Brett Kavanaugh Flunks His First Test as an Originalist

[Sanguine]

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

Damon Root|Feb. 25, 2019 9:15 am

C-SPANC-SPANIn 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."...

https://reason.com/blog/2019/02/25/brett-kavanaugh-flunks-his-first-test-as

[jmyrlefuller]

Both are wrong.

The Eighth Amendment is purposely open-ended, meaning it applies to all entities of the U.S.—federal, state, or local. This is in direct contrast to the First Amendment that specifically applies solely to Congress.

The much-misapplied Fourteenth Amendment has nothing to do with it and never did.

[Bigun]

Both are wrong.

The Eighth Amendment is purposely open-ended, meaning it applies to all entities of the U.S.—federal, state, or local. This is in direct contrast to the First Amendment that specifically applies solely to Congress.

The much-misapplied Fourteenth Amendment has nothing to do with it and never did.

And, as usual, you are FOS!

Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

[jmyrlefuller]

And, as usual, you are FOS!

Reread the Eighth Amendment.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

That's it.

It doesn't say anything about what level of government it applies to, and without that, it must apply to all levels of government subject to the Constitution, INCLUDING state and local governments.

Ergo, the Fourteenth is entirely superfluous in this case.

[Bill Cipher]

Both are wrong.

The Eighth Amendment is purposely open-ended, meaning it applies to all entities of the U.S.—federal, state, or local. This is in direct contrast to the First Amendment that specifically applies solely to Congress.

The much-misapplied Fourteenth Amendment has nothing to do with it and never did.

Then why didn’t the Fourth Amendment automatically apply to the states?  It also isn’t limited to Congress. 

[jmyrlefuller]

Then why didn’t the Fourth Amendment automatically apply to the states?  It also isn’t limited to Congress.

People were too busy looking for loopholes rather than following the letter of the Constitution, that's my best guess. It's what happens when lawyers take charge.

[Bill Cipher]

People were too busy looking for loopholes rather than following the letter of the Constitution, that's my best guess. It's what happens when lawyers take charge.

I seriously doubt that.