[REASON] 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.