For the Defense - Vol. 4, Issue 2 - 9

Perhaps the most significant development
in Timbs was that two justices, Gorsuch and
Thomas, wrote concurring opinions, in which
they argued that the excessive fines clause
should be incorporated by the obscure privileges
or immunities clause of the Fourteenth
Amendment, not the due process clause. Thomas
expresses concern that "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...
The present case illustrates the incongruity of the
Court's due process approach to incorporating
fundamental rights against the States."
If Thomas and Gorsuch can bring three more
justices to their view, the Timbs case may be
viewed as a harbinger for a more profound
constitutional change, which could have
important and unforeseen impacts on our
society.
PANTONE

2955C

7406C

CMYK

90/78/39/30

9/22/91/0

RGB

22/58/92

234/194/56

HEXIDECIMAL

#153A5B

#EAC137

A FIRM COMMITMENT
TO TRUST

Attorney Michael T. Winters
Attorney Joseph P. McMahon
Lancaster, PA * 717-358-0600

About the Authors
David B. Smith is
in private practice as
a partner at the law
firm of David B. Smith,
PLLC in Alexandria,
Virginia. His areas of
practice include civil
and criminal forfeiture,
white collar defense
(including racketeering,
money laundering, structuring and money
transmission), restitution and fines, and
criminal appeals. Before entering private
practice, he was a prosecutor in the Criminal
Division of the U.S. DOJ and at the U.S.
Attorney's Office in Alexandria, Virginia. He
is also the author of the leading forfeiture
treatise, Prosecution and Defense of
Forfeiture Cases (LEXIS NEXIS 2018). He
has argued more than 100 federal criminal
appeals as a prosecutor and defense attorney.
Mr. Smith is a 1976 graduate of the Yale Law
School and received his B.A., summa cum
laude, from the University of Pennsylvania.
Jed M. Silversmith
is an attorney at
Blank Rome LLP
in Philadelphia.
Jed specializes in
representing clients in
civil and criminal tax
controversy matters.
He previously worked
at the U.S. Department of Justice, Tax
Division, where he handled tax prosecutions.
He received his J.D. from the University of
Pennsylvania and graduated magna cum
laude from Duke University.

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For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2

Contents
For the Defense - Vol. 4, Issue 2 - 1
For the Defense - Vol. 4, Issue 2 - 2
For the Defense - Vol. 4, Issue 2 - Contents
For the Defense - Vol. 4, Issue 2 - 4
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For the Defense - Vol. 4, Issue 2 - 46
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