Brett Kavanaugh Flunks His First Test as an Originalist

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


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, you're an originalist?" "That's correct," Kavanaugh promptly replied.

Unfortunately for fans of originalism, Kavanaugh flunked his first big test as an originalist on the Supreme Court.

That test came in the case of Timbs v. Indiana. Tyson Timbs was arrested in 2013 on drug charges and sentenced to one year of 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, concluding that "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 14th Amendment 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, then, boiled down to this: Given that the Free Speech Clause of the First Amendment applies against the states as well as the federal government, 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 Timbs. But the majority opinion, written by Justice Ruth Bader Ginsburg and joined by Kavanaugh and several others, held that the Excessive Fines Clause of the Eighth Amendment is "incorporated by the Due Process Clause of the Fourteenth Amendment."

That is a problem for many originalists, who argue that the framers and ratifiers of that amendment understood the Privileges or Immunities Clause to be the principal protector of fundamental rights against the states.

Writing separately, as he has done before, Justice Clarence Thomas made the case for citing privileges and immunities in such matters—and he now has a bit of company on the bench. "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," Justice Neil Gorsuch wrote in his own solo Timbs concurrence. But because "nothing in this case turns on that question," he said he was willing to go along with the majority this time around.

Thomas and Gorsuch are both self-avowed originalists, so it is fitting that they would explain and acknowledge, respectively, their heterodox views in a major constitutional case. Originalist judges are fighting an uphill battle, and one of the best ways to gain ground 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 the Court's newest addition, who did not bother to weigh in at all. If Kavanaugh is a committed originalist, you would never know it based on his complacent behavior in Timbs v. Indiana.

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  1. Sounds like he flunked a test he never took. On another note it rained every day for over a week and I spent 5 hours mowing yesterday. I’m thinking Thai food and beer today.

    1. Seems like he is still trying to stay under the radar.

      I dont trust him either way though. It is too bad the dems had to try to railroad him in the most disgusting way possible, that conversation never had a chance of happening.

  2. Well, I would disagree that he flunked his first test – some of us were a little alarmed at his stressing the concept of stare decisis that suggested he had flunked the “You’re not a John Roberts ‘growing in office’ mushy middle sort of weasel are you?” test.

    Of course, Timbs is a minor sideshow to the shitstorm Gamble is going to cause, we all know exactly why that case got called up and the majority opinion was prewritten.

    1. we do?

      1. New York wants to prosecute Trump’s goons even if he pardons them

  3. I don’t think your position about Kavanuagh’s lack of of additional concurring opinion proves that he is NOT an originalist.

    Maybe he thought the topic was thoroughly covered by Thomas and Gorsuch.

    While the end result (having the BoR incorporated to the states) is the same, the manner of getting there can matter immensely. If all rights of Americans are tied to the states via the 14th Amendment and the 14A is repealed, Americans would be up shit creek.

    All the original 13 states, had state constitutions that essentially mirrored the BoR protections for its state citizens.
    Original state constitutions

    Additionally, it should be noted that only the 1A limits that single Amendment of the US Constitution to Congress. The other Bill of Rights make no mention of such limitations to Congress, inferring that Amendments 2-9 applied to the states via the Bill of Right’s very existence AND the privileges and Immunities Clause (Article IV, Section 2).

    1. It being incorporated under ‘due process’ can make a huge difference – there you can still impose excessive fines, whatever, as long as there’s a ‘process’ the defendant can challenge. If there’s such a process then the appeals courts will let whatever finding the trial courts reach stand.

      It being incorporated under ‘priviliges and immunities’ leaves the door open to challenging the act of civil forfeiture directly as excessive – not just limit you to ‘insufficient/no due process claims’.

      1. You are absolutely correct and I think that kind of precedent (rights tied to Due Process) is what the conservative justices are attacking and trying to get rid of.

        The asset forfeiture scheme should have been shut down under the 5th Amendment’s requirement that:
        …nor shall private property be taken for public use, without just compensation.
        This requires a Range Rover worth around $40,000 taken for public use, the owner is guaranteed just compensation of at least $40,000. The police would never want to carry out a scheme that requires this.

        The SCOTUS was trying to close that excessive punishment loophole as the asset forfeiture loophole is slowly being close too.

        As you say, the “Due Process” incorporation allowed courts too much leeway to steal and appellate courts letting it happen simply because there was a hearing.

    2. If he’d thought the topic was thoroughly covered by Thomas and Gorsuch, he had the option of joining either of their concurrences.

      Incorporation outside the 14th amendment is basically off the table, it really has no historical basis, even if the rhetorical basis looks reasonable. Just as a historical matter, nobody really read it that way.

      The real fight is over whether incorporation takes place piecemeal via ‘substantive due process’, or wholesale via the P&I clause.

      This makes a big difference because everybody present in the US is entitled to due process, while only citizens are entitled to privileges and immunities. So ‘substantive due process’, besides being an oxymoron, extends to non-citizens rights that were reserved to citizens. And in so doing makes selective incorporation almost inevitable, because it just makes no sense to let non-citizens have some of these rights.

      1. Our immigration hearing system would certainly move more swiftly if illegals were given basic Due Process and then deported if they didnt qualify for a Green Card under US law.

        Lefties hate that as a US Citizen, you get the privileges and immunities of the Constitution (Protection of right to bear Arms & Right to birth “Natural Born Citizens”) but also the downsides (taxes).

  4. […] 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 … View full source […]

  5. That is a problem for many originalists

    Sounds like the problem is with the ridiculous dogma called originalism. If your dogma fails to produce good results, then get rid of the fucking dogma. We’re not working from holy writ here, but a flawed, terse constitution, which just so happens to implore us to try to make a more perfect society. Adherence to a horseshit OCD legal religion is as respectable as adherence to any other superstition.

    1. Not a more perfect society, a more perfect *union* – if that’s the result you get with “living constitutionalism,” no thanks, not if you stumble right out of the starting gate, with the Preamble.

      1. What’s the difference? Wasn’t I just saying something about pedantry?

        1. You need to make an argument that your paraphrase of the preamble is the correct one, but didn’t make the attempt.

          1. Aren’t you people against more “union” anyway? Like, yeehaw, General Lee will rise again?

            1. You people? That’s racist!

              1. But thanks for the reminder of what happens when the Constitution is entrusted to Democrats.

            2. You are truly an imbecile with no clue.

        2. … a more perfect union than was established in the Articles of Confederation.

    2. what’s the point of having a constitution to define the limits of the government’s powers if those limits are whatever you want them to be anyway?

      1. Everything’s a balancing act. Governments should be able to bend so that they don’t break. And other metaphors as well.

        Plus, nobody with the “originalist” halo has ever shied away from making up brand new readings of the constitution when it suited their ideological agenda.

      2. Don’t be silly. Tony is saying we don’t need a constitution.

        1. +100

          Lefties just use phrases like “Living Constitution” to make it palatable to usurp the Constitution.

          1. It needs to be usurped. Or amended. But it can’t be amended because Republicans are radical psychopaths. Not planned for in the constitution. Good luck with that shit.

    3. Adhering to a small set of core principles – even when, on occassion, those principles allow less-than-desirable outcomes – has been working better than having no principles.

      The latter just allows power-mongers to do whatever they want. And they rarely want to make ‘good results’.

      And, in the end, its not the Originalism that is causing the problems here – its the government that was allowed to abandon its principles and start criminalizing consensual acts (in the guise of ‘making a more perfect society, natch) and then allowing itself to seize private property for its own gain (again – to ‘make society more perfect’).

      Absent the existence of a government power to ban vice, the use of civil asset forfeiture is subject to orders of magnitude less abuse. Absence the existence of civil asset forfeiture, the policing of vice is subject to less abuse.

      But both in conjunction – both existing to ‘make a more perfect society’ – are destroying society.

      1. Who promoted the idea of having no principles? I said dogma is bad, not principles. That’s a principle I have, by the way.

        I agree that people have differences of opinion on what makes a better society. Hitler thought he was making a better society. He was really gung-ho about it.

        That’s why the good people have to beat the evil people.

        1. So its dogma when its principles you don’t like but principles when you do it.

          That’s why the good people have to beat the evil people.

          One of the ways good people do that is by perpetrating the *dogma* that government power should be extremely limited. Its easier to prevent another Pol Pot than to remove one once they’re in power.

          1. Murdering dictators are the result of “extremely limited governments.” Limited by a lack of checks and balances, moderating mechanisms, intelligent bureaucracy, and democratic accountability.

            What does it even mean to limit government power? Even when it’s applying laissez-faire policies, it’s still in charge. Who else are you proposing we put in charge?

            1. The People, dum-dum.

              The People run the USA. Not politicians, bureaucrats, or special interests. The People run the USA via this Constitutional Democratic Republic.

              1. The people didn’t get their choice for the last president.

    4. Get aids and die you retarded faggot.

      1. I always say the best arguments are succinct and witty.

        1. Tony would know with his daily insults.

      2. Couldn’t have said it better myself.

    5. ” If your dogma fails to produce good results”
      “If the wrong side wins, make shit up”

      ” Adherence to a horseshit OCD legal religion is as respectable as adherence to any other superstition.”

      May you get the lawless rule of whim you so desire inflicted on you as a defendant on a felony charge.

      1. Superstition is whim.

        1. Example of superstition: Socialism will work!

    6. Not many here are dogmatic about originalism, we just recognize it to be a far better alternative than the authoritarian bullshit people like you peddle.

    7. Fortunately, the Founders were way ahead of you on this one.

      They also believed in a “living Constitution” and even included a rule book for it in Article V. It’s been used successfully many times. Check it out.

    8. Shorter Tony:

      The ends justify the means.

  6. who thought he was an originalist?

    1. reason staff who don’t know shit from a hole in the ground.

      Kavanaugh was Kennedy’s personally chosen replacement as the conservative that Kennedy never was.

      Not to say that Kavanaugh is an Originalist like Gorsuch seems to be.

  7. Sheesh. He voted with Thomas and Gorsuch, but didn’t, as they did, explain the stress of doing so?

    Originalism, like libertarianism, is not well served by those who substitute an algorithm to replace intelligent decision making.

    There are important originalist battles coming up. They’re not going to be won, or lost, based on Kavanaugh’s lack of a pained howl while concurring with a very reasonable decision.

    1. People like Damon Root love them some long legal explanations, when a simply agreement with the correct decision will do.

    2. Reason’s concern trolling is a fucking farce anyway. They couldn’t give a flying fuck about originalism and that will be made perfectly clear the first time an originalist opinion is penned that in any manner stands athwart radical leftism. Like if the court decides that bakers aren’t indentured servants to faggots or that abortion isn’t a human right.

      1. You have a lot of strong opinions for someone who brutally murdered two people.

      2. Hasn’t Reason been making noise that citizenship questions on the census, which have existed for a century, are now magically unconstitutional because Orange Man Bad?

        So much for originalism.

        Invasion USA is Reason’s highest principle.

        Rule of law is so statist! Muh anarchy! Woohoo!

        1. Do you think the census should ask more questions or fewer?

          1. Fewer, but that’s a policy judgment, not a constitutional one.

            If you want to argue that asking this question is a bad idea, we can discuss that. But the notion that asking it is constitutionally impermissible is insane.

        2. There is a reason the marxists pushed anarchy. They were very good at breaking down society in order to place a strong man in power that would lead them to their utopia.

          If anarchy ever happens, and I hope it does, it will be a natural outcome of the rule of law creating the conditions for for the free market and then technology to all but overthrow government.

          1. Exactly. Lefties pushing Anarchy is just a means to an ends. After society is on fire, the Lefties will murder all the Anarchists and force all survivors into Utopian slavery.

    3. So you’re saying that following the rules doesn’t matter as long as you get to the right conclusion? Yeah, that’s what the whole argument is about. Some of us believe you should follow the rules and if the rules don’t get you where you want to go, you change the rules. And – surprise! – there’s a rule about how you go about changing the rules. If, like Tony up above, you think there are parts of the Constitution that need updated to reflect today’s society, there’s a process for updating the Constitution – it’s called amending the Constitution. Of course, it’s much easier to change the Constitution by getting 5 Supremes to agree that the words don’t mean what we all thought they meant. And if the Supreme Law of the Land is just whatever 5 Supremes say it is at any given moment, well, that ain’t much of a Supreme Law. The law is a vast structure that must be built on a solid foundation and this involves laying the foundation. If you don’t follow the rules for building a solid foundation but just slap some shit together, you’re going to wind up with a shitty structure.

    4. Some people rate outraged moral preening as the highest moral good.

  8. Absence of evidence is not evidence of absence.

  9. ‘The Supreme Court agreed with that assessment and ruled unanimously in favor of Timbs.’ . . . So, unanimous decision. But, then, Kavanaugh chose not to take, what I believe is an optional step, of writing a separate concurrence. And that is considered ‘flunking his first test as an originalist’. Maybe a better title of this article would be ‘Kavanaugh gets a B+ on his first test as an originalist – the same grade as seven other justices got.’

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

    Kavanaugh agreed with a unanimous ruling but didn’t write *another* concurring opinion making the same originalist that both Thomas and Gorsuch made.

    This is “flunking”.

    Reason writers are such clown car self righteous pricks these days.

    1. He was nominated by Trump, so they desperately want to be disappointed by him.

    2. And yet here you are, unable to leave, a captive to people you despise. What’s that like? A smoking addiction? Porn?

    3. +100

  11. Well, I would disagree that he flunked his first test – some of us were a little alarmed at his stressing the concept of stare decisis that suggested he had flunked the “You’re not a John Roberts ‘growing in office’ mushy middle sort of weasel are you?” test.

    Of course, Timbs is a minor sideshow to the shitstorm Gamble is going to cause, we all know exactly why that case got called up and the majority opinion was prewritten.
    earn money app

  12. Hey guys, he could have just been too hung over after the gang rape the night before to write up his little paper guys. A man has to have priorities!

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