A swipe against excessive civil forfeitures succeeds. These aggressive actions require citizens to forfeit property far in excess of any harm committed. In the court case, a man had his car seized when caught selling a few hundred dollars of heroine.
We have laws to punish illegal behavior, but it’s not right that all your property get snatched up too. The most egregious of these cases often involve no due process at all. People who are stopped and found to have large amounts of cash simply have it seized, even if they are never charged with a crime.
Recourse is often slow and expensive. It’s unlikely that this ruling will immediately change the rampant unconstitutional practices many police departments and towns rely on. But it is a step in the right direction. Hopefully, they will be taken to task in time.
It gets even more interesting when they are federal but not state crimes. In this case, officers from a relatively far away jurisdiction were seizing cash and cannabis from people following all state and local rules. Just one of the individuals was awarded 1.2 million last week. If this ruling applies to all previous cases police departments are going to go broke paying this back.
Of course, nobody will go to jail for it. I'm happy for the ruling, but it doesn't seem to do much to discourage future abuse, since nobody actually gets held accountable.
I'm not sure why you want someone to go to jail for this incident specifically. The police acted in a manner that, at the time, they believed to be lawful. When the state was sued they also thought the police acted within the law, backed the officers, and won their appeal. Then after both sides made the best case they could, the supreme court ruled their actions were ultimately unconstitutional.
Do you really expect a random police officer to be a constitutional scholar? Dude should get his car back along with some damages to make up for the time/money he had to waste on this case but I don't think anyone should be going to jail over it.
I think the real problem here is that the courts are failing to provide the "independent judiciary" role. The whole point is for an independent expert to look at the law and situation and make a determination. The problem is that the local/state judiciaries very infrequently find a police organizations behaviors unlawful. Time and time again, the local law enforcement stretches the definition of unreasonable/excessive/etc and the courts go along with it. The statistics are completely out of whack (to lazy to dig up the reference I saw a few years ago) on the side of the police. Which is why there are so many of these crazy cases making themselves to the supreme court. Its the airport search situation, at no point has a court actually stepped in and said this is unreasonable, which is why we find ourselves in a situation of being naked body scanned, felt up, poked and prodded like animals without a drop of probable cause.
> Do you really expect a random police officer to be a constitutional scholar?
You expect that from citizens, as ignorance of the law is not a defense against not breaking it, but police officers are given a myriad of protections(QI), sometimes jokingly called "The Reasonably Stupid Cop Rule"[0]. I don't think police officers should be constitutional scholars, but immunity gives them an incentive to either not learn or just ignore the law.
The decision was about whether the 8th applies to states. The lower court is now instructed to evaluate whether the fine was excessive, which it obviously was.
This was long overdue. I’m all for restitution and such, but doing forfeiture above what the penalty or fine would have been is obviously egregiously problematic.
Glad this overreach was rectified but it took a good while to get corrected.
Possibly relevant is also that the car was purchased with (presumably documented) legitimate money - received from his father's life insurance policy. The reasoning was apparently that he used the vehicle in committing the crime, not that he'd purchased it with money derived from criminal activity.
> In the court case, a man had his car seized when caught selling a few hundred dollars of heroine.
Interesting perspective there. Some people think that heroin dealers deserve to be fully hung, drawn and quartered, their head placed on a spike to be pecked at by the crows.
Others might think that 'it was just a bit of dope, why should he have to forfeit anything for that?'.
The car is potentially proceeds of crime it also enables the crime of dealing to be carried out. A reasonable case for him forfeiting it can definitely be made without that being the police preying off the 'victim'. In the UK any police action that leads to people losing stuff as it is deemed proceeds of crime goes to the crown, i.e. the queen, rather than to the local police department. In the USA you need something similar so that the police can't be accused of being on the take.
In the UK the prosecution - 'Crown Prosecution Service' - present the mobile phone evidence and the accused is able to provide evidence for legitimate income. The court then decide whether to take the house and cars. Simple.
The car was reliably documented as being purchased from his father's life insurance proceeds. There was no question of it being potentially purchased by illegal means.
Far more importantly, the entire question is irrelevant: we have standardized maximum fines and the burden of proof for very good reasons. Civil forfeiture skips both, making a mockery of the justice system for profit.
Those who believe current punishments for a given crime insufficient should seek to alter the law, whereas exorbitant forfeiture devalues the entire purpose - it serves neither as effective discouragement (being utterly arbitrary and unrelated to criminal magnitude) nor to rehabilitate (rather, the reverse, as departing inmates' tendencies to return will only be exacerbated by forfeiture-induced poverty).
> The car was reliably documented as being purchased from his father's life insurance proceeds. There was no question of it being potentially purchased by illegal means.
This is why it was such a perfect case for the Supreme Court to rule upon. It was clear that the only justification the state could give for the confiscation was the single conviction.
Cheers to Timbs for being willing to take this all the way to get such an important ruling!
Hmm, seems like the 8th amendment doesn't apply to civil forfeiture at all, and this ruling would do nothing for it. Civil I guess sounds like a 4th amendment case.
Is that about right?
EDIT: Also you should tell the New York Times. "Criminal forfeiture" does not appear in the article, though "civil forfeiture" does.
This case was actually about civil forfeiture, not criminal forfeiture.
If it had been criminal forfeiture, they would have had to show the SUV was purchased using drug money proceeds. Instead, they pursued the civil forfeiture path because it has a lower standard of evidence (more likely than not rather that beyond a reasonable doubt). See page 1 of the opinion, which explicitly states the case is about civil forfeiture...https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf)
The interesting thing, though, is that once a civil right is established and incorporated against the states, it's basically unassailable under our system. So while it takes a long time to get those rights properly enshrined, at least they seem to be safe.
>So while it takes a long time to get those rights properly enshrined, at least they seem to be safe.
Our rights are so unassailable that I need to repeatedly pay a non-negligible amount of money to the government bear arms and get the approval of my local police chief if I want said arms to be reasonably modern. /s
Some animals are more equal than others. Some rights are more unassailable than others. At least I can bitch about it on the internet and nobody's quartering troops in my home (edit: yet).
Keep in mind that the 2nd amendment hasn't even been incorporated against the states for 10 years yet (McDonald v Chicago). So while the right has been incorporated, the court has yet to really rule on the scope of what that means.
Just 10 years ago, it wasn't clear that you as an individual actually had that right, as it pertains to state restrictions - things have certainly improved.
Edit: I guess my original point I failed to make is that the courts have actually affirmed less rights than most people realize, but when they do (finally) do so, they tend to stick around.
I suspect that nothing will change until the court rules that some form of scrutiny stricter than the status quo needs to be applied before curtailing the 2nd before that ruling will have any teeth. Incorporation means nothing without strict or intermediate scrutiny because states can just do whatever they want in the name of some nebulous concept like "public safety".
> Our rights are so unassailable that I need to repeatedly pay a non-negligible amount of money to the government bear arms and get the approval of my local police chief if I want said arms to be reasonably modern.
Well-regulated militia. Not sure if you would qualify as a militia, but the regulation part seems to be working, right? :)
The NSA regularly violates the fourth amendment and never gets punished for it. How are those civil rights working out for you in practice in the US? How's the 10th amendment working out?
It will be interesting to see exactly how this ruling is applied in the field. My guess is that not much will change, as the most problematic and widespread applications of civil forfeiture don’t involve a crime where a monetary fine would be allowed as a penalty. Rather, the police simply steal (they prefer the term “seize,” but it’s just stealing) the money/assets claiming that they suspect it to be the fruit of a crime, then hope the person they stole it from does not have the resources necessary to hire an attorney to recover it. Charges are not filed, and in the majority of cases, the victims never get the money back.
IANAL, but at first glance it seems that such cases would be unaffected by this ruling. No fine is being imposed that could be considered excessive under this ruling - the person is simply failing to claim their property.
It seems like those cases should be because if there's no crime filed against a person related to the case there's no fine to assess in the first place so any 'fine' (read asset forfeiture) is excessive because it's >$0. Very much not a lawyer but the logic seems to hold.
The whole asset forfeiture without any charges being filed always seemed really sketchy because in the end you're still taking assets from a person (so long as they're claimed, eg maybe if they find a pile of money in an abandoned drug lab a seizure would be valid if no one comes forward saying it's theirs at which point they should charge the person with crimes and seize the money after trial).
>My guess is that not much will change, as the most problematic and widespread applications of civil forfeiture don’t involve a crime where a monetary fine would be allowed as a penalty
IANAL, but I see 2 reasonings:
If seizing $40000 for <insert any crime/infraction, like going 5MPH over the speed limit, where max penalty is let's say $1000>, wouldn't it be excessive if it's seized for doing absolutely Nothing (suspicion of a crime: max penalty = 0 jail, $0 fine) ?
And more specific to your point:
if maximum penalty for a crime only involves jail time and $0 of maximum fine, wouldn't any seizure of cash/property be excessive since it's far larger than $0?
>Justice Thomas agreed with the result in the case, Timbs v. Indiana, No. 17-1091, but said he would have gotten to the same place by a different route. While the majority relied on the due process clause of the 14th Amendment, Justice Thomas said he would have ruled “the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the 14th Amendment.”
I was going to comment that the real biggest legal problem with civil forfeiture is how it circumvents due process, but it sounds like that was the actual ruling given by the supreme court. I think the title of the article disagrees with the last paragraph. It was actually Justice Thomas who wanted to rule that it constituted excessive punishment, while the rest of the court ruled that it constituted a breach of due process.
That’s not quite right. The Bill of Rights originally only applied to the federal government, until after the civil war when the 14th amendment was passed. Since then the clause in that amendment saying no one can be deprived of life or liberty without due process has been interpreted to mean most of the bill of rights also applies to the states. This ruling said as much for the 8th amendment prohibitions on excessive fines.
Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.
"This may seem like a minor niggling point. It's not.
The Court's recognition of a right to abortion has been rooted in the Due Process Clause. Thomas & Gorsuch's concurrences document their opposition to grounding substantive rights in that corner of the 14th am."
"Thomas and Gorsuch announce that they would incorporate Bill of Rights through the Privileges or Immunities Clause, not the Due Process Clause. This is a wonky distinction, but one with huge stakes for immigrants. Due Process Clause protects “persons.” P or I protects “citizens.” "
Wouldn't this completely screw over corporations? Or do we have some other mechanisms that will continue to protect them from these abuses them but not other types of "persons"?
Corporations in general have the constitutional protections that people acting in a group have. Corporate personhood is just a convenient legal fiction.
For example corporations don't have a right to free speech because they are "persons" but because we extend the rights of the individuals who make up the group to the group itself.
I'm pretty sure they can also remove you; what they can't do is remove you based on the content of your speech, but then again I doubt they can have a policy of only removing iPods playing political speeches with certain viewpoints.
The court did not address the Clause’s application to civil in rem forfeitures, nor did the State ask it to do so. Timbs thus sought this Court’s review only of the question whether the Excessive Fines Clause is incorporated by the Fourteenth Amendment.
As a permanent resident who lives in the US, the idea that basic protections of law should only apply to citizens is terrifying. It's not the same outcome at all. Due process is afforded to "persons".
No country on Earth affords equal rights to citizens and non-citizens. If this "terrifies" you, I encourage you to reflect on your fears and whether some of them may be disproportionate to reality.
Parent said "protections" and referred to "due process", not the broader topic of "rights". So, yes, non-citizens don't, e.g., get to vote. On the other hand, if they get arrested, the same standards of evidence apply as for a citizen.
So, in other words, Germany provides different rights for citizens and non-citizens. Which is what the GP was saying.
Not having basic protections for non-citizens would be rather worrying, but let's not act like the mere existence of a difference is worth freaking out about.
EDIT: To be clear, I'm not suggesting that Justice Thomas's concurrence not providing these protections to non-citizens would be a good thing. I'm just saying that 'non-citizens should have the same rights as citizens' isn't a position held by any country on the planet.
In the context of this particular case, it sounds like the ruling by the majority protects non-citizens from having their property taken by the police, while Justice Thomas’s concurrence would not.
In my opinion, not having your property taken unfairly by the police is more of a basic right everyone should enjoy, rather than a special right afforded to citizens like voting.
> No country on Earth affords equal rights to citizens and non-citizens.
That's fine, but affording no rights to non-citizens would be highly problematic. Some argue the Constitution doesn't protect the rights of illegal immigrants, for example, but it makes clear distinctions by using "persons" in some spots and "citizens" in others.
Persons have a right to due process. Citizens have a right to vote. The difference is very important.
The Constitution is really quite bad at making things clear. Arbitrary rhetorical flourishes became the turning points of precendential cases, because quill and parchment made it hard to express ideas clearly.
The average ruling in a single minor case today is longer than the entire Constitution.
Everyone should have basic protections, or "fundamental" rights. Those are things that exist as a matter of basic human decency. Nonbasic rights are more like privileges, and they can apply discriminately.
A relevant recent case: the 9th circuit allowed to stand a federal law that limits 2nd amendment rights for certain non citizens unlawfully present in the US:
"... The panel affirmed a conviction for possessing a firearm while being an alien unlawfully in the United States in violation of 18 U.S.C. § 922(g)(5)(A)."
The basic protections do apply to both citizens and legal residents - the issue is, if convicted a non-citizen may have their right to abode removed, and be deported.
Quite recently, we have had two Presidents claim that non-citizens had no right to challenge their imprisonment by the United States (Bush in Gitmo and Obama on Bagram AFB in the Middle East) who ran smack into a Supreme Court that found their actions unconstitutional.
The notion that Constitutional protections cannot apply to non-citizens is simply not true, even when applied to non-citizens being held by the US off of US soil.
I understand this and I'm heartened that the Supreme Court majority continues to find that. I was getting at the distinction between what the majority ruled; that excessive fines are a breach of due process, which applies to all "persons", and the comment that Justice Thomas would have preferred to arrive at the 'same outcome' on the basis that it was a breach of the 'privileges or immunities of citizens of the United States’.
My point is that those are different outcomes, not the same; one protects me - a person in the US who is not a US citizen - and the other does not. The difference is also a furtherance of a generally authoritarian idea that non-US-citizens should have not equal protection under the law.
Speaking as another non-citizen, you should be concerned that something as important as protection of rights of non-citizens, hinges in its entirety on a very convoluted and non-obvious reading of the Due Process Clause of 14A.
In the case of non-citizens being held outside of any US jurisdiction, what court has standing to rule? Where would I file a case if I had one?
This reminds me a bit of the Roman concept of the pomerium. Anything outside of the arbitrary line deciding what was Rome and what wasn't, was "anything goes."
Nobody. But US military facilities are considered US soil and thus US jurisdiction.
In the SCOTUS rulings on Guantanamo, SCOTUS went further and stated that they would have ruled the same way if it had been a CIA facility instead of a military facility, so long as Cuba had granted the CIA permission to exclusively use the land for its own purposes.
Quite recently, we have had two Presidents claim that non-citizens had no right to challenge their imprisonment by the United States
No, the argument was that foreign terrorists and other non-state enemy combatants were not "subject to the jurisdiction" of the US legal system (because they weren't on US soil when captured, and as non-state combatants that weren't covered by any treaties to which the US was a party) and thus also not afforded its protections.
However, as a matter of international law, a country generally has legal jurisdiction over any person physically present in the country, whether present legally or otherwise, excepting specific diplomatic personnel (as defined by local law or treaty).
This was the reason for holding them indefinitely in an military facility located in another country. However, under US law, military facilities are considered US soil, and so persons being held in US military facilities are subject to the jurisdiction (and protection) of the US legal system.
The 14th Amendment's Equal Protection Clause ("nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws") means aliens are afforded the same protections as citizens.
No, it means that states must have a pretty good reason for treating aliens differently, but the fact that an act which would otherwise be within their power is federally prohibited when targeting citizens but not aliens—the outcome of a Privileges and Immunities basis for incorporation rather than the more historically common Due Process one—may itself be sufficient to allow a distinction.
I mean, your basic argument is that Thomas is just pointlessly making semantic disagreements with the majority that would have no effect on this or any other conceivable case because either basis for incorporation produces exactly the same result not only on the present case but all possible cases. While I have a low opinion of Thomas, it's not quite that low.
This reads to me as a way for the authors of the amendment to narrow any potential loopholes in the protection of the newly freed slaves at the time. All persons born in the United States are citizens of the United States. However, this says nothing about whether or not you are a citizen of the particular state you were born in. So potentially, a state could deny equal protection under the law (protections under state law or infringe upon federally protected rights) if this clause mentioned "citizens", rather than "persons". "Citizen" could be misinterpreted or (mal-interpreted) to mean citizen of the state in question. Additionally, it could apply to a non citizen resident/visitor of a state. If I am a citizen of Pennsylvania and am I work in New York, New York must provide me with the same protections under the law as they would provide a citizen of New York. The 14th amendment did not have immigrant aliens in mind but rather was narrowly focused on newly freed slaves who were before it ratification citizens of no place at all. So when we speak of "aliens", we must keep in mind that while it applied to "aliens" today, it was not meant to protect the rights of foreign "aliens" in particular.
I find this argument a bit weak. Ratification of an amendment is a big process and I find it hard to believe that no-one realized the implications of the 14th amendment beyond it's impact on former slaves. People realized the implications, and went forward with the text anyhow. Otherwise, you have to assume that everyone involved was just completely ignorant to the implications of the text written as is, which is a claim you'll need to provide a great deal more backing for me to believe.
The 13th, 14, and 15th amendments were specifically written for the special case of newly frees slaves.
The 14th amendment was ratified in 1868. The total population of the US in 1870 was around 38 million. The total number of immigrants was around 2 million. The slave population was around 5 million.
The implications of the 14th amendment are clear today and they may even have been clear then. Nevertheless the most pressing, most politically salient issue was the newly freed slaves. In one day (the day after ratification) the United stares gained 5 million new citizens.
I would not be surprised at all if the people involved at what time were a tad bit myopic, with respect to the problem at hand.
It is an assumption of ignorance on a massive and universal scale that is beyond reasonable. There is too many people involved to assume this was not considered. It's the same problem as assuming the moon landing was faked. The position that noone involved considered birthright centizenship beyond slavery is ludicrous. All those state legislatures, all those senators, all those house representatives, all their staffs plus the best legal minds available to the office of the president and your claim is not a single one of them realized birthright citizenship would apply to people who weren't former slaves? That is a ludicrous amount of doubt in human imagination.
EDIT: In fact in 1860, the us census measured 4.1 million people not born in the United States. Is your claim honestly that while the census actively measured this, not a single person realized what birthright citizenship would mean for the children of those 4.1 million non-natives?
Indeed. If they can successfully rebind the Bill of Rights as applied to states based on P&I instead of the due process clause, the Bill of Rights may evaporate for non-citizen immigrants. A state(i.e. Republican ones) may then pass discriminatory laws for which the Bill of Rights no longer applies against.
> Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.
It's the same outcome in this case, but it is rather different in the broader effect; not all people subject to punishment by states are citizens of the US.
It's actually a different part of the same sentence.
"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."
Justice Thomas has been fighting a long battle trying to restore the Privileges or Immunities Clause of the 14th amendment after it was effectively removed from the constitution in the Slaughter-House Cases. He'll often issue dissents or concurrences just to raise the issue of the Privileges or Immunities Clause.
The Institute For Justice (who argued this case, somewhat coincidentally) has a podcast about the 14th Amendment called Bound By Oath. They talk in depth about the Slaughter-House Cases and The Privileges or Immunities Clause in the third episode if anyone is interested in learning more.
Tl;dr It means that the incorporation only applies to CITIZENS, not persons. So citizens united wouldn't apply to the states, but neither would the bill of rights to non-naturalized immigrants with regards to the states.
Thomas would quite happily overturn this line of reasoning just to get the government back to the business of just enforcing contracts. I'm sure he'd be happy to let workers sign themselves into slavery again. Daniel Webster must be applauding from his grave.
No, the rest of the court found the the excessive punishment protection of the eighth amendment was applied to the states through the Due Process Clause of the 14th Amendment as an essential right and therefore a component of “liberty” as used in the due process clause.
Thomas disagrees with this fairly conventional incorporation argument and the idea of the protection as a fundamental right, but feels instead that a protection against excessive fines is part of the “privileges and immunities of citizens of the United States”. This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
All of the justices view it as excessive punishment, Thomas just thinks only US citizens are protected by the federal Constitution against excessive punishment by state governments, whereas the majority thinks states are Constitutionally prohibited from inflicting excessive punishment on people.
> noncitizens necessarily do not enjoy the privileges and immunities of citizens.
Would you have more reading on this? It's something I've wondered about but never really come across a comprehensive answer to. What rights do noncitizens not have that citizens do?
> The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.
AFAICT, the Federal courts have not generally adopted this view (though it is popular in some circles, particularly the US Department of Justice); ruling less specifically that the term “the people” instead “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
Well, I'm not sure what you consider obvious or not, but those are the most important ones.
From Wikipedia, some other examples are the right to be considered for federal employment (most Federal Government jobs being closed to non-citizens), access to US consular officials if arrested abroad, and exemption from certain real estate taxes[1].
I guess when I talked about rights I was really thinking about protections from the government rather than about liberties or privileges like serving in or voting for the government -- like the one against excessive fines that was mentioned.
FYI, the term "U.S. persons" == U.S. citizens and permanent residents.
The only rights that permanent residents don't have are: a) the right to vote, b) the right to have their permanent residency not revoked for cause (e.g., committing a serious crime). Permanent residents get to become citizens after some time.
Non-permanent residents have fewer rights, and which rights they don't have is generally a matter of law, not Constitution, except that they have all the rights of Due Process guaranteed by the Constitution (i.e., by far the most important ones for them to have), at least as to criminal prosecutions, and often as to civil suits. A typical example would be the right to keep and bear arms, which non-residents generally do not have in most States. I suppose even First Amendment rights might be curtailed for non-residents, though I suspect at most only freedom of association would be, and only indirectly.
But most of the Bill of Rights (the 4th through the 8th Amendments) deals in Due Process, and these rights are available to all persons in the U.S., except perhaps as to immigrant law itself (e.g., a non-resident alien may have much less recourse to fight deportation than they and anyone else might have to fight a conviction).
> The constitution really clearly delineates between "persons" and "citizens."
It uses at least three different terms, citizens, persons, and “the people” (and the last is the most common where it concerns rights). The precise boundaries of the latter is fairly hotly contested, and the Courts to date haven't given precise guidance (it is clearly broader than citizens and narrower than persons, but the exact boundary is murky; the US DoJ has often advocated for a definition of citizens and some subset of lawfully admitted aliens, possibly only LPRs, but others have taken other positions.)
> Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.
This is because the Constitution is supposed to be an enumeration of what the government is allowed to do. The limitations are there to narrow the scope of those enumerated powers. In this context, enumerating most rights of citizens would have been redundant. The enumerated citizen rights were those that could be affected by the powers the government was granted.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
> Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time, particularly when corporations comparatively have no hurdles at all over the same geographic region. Getting 50 of anything to do something at the same time is nearly impossible. If we want to do something about many significant, widespread problems, we need the power of a centralized Federal government. As the saying goes, the Constitution is not a suicide pact.
Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
No, I don't think that adding more representatives would help the problem, but our political system, invented in the 18th century, is nearly overwhelmed by the sheer volume of people in this nation.
No, I don't think that adding more representatives would help the problem
I think it would. Along with creating more slots for minority candidates to get elected in. There's also the matter of the cost of lobbying. Right now lobbying is dirt cheap because you can spend a very little amount of money to influence one representative and that one vote in congress can have a huge effect. If there were more people voting in congress the value of that one person would be reduced. The lobbyist would have to work to get multiple congressmen to have the same influence which makes bribery less cost effective than it currently is.
Well then, how does the EU (whose central authority is extremely limited in scope compared to the US Federal Government, and whose member states are still meaningfully sovereign separate countries) manage to thrive so well?
Why couldn't a similar system work well in the US?
Have you not heard Europeans talk about the EU? Pretty much everyone agrees that it's slow, cumbersome, and doesn't address a lot of problems quickly enough. It's also significantly more complex[0] by further dividing the executive position, compared to the American system, and it's only got 28 states.
For most issues, there is really no need for all 50 states to act at once. In practice, the federal government exercises it's extraconstitutional authority for all kinds of things which could be done much better at the state level.
For instance, making drugs illegal (accounts for most federal prisoners) and running social welfare programs (accounts for most federal spending).
If something really is an important power the federal government must have (maybe some kinds of environmental regulation powers?), then make an amendment that clearly scopes the boundaries of that new power.
> I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time
To what extent do we actually need to have all states do exactly the same? It's a common argument, but there are many independent sovereign states out there that are smaller than many of US states, and they're doing fine solving their national problems despite their size. Sometimes - quite often - that happens with cooperation with other states, but such cooperation does not require an overarching government entity.
Sure, that means that US would not be a state in a sense that, say, France is a state, with a strong national identity and uniform politics. But does it have to be? I would argue that there is no truly democratic way to rule 300 million people from a single center, and decentralization is key to real democracy. Conversely, I don't see why my ideas and values have to be pushed on someone in the opposite corner of the country, but not, say, across the border into Canada.
> As the saying goes, the Constitution is not a suicide pact.
Whose saying? Last time I remember hearing that everywhere, it was to justify stuff like the PATRIOT Act and other post-9/11 abuses.
> Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.
> The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.
Part of the reason the issue has gotten out of hand is the relative weakness of states to enforce the cost of negative externalities on business. As soon as one state passes regulations, it’s too easy for many companies to pack up and leave for ‘greener’ pastures where the politicians would rather tout economic improvement at the expense of those negative externalities. As a result, problems like this often end up hoisted to the next level of government to solve issues in a more equal manner.
Just look at the ways cities were tripping over themselves to look attractive to Amazon for HQ2 to see this phenomenon in action.
But that is also true of countries. For large transnationals (who are the most abusive) especially, I don't think it makes a big difference.
OTOH, if that is the key problem, then why not make feds an arbiter specifically for such externalities? i.e. they'd be the ones establishing whether something negative is actually happening, measuring the impact, and imposing some remedy (either cease and desist or compensation, depending on which one is appropriate).
If we're talking about AGW, say, and carbon tax, then let's have the feds tax the states proportionally to their total carbon output. The states can then pass those carbon taxes onto their residents in various ways - and how exactly they are allocated is then a matter of state policy - but it has to add up.
This is because the Constitution is supposed to be an enumeration of what the government is allowed to do.
This is simply not true. The Founders lived through the Articles of Confederation, in which the founding document explicitly enumerated the only powers the government would have. The Constitution was an explicit rejection of that philosophy, and was intended to create a government with broad powers. The point of the Bill of Rights was to place limits on those broad powers.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
This is also not true. A great many of the Founders considered the 10th Amendment to be meaningless fluff added only to mollify the slave-owners who wanted restrictions on the Federal government's ability to curtail their ownership of slaves.
The Sedition Act, passed by the First Congress (consisting of many members of the Constitutional Convention), for starters, which was a huge restriction on free speech.
The multiple attempts by former CC members to pass anti-slavery legislation in Congress in the many decades leading up to the Civil War.
There are a number of other examples, well covered by a number of primary and secondary sources.
That's only true if you use the definition of "broad powers" that was used back when the Constitution was written - which is very different from what it is today.
And all of those broad powers they wanted the government to have, were explicitly written into the text of the Constitution. Sometimes it was deliberately vague, like the Commerce Clause (although if you showed our modern jurisprudence on that to people who wrote it, they would be horrified). And in the Federalist Papers, there are several instances where some bit in the Constitution is explained as, "yes, this is rather broad, but the government needs it for real world reasons". But it is always enumerated.
The First Congress passed the Sedition Act, which was an extremely broad set of laws that would have essentially nullified the First Amendment. The first several Congresses passed extremely broad laws regulating commerce that were ultimately narrowed by the courts. This all despite having numerous members of the Constitutional Convention among their ranks.
It's pretty clear from the laws the First and Second Congress passed that they had an even broader definition of "broad powers" than we do today. (And by the way, the Federal Papers have no legal authority in US law. They're interesting from a historical perspective because they documents an attempt by one politician to sway the opinion of the general public, but they don't form any part of the corpus of American jurisprudence.)
Alien and Sedition Acts were widely panned when they were passed, specifically because many people saw them as unconstitutional. What they proved is that people aren't particularly respectful of the same constitution they wrote, but little else.
I'm well aware that the Federalist Papers aren't law. The reason why I mentioned them is that they come from the party that was anti-Articles, pro-Constitution and pro-strong federal government. So reading them gives you an idea of what they meant by "strong federal government", and what they considered to be out of bounds.
Sadly most people, who lack a grounded understanding of Anglo-American legal tradition, revert to their native frame of reference where the law is just another tool of the local powers to inflict their will. It is only in the Anglo-American tradition that law is understood as a restraint on the power of the sovereign, rather than a tool of the sovereign. This is the primary philosophical distinction between the common law and the various civil codes.
I hate the notion that citizens don't have privileges, because otherwise citizenship is worthless. Obviously the natural rights of all persons ought to be respected.
What makes you say that the ability to vote is the most important privilege? For example, I'd happily give up my right to vote before my right to legal due process. I'd rather live in undemocratic Singapore than in somewhere with free elections but widespread corruption and poor rule of law like India, Turkey, or Mexico.
You keep confusing the terms. You say "privilege to vote" in one sentence and "right to vote" in another. Constitution sees due process as a right of "persons", and ability to vote as a "right of citizens".
Because your right to vote ultimately affects all those other rights. With enough people voting for such, protection for rights can be repealed, or even ignored outright.
Not really, since a lot of them are pretty unpopular. For example, things like "making it illegal to burn the flag" or "stopping Neo-Nazis from marching" poll very well in the US -- people would happily vote to get rid of freedom of speech if they could.
As for rule of law, there are examples of non-democracies with solidly developed rule of law, like present-day Singapore and Hong Kong, or Britain in the 19th century (and before).
How important is this privilege if I can maliciously control how you vote?
Now imagine the good we can do with real electoral reform (Democrats idea of repealing citizens United is a meager start, but weak lip service to real reform)
The founding fathers didn't think the government granted you rights. They thought you already had rights by virtue of being a human being and it was the government's job to protect and not infringe upon those rights.
Due Process mostly applies to persons, not just citizens.
In some cases the possessor of a right is not identified. E.g., the 1st, 2nd, and 3rd amendments do not specify whether they apply to all persons in U.S. jurisdictions or just citizens. These are the ones that are most likely to be unavailable to non-U.S. persons. E.g., non-U.S. persons are generally not permitted to keep and bear arms within the U.S.
Note also that corporations are 'people' but not 'citizens' and would likewise be disenfranchised from the protections provided by the bill of rights and the constitution when it came to state law.
edit: there seems to be some lawyering about the difference between the meaning of 'people' and 'persons' that I do not understand at this time.
Interesting. Did the SC (in an 1888 case) not say: "Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."
And does 1 USC not also say:
"In determining the meaning of any Act of Congress, unless the context indicates otherwise—
the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"
as well? I'm not sure how to align those statements with your comment. Perhaps it's a subject that only someone with a law degree can discern the meaningful difference between the claims?
All people are persons, but not all persons are people. I enjoy Stewart, Colbert and Oliver as much as the next person (vernacular usage, not legal), but they've done a lot of damage to the national discourse on this topic.
> All people are persons, but not all persons are people
People is a plural of person (persons is also a plural of persons); all persons are people just as all people are persons, the two terms are in this use synonyms (people also has a singular use.)
Not all people or persons are part of “the people” as that is used in some Constitutional provisions, but 14th Amendment due process rests on the definition of “person”, not “the people”, and in any case the Supreme Court has found that the distinguishing feature of “the people” is attachment to the national community, not natural (as opposed to artificial/juridical) personhood, so U.S. corporations are, Constitutionally, all of “persons”, “people”, and included within “the people”.
That's just not true. Corporations have been recognized as legal persons in the US for well over a century prior to Citizens United, in both judicial precedent and federal statutes.
I agree with what I assume you believe - that this ought not be the case, and corporations should be more restricted in their rights than natural persons. But simply claiming it to be so is willful ignorance.
The legal fiction of corporate personhood does not grant them all the rights of a natural person. For example, in SCC Acquisitions, Inc. v. Superior Court, the California Court of Appeal ruled that corporations did not have a constitutional right to privacy, despite the California constitution extending privacy rights to all people.
Corporations are "legal persons" in the sense that the same rules apply to them as to people in some areas where that makes sense.
This is mostly a practical matter, so instead of writing a duplicate set of laws for corporations and people, the legislators have said that "for these laws, just apply laws to corporations as you would to people".
Corporations are exactly didtinxt legal persons and that's the central point of incorporation.
> the Supreme Court has never found that they are
It has, in fact, found that they are legally persons and that is the whole point of corporations (though the first cases to do so use the term “individuality” for what a modern writer might term “personhood”.) Key early cases include Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819); Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet 21 U.S. 464 (1823); and Providence Bank v. Billings, 29 U.S. 514 (1830).
But, beyond these early cases using language that might be mistaken by a modern reader, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888), the court, in addressing the 14th amendment, found that “[u]nder the designation of ‘person’ there is no doubt that a private corporation is included.”
> the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
I believe current law is that people have the right to peaceably assemble only for the purpose of petitioning the government for a redress of grievances.
> A corporation, is, by definition, a group of people, yes.
No, it's not. It is, legally, a single person. It is not a group of people, though one or more other people (all or some of which may also be corporations, governments, or other legal persons that are not natural persons) have authority to direct it as laid out in its charter. But the corporation is not, and is clearly and legally distinct from, any and all those people, individually or in any combination.
> This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
That's the outcome, but I don't think that's the intent. The reason why Thomas wanted to go via the Privileges Clause rather than the Due Process Clause is because he represents a faction in jurisprudence that believes that the latter was historically inappropriately used in lieu of the Privileges or Immunities Clause in general.
If you dig into the history of that argument, it does kinda make sense - we have plain language in 14A speaking about states not allowed to deny rights to citizens, and we have historical record of the intent behind it. The reason why it's not used as intended is because in the infamous Slaughter-House Cases, SCOTUS essentially ruled it to be a nullity. Later, when the pendulum swung towards instead of reverting that decision and giving teeth to the Privileges or Immunities Clause, they made an elaborate construct of substantive due process from the Due Process Clause to allow for incorporation without a reversal.
The mainstream argument is that it's good enough, and that trying to revive the Privileges or Immunities Clause is simply not worth it - which is why it hasn't been referenced by SCOTUS in decisions for a long time. Nevertheless, there have always been judges that believe it to be wrong, and those judges would supply minority opinions referencing it. This generally correlates with textualism (and hence opposition to substantive due process, which is an inherently anti-textualist notion) - which is the case for Thomas as well - but is not limited to that crowd.
It seems to be a pattern where protections aren't extended until a state or some government gets silly and the courts just decide that it is absurd to not have the same protection at that level and extends it.
Yeah, that's an issue with how the US justice system works, and a natural tradeoff from the other properties it has. The legal system works off of precedent and cannot write law, so there's no binding opinion until and unless it comes up in a legal case. Also, you have to be harmed by a law in order to have standing to challenge it. So as long as people aren't getting harmed by the lack of an "obvious" legal conclusion, the courts will basically just let it sit there until someone comes and challenges it, whereupon the "yeah, that's absurd, we're going to give a unanimous Supreme Court decision on this" comes into effect.
Sometimes it gets into a weird dynamic where the lower court knows that the Supreme Court would overturn their decision, but there isn't precedent, so they deliberately make a ruling that they expect the Supreme Court to review (and overturn) on appeal.
Yeah, that's interesting. The Fourteenth Amendment clearly applies to states; less so to cities/towns. Seems like SCOTUS is coming solidly down on the "of course they meant any level of government, folks".
For anyone who wants to read/learn more - the concept here is called "incorporation" - as in, the specified right is "incorporated against the states"
The 14th amendment made this possible, but until the supreme court actually rules on a given right, there's no case law to compel states to treat the right that way.
Another relatively recent example of this is McDonald v Chicago that incorporated the 2nd amendment against the states.
To those that want to support the Institute for Justice, they are a 501(c)3 non-profit accepting donations [1].
It's my favorite charity, whose missions include protection of private property, economic liberty, and the first amendment; and their results speak for themselves.
You're right, but that article is somehow more narrowly scoped, which probably explains why this one got upvoted so quickly. Given that difference, maybe we'll keep this one.
This article has left me confused. Does this mean civil forfeiture is unconstitutional? Or just that it can only be used if it does not constitute an "excessive" fine?
The decision from the supreme court will change when police try to attach to money, it will no longer be a straightforward matter to do so, and is much more likely to be attached to a criminal case now - which means a lawyer would be involved.
There will be some cases where that's likely to be a slam-dunk. IIRC there were some cases in the western states some years back where relatively small amounts of drugs (personal-use levels) were used as reasons for seizure of some large farms or ranches.
In at least one of those cases I think it would have to be the estate pursuing it though.
The trial court ruled that seizing the Land Rover constituted an excessive fine under the 8th ammendment, so was not protected.
The state supreme court ruled that the US supreme court had never said that the 8th amendment applies to state governments.
The US supreme court just said "Ok, now it does"
Now state trial court judges can use the 8th amendment to deny civil forfeiture attempts. It also now serves as a basis to appeal civil forfeiture rulings.
While this seems like a positive ruling, all it does is extend the rules that cover the federal government to the states. Given the abuses of the federal governement, I don't see much hope for this ruling changing anything.
Hmm I wonder how this will affect the other civil forfeiture practice of charging the item itself with the crime (eg: "United States v. $124,700 in U.S. Currency" [0]) where the owner of the property is never actually charged with a crime. Maybe this will stop that because without a conviction any fine could be considered excessive?
The logic behind these cases has always baffled me. How do courts get around due process requirements of seizing claimed property like that?
1. Forfeiture under §§ 881(a)(4) and (a)(7) is a monetary punishment and, as such, is subject to the limitations of the Excessive Fines Clause. Pp. 2804-12.
(a) The determinative question is not, as the Government would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal. The Eighth Amendment's text is not expressly limited to criminal cases, and its history does not require such a limitation. Rather, the crucial question is whether the forfeiture is monetary punishment, with which the Excessive Fines Clause is particularly concerned. Because sanctions frequently serve more than one purpose, the fact that a forfeiture serves remedial goals will not exclude it from the Clause's purview, so long as it can only be explained as serving in part to punish. See United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487. Thus, consideration must be given to whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under § 881(a)(4) and (a)(7) should be so understood today. Pp. 2804-06.
(b) A review of English and American law before, at the time of, and following the ratification of the Eighth Amendment demonstrates that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment. See, e.g., Peisch v. Ware, 8 U.S. (4 Cranch) 347, 364, 2 L.Ed. 643. The same understanding runs through this Court's cases rejecting the "innocence" of the owner as a common-law defense to forfeiture. See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683, 686, 687, 94 S.Ct. 2080, 2091, 2093, 2094, 40 L.Ed.2d 452. Pp. 2806-10.
(c) Forfeitures under §§ 881(a)(4) and (a)(7) are properly consideed punishment today, since nothing in these provisions contradicts the historical understanding, since both sections clearly focus on the owner's culpability by expressly providing "innocent owner" defenses and by tying forfeiture directly to the commission of drug offenses, and since the legislative history confirms that Congress understood the provisions as serving to deter and to punish. Thus, even assuming that the sections serve some remedial purpose, it cannot be concluded that forfeiture under the sections serves only that purpose. Pp. 2810-12.
2. The Court declines to establish a test for determining whether a forfeiture is constitutionally "excessive," since prudence dictates that the lower courts be allowed to consider that question in the first instance. P. 2812.
So from the sound of that it seems like civil asset forfeiture without charges filed or judgments rendered against a person should be dead in the water legally right? Because under this ruling any forfeiture under §§ 881(a) would be considered a punishment and there's a right to due process before punishment correct?
Claimants Harold and Kathleen von Hofe appeal from a civil judgment ordering the forfeiture of their home, 32 Medley Lane. They contend the forfeiture violates the Excessive Fines Clause of the Eighth Amendment, which "limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense." Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (internal citation and quotation marks omitted). We affirm the forfeiture of Mr. von Hofe's interest in 32 Medley Lane, but not the forfeiture of Mrs. von Hofe's interest. Because the extent of the forfeiture bears no correlation either with Mrs. von Hofe's minimal culpability or any harm she purportedly caused, the Excessive Fines Clause precludes forfeiture of her entire one-half interest in 32 Medley Lane.
This case seems to still have charges filed against the people having their assets seized and if I understand Alford plea kind of plead guilty but not really (Alford plea seems to be 'fine I'll go to jail but I'm innocent).
On a related note this is one of the things that annoys me about trying to talk about legal things on the internet, often people just quote cases directly without saying anything about what it actually means! Then to try to understand what is trying to be said I have to spend 20 minutes looking up various legal jargon to try to piece together what's being said in the case. I understand that pretty much everything is built on case history in the legal world but just quoting cases is tough to parse.
This specific case was taken and argued by the Institute for Justice (https://ij.org), a civil liberties legal charity, that has a goal of addressing exactly this problem.
The original civil forfeiture practices were put in place at the height of "the war on drugs" in the 80's as I recall. The rationale was you had drug dealer types that were successfully evading prosecution on the tougher criminal standards of proof while also flaunting the wealth they obtained from their drug related businesses. So the idea was you could have a civil process with a lower standard of proof than the criminal ones with which could punish them.
Of course, as the old saying goes, "the path to hell is paved with good intentions." and you get cases like this or worse even.
I contribute to the Institute for Justice for just this reason.
The big push in my lifetime was the big push around drugs. My family was involved in politics in the early 80's (I was fairly young at the time). I recall a lot of "get tough" political talk around that time and some touting establishment/expansion of civil forfeiture for these purposes.
In truth, while understanding the history is important, I think that is ultimately secondary to what needs to be done with it now. It's a backdoor to punitive recourse that bypasses legitimate interests of criminality and due process. It's an abomination.
What's frustrating here is that so much of our government depends on actual case law.
This it's possible for massive injustice to happen for decades before we have a resolution.
This is one of the reasons technology can be so frightening because there's no case law and the rate of technology is exponential which means there is the potential for GREAT evil to happen without any resolution except to fight it out and get it in front of the Supreme course.
The alternative to case law is that ambiguities in the statute are interpreted differently each time. Being subject to the law, I would much rather live in a system designed to automatically reduce ambiguities over time, rather than to have to wait for the legislature to have the political will and resources to address them.
The USA is a common-law jurisdiction which means that convention and "how things were always done" have outsized significance when compared to civil-law jurisdictions like much of western Europe. Civil-law jurisdictions tend to rely more on statute, but they also have legislatures that can actually get things done, rather than cultivate this bogus adversarial relationship between the people and the government wherein the government is obstructed or hindered from getting all but the most critical and unanimously supported things done.
I agree that the structure of American democracy allows for the dysfunctional equilibrium that the US Congress presently finds themselves in, and I agree that some of that structure is in contrast to other contemporary classically liberal democracies.
But even a more functional and productive legislature does not have the same bandwidth to look at individual ambiguities, nor the mandate to do so, thats found in the federal appellate courts. Moreover, the reliance on case law does not remove the legislature's ability to adjust the statute when they believe that case law has got things wrong.
Please correct me if I'm missing something, but I see civil-law jurisdictions as having strictly fewer resources to clarify ambiguities in the law when compared to common-law jurisdictions. Although some civil-law jurisdictions happen to also have more productive and responsive legislative and regulatory bodies, as far as I can tell, that's unrelated to their use of civil-law.
All I'm saying is that the USA relies too heavily on case law, tradition, and precedent, allowing corrupt practice to become entrenched and resistant to extirpation far too easily -- not that these things should be eliminated.
It is not unrelated, because it means that the lawmakers have to be more careful and take their jobs as legislators and writers of policy seriously, instead of merely yelling for a living.
In civil law jurisdictions, the law is what the legislator says it is, no more, no less. What you write is what the law is, period. Judges can take each others advice and try to apply it consistently, but they can't go beyond or against what's written.
In common law jurisdictions, the law is ancient and practically unknowable. Your laws can be struck down for being out of whack with some older precedent, or it can be re-interpreted to be something better or worse than it is. It is common in common law jurisdictions for legislators to poop out something vague and inconsistent and then rely on the courts and the regulators to turn it into actual policy.
To my understanding, "common-law" technically refers to the body of precedent that the United States grandfathered in from English jurisprudence and prior colonial practice into the new United States government, as opposed to "precedence", which is the general principle by which prior rulings at the right scope are respected like statutes are. But that's just a semantic quibble.
But on the question of the weight that precedence carries: I'd be curious how you feel about federally enforce integration of schools as a result of Brown v. Board of Education, or abortion as a right thanks to Roe v. Wade, as two examples of seminal increases of rights resulting from the heavy role of precedence.
Personally I'm a bit of a hybrid in my own opinion. I'm partial to the sentiment that the legislature is the supreme branch of the Government, being the representatives of the people. So in principle, I'm opposed to drastically new doctrines arriving by way of court ruling, especially when they seem a little too "creative" and go outside the scope of interpreting existing law and statute into the territory of what "ought to be law". I prefer that such significant changes be a matter of federal statute, or when they're a matter of novel constitutional interpretation, that they originate in actual constitutional amendment. (Though even then in the case of federal statute, there are very real questions about how and when the federal Congress may override the states, and jurisprudence/precedence has been an important part of working out those questions).
But on the other hand, I am strong a believer that once a court with sufficient scope and jurisdiction has ruled, and a further appeals process is either at a dead end or would be too injurious for various reasons, then upholding the rule of law is of preeminent importance to the stability of society against the breakout of violence or factionalism. So, for example, in the case of Roe v. Wade, I feel the ruling was far too creative and far too tenuous in its actual references to the Constitution. Nevertheless, it is now the law of the land, and if I want the other protections the government provides and protects for me, I feel it would be hypocritical to flout that law just in the cases that I prefer. I actually feel that the outcome of Roe v. Wade was morally egregious; but I won't rebel against it or seek redress outside the established legal order unless I feel ready to morally take responsibility for the potential consequences of anarchy or of violence outside the civil order. Of course, not every question of civil disobedience is realistically divisive or pervasive enough that civil war is likely if I or others rebel. But civil war and anarchy can be the product of a thousand cuts, as it war, and if I had to oversimplify and take it to an extreme, I would say that I do not feel morally justified in flouting a nationally established law unless I feel sure that even the risk of widespread death and war might be warranted. Even with ongoing inequities and injustices (sometimes severe and chronic) in American Society, I still personally feel we generally (generally!) enjoy such a magnitude of protection, liberty, and privilege in this country, and I'm not sure that risking that is truly moral on the balance.
That's even more arbitrary, and won't solve the problem, as the next administration can reintroduce it. It's a temporary patch of the problem, and is technically also an abdication of the executive from their assigned role.
Correct, but refusal to enforce a law is one of the checks the executive has on the legislature. When this happens it's up to the judiciary to mediate.
That doesn't /seem/ right - executive can /veto/ a law before it is passed, but I don't believe they are given the ability to not enforce that law once it's been passed. That is effectively creating law, and is reaching into the legislative branch, still.
But that is the way it works, take the marijuana legalization state laws. Technically, its still against federal law, but the feds have basically agreed not to prosecute growers/distributors/users in those states.
It was actually a giant question when trump came into office whether he would start arresting people working/running the legal pot shops in Colorado/etc.
So, there are a lot of other cases, where statutes are simply not enforced, but haven't been removed due to lack of political will. Sodomy/etc laws are another area, where they remain on the books despite a number of supreme court rulings declaring various aspects unconstitutional. That means its quite possible depending on where you live frequently performed acts, not explicitly allowed by the supreme court are actually illegal.
Correct. There's a difference between what theoretically should be, and what we actually see happening, and what is enforced. The legislative branch seems happy to abdicate /its/ role to the administrative in the states when it finds it convenient to do so.
You've got a fair point. I don't know if there's a process for the executive to submit such a passed law to the judicial in the first place, before it takes effect.
Nobody said it solves the problem. The point is that it helps.
Also, "I am not going to use an unjust power that I have" is hardly an abdication of their role, it's just a choice made using the power of the office.
The problem is that it's /not/ a power they have, and ought to be shut down by the judicial ASAP. The only reason it's not is because it's not been prosecuted for prior administrations, and has become a pattern of laxity, allowing the legislative to claim to wash their hands of culpability when a law they stand for in public isn't acted on in private.
> This is one of the reasons technology can be so frightening because there's no case law and the rate of technology is exponential which means there is the potential for GREAT evil to happen without any resolution
Problems caused by tech often have tech solutions as well. I think it's a mistake to assume the justice system is the best place to address "evil". More evil and injustice is addressed by individuals, innovation and grass roots movements than the courts.
> What's frustrating here is that so much of our government depends on actual case law.
I'm not sure what's so frustrating about this in principle. It moderates a rush to judgment and lets people work out details, corner cases and flaws of laws.
There's nothing stopping legislatures changing statutes in response to court cases.
(This is not meant as a defense of civil forfeiture which I consider an abomination).
What situation? That she wrote the opinion? In the US Supreme Court the tradition is that there is only a single majority opinion written with a single named author.
Consider if you're looking at each piece of news with this "sketchy" filter in mind. Lots of things can look sketchy. But there are alternate explanations for lots of things. For whatever reason, we're better tuned for continuing a bias than we are for breaking it when we see the right amount of counter arguments.
Before you go too far down a rabbit hole, do a quick reality check. Major news sources are now reporting that she _appeared in court_ to deliver this. If this is a lie, it would take an absurd amount of coordination by the media, the other members of the supreme court, perhaps even members of the public in attendance. This should overrule any sense of sketchiness, however all the dots seemed to connect.
It is. She was in court Tuesday. Oral arguments are open to the public, and even if they weren't, the conservative judges would have to be in on the conspiracy too.
I pizzagate came up in a discussion with a friend of mine - both of us wondered how hard it would be to create a conspiracy theory from whole cloth, and get widespread belief in it - both of us were a little disconcerted that a mere individual would have that much power - but that is the issue with social media to an extent.
I guess my thinking is how does this affect the funding for Trump's wall. IIRC about $2.5billion was supposed to come from DoD drug seizures... this case seems highly relevant
My assumption would be that those seizures would have already had to pass the constitutional muster because they were federal cases. This is simply the SC stating that they interpret the constitution as being the law of the land, and that the states can't be more punitive than the feds. That money will still be there.
Best part is Gorsuch's half-page long concurring opinion which places Indiana in its place with a wonderful last sentence: "But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment. "
Thomas is not far behind with: " As a constitutionally enumerated right understood to be a privilege of American citizenship, the Eighth Amendment’s prohibition on excessive fines applies in full to the States. "
Even better: It's a unanimous decision. The Supreme Court is not even close to thinking that this was OK.
(Yes, Thomas agreed with the decision, though he wanted to state that he got there by a different route. That's not bad - it gives two distinct reasons why the ruling is correct, which is better than just one.)
>The court had, however, previously ruled that most protections under the Bill of Rights apply to the states
>...the Indiana Supreme Court ruled against Mr. Timbs, saying that the Eighth Amendment’s prohibition of excessive fines did not apply to ones imposed by states.
Does anyone know which rights people assume they have but don't because the protection only applies on the federal level?
The 3rd (quartering of soldiers) and 7th (jury trial for civil cases) Amendments have not been incorporated at all, as well as parts of the 5th (Grand Jury indictment) and 6th (jury from the location of the crime).
It's probably a good thing that the 6th isn't incorporated since in low profile cases the prosecution does the trial locally and in high profile cases they taint the jury pool by repeating their side of the story day after day in the media.
What I'd like to know is if private property that was seized in the past will be returned?
One of my friend's dad had a hip surgery and was bed bound for a few weeks. The family had to be at work so they hired a live in helper who was an older woman in her 60s.
This older woman's story was a tragic one to hear.
She had immigrated from Asia to US with her husband and family and had managed to buy a 3bed house. Well life happened and they ended up divorcing in her 60s, and she ended up as owner of the house.
With no income and no real skill, she rented out rooms in her house to pay bills. One renter was a drug dealer. When he was arrested, somehow the lady was dragged into the case and she ended up losing the house to the police, due to this seizure of private property. This was the first time I heard about such practices.
With no house and no other choices, she had to turn to working as a live-in-helper to avoid becoming homeless.
I hope all properties seized through such cases are returned.
The landlord is supposed to proceed with eviction if a crime occurs on their property. The police will even tell the landlord that if they don't evict, they will seize the house under "nuisance laws".
Which is insane, because the police shouldn't be putting people in harm's way by pushing them to piss off drug dealers who have the keys to their homes!
I'm not terribly concerned with this particular seizure from the drug dealer the case is about, but glad it sets a precedent for other cases where police may try and abuse power to pick on citizens.
One of the most important things about this rule is that the court found that the eighth amendment protections against excessive fines and punishments apply to state/city governments as well, meaning it's finally officially incorporated.
For anyone reading this, it's known as the doctrine of Incorporation [1]. Portions of the Bill of Rights are "incorporated" when it's determined they apply to the states (note: it can also be found the clauses don't apply to the states and this is known as Reverse Incorporation).
Based on one very quick reading of the case, my understanding is:
1. Defendant ("D") purchased a $42,000 Land Rover using funds from a life estate policy covering the life of his now-deceased father.
2. D sells $225 worth of heroin to undercover cops. Ends up paying ~$1200 in fines, one year on house arrest, 5 years probation
3. Max penalty in Indiana for his crimes is $10,000
4. Cops seize his Land Rover, arguing it was used in the performance of selling heroin.
5. He sues the State of Indiana, arguing that the seizure is an excessive fine.
6. Trial Court and Appellate Court rule in D's favor. Indiana Supreme Court reverses. D appeals to US Supreme Court.
7. Supreme Court rules that the 8th amendment protects against excessive fines, and that because the rule against excessive fines is part of our national history and tradition, the 14th Amendment makes that part of the 8th amendment apply to the states. Further, excessive fines can be used for silencing political enemies and income generation, rather than being a legitimate part of the process of "retribution and rehabilitation" that we want the justice system to provide. When a State's actions benefit the State, the Court will carefully scrutinize those actions.
8. State of Indiana tried to argue that while "excessive fines" are part of the 8th amendment, it does not apply specifically to civil in rem forfeitures (aka property seizure).
Supreme Court cites a case clarifying the way the analysis is done--only the broad category of "excessive fines" is reviewed, rather than picking out very specific instances of fines, like property seizure.
9. This was a unanimous decision. Technically it was 7-0 with 2 concurring opinions. The two concurrences were Gorsuch and Thomas, who both agreed with the outcome, but said that a different part of the 14th amendment (privileges and immunities) is what should be used, rather than what the other 7 relied on (the due process clause).
10. The case was remanded to Indiana Courts for rulings consistent with this opinion. The Supreme Court answered only whether excessive fines, barred to the US government by the 8th amendment, also applied to the States through the 14th amendment. It did not answer whether the seizure of the Land Rover was actually excessive. Indiana will (get a chance) to decide that.
Based on my reading, it appears that the avenue for property seizure is based upon fines defined by statute. To perform a civil asset seizure, a person must be convicted of a crime. If they are convicted of a crime, the seizure must not constitute an excessive fine. Is this how others interpreted the ruling?
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[ 4.1 ms ] story [ 329 ms ] threadWe have laws to punish illegal behavior, but it’s not right that all your property get snatched up too. The most egregious of these cases often involve no due process at all. People who are stopped and found to have large amounts of cash simply have it seized, even if they are never charged with a crime.
Recourse is often slow and expensive. It’s unlikely that this ruling will immediately change the rampant unconstitutional practices many police departments and towns rely on. But it is a step in the right direction. Hopefully, they will be taken to task in time.
laws.https://www.kqed.org/news/11706921/lawsuit-rohnert-park-hopl...
That was 4x the maximum penalty, and almost 20x the fine. How that was ever legal remains confusing to me.
The authorities sometimes break laws.
Do you really expect a random police officer to be a constitutional scholar? Dude should get his car back along with some damages to make up for the time/money he had to waste on this case but I don't think anyone should be going to jail over it.
If the only consequence for misuse of civil forfeiture is that a victim can sue to get their stuff back, nothing will change.
You expect that from citizens, as ignorance of the law is not a defense against not breaking it, but police officers are given a myriad of protections(QI), sometimes jokingly called "The Reasonably Stupid Cop Rule"[0]. I don't think police officers should be constitutional scholars, but immunity gives them an incentive to either not learn or just ignore the law.
[0] (https://blog.simplejustice.us/2016/11/30/the-unreasonable-ex...)
Glad this overreach was rectified but it took a good while to get corrected.
Interesting perspective there. Some people think that heroin dealers deserve to be fully hung, drawn and quartered, their head placed on a spike to be pecked at by the crows.
Others might think that 'it was just a bit of dope, why should he have to forfeit anything for that?'.
The car is potentially proceeds of crime it also enables the crime of dealing to be carried out. A reasonable case for him forfeiting it can definitely be made without that being the police preying off the 'victim'. In the UK any police action that leads to people losing stuff as it is deemed proceeds of crime goes to the crown, i.e. the queen, rather than to the local police department. In the USA you need something similar so that the police can't be accused of being on the take.
Then the state must prove that case rather than it being in implicit assumption.
The car was reliably documented as being purchased from his father's life insurance proceeds. There was no question of it being potentially purchased by illegal means.
Far more importantly, the entire question is irrelevant: we have standardized maximum fines and the burden of proof for very good reasons. Civil forfeiture skips both, making a mockery of the justice system for profit.
Those who believe current punishments for a given crime insufficient should seek to alter the law, whereas exorbitant forfeiture devalues the entire purpose - it serves neither as effective discouragement (being utterly arbitrary and unrelated to criminal magnitude) nor to rehabilitate (rather, the reverse, as departing inmates' tendencies to return will only be exacerbated by forfeiture-induced poverty).
This is why it was such a perfect case for the Supreme Court to rule upon. It was clear that the only justification the state could give for the confiscation was the single conviction.
Cheers to Timbs for being willing to take this all the way to get such an important ruling!
His hands also enabled the crime to be carried out, should they be chopped off?
en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States#Civil_versus_criminal_forfeiture
Is that about right?
EDIT: Also you should tell the New York Times. "Criminal forfeiture" does not appear in the article, though "civil forfeiture" does.
What you're saying makes sense, but I'm not seeing it reflected in any of these sources, so I'm doubtful now.
If it had been criminal forfeiture, they would have had to show the SUV was purchased using drug money proceeds. Instead, they pursued the civil forfeiture path because it has a lower standard of evidence (more likely than not rather that beyond a reasonable doubt). See page 1 of the opinion, which explicitly states the case is about civil forfeiture...https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf)
https://slate.com/news-and-politics/2019/02/clarence-thomas-...
Our rights are so unassailable that I need to repeatedly pay a non-negligible amount of money to the government bear arms and get the approval of my local police chief if I want said arms to be reasonably modern. /s
Some animals are more equal than others. Some rights are more unassailable than others. At least I can bitch about it on the internet and nobody's quartering troops in my home (edit: yet).
Just 10 years ago, it wasn't clear that you as an individual actually had that right, as it pertains to state restrictions - things have certainly improved.
Edit: I guess my original point I failed to make is that the courts have actually affirmed less rights than most people realize, but when they do (finally) do so, they tend to stick around.
Well-regulated militia. Not sure if you would qualify as a militia, but the regulation part seems to be working, right? :)
IANAL, but at first glance it seems that such cases would be unaffected by this ruling. No fine is being imposed that could be considered excessive under this ruling - the person is simply failing to claim their property.
The whole asset forfeiture without any charges being filed always seemed really sketchy because in the end you're still taking assets from a person (so long as they're claimed, eg maybe if they find a pile of money in an abandoned drug lab a seizure would be valid if no one comes forward saying it's theirs at which point they should charge the person with crimes and seize the money after trial).
IANAL, but I see 2 reasonings:
If seizing $40000 for <insert any crime/infraction, like going 5MPH over the speed limit, where max penalty is let's say $1000>, wouldn't it be excessive if it's seized for doing absolutely Nothing (suspicion of a crime: max penalty = 0 jail, $0 fine) ?
And more specific to your point: if maximum penalty for a crime only involves jail time and $0 of maximum fine, wouldn't any seizure of cash/property be excessive since it's far larger than $0?
I was going to comment that the real biggest legal problem with civil forfeiture is how it circumvents due process, but it sounds like that was the actual ruling given by the supreme court. I think the title of the article disagrees with the last paragraph. It was actually Justice Thomas who wanted to rule that it constituted excessive punishment, while the rest of the court ruled that it constituted a breach of due process.
Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.
Do you read anything into this? Is there a reason a justice would prefer to highlight the excessive fines provision over the due process protections?
"This may seem like a minor niggling point. It's not.
The Court's recognition of a right to abortion has been rooted in the Due Process Clause. Thomas & Gorsuch's concurrences document their opposition to grounding substantive rights in that corner of the 14th am."
https://twitter.com/stevenmazie/status/1098242972162768901
"Thomas and Gorsuch announce that they would incorporate Bill of Rights through the Privileges or Immunities Clause, not the Due Process Clause. This is a wonky distinction, but one with huge stakes for immigrants. Due Process Clause protects “persons.” P or I protects “citizens.” "
https://twitter.com/imillhiser/status/1098238933719240704
For example corporations don't have a right to free speech because they are "persons" but because we extend the rights of the individuals who make up the group to the group itself.
The constitutional basis for that is not secure.
It's not obvious that your right to free speech extends to secretly paying someone else to speak.
If I leave an iPod in a public park playing a speech, the authorities can remove or disable the iPod, not a violation of my speech rights.
From the ruling[1]:
The court did not address the Clause’s application to civil in rem forfeitures, nor did the State ask it to do so. Timbs thus sought this Court’s review only of the question whether the Excessive Fines Clause is incorporated by the Fourteenth Amendment.
[1] https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf
Others are only for citizens (and EU citizens, but via a strange legal method), but the most fundamental ones state "Everyone", not "every citizen".
Smart move. :-)
Not having basic protections for non-citizens would be rather worrying, but let's not act like the mere existence of a difference is worth freaking out about.
EDIT: To be clear, I'm not suggesting that Justice Thomas's concurrence not providing these protections to non-citizens would be a good thing. I'm just saying that 'non-citizens should have the same rights as citizens' isn't a position held by any country on the planet.
In my opinion, not having your property taken unfairly by the police is more of a basic right everyone should enjoy, rather than a special right afforded to citizens like voting.
That's fine, but affording no rights to non-citizens would be highly problematic. Some argue the Constitution doesn't protect the rights of illegal immigrants, for example, but it makes clear distinctions by using "persons" in some spots and "citizens" in others.
Persons have a right to due process. Citizens have a right to vote. The difference is very important.
Which is why we have the status quo: the vast majority of rights enjoyed my U.S. citizens and residents are enjoyed by aliens, with some discretion.
The average ruling in a single minor case today is longer than the entire Constitution.
"... The panel affirmed a conviction for possessing a firearm while being an alien unlawfully in the United States in violation of 18 U.S.C. § 922(g)(5)(A)."
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/08/15...
The notion that Constitutional protections cannot apply to non-citizens is simply not true, even when applied to non-citizens being held by the US off of US soil.
My point is that those are different outcomes, not the same; one protects me - a person in the US who is not a US citizen - and the other does not. The difference is also a furtherance of a generally authoritarian idea that non-US-citizens should have not equal protection under the law.
This reminds me a bit of the Roman concept of the pomerium. Anything outside of the arbitrary line deciding what was Rome and what wasn't, was "anything goes."
In the SCOTUS rulings on Guantanamo, SCOTUS went further and stated that they would have ruled the same way if it had been a CIA facility instead of a military facility, so long as Cuba had granted the CIA permission to exclusively use the land for its own purposes.
No, the argument was that foreign terrorists and other non-state enemy combatants were not "subject to the jurisdiction" of the US legal system (because they weren't on US soil when captured, and as non-state combatants that weren't covered by any treaties to which the US was a party) and thus also not afforded its protections. However, as a matter of international law, a country generally has legal jurisdiction over any person physically present in the country, whether present legally or otherwise, excepting specific diplomatic personnel (as defined by local law or treaty).
This was the reason for holding them indefinitely in an military facility located in another country. However, under US law, military facilities are considered US soil, and so persons being held in US military facilities are subject to the jurisdiction (and protection) of the US legal system.
I really hate that usage of the word.
I mean, your basic argument is that Thomas is just pointlessly making semantic disagreements with the majority that would have no effect on this or any other conceivable case because either basis for incorporation produces exactly the same result not only on the present case but all possible cases. While I have a low opinion of Thomas, it's not quite that low.
The 14th amendment was ratified in 1868. The total population of the US in 1870 was around 38 million. The total number of immigrants was around 2 million. The slave population was around 5 million.
The implications of the 14th amendment are clear today and they may even have been clear then. Nevertheless the most pressing, most politically salient issue was the newly freed slaves. In one day (the day after ratification) the United stares gained 5 million new citizens.
I would not be surprised at all if the people involved at what time were a tad bit myopic, with respect to the problem at hand.
EDIT: In fact in 1860, the us census measured 4.1 million people not born in the United States. Is your claim honestly that while the census actively measured this, not a single person realized what birthright citizenship would mean for the children of those 4.1 million non-natives?
Cannot they already do this to some limited extent (and perhaps are even required to do so)? For example, laws concerning voting.
It's the same outcome in this case, but it is rather different in the broader effect; not all people subject to punishment by states are citizens of the US.
"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."
0. https://www.wsj.com/articles/supreme-court-rules-against-exc...
The Institute For Justice (who argued this case, somewhat coincidentally) has a podcast about the 14th Amendment called Bound By Oath. They talk in depth about the Slaughter-House Cases and The Privileges or Immunities Clause in the third episode if anyone is interested in learning more.
Here's a twitter thread about it: https://twitter.com/MDAppeal/status/1098244852721115136
Tl;dr It means that the incorporation only applies to CITIZENS, not persons. So citizens united wouldn't apply to the states, but neither would the bill of rights to non-naturalized immigrants with regards to the states.
Thomas disagrees with this fairly conventional incorporation argument and the idea of the protection as a fundamental right, but feels instead that a protection against excessive fines is part of the “privileges and immunities of citizens of the United States”. This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
All of the justices view it as excessive punishment, Thomas just thinks only US citizens are protected by the federal Constitution against excessive punishment by state governments, whereas the majority thinks states are Constitutionally prohibited from inflicting excessive punishment on people.
Would you have more reading on this? It's something I've wondered about but never really come across a comprehensive answer to. What rights do noncitizens not have that citizens do?
The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.
AFAICT, the Federal courts have not generally adopted this view (though it is popular in some circles, particularly the US Department of Justice); ruling less specifically that the term “the people” instead “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
From Wikipedia, some other examples are the right to be considered for federal employment (most Federal Government jobs being closed to non-citizens), access to US consular officials if arrested abroad, and exemption from certain real estate taxes[1].
[1]: https://en.wikipedia.org/wiki/Foreign_Investment_in_Real_Pro...
The only rights that permanent residents don't have are: a) the right to vote, b) the right to have their permanent residency not revoked for cause (e.g., committing a serious crime). Permanent residents get to become citizens after some time.
Non-permanent residents have fewer rights, and which rights they don't have is generally a matter of law, not Constitution, except that they have all the rights of Due Process guaranteed by the Constitution (i.e., by far the most important ones for them to have), at least as to criminal prosecutions, and often as to civil suits. A typical example would be the right to keep and bear arms, which non-residents generally do not have in most States. I suppose even First Amendment rights might be curtailed for non-residents, though I suspect at most only freedom of association would be, and only indirectly.
But most of the Bill of Rights (the 4th through the 8th Amendments) deals in Due Process, and these rights are available to all persons in the U.S., except perhaps as to immigrant law itself (e.g., a non-resident alien may have much less recourse to fight deportation than they and anyone else might have to fight a conviction).
Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.
It uses at least three different terms, citizens, persons, and “the people” (and the last is the most common where it concerns rights). The precise boundaries of the latter is fairly hotly contested, and the Courts to date haven't given precise guidance (it is clearly broader than citizens and narrower than persons, but the exact boundary is murky; the US DoJ has often advocated for a definition of citizens and some subset of lawfully admitted aliens, possibly only LPRs, but others have taken other positions.)
This is because the Constitution is supposed to be an enumeration of what the government is allowed to do. The limitations are there to narrow the scope of those enumerated powers. In this context, enumerating most rights of citizens would have been redundant. The enumerated citizen rights were those that could be affected by the powers the government was granted.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
I mean, that's true, but it's also true that it's extremely difficult to get 50 states to jump forward at the same time, particularly when corporations comparatively have no hurdles at all over the same geographic region. Getting 50 of anything to do something at the same time is nearly impossible. If we want to do something about many significant, widespread problems, we need the power of a centralized Federal government. As the saying goes, the Constitution is not a suicide pact.
Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
No, I don't think that adding more representatives would help the problem, but our political system, invented in the 18th century, is nearly overwhelmed by the sheer volume of people in this nation.
[0]: https://en.wikipedia.org/wiki/United_States_congressional_ap...
Why couldn't a similar system work well in the US?
[0]: https://en.wikipedia.org/wiki/European_Union#/media/File:Org...
For instance, making drugs illegal (accounts for most federal prisoners) and running social welfare programs (accounts for most federal spending).
If something really is an important power the federal government must have (maybe some kinds of environmental regulation powers?), then make an amendment that clearly scopes the boundaries of that new power.
To what extent do we actually need to have all states do exactly the same? It's a common argument, but there are many independent sovereign states out there that are smaller than many of US states, and they're doing fine solving their national problems despite their size. Sometimes - quite often - that happens with cooperation with other states, but such cooperation does not require an overarching government entity.
Sure, that means that US would not be a state in a sense that, say, France is a state, with a strong national identity and uniform politics. But does it have to be? I would argue that there is no truly democratic way to rule 300 million people from a single center, and decentralization is key to real democracy. Conversely, I don't see why my ideas and values have to be pushed on someone in the opposite corner of the country, but not, say, across the border into Canada.
> As the saying goes, the Constitution is not a suicide pact.
Whose saying? Last time I remember hearing that everywhere, it was to justify stuff like the PATRIOT Act and other post-9/11 abuses.
> Our Constitution wasn't written with the management of 50 states and citizens numbering nearly 350 million in mind. Our founding fathers expected that there would have been multiple constitutional conventions by this time. It's easy to see the dilution of individual voices[0]. Our founding fathers though that one representative for every 40,000 individuals was inadequate, and changed it to be closer to one for every 30,000. Today, it's one for every 700,000 on average.
The even bigger difference is that those representatives then go and vote on far more issues than they did when the system was originally devised, which increases the dilution of individual voices, by bringing more important issues to the level where their vote is at it most diluted - as opposed to state level. Of course it's going to be overwhelmed.
Part of the reason the issue has gotten out of hand is the relative weakness of states to enforce the cost of negative externalities on business. As soon as one state passes regulations, it’s too easy for many companies to pack up and leave for ‘greener’ pastures where the politicians would rather tout economic improvement at the expense of those negative externalities. As a result, problems like this often end up hoisted to the next level of government to solve issues in a more equal manner.
Just look at the ways cities were tripping over themselves to look attractive to Amazon for HQ2 to see this phenomenon in action.
OTOH, if that is the key problem, then why not make feds an arbiter specifically for such externalities? i.e. they'd be the ones establishing whether something negative is actually happening, measuring the impact, and imposing some remedy (either cease and desist or compensation, depending on which one is appropriate).
If we're talking about AGW, say, and carbon tax, then let's have the feds tax the states proportionally to their total carbon output. The states can then pass those carbon taxes onto their residents in various ways - and how exactly they are allocated is then a matter of state policy - but it has to add up.
The great thing with this system is that it's extremely difficult to get 50 states to jump backwards at the same time.
Some places will always remain sane, even in the darkest hours. That is the greatness of a decentralized system!!
This is simply not true. The Founders lived through the Articles of Confederation, in which the founding document explicitly enumerated the only powers the government would have. The Constitution was an explicit rejection of that philosophy, and was intended to create a government with broad powers. The point of the Bill of Rights was to place limits on those broad powers.
Unfortunately, Commerce Clause abuse and the effective neutralization of the 10th Amendment has created the opposite situation where the government can do anything it wants as long as it isn't specifically prohibited, and citizens are only guaranteed rights if they are specified.
This is also not true. A great many of the Founders considered the 10th Amendment to be meaningless fluff added only to mollify the slave-owners who wanted restrictions on the Federal government's ability to curtail their ownership of slaves.
The multiple attempts by former CC members to pass anti-slavery legislation in Congress in the many decades leading up to the Civil War.
There are a number of other examples, well covered by a number of primary and secondary sources.
And all of those broad powers they wanted the government to have, were explicitly written into the text of the Constitution. Sometimes it was deliberately vague, like the Commerce Clause (although if you showed our modern jurisprudence on that to people who wrote it, they would be horrified). And in the Federalist Papers, there are several instances where some bit in the Constitution is explained as, "yes, this is rather broad, but the government needs it for real world reasons". But it is always enumerated.
It's pretty clear from the laws the First and Second Congress passed that they had an even broader definition of "broad powers" than we do today. (And by the way, the Federal Papers have no legal authority in US law. They're interesting from a historical perspective because they documents an attempt by one politician to sway the opinion of the general public, but they don't form any part of the corpus of American jurisprudence.)
I'm well aware that the Federalist Papers aren't law. The reason why I mentioned them is that they come from the party that was anti-Articles, pro-Constitution and pro-strong federal government. So reading them gives you an idea of what they meant by "strong federal government", and what they considered to be out of bounds.
As for rule of law, there are examples of non-democracies with solidly developed rule of law, like present-day Singapore and Hong Kong, or Britain in the 19th century (and before).
Now imagine the good we can do with real electoral reform (Democrats idea of repealing citizens United is a meager start, but weak lip service to real reform)
What we have now - First Past The Post Voting - https://www.youtube.com/watch?v=s7tWHJfhiyo
Range Voting - https://www.youtube.com/watch?v=e3GFG0sXIig
Single Transferable Vote - https://www.youtube.com/watch?v=l8XOZJkozfI
Alternative Vote - https://www.youtube.com/watch?v=3Y3jE3B8HsE
Mixed-Member Proportional Representation - https://www.youtube.com/watch?v=QT0I-sdoSXU
Electoral reform is just step 1, something we can all come together for. Something no one could possibly be against.
How about if I control who can be voted for?
Of course it matters - https://m.youtube.com/watch?v=Erph1L_XwVQ
bonus video:
This video will make you angry -https://m.youtube.com/watch?v=rE3j_RHkqJc
Would that be such a bad thing?
In some cases the possessor of a right is not identified. E.g., the 1st, 2nd, and 3rd amendments do not specify whether they apply to all persons in U.S. jurisdictions or just citizens. These are the ones that are most likely to be unavailable to non-U.S. persons. E.g., non-U.S. persons are generally not permitted to keep and bear arms within the U.S.
edit: there seems to be some lawyering about the difference between the meaning of 'people' and 'persons' that I do not understand at this time.
And does 1 USC not also say:
"In determining the meaning of any Act of Congress, unless the context indicates otherwise—
the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"
as well? I'm not sure how to align those statements with your comment. Perhaps it's a subject that only someone with a law degree can discern the meaningful difference between the claims?
https://en.wikipedia.org/wiki/Corporate_personhood
All people are persons, but not all persons are people. I enjoy Stewart, Colbert and Oliver as much as the next person (vernacular usage, not legal), but they've done a lot of damage to the national discourse on this topic.
People is a plural of person (persons is also a plural of persons); all persons are people just as all people are persons, the two terms are in this use synonyms (people also has a singular use.)
Not all people or persons are part of “the people” as that is used in some Constitutional provisions, but 14th Amendment due process rests on the definition of “person”, not “the people”, and in any case the Supreme Court has found that the distinguishing feature of “the people” is attachment to the national community, not natural (as opposed to artificial/juridical) personhood, so U.S. corporations are, Constitutionally, all of “persons”, “people”, and included within “the people”.
I agree with what I assume you believe - that this ought not be the case, and corporations should be more restricted in their rights than natural persons. But simply claiming it to be so is willful ignorance.
https://www.natlawreview.com/article/court-holds-corporation...
This is mostly a practical matter, so instead of writing a duplicate set of laws for corporations and people, the legislators have said that "for these laws, just apply laws to corporations as you would to people".
...or that's how I've had it explained to me.
Corporations are exactly didtinxt legal persons and that's the central point of incorporation.
> the Supreme Court has never found that they are
It has, in fact, found that they are legally persons and that is the whole point of corporations (though the first cases to do so use the term “individuality” for what a modern writer might term “personhood”.) Key early cases include Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819); Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet 21 U.S. 464 (1823); and Providence Bank v. Billings, 29 U.S. 514 (1830).
But, beyond these early cases using language that might be mistaken by a modern reader, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181 (1888), the court, in addressing the 14th amendment, found that “[u]nder the designation of ‘person’ there is no doubt that a private corporation is included.”
I believe current law is that people have the right to peaceably assemble only for the purpose of petitioning the government for a redress of grievances.
It sounds wrong, but there it is.
A corporation, is, by definition, a group of people, yes. And those people who make up the group have rights that are protected by the constitution.
Or in other words, a corporation is the plural form of the word 'person', in many situations.
No, it's not. It is, legally, a single person. It is not a group of people, though one or more other people (all or some of which may also be corporations, governments, or other legal persons that are not natural persons) have authority to direct it as laid out in its charter. But the corporation is not, and is clearly and legally distinct from, any and all those people, individually or in any combination.
Therefore any time you a preventing an entity with a mouth from speaking, you are by definition preventing a person from speaking.
That's the outcome, but I don't think that's the intent. The reason why Thomas wanted to go via the Privileges Clause rather than the Due Process Clause is because he represents a faction in jurisprudence that believes that the latter was historically inappropriately used in lieu of the Privileges or Immunities Clause in general.
If you dig into the history of that argument, it does kinda make sense - we have plain language in 14A speaking about states not allowed to deny rights to citizens, and we have historical record of the intent behind it. The reason why it's not used as intended is because in the infamous Slaughter-House Cases, SCOTUS essentially ruled it to be a nullity. Later, when the pendulum swung towards instead of reverting that decision and giving teeth to the Privileges or Immunities Clause, they made an elaborate construct of substantive due process from the Due Process Clause to allow for incorporation without a reversal.
The mainstream argument is that it's good enough, and that trying to revive the Privileges or Immunities Clause is simply not worth it - which is why it hasn't been referenced by SCOTUS in decisions for a long time. Nevertheless, there have always been judges that believe it to be wrong, and those judges would supply minority opinions referencing it. This generally correlates with textualism (and hence opposition to substantive due process, which is an inherently anti-textualist notion) - which is the case for Thomas as well - but is not limited to that crowd.
So resident aliens are not protected?
Here is the ruling in full if anyone is interested.
Wow, this is pretty big. They just extended constitutional protection of this clause to lower levels of government.
Sometimes it gets into a weird dynamic where the lower court knows that the Supreme Court would overturn their decision, but there isn't precedent, so they deliberately make a ruling that they expect the Supreme Court to review (and overturn) on appeal.
The 14th amendment made this possible, but until the supreme court actually rules on a given right, there's no case law to compel states to treat the right that way.
Another relatively recent example of this is McDonald v Chicago that incorporated the 2nd amendment against the states.
It's my favorite charity, whose missions include protection of private property, economic liberty, and the first amendment; and their results speak for themselves.
[1] https://ij.org/about-us
In at least one of those cases I think it would have to be the estate pursuing it though.
The trial court ruled that seizing the Land Rover constituted an excessive fine under the 8th ammendment, so was not protected.
The state supreme court ruled that the US supreme court had never said that the 8th amendment applies to state governments.
The US supreme court just said "Ok, now it does"
Now state trial court judges can use the 8th amendment to deny civil forfeiture attempts. It also now serves as a basis to appeal civil forfeiture rulings.
While this seems like a positive ruling, all it does is extend the rules that cover the federal government to the states. Given the abuses of the federal governement, I don't see much hope for this ruling changing anything.
—edited, correct case:
https://apps.oyez.org/player/#/roberts10/oral_argument_audio...
The logic behind these cases has always baffled me. How do courts get around due process requirements of seizing claimed property like that?
[0] https://en.wikipedia.org/wiki/United_States_v._$124,700_in_U...
https://www.law.cornell.edu/supremecourt/text/509/602
1. Forfeiture under §§ 881(a)(4) and (a)(7) is a monetary punishment and, as such, is subject to the limitations of the Excessive Fines Clause. Pp. 2804-12.
(a) The determinative question is not, as the Government would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal. The Eighth Amendment's text is not expressly limited to criminal cases, and its history does not require such a limitation. Rather, the crucial question is whether the forfeiture is monetary punishment, with which the Excessive Fines Clause is particularly concerned. Because sanctions frequently serve more than one purpose, the fact that a forfeiture serves remedial goals will not exclude it from the Clause's purview, so long as it can only be explained as serving in part to punish. See United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487. Thus, consideration must be given to whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under § 881(a)(4) and (a)(7) should be so understood today. Pp. 2804-06.
(b) A review of English and American law before, at the time of, and following the ratification of the Eighth Amendment demonstrates that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment. See, e.g., Peisch v. Ware, 8 U.S. (4 Cranch) 347, 364, 2 L.Ed. 643. The same understanding runs through this Court's cases rejecting the "innocence" of the owner as a common-law defense to forfeiture. See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683, 686, 687, 94 S.Ct. 2080, 2091, 2093, 2094, 40 L.Ed.2d 452. Pp. 2806-10.
(c) Forfeitures under §§ 881(a)(4) and (a)(7) are properly consideed punishment today, since nothing in these provisions contradicts the historical understanding, since both sections clearly focus on the owner's culpability by expressly providing "innocent owner" defenses and by tying forfeiture directly to the commission of drug offenses, and since the legislative history confirms that Congress understood the provisions as serving to deter and to punish. Thus, even assuming that the sections serve some remedial purpose, it cannot be concluded that forfeiture under the sections serves only that purpose. Pp. 2810-12.
2. The Court declines to establish a test for determining whether a forfeiture is constitutionally "excessive," since prudence dictates that the lower courts be allowed to consider that question in the first instance. P. 2812.
:-)
Claimants Harold and Kathleen von Hofe appeal from a civil judgment ordering the forfeiture of their home, 32 Medley Lane. They contend the forfeiture violates the Excessive Fines Clause of the Eighth Amendment, which "limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense." Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (internal citation and quotation marks omitted). We affirm the forfeiture of Mr. von Hofe's interest in 32 Medley Lane, but not the forfeiture of Mrs. von Hofe's interest. Because the extent of the forfeiture bears no correlation either with Mrs. von Hofe's minimal culpability or any harm she purportedly caused, the Excessive Fines Clause precludes forfeiture of her entire one-half interest in 32 Medley Lane.
On a related note this is one of the things that annoys me about trying to talk about legal things on the internet, often people just quote cases directly without saying anything about what it actually means! Then to try to understand what is trying to be said I have to spend 20 minutes looking up various legal jargon to try to piece together what's being said in the case. I understand that pretty much everything is built on case history in the legal world but just quoting cases is tough to parse.
The original civil forfeiture practices were put in place at the height of "the war on drugs" in the 80's as I recall. The rationale was you had drug dealer types that were successfully evading prosecution on the tougher criminal standards of proof while also flaunting the wealth they obtained from their drug related businesses. So the idea was you could have a civil process with a lower standard of proof than the criminal ones with which could punish them.
Of course, as the old saying goes, "the path to hell is paved with good intentions." and you get cases like this or worse even.
I contribute to the Institute for Justice for just this reason.
No, they were in admiralty/customs law and predate the US, but came along with the body of law the US kept at it's founding.
There was some new activity around Prohibition.
Then big activity starting in 1970 around the drug war.
(That's for federal civil forfeiture, while state level civil forfeiture has the same pre-US history, the later evolution varies by state.)
The big push in my lifetime was the big push around drugs. My family was involved in politics in the early 80's (I was fairly young at the time). I recall a lot of "get tough" political talk around that time and some touting establishment/expansion of civil forfeiture for these purposes.
In truth, while understanding the history is important, I think that is ultimately secondary to what needs to be done with it now. It's a backdoor to punitive recourse that bypasses legitimate interests of criminality and due process. It's an abomination.
Sadly they haven't updated with the decision yet.
This it's possible for massive injustice to happen for decades before we have a resolution.
This is one of the reasons technology can be so frightening because there's no case law and the rate of technology is exponential which means there is the potential for GREAT evil to happen without any resolution except to fight it out and get it in front of the Supreme course.
But even a more functional and productive legislature does not have the same bandwidth to look at individual ambiguities, nor the mandate to do so, thats found in the federal appellate courts. Moreover, the reliance on case law does not remove the legislature's ability to adjust the statute when they believe that case law has got things wrong.
Please correct me if I'm missing something, but I see civil-law jurisdictions as having strictly fewer resources to clarify ambiguities in the law when compared to common-law jurisdictions. Although some civil-law jurisdictions happen to also have more productive and responsive legislative and regulatory bodies, as far as I can tell, that's unrelated to their use of civil-law.
In civil law jurisdictions, the law is what the legislator says it is, no more, no less. What you write is what the law is, period. Judges can take each others advice and try to apply it consistently, but they can't go beyond or against what's written.
In common law jurisdictions, the law is ancient and practically unknowable. Your laws can be struck down for being out of whack with some older precedent, or it can be re-interpreted to be something better or worse than it is. It is common in common law jurisdictions for legislators to poop out something vague and inconsistent and then rely on the courts and the regulators to turn it into actual policy.
But on the question of the weight that precedence carries: I'd be curious how you feel about federally enforce integration of schools as a result of Brown v. Board of Education, or abortion as a right thanks to Roe v. Wade, as two examples of seminal increases of rights resulting from the heavy role of precedence.
Personally I'm a bit of a hybrid in my own opinion. I'm partial to the sentiment that the legislature is the supreme branch of the Government, being the representatives of the people. So in principle, I'm opposed to drastically new doctrines arriving by way of court ruling, especially when they seem a little too "creative" and go outside the scope of interpreting existing law and statute into the territory of what "ought to be law". I prefer that such significant changes be a matter of federal statute, or when they're a matter of novel constitutional interpretation, that they originate in actual constitutional amendment. (Though even then in the case of federal statute, there are very real questions about how and when the federal Congress may override the states, and jurisprudence/precedence has been an important part of working out those questions).
But on the other hand, I am strong a believer that once a court with sufficient scope and jurisdiction has ruled, and a further appeals process is either at a dead end or would be too injurious for various reasons, then upholding the rule of law is of preeminent importance to the stability of society against the breakout of violence or factionalism. So, for example, in the case of Roe v. Wade, I feel the ruling was far too creative and far too tenuous in its actual references to the Constitution. Nevertheless, it is now the law of the land, and if I want the other protections the government provides and protects for me, I feel it would be hypocritical to flout that law just in the cases that I prefer. I actually feel that the outcome of Roe v. Wade was morally egregious; but I won't rebel against it or seek redress outside the established legal order unless I feel ready to morally take responsibility for the potential consequences of anarchy or of violence outside the civil order. Of course, not every question of civil disobedience is realistically divisive or pervasive enough that civil war is likely if I or others rebel. But civil war and anarchy can be the product of a thousand cuts, as it war, and if I had to oversimplify and take it to an extreme, I would say that I do not feel morally justified in flouting a nationally established law unless I feel sure that even the risk of widespread death and war might be warranted. Even with ongoing inequities and injustices (sometimes severe and chronic) in American Society, I still personally feel we generally (generally!) enjoy such a magnitude of protection, liberty, and privilege in this country, and I'm not sure that risking that is truly moral on the balance.
What is scary is that that's not the platform people run on, or win elections by running on.
It was actually a giant question when trump came into office whether he would start arresting people working/running the legal pot shops in Colorado/etc.
So, there are a lot of other cases, where statutes are simply not enforced, but haven't been removed due to lack of political will. Sodomy/etc laws are another area, where they remain on the books despite a number of supreme court rulings declaring various aspects unconstitutional. That means its quite possible depending on where you live frequently performed acts, not explicitly allowed by the supreme court are actually illegal.
Random google hit about "fornication"
https://www.nbcnews.com/news/crime-courts/virginia-bill-decr...
The modern conception of the veto as a political power rather than as one of constitutional defense was invented by Andrew Jackson.
Also, "I am not going to use an unjust power that I have" is hardly an abdication of their role, it's just a choice made using the power of the office.
Until the next DA comes in... Being seen as "tough on crime" is what gets the votes, sadly.
Problems caused by tech often have tech solutions as well. I think it's a mistake to assume the justice system is the best place to address "evil". More evil and injustice is addressed by individuals, innovation and grass roots movements than the courts.
I'm not sure what's so frustrating about this in principle. It moderates a rush to judgment and lets people work out details, corner cases and flaws of laws.
There's nothing stopping legislatures changing statutes in response to court cases.
(This is not meant as a defense of civil forfeiture which I consider an abomination).
I'll just sit back and watch, there have been whispers in DC about this for several weeks. Could all just be noise
Before you go too far down a rabbit hole, do a quick reality check. Major news sources are now reporting that she _appeared in court_ to deliver this. If this is a lie, it would take an absurd amount of coordination by the media, the other members of the supreme court, perhaps even members of the public in attendance. This should overrule any sense of sketchiness, however all the dots seemed to connect.
It is. She was in court Tuesday. Oral arguments are open to the public, and even if they weren't, the conservative judges would have to be in on the conspiracy too.
https://www.foxnews.com/politics/ginsburg-returns-to-supreme...
You should consider ditching the news sources that treated this as at all credible.
I pizzagate came up in a discussion with a friend of mine - both of us wondered how hard it would be to create a conspiracy theory from whole cloth, and get widespread belief in it - both of us were a little disconcerted that a mere individual would have that much power - but that is the issue with social media to an extent.
My assumption would be that those seizures would have already had to pass the constitutional muster because they were federal cases. This is simply the SC stating that they interpret the constitution as being the law of the land, and that the states can't be more punitive than the feds. That money will still be there.
Thomas is not far behind with: " As a constitutionally enumerated right understood to be a privilege of American citizenship, the Eighth Amendment’s prohibition on excessive fines applies in full to the States. "
Even better: It's a unanimous decision. The Supreme Court is not even close to thinking that this was OK.
(Yes, Thomas agreed with the decision, though he wanted to state that he got there by a different route. That's not bad - it gives two distinct reasons why the ruling is correct, which is better than just one.)
>...the Indiana Supreme Court ruled against Mr. Timbs, saying that the Eighth Amendment’s prohibition of excessive fines did not apply to ones imposed by states.
Does anyone know which rights people assume they have but don't because the protection only applies on the federal level?
https://www.law.cornell.edu/wex/incorporation_doctrine
https://en.wikipedia.org/wiki/Engblom_v._Carey
One of my friend's dad had a hip surgery and was bed bound for a few weeks. The family had to be at work so they hired a live in helper who was an older woman in her 60s.
This older woman's story was a tragic one to hear.
She had immigrated from Asia to US with her husband and family and had managed to buy a 3bed house. Well life happened and they ended up divorcing in her 60s, and she ended up as owner of the house.
With no income and no real skill, she rented out rooms in her house to pay bills. One renter was a drug dealer. When he was arrested, somehow the lady was dragged into the case and she ended up losing the house to the police, due to this seizure of private property. This was the first time I heard about such practices.
With no house and no other choices, she had to turn to working as a live-in-helper to avoid becoming homeless.
I hope all properties seized through such cases are returned.
[1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
Based on one very quick reading of the case, my understanding is:
1. Defendant ("D") purchased a $42,000 Land Rover using funds from a life estate policy covering the life of his now-deceased father.
2. D sells $225 worth of heroin to undercover cops. Ends up paying ~$1200 in fines, one year on house arrest, 5 years probation
3. Max penalty in Indiana for his crimes is $10,000
4. Cops seize his Land Rover, arguing it was used in the performance of selling heroin.
5. He sues the State of Indiana, arguing that the seizure is an excessive fine.
6. Trial Court and Appellate Court rule in D's favor. Indiana Supreme Court reverses. D appeals to US Supreme Court.
7. Supreme Court rules that the 8th amendment protects against excessive fines, and that because the rule against excessive fines is part of our national history and tradition, the 14th Amendment makes that part of the 8th amendment apply to the states. Further, excessive fines can be used for silencing political enemies and income generation, rather than being a legitimate part of the process of "retribution and rehabilitation" that we want the justice system to provide. When a State's actions benefit the State, the Court will carefully scrutinize those actions.
8. State of Indiana tried to argue that while "excessive fines" are part of the 8th amendment, it does not apply specifically to civil in rem forfeitures (aka property seizure).
Supreme Court cites a case clarifying the way the analysis is done--only the broad category of "excessive fines" is reviewed, rather than picking out very specific instances of fines, like property seizure.
9. This was a unanimous decision. Technically it was 7-0 with 2 concurring opinions. The two concurrences were Gorsuch and Thomas, who both agreed with the outcome, but said that a different part of the 14th amendment (privileges and immunities) is what should be used, rather than what the other 7 relied on (the due process clause).
10. The case was remanded to Indiana Courts for rulings consistent with this opinion. The Supreme Court answered only whether excessive fines, barred to the US government by the 8th amendment, also applied to the States through the 14th amendment. It did not answer whether the seizure of the Land Rover was actually excessive. Indiana will (get a chance) to decide that.
Based on my reading, it appears that the avenue for property seizure is based upon fines defined by statute. To perform a civil asset seizure, a person must be convicted of a crime. If they are convicted of a crime, the seizure must not constitute an excessive fine. Is this how others interpreted the ruling?
This is very unclear to me. I can see how that could be read into the decisions, but I don't think that's what they are actually saying.
This case did not involve "civil forfeiture" but "criminal forfeiture" since the property was being seized as part of a criminal conviction:
https://www.justice.gov/afp/types-federal-forfeiture