on the
forfeiture demand. Although finding that Timbs’s vehicle had been
used to facilitate violation of a criminal statute, the court
denied the requested forfeiture, observing that Timbs had recently
purchased the vehicle for $42,000, more than four times the maximum
$10,000 monetary fine assessable against him for his drug
conviction. Forfeiture of the Land Rover, the court determined,
would be grossly disproportionate to the gravity of Timbs’s
offense, hence unconstitutional under the Eighth Amendment’s
Excessive Fines Clause. The Court of Appeals of Indiana affirmed
that determination, but the Indiana Supreme Court reversed. 84
N. E. 3d 1179 (2017). The Indiana Supreme Court did not decide
whether the forfeit-ure would be excessive. Instead, it held that
the Exces- sive Fines Clause constrains only federal action and is
inapplicable to state impositions. We granted certiorari. 585
U. S. __ (2018).

															The question presented: Is the Eighth
Amendment’s Excessive Fines Clause an “incorporated” protection
applicable to the States under the Fourteenth Amendment’s Due
Process Clause? Like the Eighth Amendment’s proscriptions of “cruel
and unusual punishment” and “[e]xcessive bail,” the protection
against excessive fines guards against abuses of government’s
punitive or criminal-law-enforcement authority. This safeguard, we
hold, is “fundamental to our scheme of ordered liberty,” with
“dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago , 561 U.S.
742 , 767 (2010) (internal quotation marks omitted; emphasis
deleted). The Excessive Fines Clause is therefore incorporated by
the Due Process Clause of the Fourteenth Amendment.

															I

															A

															When ratified in 1791, the Bill of Rights
applied only to the Federal Government. Barron ex rel.
Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833). “The
constitutional Amendments adopted in the aftermath of the Civil
War,” however, “fundamentally altered our country’s federal
system.” McDonald , 561 U. S., at 754. With only “a
handful” of exceptions, this Court has held that the Fourteenth
Amendment’s Due Process Clause incorporates the protections
contained in the Bill of Rights, rendering them applicable to the
States. Id. , at 764–765, and nn. 12–13. A Bill of Rights
protection is incorporated, we have explained, if it is
“fundamental to our scheme of ordered liberty,” or “deeply rooted
in this Nation’s history and tradition.” Id., at 767
(internal quotation marks omitted; emphasis deleted).

															Incorporated Bill of Rights guarantees are
“enforced against the States under the Fourteenth Amendment
according to the same standards that protect those personal rights
against federal encroachment.” Id., at 765 (internal
quotation marks omitted). Thus, if a Bill of Rights protection is
incorporated, there is no daylight between the federal and state
conduct it prohibits or requires.[ 1 ]

															B

															Under the Eighth Amendment, “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” Taken together, these Clauses place
“parallel limitations” on “the power of those entrusted with the
criminal-law function of government.” Browning-Ferris Industries
of Vt., Inc. v. Kelco Disposal, Inc. , 492 U.S.
257 , 263 (1989) (quoting Ingraham v. Wright , 430 U.S.
651 , 664 (1977)). Directly at issue here is the phrase “nor
excessive fines imposed,” which “limits the government’s power to
extract payments, whether in cash or in kind, ‘as punishment for
some offense.’ ” United States v. Bajakajian , 524 U.S.
321 , 327–328 (1998) (quoting Austin v. United
States , 509
U.S. 602 , 609–610 (1993)). The Fourteenth Amendment, we hold,
incorporates this protection.

															The Excessive Fines Clause traces its venerable
lineage back to at least 1215, when Magna Carta guaranteed that
“[a] Free-man shall not be amerced for a small fault, but after the
manner of the fault; and for a great fault after the greatness
thereof, saving to him his contenement . . . .” §20,
9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225).[ 2 ] As relevant here, Magna Carta
required that economic sanctions “be proportioned to the wrong” and
“not be so large as to deprive [an offender] of his livelihood.” Browning-Ferris , 492 U. S., at 271. See also 4 W.
Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o
man shall have a larger amercement imposed upon him, than his
circumstances or personal estate will bear
. . . .”). But cf. Bajakajian , 524
U. S., at 340, n. 15 (taking no position on the question
whether a person’s income and wealth are relevant considerations in
judging the excessiveness of a fine).

															Despite Magna Carta, imposition of excessive
fines persisted. The 17th century Stuart kings, in particular, were
criticized for using large fines to raise revenue, harass their
political foes, and indefinitely detain those un-able to pay. E.g. , The Grand Remonstrance ¶¶17, 34 (1641), in The
Constitutional Documents of the Puritan Revolution 1625–1660, pp.
210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris , 492 U. S., at 267. When James II was
overthrown in the Glorious Revolution, the attendant English Bill
of Rights reaffirmed Magna Carta’s guarantee by providing that
“excessive Bail ought not to be required, nor excessive Fines
imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. &
Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689).

															Across the Atlantic, this familiar language was
adopted almost verbatim, first in the Virginia Declaration of
Rights, then in the Eighth Amendment, which states: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”

															Adoption of the Excessive Fines Clause was in
tune not only with English law; the Clause resonated as well with
similar colonial-era provisions. See, e.g. , Pa. Frame of
Govt., Laws Agreed Upon in England, Art. XVIII (1682), in 5 Federal
and State Constitutions 3061 (F. Thorpe ed. 1909) (“[A]ll fines
shall be moderate, and saving men’s contenements, merchandize, or
wainage.”). In 1787, the constitutions of eight States—accounting
for 70% of the U. S. population—forbade excessive fines.
Calabresi, Agudo, & Dore, State Bills of Rights in 1787 and
1791, 85 S. Cal. L. Rev. 1451, 1517 (2012).

															An even broader consensus obtained in 1868 upon
ratification of the Fourteenth Amendment. By then, the
constitutions of 35 of the 37 States—accounting for over 90% of the
U. S. population—expressly prohibited excessive fines.
Calabresi & Agudo, Individual Rights Under State Constitutions
When the Fourteenth Amendment Was Ratified in 1868, 87 Texas
L. Rev. 7, 82 (2008).

															Notwithstanding the States’ apparent agreement
that the right guaranteed by the Excessive Fines Clause was
fundamental, abuses continued. Following the Civil War, Southern
States enacted Black Codes to subjugate newly freed slaves and
maintain the prewar racial hierarchy. Among these laws’ provisions
were draconian fines for violating broad proscriptions on
“vagrancy” and other dubious offenses. See, e.g. ,
Mississippi Vagrant Law, Laws of Miss. §2 (1865), in 1 W. Fleming,
Documentary History of Reconstruction 283–285 (1950). When newly
freed slaves were unable to pay imposed fines, States often
demanded involuntary labor instead. E.g. , id. §5; see
Finkelman, John Bingham and the Background to the Fourteenth
Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing
Black Codes’ use of fines and other methods to “replicate, as much
as possible, a system of involuntary servitude”). Congressional
debates over the Civil Rights Act of 1866, the joint resolution
that became the Fourteenth Amendment, and similar measures
repeatedly mentioned the use of fines to coerce involuntary labor.
See, e.g. , Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124.

															Today, acknowledgment of the right’s fundamental
nature remains widespread. As Indiana itself reports, all 50 States
have a constitutional provision prohibiting the imposition of
excessive fines either directly or by requiring proportionality.
Brief in Opposition 8–9. Indeed, Indiana explains that its own
Supreme Court has held that the Indiana Constitution should be
interpreted to impose the same restrictions as the Eighth
Amendment. Id. , at 9 (citing Norris v. State ,
271 Ind. 568, 576, 394 N.E.2d 144 , 150 (1979)).

															For good reason, the protection against
excessive fines has been a constant shield throughout
Anglo-American history: Exorbitant tolls undermine other
constitutional liberties. Excessive fines can be used, for example,
to retaliate against or chill the speech of political enemies, as
the Stuarts’ critics learned several centuries ago. See Browning-Ferris , 492 U. S., at 267. Even absent a
political motive, fines may be employed “in a measure out of accord
with the penal goals of retribution and deterrence,” for “fines are
a source of revenue,” while other forms of punishment “cost a State
money.” Harmelin v. Michigan , 501
U.S. 957 , 979, n. 9 (1991) (opinion of Scalia, J.) (“it makes
sense to scrutinize governmental action more closely when the State
stands to benefit”). This concern is scarcely hypothetical. See
Brief for American Civil Liberties Union et al. as Amici
Curiae 7 (“Perhaps because they are politically easier to
impose than generally applicable taxes, state and local governments
nationwide increasingly depend heavily on fines and fees as a
source of general revenue.”).

															In short, the historical and logical case for
concluding that the Fourteenth Amendment incorporates the Excessive
Fines Clause is overwhelming. Protection against excessive punitive
economic sanctions secured by the Clause is, to repeat, both
“fundamental to our scheme of ordered liberty” and “deeply rooted
in this Nation’s history and tradition.” McDonald , 561
U. S., at 767 (internal quotation marks omitted; emphasis
deleted).

															II

															The State of Indiana does not meaningfully
challenge the case for incorporating the Excessive Fines Clause as
a general matter. Instead, the State argues that the Clause does
not apply to its use of civil in rem forfeitures
because, the State says, the Clause’s specific application to such
forfeitures is neither fundamental nor deeply rooted.

															In Austin v. United States , 509 U.S.
602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection
when they are at least partially punitive. Austin arose in
the federal context. But when a Bill of Rights protection is
incorporated, the protection applies “identically to both the
Federal Government and the States.” McDonald , 561
U. S., at 766, n. 14. Accordingly, to prevail, Indiana must
persuade us either to overrule our decision in Austin or to
hold that, in light of Austin , the Excessive Fines Clause is
not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply
rooted. The first argument is not properly before us, and the
second misapprehends the nature of our incorporation inquiry.

															A

															In the Indiana Supreme Court, the State argued
that forfeiture of Timbs’s SUV would not be excessive. See Brief in
Opposition 5. It never argued, however, that civil in rem forfeitures were categorically beyond the reach
of the Excessive Fines Clause. The Indiana Supreme Court, for its
part, held that the Clause did not apply to the States at all, and
it nowhere addressed the Clause’s application to civil in rem forfeitures. See 84 N. E. 3d 1179.
Accordingly, Timbs sought our review of the question “[w]hether the
Eighth Amendment’s Excessive Fines Clause is incorporated against
the States under the Fourteenth Amendment.” Pet. for Cert. i. In
opposing review, Indiana attempted to reformulate the question to
ask “[w]hether the Eighth Amendment’s Excessive Fines Clause
restricts States’ use of civil asset forfeitures.” Brief in
Opposition i. And on the merits, Indiana has argued not only that
the Clause is not incorporated, but also that Austin was
wrongly decided. Respondents’ “right, in their brief in opposition,
to restate the questions presented,” however, “does not give them
the power to expand [those] questions.” Bray v. Alexandria Women’s Health Clinic , 506
U.S. 263 , 279, n. 10 (1993) (emphasis deleted). That is
particularly the case where, as here, a respondent’s reformulation
would lead us to address a question neither pressed nor passed upon
below. Cf. Cutter v. Wilkinson , 544 U.S.
709 , 718, n. 7 (2005) (“[W]e are a court of review, not of
first view . . . .”). We thus decline the State’s
invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of
the Eighth Amendment when they are at least partially punitive.

															B

															As a fallback, Indiana argues that the
Excessive Fines Clause cannot be incorporated if it applies to
civil in rem forfeitures. We disagree. In considering
whether the Fourteenth Amendment incorporates a protection
contained in the Bill of Rights, we ask whether the right
guaranteed—not each and every particular application of that
right—is fundamental or deeply rooted.

															Indiana’s suggestion to the contrary is
inconsistent with the approach we have taken in cases concerning
novel applications of rights already deemed incorporated. For
example, in Packingham v. North Carolina , 582
U. S. ___ (2017), we held that a North Carolina statute
prohibiting registered sex offenders from accessing certain
commonplace social media websites violated the First Amendment
right to freedom of speech. In reaching this conclusion, we noted
that the First Amendment’s Free Speech Clause was “applicable to
the States under the Due Process Clause of the Fourteenth
Amendment.” Id., at ___ (slip op., at 1). We did not,
however, inquire whether the Free Speech Clause’s application
specifically to social media websites was fundamental or deeply
rooted. See also, e.g. , Riley v. California ,
573 U.S. 373 (2014) (holding, without separately considering
incorporation, that States’ warrantless search of digital
information stored on cell phones ordinarily violates the Fourth
Amendment). Similarly here, regardless of whether application of
the Excessive Fines Clause to civil in rem forfeitures
is itself fundamental or deeply rooted, our conclusion that the
Clause is incorporated remains unchanged.

															*  *  *

															For the reasons stated, the judgment of the
Indiana Supreme Court is vacated, and the case is remanded for
further proceedings not inconsistent with this opinion.

															It is so ordered. Notes 1 The sole exception is our
holding that the Sixth Amendment requires jury unanimity in
federal, but not state, criminal proceedings. Apodaca v. Oregon , 406 U.S.
404 (1972). As we have explained, that “exception to th[e]
general rule . . . was the result of an unusual division
among the Justices,” and it “does not undermine the
well-established rule that incorporated Bill of Rights protections
apply identically to the States and the Federal Government.” McDonald , 561 U. S., at 766, n. 14. 2 “Amercements were
payments to the Crown, and were required of individuals who were
‘in the King’s mercy,’ because of some act offensive to the Crown.” Browning-Ferris , 492 U. S., at 269. “[T]hough fines and
amercements had distinct historical antecedents, they served
fundamentally similar purposes—and, by the seventeenth and
eighteenth centuries, the terms were often used interchangeably.”
Brief for Eighth Amendment Scholars as Amici Curiae 12. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–1091

															_________________

															TYSON TIMBS, PETITIONER v. INDIANA

															on writ of certiorari to the supreme court of
indiana

															[February 20, 2019]

															Justice Gorsuch, concurring.

															The majority faithfully applies our precedent
and, based on a wealth of historical evidence, concludes that the
Fourteenth Amendment incorporates the Eighth Amendment’s Excessive
Fines Clause against the States. I agree with that conclusion. As
an original matter, I acknowledge, the appropriate vehicle for
incorporation may well be the Fourteenth Amendment’s Privileges or
Immunities Clause, rather than, as this Court has long assumed, the
Due Process Clause. See, e.g. , post , at 1–3 (Thomas,
J., concurring in judgment); McDonald v. Chicago , 561 U.S.
742 , 805–858 (2010) (Thomas, J., concurring in part and
concurring in judgment) (documenting evidence that the “privileges
or immunities of citizens of the United States” include, at
minimum, the individual rights enumerated in the Bill of Rights);
Wildenthal, Nationalizing the Bill of Rights: Revisiting the
Original Understanding of the Fourteenth Amendment in 1866–67, 68
Ohio St. L. J. 1509 (2007); A. Amar, The Bill of Rights: Creation
and Reconstruction 163–214 (1998); M. Curtis, No State Shall
Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
But nothing in this case turns on that question, and, regardless of
the precise vehicle, there can be no serious doubt that the
Fourteenth Amendment requires the States to respect the freedom
from excessive fines enshrined in the Eighth Amendment. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–1091

															_________________

															TYSON TIMBS, PETITIONER v. INDIANA

															on writ of certiorari to the supreme court of
indiana

															[February 20, 2019]

															Justice Thomas, concurring in the
judgment.

															I agree with the Court that the Fourteenth
Amendment makes the Eighth Amendment’s prohibition on excessive
fines fully applicable to the States. But I cannot agree with the
route the Court takes to reach this conclusion. Instead of reading
the Fourteenth Amendment’s Due Process Clause to encompass a
substantive right that has nothing to do with “process,” I would
hold that the right to be free from excessive fines is one of the
“privileges or immunities of citizens of the United States”
protected by the Fourteenth Amendment.

															I

															The Fourteenth Amendment provides that “[n]o
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.” “On its
face, this appears to grant . . . United States citizens
a certain collection of rights— i.e. , privileges or
immunities—attributable to that status.” McDonald v. Chicago , 561 U.S.
742 , 808 (2010) (Thomas, J., concurring in part and concurring
in judgment). But as I have previously explained, this Court
“marginaliz[ed]” the Privileges or Immunities Clause in the late
19th century by defining the collection of rights covered by the
Clause “quite narrowly.” Id. , at 808–809. Litigants seeking
federal protection of substantive rights against the States thus
needed “an alternative fount of such rights,” and this Court “found
one in a most curious place,” id. , at 809—the Fourteenth
Amendment’s Due Process Clause, which prohibits “any State” from
“depriv[ing] any person of life, liberty, or property, without due
process of law.”

															Because this Clause speaks only to “process,”
the Court has “long struggled to define” what substantive rights it
protects. McDonald , supra , at 810 (opinion of Thomas,
J.). The Court ordinarily says, as it does today, that the Clause
protects rights that are “fundamental.” Ante , at 2, 3, 7, 9.
Sometimes that means rights that are “ ‘deeply rooted in this
Nation’s history and tradition.’ ” Ante , at 3, 7
(quoting McDonald , supra , at 767 (majority opinion)).
Other times, when that formulation proves too restrictive, the
Court defines the universe of “fundamental” rights so broadly as to
border on meaningless. See, e.g. , Obergefell v. Hodges , 576 U. S. ___, ___–___ (2015) (slip op., at
1–2) (“rights that allow persons, within a lawful realm, to define
and express their identity”); Planned Parenthood of Southeastern
Pa. v. Casey , 505 U.S.
833 , 851 (1992) (“At the heart of liberty is the right to
define one’s own concept of existence, of meaning, of the universe,
and of the mystery of human life”). Because the oxymoronic
“substantive” “due process” doctrine has no basis in the
Constitution, it is unsurprising that the Court has been unable to
adhere to any “guiding principle to distinguish ‘fundamental’
rights that warrant protection from nonfundamental rights that do
not.” McDonald , supra , at 811 (opinion of Thomas,
J.). And because the Court’s substantive due process precedents
allow the Court to fashion fundamental rights without any textual
constraints, it is equally unsurprising that among these precedents
are some of the Court’s most notoriously incorrect decisions. E.g. , Roe v. Wade , 410
U.S. 113 (1973); Dred Scott v. Sandford , 19 How.
393, 450 (1857).

															The present case illustrates the incongruity of
the Court’s due process approach to incorporating fundamental
rights against the States. Petitioner argues that the forfeiture of
his vehicle is an excessive punishment. He does not argue that the
Indiana courts failed to “ ‘proceed according to the “law of
the land”—that is, according to written constitutional and
statutory provisions,’ ” or that the State failed to provide
“some baseline procedures.” Nelson v. Colorado , 581
U. S. ___, ___, n. 1 (2017) (Thomas, J., dissenting)
(slip op., at 2, n. 1). His claim has nothing to do with any
“process” “due” him. I therefore decline to apply the “legal
fiction” of substantive due process. McDonald , 561
U. S., at 811 (opinion of Thomas, J.).

															II

															When the Fourteenth Amendment was ratified,
“the terms ‘privileges’ and ‘immunities’ had an established meaning
as synonyms for ‘rights.’ ” Id. , at 813. Those “rights”
were the “inalienable rights” of citizens that had been “long
recognized,” and “the ratifying public understood the Privileges or
Immunities Clause to protect constitutionally enumerated rights”
against interference by the States. Id. , at 822, 837. Many
of these rights had been adopted from English law into colonial
charters, then state constitutions and bills of rights, and finally
the Constitution. “Consistent with their English heritage, the
founding generation generally did not consider many of the rights
identified in [the Bill of Rights] as new entitlements, but as
inalienable rights of all men, given legal effect by their
codification in the Constitution’s text.” Id. , at 818.

															The question here is whether the Eighth
Amendment’s prohibition on excessive fines was considered such a
right. The historical record overwhelmingly demonstrates that it
was.

															A

															The Excessive Fines Clause “was taken verbatim
from the English Bill of Rights of 1689,” United States v. Bajakajian , 524 U.S.
321 , 335 (1998), which itself formalized a longstanding English
prohibition on disproportionate fines. The Charter of Liberties of
Henry I, issued in 1101, stated that “[i]f any of my barons or men
shall have committed an offence he shall not give security to the
extent of forfeiture of his money, as he did in the time of my
father, or of my brother, but according to the measure of the
offence so shall he pay . . . .” Sources of
English Legal and Constitutional History ¶8, p. 50 (M. Evans
& R. Jack eds. 1984) (emphasis added). Expanding this
principle, Magna Carta required that “amercements (the medieval
predecessors of fines) should be proportioned to the offense and
that they should not deprive a wrongdoer of his livelihood,” Bajakajian , supra , at 335:

															“A free man shall be amerced for a small
fault only according to the measure thereof, and for a great crime
according to its magnitude, saving his position; and in like
manner, a merchant saving his trade, and a villein saving his
tillage, if they should fall under Our mercy.” Magna Carta, ch. 20
(1215), in A. Howard, Magna Carta: Text & Commentary 42 (rev.
ed. 1998).

															Similar clauses levying amercements “only in
proportion to the measure of the offense” applied to earls, barons,
and clergymen. Chs. 21–22, ibid. One historian posits that,
due to the prevalence of amercements and their use in increasing
the English treasury, “[v]ery likely there was no clause in Magna
Carta more grateful to the mass of the people than that about
amercements.” Pleas of the Crown for the County of Gloucester xxxiv
(F. Maitland ed. 1884). The principle was reiterated in the First
Statute of Westminster, which provided that no man should “be
amerced, without reasonable cause, and according to the quantity of
his Trespass.” 3 Edw. I, ch. 6 (1275). The English courts have long
enforced this principle. In one early case, for example, the King
commanded the bailiff “to take a moderate amercement proper to the
magnitude and manner of th[e] offense, according to the tenour of
the Great Charter of the Liberties of England,” and the bailiff was
sued for extorting “a heavier ransom.” Le Gras v. Bailiff
of Bishop of Winchester , Y. B. Mich. 10 Edw. II, pl. 4 (1316),
reprinted in 52 Selden Society 3, 5 (1934); see also Richard
Godfrey’s Case , 11 Co. Rep. 42a, 44a, 77 Eng. Rep. 1199, 1202
(1615) (excessive fines are “against law”).

															During the reign of the Stuarts in the period
leading up to the Glorious Revolution of 1688–1689, fines were a
flashpoint “in the constitutional and political struggles between
the king and his parliamentary critics.” L. Schwoerer, The
Declaration of Rights, 1689, p. 91 (1981) (Schwoerer). From
1629 to 1640, Charles I attempted to govern without convening
Parliament, but “in the absence of parliamentary grants,” he needed
other ways of raising revenue. 4 H. Walter, A History of England
135 (1834); see 1 T. Macaulay, History of England 85 (1899). He
thus turned “to exactions, some odious and obsolete, some of very
questionable legality, and others clearly against law.” 1 H.
Hallam, Constitutional History of England: From the Accession of
Henry VII to the Death of George II 462 (1827) (Hallam); see 4
Walter, supra , at 135.

															The Court of Star Chamber, for instance,
“imposed heavy fines on the king’s enemies,” Schwoerer 91, in
disregard “of the provision of the Great Charter, that no man shall
be amerced even to the full extent of his
means. . . .” 2 Hallam 46–47. “[T]he strong interest
of th[is] court in these fines . . . had a tendency to
aggravate the punishment. . . .” 1 id. , at
490. “The statute abolishing” the Star Chamber in 1641
“specifically prohibited any court thereafter from . . .
levying . . . excessive fines.” Schwoerer 91.

															“But towards the end of Charles II’s reign” in
the 1670s and early 1680s, courts again “imposed ruinous fines on
the critics of the crown.” Ibid. In 1680, a committee of the
House of Commons “examined the transcripts of all the fines imposed
in King’s Bench since 1677” and found that “the Court of King’s
Bench, in the Imposition of Fines on Offenders of late Years, hath
acted arbitrarily, illegally, and partially; favouring Papists and
Persons popishly affected; and excessively oppressing his Majesty’s
Protestant Subjects.” Ibid. ; 9 Journals of the House of
Commons 692 (Dec. 23, 1680). The House of Commons determined that
the actions of the judges of the King’s Bench, particularly the
actions of Chief Justice William Scroggs, had been so contrary to
law that it prepared articles of impeachment against him. The
articles alleged that Scroggs had “most notoriously departed from
all Rules of Justice and Equality, in the Imposition of Fines upon
Persons convicted of Misdemeanors” without “any Regard to the
Nature of the Offences, or the Ability of the Persons.” Id. ,
at 698.

															Yet “[o]ver the next few years fines became even
more excessive and partisan.” Schwoerer 91. The King’s Bench,
presided over by the infamous Chief Justice Jeffreys, fined
Anglican cleric Titus Oates 2,000 marks (among other punishments)
for perjury. Id. , at 93. For speaking against the Duke of
York, the sheriff of London was fined £100,000 in 1682, which
corresponds to well over $10 million in present-day
dollars[ 1 ]—“an amount, which,
as it extended to the ruin of the criminal, was directly contrary
to the spirit of [English] law.” The History of England Under the
House of Stuart, pt. 2, p. 801 (1840). The King’s Bench fined
Sir Samuel Barnadiston £10,000 for allegedly seditious letters, a
fine that was overturned by the House of Lords as “exorbitant and
excessive.” 14 Journals of the House of Lords 210 (May 14, 1689).
Several members of the committees that would draft the Declaration
of Rights—which included the prohibition on excessive fines that
was enacted into the English Bill of Rights of 1689—had themselves
“suffered heavy fines.” Schwoerer 91–92. And in 1684, judges in the
case of John Hampden held that Magna Carta did not limit “fines for
great offences” against the King, and imposed a £40,000 fine. Trial of Hampden , 9 State Trials 1054, 1125 (K. B. 1684); 1
J. Stephen, A History of the Criminal Law of England 490
(1883).

															“Freedom from excessive fines” was considered
“indisputably an ancient right of the subject,” and the Declaration
of Rights’ indictment against James II “charged that during his
reign judges had imposed excessive fines, thereby subverting the
laws and liberties of the kingdom.” Schwoerer 90. Article 10 of the
Declaration declared “[t]hat excessive Bayle ought not to be
required nor excessive fynes imposed nor cruel and unusuall
Punishments inflicted.” Id. , at 297.

															Shortly after the English Bill of Rights was
enacted, Parliament addressed several excessive fines imposed
before the Glorious Revolution. For example, the House of Lords
overturned a £30,000 fine against the Earl of Devonshire as
“excessive and exorbitant, against Magna Charta, the common right
of the subject, and against the law of the land.” Case of Earl
of Devonshire , 11 State Trials 1354, 1372 (K. B. 1687).
Although the House of Lords refused to reverse the judgments
against Titus Oates, a minority argued that his punishments were
“contrary to Law and ancient Practice” and violated the prohibition
on “excessive Fines.” Harmelin v. Michigan , 501 U.S.
957 , 971 (1991); Trial of Oates , 10 State Trials 1080,
1325 (K. B. 1685). The House of Commons passed a bill to overturn
Oates’s conviction, and eventually, after a request from
Parliament, the King pardoned Oates. Id. , at 1329–1330.

															Writing a few years before our Constitution was
adopted, Blackstone—“whose works constituted the preeminent
authority on English law for the founding generation,” Alden v. Maine , 527 U.S.
706 , 715 (1999)—explained that the prohibition on excessive
fines contained in the English Bill of Rights “had a retrospect to
some unprecedented proceedings in the court of king’s bench.” 4 W.
Blackstone, Commentaries 372 (1769). Blackstone confirmed that this
prohibition was “only declaratory . . . of the old
constitutional law of the land,” which had long “regulated” the
“discretion” of the courts in imposing fines. Ibid. In sum, at the time of the founding, the
prohibition on excessive fines was a longstanding right of
Englishmen.

															B

															“As English subjects, the colonists considered
themselves to be vested with the same fundamental rights as other
Englishmen,” McDonald , 561 U. S., at 816 (opinion of
Thomas, J.), including the prohibition on excessive fines. E.g. , J. Dummer, A Defence of the New-England Charters 16–17
(1721) (“The Subjects Abroad claim the Privilege of Magna
Charta , which says that no Man shall be fin’d above the Nature
of his Offence, and whatever his Miscarriage be, a Salvo
Contenemento suo is to be observ’d by the Judge”). Thus, the
text of the Eighth Amendment was “ ‘based directly on
. . . the Virginia Declaration of Rights,’ which ‘adopted
verbatim the language of the English Bill of Rights.’ ” Browning-Ferris Industries of Vt. , Inc. v. Kelco
Disposal , Inc. , 492 U.S.
257 , 266 (1989) (quoting Solem v. Helm , 463 U.S.
277 , 285, n. 10 (1983)); see Jones v. Commonwealth , 5 Va. 555, 557 (1799) (opinion of Carrington,
J.) (explaining that the clause in the Virginia Declaration of
Rights embodied the traditional legal understanding that any “fine
or amercement ought to be according to the degree of the fault and
the estate of the defendant”).

															When the States were considering whether to
ratify the Constitution, advocates for a separate bill of rights
emphasized the need for an explicit prohibition on excessive fines
mirroring the English prohibition. In colonial times, fines were
“the drudge-horse of criminal justice,” “probably the most common
form of punishment.” L. Friedman, Crime and Punishment in American
History 38 (1993). To some, this fact made a constitutional
prohibition on excessive fines all the more important. As the
well-known Anti-Federalist Brutus argued in an essay, a prohibition
on excessive fines was essential to “the security of liberty” and
was “as necessary under the general government as under that of the
individual states; for the power of the former is as complete to
the purpose of requiring bail, imposing fines, inflicting
punishments, . . . and seizing . . . property
. . . as the other.” Brutus II (Nov. 1, 1787), in The
Complete Bill of Rights 621 (N. Cogan ed. 1997). Similarly, during
Virginia’s ratifying convention, Patrick Henry pointed to
Virginia’s own prohibition on excessive fines and said that it
would “depart from the genius of your country” for the Federal
Constitution to omit a similar prohibition. Debate on Virginia
Convention (June 14, 1788), in 3 Debates on the Federal
Constitution 447 (J. Elliot 2d ed. 1854). Henry continued: “[W]hen
we come to punishments, no latitude ought to be left, nor
dependence put on the virtue of representatives” to “define
punishments without this control.” Ibid. Governor Edmund Randolph responded to Henry,
arguing that Virginia’s charter was “nothing more than an
investiture, in the hands of the Virginia citizens, of those rights
which belonged to British subjects.” Id. , at 466. According
to Randolph, “the exclusion of excessive bail and fines
. . . would follow of itself without a bill of rights,”
for such fines would never be imposed absent “corruption in the
House of Representatives, Senate, and President,” or judges acting
“contrary to justice.” Id. , at 467–468.

															For all the debate about whether an explicit
prohibition on excessive fines was necessary in the Federal
Constitution, all agreed that the prohibition on excessive fines
was a well-established and fundamental right of citizenship. When
the Excessive Fines Clause was eventually considered by Congress,
it received hardly any discussion before “it was agreed to by a
considerable majority.” 1 Annals of Cong. 754 (1789). And when the
Bill of Rights was ratified, most of the States had a prohibition
on excessive fines in their constitutions.[ 2 ]

															Early commentary on the Clause confirms the
widespread agreement about the fundamental nature of the
prohibition on excessive fines. Justice Story, writing a few
decades before the ratification of the Fourteenth Amendment,
explained that the Eighth Amendment was “adopted, as an admonition
to all departments of the national government, to warn them against
such violent proceedings, as had taken place in England in the
arbitrary reigns of some of the Stuarts,” when “[e]normous fines
and amercements were . . . sometimes imposed.” 3 J.
Story, Commentaries on the Constitution of the United States §1896,
pp. 750–751 (1833). Story included the prohibition on
excessive fines as a right, along with the “right to bear arms” and
others protected by the Bill of Rights, that “operates, as a
qualification upon powers, actually granted by the people to the
government”; without such a “restrict[ion],” the government’s
“exercise or abuse” of its power could be “dangerous to the
people.” Id. , §1858, at 718–719.

															Chancellor Kent likewise described the Eighth
Amendment as part of the “right of personal security
. . . guarded by provisions which have been transcribed
into the constitutions in this country from magna carta , and
other fundamental acts of the English Parliament.” 2 J. Kent,
Commentaries on American Law 9 (1827). He understood the Eighth
Amendment to “guard against abuse and oppression,” and emphasized
that “the constitutions of almost every state in the Unio[n]
contain the same declarations in substance, and nearly in the same
language.” Ibid. Accordingly, “they must be regarded as
fundamental doctrines in every state, for all the colonies were
parties to the national declaration of rights in 1774, in which the
. . . rights and liberties of English subjects were
peremptorily claimed as their undoubted inheritance and
birthright.” Ibid. ; accord, W. Rawle, A View of the
Constitution of the United States of America 125 (1825) (describing
the prohibition on excessive fines as “founded on the plainest
principles of justice”).

															C

															The prohibition on excessive fines remained
fundamental at the time of the Fourteenth Amendment. In 1868, 35 of
37 state constitutions “expressly prohibited excessive fines.” Ante , at 5. Nonetheless, as the Court notes, abuses of fines
continued, especially through the Black Codes adopted in several
States. Ante , at 5–6. The “centerpiece” of the Codes was
their “attempt to stabilize the black work force and limit its
economic options apart from plantation labor.” E. Foner,
Reconstruction: America’s Unfinished Revolution 1863–1877,
p. 199 (1988). Under the Codes, “the state would enforce labor
agreements and plantation discipline, punish those who refused to
contract, and prevent whites from competing among themselves for
black workers.” Ibid. The Codes also included
“ ‘antienticement’ measures punishing anyone offering higher
wages to an employee already under contract.” Id. , at
200.

															The 39th Congress focused on these abuses during
its debates over the Fourteenth Amendment, the Civil Rights Act of
1866, and the Freedmen’s Bureau Act. During those well-publicized
debates, Members of Congress consistently highlighted and lamented
the “severe penalties” inflicted by the Black Codes and similar
measures, Cong. Globe, 39th Cong., 1st Sess., 474 (1866) (Sen.
Trumbull), suggesting that the prohibition on excessive fines was
understood to be a basic right of citizenship.

															For example, under Mississippi law, adult
“freedmen, free negroes and mulattoes” “without lawful employment”
faced $50 in fines and 10 days’ imprisonment for vagrancy. Reports
of Assistant Commissioners of Freedmen, and Synopsis of Laws on
Persons of Color in Late Slave States, S. Exec. Doc. No. 6, 39th
Cong., 2d Sess., §2, p. 192 (1867). Those convicted had five
days to pay or they would be arrested and leased to “any person who
will, for the shortest period of service, pay said fine and
forfeiture and all costs.” §5, ibid. Members of Congress
criticized such laws “for selling [black] men into slavery in
punishment of crimes of the slightest magnitude.” Cong. Globe, 39th
Cong., 1st Sess., 1123 (1866) (Rep. Cook); see id. , at 1124
(“It is idle to say these men will be protected by the
States”).

															Similar examples abound. One congressman noted
that Alabama’s “aristocratic and anti-republican laws, almost
reenacting slavery, among other harsh inflictions impose
. . . a fine of fifty dollars and six months’
imprisonment on any servant or laborer (white or black) who loiters
away his time or is stubborn or refractory.” Id. , at 1621
(Rep. Myers). He also noted that Florida punished vagrants with “a
fine not exceeding $500 and imprison[ment] for a term not exceeding
twelve months, or by being sold for a term not exceeding twelve
months, at the discretion of the court.” Ibid. At the time,
such fines would have been ruinous for laborers. Cf. id. , at
443 (Sen. Howe) (“A thousand dollars! That sells a negro for his
life”).

															These and other examples of excessive fines from
the historical record informed the Nation’s consideration of the
Fourteenth Amendment. Even those opposed to civil-rights
legislation understood the Privileges or Immunities Clause to
guarantee those “fundamental principles” “fixed” by the
Constitution, including “immunity from . . . excessive
fines.” 2 Cong. Rec. 384–385 (1874) (Rep. Mills); see also id. , at App. 241 (Sen. Norwood). And every post-1855 state
constitution banned excessive fines. S. Calabresi & S. Agudo,
Individual Rights Under State Constitutions When the Fourteenth
Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008).
The attention given to abusive fines at the time of the Fourteenth
Amendment, along with the ubiquity of state excessive-fines
provisions, demonstrates that the public continued to understand
the prohibition on excessive fines to be a fundamental right of
American citizenship.

															*  *  *

															The right against excessive fines traces its
lineage back in English law nearly a millennium, and from the
founding of our country, it has been consistently recognized as a
core right worthy of constitutional protection. As a
constitutionally enumerated right understood to be a privilege of
American citizenship, the Eighth Amendment’s prohibition on
excessive fines applies in full to the States. Notes 1 See Currency Converter:
1270–2017 (estimating the 2017 equivalent of £100,000 in 1680),
http://nationalarchives.gov.uk/currency-converter (as last visited
Feb. 8, 2019) 2 Del. Const., Art. I, §11
(1792), in 1 Federal and State Constitutions 569 (F. Thorpe ed.
1909); Md. Const., Decl. of Rights, Art. XXII (1776), in 3 id ., at 1688; Mass. Const., pt. 1, Art. XXVI (1780), in id ., at 1892; N. H. Const., pt. 1, Art. 1, §XXXIII (1784),
in 4 id ., at 2457; N. C. Const., Decl. of Rights, Art. X
(1776), in 5 id ., at 2788; Pa. Const., Art. IX, §13 (1790),
in id ., at 3101; S. C. Const., Art. IX, §4 (1790), in 6 id ., at 3264; Va. Const., Bill of Rights, §9 (1776), in 7 id ., at 3813. Vermont had a clause specifying that “all
fines shall be proportionate to the offences.” Vt. Const., ch. II,
§XXIX (1786), in id ., at 3759. Georgia’s 1777 Constitution
had an excessive fines clause, Art. LIX, but its 1789 Constitution
did not. And the Northwest Ordinance provided that “[a]ll fines
shall be moderate; and no cruel or unusual punishments inflicted.”
§14, Art. 2 (1787)

Summary: The Supreme Court ruled that the Eighth Amendment's Excessive Fines Clause, which prohibits excessive fines imposed by the government as punishment or for criminal law enforcement, is applicable to the states under the Fourteenth Amendment's Due Process Clause. This means that states cannot impose excessive fines on individuals, and any fines must be proportionate to the offense committed.