The New Black Codes: Racialized Wealth Extraction, Economic Justice, and Excessive Fines Schemes in Timbs v. Indiana

Emma Coleman Jordan and Angela P. Harris –

timbs.jpegWhen Tyson Timbs’ father died, he left his son an insurance policy. Timbs used $42,000 of that money to buy a Land Rover SUV, and he was driving that car when he was arrested for selling heroin to an undercover police officer in Indiana. Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft, and the judge sentenced him to one year of home detention, five years of probation (including a court-supervised addiction treatment program), and $1,203 in fees in costs.

The State of Indiana, however, was not done with Timbs. It hired a private lawyer to bring a civil forfeiture action against Timbs’ Land Rover, on the theory that the vehicle had been used to commit the crime of transporting heroin. The court held that the Land Rover was indeed used in the commission of an offense, but denied the requested forfeiture, observing that its purchase price was more than four times the maximum he might have been fined for his actual conviction. Forfeiture of the Land Rover, the judge determined, would be grossly disproportionate to the gravity of Timbs’s offense, and for that reason it would be unconstitutional under the Excessive Fines Clause of the Eighth Amendment. The Court of Appeals of Indiana affirmed that decision, but the Indiana Supreme Court reversed on a different ground, holding that the Excessive Fines Clause applied to federal but not state governments.

When the United States Supreme Court agreed to hear Timbs v. Indiana, anticipation ran high across the political spectrum, and revealed some strange bedfellows. The Southern Poverty Law Center and the Cato Institute appeared on the same amicus brief. Justices Gorsuch and Sotomayor energetically agreed with one another during oral argument. However, when the Supreme Court issued its unanimous decision on February 20, 2019, the opinion offered less than interested parties might have hoped for. Justice Ginsburg, writing for the Court, affirmed that the Excessive Fines Clause does apply to the states, as “incorporated” into the Due Process Clause of the Fourteenth Amendment, and held that in rem forfeitures fall within the Clause’s protections. The Court, however, did not offer a standard for deciding when a fine is excessive. From our perspective, moreover, Timbs v. Indiana represents a missed opportunity to discuss racialized wealth extraction in its past and present forms, and to situate the Excessive Fines Clause within the constitutional debate about economic rights that arise from predation by the government itself.

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Movement Visions for a Renewed Left Legalism

Amna Akbar, Sameer Ashar, and Jocelyn Simonson –

In this moment of crisis for the rule of law, a number of thinkers on the left have prescribed new strategies for progressives to shift reigning ideas about constitutionalism and the law. Jedediah Purdy, for example, has argued that part of the answer is to “reclaim the Constitution” by articulating visions of how constitutional rules can promote true democracy. In Purdy’s view, strengthening voting rights and the rights of non-citizens, promoting economic citizenship, and reforming the criminal legal system should be central to a left vision of the Constitution. He argues these substantive ideas pose a challenge to the status quo distribution of power, resources, and life chances. Eyeing a different branch of government, Samuel Moyn has urged progressives to resist the “juristocracy” and to shift our vision for change away from the courts and towards legislators at all levels. Moyn bases his analysis on the idea that in the short term, legislatures will be more likely than Trump-appointed judges to enact laws that reduce inequality.

Purdy and Moyn generate important insights for left lawyers and social justice activists. But neither identifies where we should look for the substance of left legalist vision, or the process by which we should derive one. How is it that we, as progressives, should generate and evaluate the desired ends of constitutional doctrine or legislative change? Addressing this question is essential for a renewed left legalism of the sort this blog and its community hope to provoke.

As we suggested in our prior piece, we believe a left political agenda must be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces. (Willie Forbath, too, recently gestured on this blog at the relationship between social movements, labor, and left legalism.) The prevailing underlying presumption of much legal discourse is that the formulation and interpretation of legal doctrine requires specialized expertise. Past waves of left legalist critique, such as Critical Legal Studies, reflected this traditionally elitist approach to law by remaining confined within elite institutions and purveyed by law professors, sometimes in impenetrable language. Like Purdy and Moyn, we care deeply about democratic engagement, but we believe that the institutional choice between courts and legislatures misses the bigger picture: that a new left legalism should be derived from social movements fighting for justice on the ground.

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The Constitution and Democratic Insurgency

Aziz Rana—

One of today’s most urgent questions is how to combine an analysis of capitalism with an analysis of democracy.  The rolling socio-economic crises of the last decade, highlighted by the global financial meltdown, have laid bare the extent to which American society is marked by fundamental and irreconcilable conflicts between those enjoying economic power and those subject to the vagaries of the market.  At the same time, the constitutional system, plagued by legislative dysfunction and extreme counter-majoritarianism, is incapable of implementing popular policy—let alone resolving endemic collective problems.  American capitalism generates profound social and material dispossession, yet American democracy either facilitates these developments or seems helpless to address them.  Why is this the case? And to what extent is the existing constitutional order—its basic ideological and institutional terms—at least partly to blame?

Since the forging of Cold War liberalism in the mid-twentieth century, elites have offered the same, familiar account—in both electoral politics and in the study of constitutional law—of the relationship between the constitutional order and the economy. The prevailing theory is that the structures of legal-political decision-making do not favor particular social groups. Instead, through an intricate system of checks and balances—overseen by a Supreme Court enjoying powers of judicial review—the constitutional process produces essentially just outcomes while ensuring that no single political or social actor wields overwhelming authority.  This structure of constraint substantively pushes decisions away from the extremes of fascism and communism and toward a moderate middle ground of ameliorative reform and steady collective improvement.

Although some may be suspicious of the Whiggish story of progress, a bedrock assumption underlying this account has been widely held—even among left-liberal circles.  This is the idea that the constitutional structure and its discursive traditions remain essentially agnostic as to existing distributional battles.  They can be used productively to pursue virtually any end—up to and including socialism.  As the New Deal victories seemed to confirm, constitutional process and language carry no essential theory of political economy.  To the extent that legal-political outcomes have remained in line with a vision of market capitalism and a limited welfare state, this is simply the product of popular will: the complex balance of views expressed across the constitutional system.

But this account ignores a fundamental critique of the constitutional order, one leveled by labor and black radicalism in the first four decades of the twentieth century before Cold War ideas took such an extreme hold. For those activists, the history of sustained racial, indigenous, gender, and class subordination made clear that the country was not then and had never truly been democratic.  Rather, the constitutional order systematically operated to expand the strength of a racial and economic minority.

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Three Views of Constitutional Political Economy

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part III of III

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William Forbath –

To recap, what constitutional political economy is good for on the labor scene is three-fold:

  1. as a movement discourse that provides moral and political legitimacy to acts of civil disobedience and law-breaking – and lends reform-minded publics and law-makers a keen sense of the stakes for our deeply eroded democracy in enacting reforms that encode a pro-labor constitutional outlook;
  2. as a source of robust accounts of substantive constitutional principles to put on the scales when defending such reforms against neo-liberal constitutional attack;
  3. and, finally, as a framework for labor movement activists, lawyers and policy-mavens to compare and argue about the practical and normative considerations favoring rival constitutional constructions for the future.

Let me close this series with the briefest of sketches of two emerging views of the way forward, with a focus on how they’re interestingly at odds on constitutional grounds.

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Janus in Appalachia

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part II of III

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William Forbath – 

Unlike the workers’ organizations in Kate’s study, just about everything the striking teachers did in West Virginia and Kentucky fell outside the bounds of legality – the strikes themselves, the efforts to “bargain” over not only teachers’ pay but also the states’ miserly education budgets and unjust tax codes, even the stab at collective bargaining itself. It may have been because their demands were broad-based and popular that the striking teachers suffered no legal sanctions and state repression along the way. But not every collective action on the part of hard-hit public employees in red states (or the federal government) is likely to be so lucky. As the anti-strike injunctions and arrests roll out, labor constitutionalism will beckon.

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The Labor Movement Never Forgets?

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part I of III

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William Forbath – 

Is it really a good idea for liberals and the left to be making constitutional arguments against economic inequality? Give it a rest! Take a break from constitutionalizing everything.  And don’t talk about “taking the Constitution away from the courts.” The Constitution always leads to the courts, and the courts are not our friends, certainly not when it comes to fighting economic inequality.

That, in a nutshell, is one reaction to articles and a book-in-progress by Joey Fishkin and me, about what we call The Anti-Oligarchy Constitution. There’s something to be said for this reaction, and I’ll spell it out in a moment. But in the end, I think the arguments in favor of attacking economic inequality by pushing a left-liberal “constitutional political economy” outweigh the arguments against it.

In a nutshell, the arguments in favor of the notion come down to this.  It’s not easy to unpack why the stakes in combatting gross economic inequality are not only about fairness and distributive justice, but also about political freedom and democracy. Constitutional discourse can make that point sharp and resonant. Historically, in the U.S., constitutional-political-economic discourse was crucial to making the case for the proposition: No political democracy without social and economic democracy. It’s time to reinvent that discourse.

I’m going to use labor law as my main setting here. Labor law is the terrain on which Kate Andrias has written a great, sustained critique of Joey’s and my work, in the “Give it a rest!” vein. Responding to Kate’s critique seems a good way to test our views.

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