Supreme Court

Brett Kavanaugh Flunks His First Test as an Originalist

Unlike Thomas and Gorsuch, Kavanaugh stayed mum on originalism in a major constitutional case.

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In his 2018 confirmation hearings before the Senate Judiciary Committee, Supreme Court nominee Brett Kavanaugh was asked by Sen. Mike Lee (R–Utah) whether or not he considered himself to be an originalist. "Originalism refers to basically textualism applied in the constitutional sphere, with an eye toward identifying the original public meaning of the constitutional text at issue," Lee observed. So, "for our purposes today," Lee asked the nominee, "you're an originalist?" "That's correct," Kavanaugh promptly replied.

Many fans of originalism were no doubt heartened by that answer. Unfortunately for them, Kavanaugh just flunked his first big test as an originalist on the Supreme Court.

The test came last week in the case of Timbs v. Indiana. The matter arose in 2013 when a man named Tyson Timbs was arrested on drug charges and sentenced to one year on home detention and five years on probation. A few months after his arrest, the state of Indiana also moved to seize Timbs' brand new Land Rover LR2, a vehicle worth around $40,000. But a state trial court rejected that civil asset forfeiture on the grounds that it would be "grossly disproportionate to the gravity of [Timbs'] offense" and therefore in violation of the Eighth Amendment to the U.S. Constitution, which forbids the imposition of "excessive fines."

The Indiana Supreme Court later reversed that judgment. "We conclude the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment," the state's high court said.

The issue before the U.S. Supreme Court in Timbs v. Indiana, therefore, was whether or not the Excessive Fines Clause should bind the states just as it binds the federal government. Since the late 19th century, the Supreme Court has been applying—or incorporating—the various provisions contained in the Bill of Rights against the states via the 14th Amendment, which says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." The issue in Timbs, in other words, boiled down to this: if the Free Speech Clause of the First Amendment applies against the states (it does), then the Excessive Fines Clause of the Eighth Amendment deserves the same treatment.

The Supreme Court agreed with that assessment and ruled unanimously in favor of Tyson Timbs, holding that the Excessive Fines Clause does indeed apply against the states.

But the Court was not unanimous in its reasoning. The majority opinion, written by Justice Ruth Bader Ginsburg and joined by Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh, held that the Excessive Fines Clause is "incorporated by the Due Process Clause of the Fourteenth Amendment."

Writing separately, Justice Clarence Thomas explained that while he agreed that the ban on excessive fines should be applied against the states, he "cannot agree," as a matter of originalism, "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," Thomas wrote, "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."

This is not a new position from Thomas. In the 2010 case of McDonald v. Chicago, which asked whether the Second Amendment applied against the states, Thomas spelled out his originalist interpretation of the Privileges or Immunities Clause in a lengthy concurring opinion. "I believe the original meaning of the Fourteenth Amendment offers a superior alternative," Thomas wrote, "and that a return to that meaning would allow this Court to enforce the rights that the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed." It is no surprise that Thomas re-upped that interpretation in Timbs.

One key difference from 2010 is that Thomas now has a bit of company on the bench. "As an original matter," Justice Neil Gorsuch wrote last week in his own solo Timbs concurrence, "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." But, because "nothing in this case turns on that question," Gorsuch continued, he said he was willing to go along with the majority's non-originalist holding this time around.

Thomas and Gorsuch are both self-avowed originalists, so it is fitting that they would either explain (Thomas) or at least acknowledge (Gorsuch) their heterodox views in a major constitutional case such as Timbs. For an originalist judge, it is often an uphill battle, and one of the best ways to gain ground in the war of ideas is by writing a persuasive opinion, typically penned in concurrence or dissent. How else are you going to change minds and set the foundation for winning future cases?

Which brings us back to Brett Kavanaugh. Where, you may be wondering, was the Court's newest self-described originalist in last week's Timbs legal wrangling? Did Kavanaugh also explain where he stands on the crucial debate over the original meaning of the 14th Amendment? Did he say whether or not he agrees with Thomas? Did he perhaps lay out a different originalist take of his own? Alas, Kavanaugh did none of those things. He did not bother to weigh in at all.

If Brett Kavanaugh is a committed originalist, you would never know it based on his complacent behavior in Timbs v. Indiana.

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128 responses to “Brett Kavanaugh Flunks His First Test as an Originalist

  1. I learned in college “originalism” is a racist white supremacist scam that seeks to return the country to the days when African Americans counted as 3 / 5 of a person.

    #CancelKavanaugh

    1. Try this another way:
      What would you call holding to the terms of a contract as they were understood when you agreed to it, but with the also-agreed-to adenda? (This as versus someone using newly-minted definitions to reinterpret older contracts.)

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      2. this is what you call an inapt analogy. Contract law doesn’t apply, because the constitution binds non consenting third parties, long after it was agreed upon.

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    3. Do you even know what the 3/5th compromise was?

    4. You really didn’t understand the whole concept behind the above. So would you have preferred that slaves counted as 0/5 of a person (which is what the NE wanted) or that slaves counted as a full person (which is what the South wanted)?

      1. They should have held out for 4/5!

        1. Since the advent of Jessis HiJackson, Al Charlatan + the Big O & his #1AG minion, I understand the ratio stands at 7/5.

      2. The Wikipedia 3/5 Compromise article states:

        Delegates from states with a large population of slaves argued that slaves should be considered persons in determining representation, but as property if the new government were to levy taxes on the states on the basis of population. Delegates from states where slavery had become rare argued that slaves should be included in taxation, but not in determining representation.

        Interesting the Northerners didn’t want to count slaves when it came to apportioning representatives in the House – that’s disenfranchising the slaves.

      3. you really didn’t understand the concept above. counting non-voters as voters for the benefit of the people who currently enslave the non voters doesn’t make a lot of sense, unless you, idk, like slavery.

    5. If originalism is a scam then the Constitution as framed was a scam. That is entirely possible for the reasons argued by the Anti-Federalists.

      But, assuming that the original Constitution was not a scam, the 13th and 14th Amendments corrected the problem with the 3/5 language in Art. 1, ?2 because the Constitution and all subsequent amendments to the Constitution are subject to the same originalst analysis.

      What you learned in college was crap. I hope you enjoy repaying your loans for a crappy education for a long, long time.

    6. Your teacher was an incompetent political activist, and you were foolish enough to gobble up their nonsense.

    7. Whoever it was that taught you that is a fraud gaslighting you for a shallow political agenda.

    8. 3/5ths of a loaf is better than none!

    9. So many still don’t get it!!

      Sad, the level of ability of the commentariat.

    10. I am hoping you left off the 🙂 tag. As I explained to my students last night.

      You will sometimes see the claim that the Constitution declared that blacks were only 3/5ths of a white person
      Not true. Art. I, sec. 2 again:
      Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
      Slaves were counted as 3/5ths of a person for determining representation in Congress and taxes to be paid by the states.
      Why this weird number?
      Northerners said “slaves cannot vote”: they should not be counted for representation
      Southerners said they were people and should count.
      Deal: You get to count them as 3/5ths of a free person
      Free blacks were not 3/5ths of a white person

  2. I’m somewhat confused as to how remaining silent is a failure here. It is entirely possible thst he has other reasons to do so. Regardless, it is an interesting take that isn’t very well supported by the argument presented by Root.

    1. I was waiting for the huge betrayal and it was a “sin of omission.” Not exactly what the title of the article promised.

      1. It was a betrayal.

        If one touts himself as an originalist, one, by definition, rejects the Slaughterhouse cases and applies the privileges or immunities clause as is and as intended by the reconstruction framers.

        1. Ok, you still haven’t explained why it’s a betrayal. The point AGAIN is that remaining silent doesn’t prove anything one way or the other. Nothing you said addresses that in any way.

          1. He had an opportunity to strike a blow for a very important originalist position, namely, the resurrection of the privileges or immunities clause and to condemn the substantive due process regime which is anathema to the 14th amendment.

            Yes, his failure to condemn substantive due process and his failure to join Thomas DOES PROVE something.

            1. I think the main point is that not joining Thomas does not mean that Kavanaugh disagrees with Thomas.

              The Lefty justices disagree with Thomas on most points of the Constitution but this was an unanimous decision.

              The Lefty justices sided with conservatives for different reasons.

              Furthermore, Thomas is not the perfect warrior for Originalism. He has decided several cases that I disagreed with. Having Kavanaugh protect parts of the Constitution that Thomas has not been willing to do would be better. A wider Originalist shield against Socialism, if you will.

          2. As Thomas More argued at his trial in 1535, and as Sir Edward Coke wrote in his Institutes of the 1630s, under the English common law silence implies assent.

            Kavanaugh, as expected, agreed with the reasoning of the radical totalitarians Ginsburg, Breyer, Kagan, Sotomayer, Alito and Roberts. He could have joined in the opinions of either Gorsuch or Thomas but he joined Ginsburg.

            1. I’m inclined to agree with you. Kavanaugh chose the wrong skirts to hide behind.

      2. Sin of omission it may be, but I can’t think it would have been too difficult to join Gorsuch’s one page concurrence.

      3. Not exactly what the title of the article promised.

        I’m sure we were all hoping for a “Game of Thrones” moment.

        1. “Invasion is coming”

    2. This is my exact response to the article.

      Not sure I see some major failure here.

    3. Exactly. If he didn’t say anything, but went along with a ruling you agree was in line with the entire court, how can you say he “failed a test.”

      I think someone failed the test of journalism school.

  3. Kav was always a shitty judge. He might be worse than Kennedy in the long run. Why did the left have to be such lunatics and character assasins as to generate sympathy for him….

    1. 666D chest #Satan is winning

    2. Why did The Left force you to support a shitty judge? Is that what you are asking?

      1. The left was attacking on personal matters, unproven. They should have been discussing his decisions during their Spartacus moments. They showed their complete lack of care for issues, and insatiable lust for power.

        1. Yep. That bullshit couldn’t be a,lowed to stand. Whatever merits and failings Kav has a judge, he should not have been out through that. The democrats needed robes,Appel around and taught a lesson.

    3. What character assassination? The left basically accused Kavanaugh of being a douche bag when he was young. And he actually was kind of a douche bag and a bad drunk, that seems kind clear enough. Of course, being a douche bag is not illegal so it was all pretty silly. Maybe the whole ridiculous show really was just a plot to get a standard-issue GOP establishment swamp-creature judge on the bench without Trump’s base noticing. That has always been my theory.

      1. They tried to convict him in the press of being a serial rapist. They said this shot in front of his wife and kids FFS. If it were me I might have beaten at least one senate de ocrat to death for it.

        He should have been a,lowed to duel at least one of them.

        1. wow. do you have to wear high heels so your knuckles don’t drag on the ground when you walk? How dare the woman who believes she was assaulted accuse the person who she believes assaulted her of assault in public!!!

          *ill yourself.

  4. Evidently, a unanimous decision (Kavanaugh included) in favor of Originalist legal reasoning is not enough for Damon Root.

    Maybe Kavanaugh wanted to save time for everyone reading the decision so he didn’t add pages of pontification.

    Maybe you’re right and he is bad news as far as Originalism goes.

    One thing for sure is this is not the case to support what your claim that Kavanaugh is not Originalist in his legal reasoning.

    1. Is Kavanaugh going to be as Originalist as Gorsuch and Thomas? Probably not.

      He is already shown to be more Originalist than John Roberts, RBG, Sotomayer, Breyer, and Kagan.

  5. “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.”

    If it’s a fundamental right, then it applies to everyone, including noncitizens.

    Fuck, a real originalist would say that Barron v Baltimore was incorrectly decided and that the Bill Of Rights have been the Supreme Law of the Land since ratification.

    1. I’m with you on the Second Amendment (“shall not be infringed”) but the others explicitly say “Congress shall make no law”. I believe the framers were pretty smart people who made that distinction for a reason; I only wish they had left behind better documentation.

      1. Only the First Amendment says “Congress shall make no law”.
        The rest of the BOR are blanket affirmations of the rights in the original document, which doesn’t include the terrible 14th.
        The 14th was written and ratified in an emotional time as a way to roll back some bad SC decisions and punish those who supported the Confederacy.
        It has been used almost as a replacement for the original document.
        Repealing the 14th and reversing any ruling based on it would eliminate many of the contentious issues in America, today.
        The Supremacy clause, in Article 6, should have covered the idea that the BOR applies to the states; This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    2. Yeah, saying that non-citizens could be subjected to “excessive” fines certainly doesn’t sound right. Perhaps a two-step process, where the Privileges and Immunities clause protects citizens against excessive fines and such, and then the equal protection clause extends the same protection to non-citizens? It’s all kind of esoteric anyway. If one purpose of the 14th Amendment was to apply the Bill of Rights to the states (and the Congressional record shows that it was), you wish the text had just said so.

    3. That’s not really an originalist position, since you seem to claim that fundamental rights exist independently of what the Constitution says. An originalist would ask whether the Constitution, as written, gives the federal courts the power to enforce a right it deems fundamental, and would be quite comfortable finding that it does not. I think we can all agree that liberty is a fundamental right, but that doesn’t mean it would be an originalist position to say that the Supreme Court could have outlawed slavery in 1789.

      1. Liberty for white male land owners was fundamental. Black Africans were largely seen as property. The Preamble still starts by saying “We the People of the United States….”

        The US Constitution and the formation of the United States of America was based on compromise between many competing ideals including slavery.

        Classic Liberals formed the USA with slavery included but an 1808 date by which it was hoped by some that the issue of slavery would be resolved forever.

        Libertarians are not okay with slavery.

      2. “That’s not really an originalist position, since you seem to claim that fundamental rights exist independently of what the Constitution says.”

        Which is exactly the position held by the drafters of the Constitution and Bill of Rights, and hence originalist.

        1. Brett, I know of no historical record to support your assertion, at least on the broad basis you assert. Surely some among the founders (Jefferson, Wilson, maybe Madison) were conversant with Hobbes. His view of natural rights was more nuanced than you suggest, and I suggest more practical, and with better basis in history.

  6. Jesus H. Christ, what a complete nothingburger.

    1. Wait until you taste the Mueller report!

      1. Mueller report with cheese?

        1. So basically, just cheese?

  7. My understanding is that due process allows for more rights to be enforced against the states including rights that are unenumerated like privacy so if you can read anything into his silence it would be a good thing imo.

    Thomas has voted for allowing states to censor video games, have sex laws, promote religion, etc,… and he wants Roe overturned so that makes me think his privileges and immunities interpretation is more narrow and gives state governments more power to infringe rights.

  8. “self-avowed originalists”

    It sounds so prurient that way.

  9. But what does so-called constitutional originalism (I’m right because I say so! The ghost of James Madison told me in a fever dream!) have to do with libertarianism?

    1. You say a lot of stupid shit Tony.

    2. Contracts. Whey you make an agreement with someone on something 20 years ago, for example, you generally don’t get to re-imagine what you actually agreed to. “I’m right because I say so” is more the motto of modern “living constitution” advocates: “The Constitution means whatever I say it means, because I want it to.”

      1. We’re all living constitutionalists. Only conservatives give themselves extra credit from the founders. Originalism is, wholly, a scam.

        1. Poor Tony. He and his traitors have been unable to full usurp the Constitution.

          As designed by the Founders.

          1. Is there a way to usurp it gently and uncontroversially? Because it’s kind of a crap constitution. Succinct and well written, though, except the 2nd Amendment, which is a verbal shitshow that has caused more death and horror than any words put to paper except maybe the Bible.

            1. We get it Tony, the Communist Constitution is much better as far as youre concerned.

            2. Tony, your communism has caused more death than anything in history.

              And watch what you say about the Bible, you fucking pederast boy hungry bigot.

          2. the Founders are a sacred cow. They drank a lot, and didn’t want to the brits around not so much for the sake of freedom, but so they could run the show locally instead of the brits.

      2. no one alive agreed to the constitution. If you consider it a contract, it’s clear that it’s not a contract in any normal sense.

        Why does it matter what people 250 years ago thought about a document 250 years ago. Why should we be bound by that? Who cares what james madison thought. he’s dead. Why should he influence our government today?

    3. Right, Tony. It would be different if the Founders had written some explanations of and arguments for the Constitution.

      Oh, wait….

  10. It took this many years for Clarence to learn how to write something…..how much can we expect with this even lower light

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  12. This is clickbait nonsense. Shameful.

    1. Some Reason staffers are still very butt hurt that Hillary was unable to pick Scalia’s replacement.

  13. This article is about something Kavanaugh didn’t do?

    Lol.

    1. The following story is about the murder Kav didn’t commit.

  14. So, “for our purposes today,” the confirmation hearings were then, and this is now.

  15. Whose surprised? He is a moderate conservative who was picked to replace a moderate. Gorsuch was the real win and they let him go by with relatively little trouble. At least Kavanaugh is anti-chevron.

  16. Kav was busy downing brewskies with his bros, and looking around for babes to pounce on. When he got to RBG’s office, he had to renew his membership in the ralph club.

    1. Is RBG still MIA?

  17. This is why the whole Kavanaugh thing was ridiculous, far from being a originalist, he’s a squish like Roberts

    1. Roberts voted for obamacare to be constitutional, when its clearly not. Kavanaugh has a long way to go to be that bad.

      1. Time will tell.

      2. “Roberts voted for obamacare to be constitutional”

        Because laying taxes is an enumerated power. You don’t have to LIKE that it’s Constitutional, but bleating that it’s not just makes you look stupid(er).

        1. Bullshit. We were told it wasn’t a tax from the get go. It was only reinterpreted as a tax BECAUSE it was the only way to let it slide. Inside of striking down the law and sending it back to congress to fix it or scrap it.

          So don’t even start that shit.

  18. Originalism is just another incomprehensible and unsupportable argument for interpreting constitutional provisions. Who gets to decide what the original intent was? The intent of whom? The framers? Who were they, the one guy who drafted the amendment, the people who voted for it, the people who voted to ratify it? Who decides whose intent should be determined?

    Why should I or we be bound by the intent of long-dead people as interpreted by modern-day mind readers. If people who supported the Amendment did so for different reasons, which reasons constitute the original intent?

    This is all a joke, and a scam designed to provide “legitimacy” to one particular interpretation of a constitutional provision. The backers or framers of the First Amendment, or the Second, or the Fourth, did not all think alike, so what does original intent mean? It means you are trying to win an argument based on an incomprehensible standard.

    1. The fact that you’re talking about original “intent” shows how little you know about originalism. Try looking up “original public meaning.”

    2. Right. It would be different if the Founders had written some explanations of and arguments for the Constitution.

      Oh, wait….

  19. Why can’t both approaches lead to incorporation?

    If the Bill of Rights is or can be incorporated against the states via either avenue, it doesn’t matter which one you choose.

  20. “Brett Kavanaugh Flunks His First Test as an Originalist”

    Didn’t matter to the case, per Gorsuch.

    Getting your panties in a wad over originalist virtue signaling is just the kind of self righteous moral preening nitwittery I expect out of Reason.

  21. Seems a lame beef at best.

    Not all concurrences are vehicles for explaining originalist philosophy.

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  24. If anyone is curious as to the full context of the exchange between Lee and Kavanaugh wherein the topic of originalism is discussed, here is a link to the relevant video on C-Span. The line of questioning starts somewhere around the 1:53:00 mark.

  25. Scalia didn’t sign on to Justice Thomas’ opinion in McDonald. So I suppose he’s not an originalist either?

    1. Not anymore.

  26. To be “an originalist” doesn’t (or shouldn’t) mean that in all cases and circumstances you cling to originalism. Some cases don’t make the originalist case as well as others. Some cases don’t require originalism. This latter is what Kavanaugh decided in this instance.

    1. When the force of law becomes something never intended by the authors of the Constitution, we do not in such a matter have representative government.

  27. They’re all wrong. The 8th Amendment protects an individual right of citizens, thus prohibiting government at every level from imposing excessive fines. No 14th Amendment role in the protection at all. Civil forfeiture is theft. Confiscating anything of value without a trial and conviction is violation of due process. Taking an item of value greater than the limit of statutory penalty is theft.

  28. This is clickbait.

    Brett Kavanaugh ruled in the correct originalist direction, and just because he didn’t add anything to the main opinion is far from pegging him as not an originalist.

  29. Why does no one ever point out that the Bill of Rights was NEVER intended to be a full compilation of citizen rights? It simply listed some of the rights that it feared a central government might possible be inclined to infringe. For instance, it does not list the (obviously inherent) right to have children and provide for their needs as a legal right for the simple reason that that its authors never expected any government would ever attempt to infringe those rights.

    1. “it does not list the (obviously inherent) right to have children”

      Do infertile persons have this right?

    2. Yeah. If only the Founders had thought of this!!

      Oh, wait…..

      “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”

      1. That wasn’t in the first draft.

  30. I live in Chattanooga, Tennessee. I can get to Nashville by vehicle directly on I-24, or I can take a circuitous route by driving up State Route 111 and then west on I-40. Either way, I get to Nashville. There is a point where you look at an outcome and determine if the outcome is sufficient, or achieved via wildly inefficient means or tortured logic. While Thomas’ view takes a surgical knife to the 14th, his legal strategy does not elevate far above nuance in this matter.

    I’m not sure if Damon Root popped some Lexapro or his dog ran away before he wrote this, but it’s a twisted fanciful absurdity. Does Kavanaugh have to write breathless prose in defense of every rather obvious decision? The outcome of the vote was certainly originalist in nature, and there is nothing wrong with RBG and Kavanaugh voting in concert.

    The difference here is the majority’s determination regarding necessity of due process to fashion decisions. Where Thomas believes the originalist view is rights are granted at face value without question, even the 14th Amendment indicates these rights often must be assured through due process.

    That Kavanaugh “failed” anything is a statement of disservice to him, qualifying this article as clickbait fake news.

    Go write for the Kardashians, Damon.

    1. That stretch of I-40 sucks. And not original.

    2. I’m glad to see I’m not alone in spotting this essay as pure cattiness. The author is like the less-attractive but chatty Kathy girl at the prom in a rather unflattering dress being all catty about the shy but popular girl with the nice pair of gazongas wearing the understated but form-fitting sheer black dress that ends just above the knees who is getting SOOO much more attention from the boys than she is. He’s whispering “Look at the Jennifer Anderson, wearing that f*ck-me-standing-up-in-the-custodial-closet dress and those f*ck-me heels, I bet she’s wearing no panties…” just like that plainer girl all while Jennifer is bringing it in and gets all the roses.

      The author is catty and bitchy. Further he’s just jealous he’s not the belle of the ball himself.

      God I am enjoying this way too much. 🙂

  31. Originalism as an adjudicatory principle was used for hundreds of years. However, originalism’s use in any particular case over that hundreds of years occurred only after other interpretive principles failed ?precedent, plain meaning of words, customary meaning of words, fairness, customs, and in the Civilian Law systems, formal logic, using the 13 or so language inferences commonly recognized since 200 A.D. Common Law treats formal logic as some kind of alien brain.

    What is different and damaging to the media’s and the general public’s understanding of originanlism is that groups appear to understand originalism to be first in the order of interpretive principles.

    Perhaps toriginalist judged believe that too, but if they do, then they are rejecting hundreds of years of jurisprudence while claiming they are maintaining it. It is difficult to know, because the decisions we see are from higher courts, and so the earlier principles have already failed. The question of how early in the process judges like Clarence Thomas place originalism never comes up.

    Understanding originalism as a first princinple in interpreting law turn our Common Law history upside down.

  32. Originalism as an adjudicatory principle was used for hundreds of years. However, originalism’s use in any particular case over that hundreds of years occurred only after other interpretive principles failed ?precedent, plain meaning of words, customary meaning of words, fairness, customs, and in the Civilian Law systems, formal logic, using the 13 or so language inferences commonly recognized since 200 A.D. Common Law treats formal logic as some kind of alien brain.

    What is different and damaging to the media’s and the general public’s understanding of originanlism is that groups appear to understand originalism to be first in the order of interpretive principles.

    Perhaps toriginalist judged believe that too, but if they do, then they are rejecting hundreds of years of jurisprudence while claiming they are maintaining it. It is difficult to know, because the decisions we see are from higher courts, and so the earlier principles have already failed. The question of how early in the process judges like Clarence Thomas place originalism never comes up.

    Understanding originalism as a first princinple in interpreting law turn our Common Law history upside down.

    1. Originalism, like formal logic or custom is further down the list of principles to use is because it does not establish discrete categories, but concrete categories, the result natural feelings (one meaning of natural law) that arise in response to events. Originalism, must often recreate the minds of hundreds, perhaps thousands of authors, legislators, judges, and normal citizens. The idea itself is fraught with dangers regarding the meaning of crime, tort, intent, sin, custom, reason, and rhetoric.

      Louisiana’s Civilian code Article 9 (below), an example of an explicit principle of interpretation of law, qualifies interpretation of law only after it has been applied and found absurd. Like originalism is way down the tree of interpretation, because it is justified by concrete reactions to an injury to juridical persons, not by objectified standards of precedent, customary meaning of words, terms of art, which tend to create decisions with boundaries that are more easily interpreted in the future.

      Originalism has to be an option, and has been, but because of its inability to produce discrete juridical experiences, originalism, has not been and should not be anywhere near the first attempts to interpret law by a judge or jury.

      When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

  33. I could really care less about the form…as the function of civil asset forfeiture needs abolished….no due process…no fines or confiscations (outside illegal contraband). We really need to extend it to regulatory agencies like EPA and BLM as well.

  34. I could really care less about the form…as the function of civil asset forfeiture needs abolished….no due process…no fines or confiscations (outside illegal contraband). We really need to extend it to regulatory agencies like EPA and BLM as well.

  35. I could really care less about the form…as the function of civil asset forfeiture needs abolished….no due process…no fines or confiscations (outside illegal contraband). We really need to extend it to regulatory agencies like EPA and BLM as well.

  36. NOt much ‘reason’ in the article.

  37. What do you call someone who allows themselves to be controlled by someone else’s opinion?

    1. democrat voter?

      1. Voters on the right seemed deferential to AM talk radio personalities for a couple of decades, there.

  38. It has been used almost as a replacement for the original document. Originalism has to be an option and has been, but because of its inability to produce discrete juridical experiences.
    Get email help desk for email solutions and problems.

  39. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.
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  40. Being quiet does not constitute anything other than causing people to (wrongfully) speculate based on their own opinions and suspicions. Quiet Waters Run Deep

  41. Soooo…the new guy doesn’t write a personal concurrence (or dissent) on one of his first cases, and that tells us everything about him? Seriously?
    A bit of a rush to judgement, dontcha think?

    1. Exactly. The author is sucking around to be fish-face-slapped with an halibut.

  42. I think the author is kind of being a bitch here. He’s harping on a ruling, esp. on one justice’s vote and lack of commentary, as proof that he is not an originalist. Well hardly does his lack of comment show he isn’t. Maybe he just felt since Thomas was already making the case that was fine and the world needs more concurrent ruling commentary like it needs more homeless cats and dogs.

    Yes, the author is being a catty little bitch here and he should be fish-face-slapped with a trout to teach him a lesson.

  43. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.
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  44. judge animal house did something shitty? who could have seen that coming?

  45. Asset Forfeiture, as it is usually practiced is properly characterized in just a few words. Theft Under Color Of Law. Any particular individuals view, comment or lack thereof changes nothing, though it might serve to raise question concerning where that individual is coming from

  46. Indeed, Gary Johnson was on the side of forcing accommodation as I recall. Still probably the least awful candidate, but not very libertarian to many people that claim it.

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