[esics6A]

Civil forfeiture is a direct and obvious violation of the US Constitution and shouldn't even exist under the USA legal system and is dangerous to the US legal system:

"Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Police under the US Constitution have to go before a judge and court and make an Oath under perjury of law describing the items to be seized. There has to be a justification and supported by affirmation meaning evidence and supporting facts. In the case of the building that was seized it was operating a perfectly legal business under state law. It had the necessary licenses and permits. There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.

[arcticbull]

The workaround under which civil asset forfeiture operates is that they're not charging the property owner - or the property holder - with anything. They're bringing a civil case against the property itself (jurisdiction in rem). The property itself is the defendant. [1, 2]

Which leads to some pretty hilarious case titles:

"United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls"

[edit] "South Dakota v. Fifteen Impounded Cats"

[edit] "United States v. One Solid Gold Object in Form of a Rooster"

In my opinion this tactic should be illegal.

[edit] As far as I know this only really exists in the US, and in Canadian admiralty law (so, only in the US).

[1] https://home.treasury.gov/policy-issues/terrorism-and-illici...

[2] https://en.wikipedia.org/wiki/In_rem_jurisdiction

[some_random]

It obviously should be illegal, it's a legal shenanigan on tier with "your honor I didn't assault that man, I was simply swinging my fists and his face got in the way"

[jjoonathan]

It's every bit as dumb as "sovereign citizens" trying to argue that they aren't subject to traffic laws because of a centuries old maritime treaty. Unfortunately, it's the people in charge slinging the dumb argument, so it flies.

[icambron]

What’s weird is that American higher courts are often quite good at eviscerating this kind of nonsense, usually by pointing out that such a “workaround” would make the constitutional amendment toothless, and it was not meant to be toothless, so the workaround is bunk.

That civil asset forfeiture has survived is simply because the courts are gutless about it.

[rland]

Huh?

There is a very long and plainly wrong string of Supreme Court decisions which stretches all the way back to the nation's founding. The courts are very good at precisely the opposite thing that you're describing.

I think most people kind of assume that the courts are this sort of shining beacon of enlightened liberal thought: they occasionally seem to have "duds" -- but those are intelligent and well reasoned duds. They're interpreting the constitution in a way some don't like, sure, but still upholding it nonetheless, right?

I mean, this thread here about civil asset forfeiture is a great example. If you ask any non-lawyer brained person whether it's wrong, they'll say, yeah, of course it's illegal for the government to just steal your shit. Why is this even a question?

Oh, but no, you see, the courts have wisely decided, using an argument that you might hear from a 5-year-old ("actually, this piece of property is actually a mystical ghost that we can treat as a people!"), that stealing your shit is, in fact, legal.

I really encourage anyone curious about this powerful and unaccountable institution to read some of the shittier Supreme Court decisions. They are often, simply put, stupid. Like, a regular non-lawyer person can read them and handily "eviscerate" their arguments.

[jjeaff]

My favorite, idiotic decision from a higher court this year was the judge that argued in her opinion that the federal government's legal authority to protect the public from infectious disease did not extend to mask requirements because the law says they can require sanitation, but wearing a mask doesn't "sanitize" anything.

Ignoring the fact that the point of a mask is to "sanitize" the germ filled air coming out of or into your mouth, the same law says "or other measures" as needed to protect the public.

It was such poor logic, especially considering the context of the original law at the time (fighting tuberculosis) and the potentially damaging aftermath of such a precedent (not hard to imagine a future, more deadly virus that some politicians decides is a political inconvenience).

[robonerd]

Governments doing stupid shit like this only encourages "sovereign citizens" to think similar word games and semantics will work for them too. They're naive of course; they seem to think the system is a machine indifferent to class or social standing, which simply isn't the case.

[whatshisface]

Class or social standing aren't the right lens for this, I don't think Warren Buffet vs. Three Dollars would fly in court.

[robonerd]

Warren Buffet could do it if he wanted, using his wealth to earn the favor of the right government officials. He could even buy himself a private police force to do the seizing. A real police force, licensed by the state but employed and paid by himself. This sort of thing is already a reality in America.

Anyway, my point is sovereign citizens seem to see the system as a machine, the function of which can be manipulated by giving it cleverly formulated inputs. They have a hacker mindset. They see lawyers and politicians doing this sort of thing all the time, and believe they can do the same if only they find the right incantation. It's as though somebody witnesses the Fonz hit a jukebox to make it work, then figure they can do the same trick if they hit that jukebox in the same way. Except it will never work for them, the jukebox only behaves that way for the Fonz.

[jessaustin]

That would totally fly in the courts of e.g. Judges Kaplan or Preska.

[zionic]

I'm no "sovereign citizen", and occasionally enjoy compilations on youtube of them getting owned in front of a judge (makes for a good laugh).

I do however find some sympathy with _one_ of their arguments, where they argue they never consented to be governed.

I mean when I think about it, I was born into an established system that imposed its rules on me from birth. I had no say in accepting/rejecting the rules. I'm essentially property of the state, subject to its whims with little to no hope of changing them. So I get where some people come from with a "naw fuck that" attitude, even if I see such resistance as futile.

Not directly sov-citizen related, but that does intersect with a broader community of people upset over how property works in the US. Namely, you don't own a damn thing. All deeds/titles are fee-simple, in that you merely buy and sell the right to rent that land from the government for as long as you can afford it. "Renters" in the colloquial sense are really renting twice, which is why "owning" is better. True ownership of property however no longer exists in the US.

Maybe we can experiment with better society designs on mars, where landowners are truly sovereign and the state only owns the commons. Enforcement then only exists in the commons (and optionally on property with the consent of the owner).

[DerpyBaby123]

Plato's Crito[1] deals directly with this question, after Socrates has been found guilty and sentenced to death for 'Corrupting the youth', his friends offer to help him leave the city rather than die.

To paraphrase, Socrates says "Though not explicitly, I have by my actions agreed to be ruled by the laws of Athens by carrying out my life here and not choosing to move away to somewhere with a different set of laws"

[1]http://www.columbia.edu/itc/lithum/wong/textclip.html @ [52b]

I believe Plato will say they consented to be governed by this state, not at birth, but throughout their life by choosing to stay in a place that is governed by this state and enjoying the benefits.

[somenameforme]

I think that's somewhat different because in Ancient Greece there was extreme decentralization. Cities were sovereign entities with an extreme diversity of ideological and other values. Compare Athens and Sparta, for instance. And so in this system, if one stays in a city then there is a strong argument to be made that they are implicitly supportive of the laws and rules of said area.

In modern times this isn't really the case. There tend to be immense legal restrictions on movement, let alone living + working in different areas. And the differences that do exist between even nations within the same "sphere" tend to be relatively negligible compared to, again, the sort of monumental differences you'd see just between different Greek city-states like Athens/Sparta.

[adolph]

"a place that is governed by this state"

In your belief, from what comes Plato's link between place and state? Places exist before states and often afterward. Can a state exist without place? If a place can exist without any particular state, can a person have a link to a place independent of a state?

[JTbane]

>I mean when I think about it, I was born into an established system that imposed its rules on me from birth. I had no say in accepting/rejecting the rules. I'm essentially property of the state, subject to its whims with little to no hope of changing them.

Would you rather be born into a state of anarchy? I think Hobbes addressed this.

[adolph]

As a counterargument to Hobbes here is an excerpt from "The Dawn of Everything" in which Graeber and Wengrow argue that Hobbes' assertion isn't based in evidence.

https://lithub.com/the-dawn-of-everything-is-not-a-book-abou...

[AnimalMuppet]

And they're right. They never (formally, explicitly) consented to the rules. But therefore... what?

They have three options. One, they can choose to live and operate under those rules. Two, they can work within the system to change the rules. Or three, they can go somewhere that has rules more to their liking. This isn't a prison; they can leave any time they choose. One could even argue that by staying in the country, they are (informally, implicitly) consenting to be governed by its rules.

But instead, they try a fourth alternative: Stay, but pretend that the rules don't apply to them because of laughably bogus legal theories. That doesn't work, no matter how many new legal theories they try, and no matter how much bogus logic and philosophizing they throw at it.

We've got a lot of non-sov-cit people who don't consent to the rules. We call them "criminals".

[everforward]

> Or three, they can go somewhere that has rules more to their liking. This isn't a prison; they can leave any time they choose.

That's an illusion of choice, though. There isn't any unclaimed, habitable land anymore. If your views don't align with any of the 195 existing countries, then this isn't actually an option. It's just 1 or 2, but in a different location.

You can't be an anarchist, ever. There's nowhere to do it. If you want to live somewhere that pledges itself as a Christian theocracy, you better hope you're Catholic. Ditto for most religions, really. Or if you want to live in a sovereign entity with the population of a small town.

The options are really just "suck it up" or "spend your whole life trying to change it". I'm genuinely curious what the sovereign citizens would do if they were allowed to secede any land they own. It's not for me, but I am curious whether they'd actually leave or if they just don't want to follow the rules.

[necovek]

While your three options are the three practical options, one should note that it's not trivial to move to whatever country you might want, and not just because of costs.

Getting a work permit in another country is usually pretty hard, for instance.

Still, even with that, I think we (as a society/civilisation) need people like that, challenging the system in all sorts of ways. And not everyone not obeying the rules is a "criminal" — none of the civil offenses qualify, for instance, even in the legal sense.

Of course, some of those "challenges", especially most of those criminal ones, should be dealt with proper "retaliation" (prison sentences, large penalties...) from the society so it's obvious which "challenges" are not welcome. But let's not forget that many of the things we take for granted today have been criminal in the not so distant past.

[zebraflask]

A variety of protests, I'm sure, would look askance at much of this comment.

The sovereign citizen material, though, really does leave the impression that there must be something underlying the absurdity.

Mental illness? It generally comes across as the type of homegrown rant material you'd find stapled to a telephone pole.

[gwright]

I've wondered at times if it would make sense for there to be an explicit legal proceeding at the age of majority in which you explicitly opt in to the social contract analogous to the naturalization process when a foreigner becomes a citizen.

I get hung up on what happens if you choose not to opt-in.

[landemva]

You would still be subject to not harming others nor break a voluntary agreement/contract. People have rights, and may defend themselves.

[tarboreus]

I think if you don't think we'll have the same thing on Mars as we do on Earth, then I have some NFTs to sell you.

[robonerd]

(I'm skeptical of the very premise of colonizing Mars, but putting that aside..)

I expect what forms on Mars, at least initially, will resemble the high seas a lot more than it does any country. You'll have facilities owned and commanded by corporations operating under flags of convenience, more or less free to engage in any nastiness they like (at least until a navy or coastguard with guns shows up to enforce their will on the facility.)

[the_only_law]

At this point, I’m convinced Mars is going to be some sort of neo-feudal territory.

[_jal]

> where they argue they never consented to be governed

They also never consented to birth.

They are free to renounce their citizenship, however. Nobody is forcing them to stay US citizens.

> Maybe we can experiment with better society designs on mars

Hate to break it to you, but Mars colonies (assuming they ever exist) are going to be dictatorships. Lifeboat ethics don't leave a lot of room for arguing, let alone voting.

[kaybe]

Is it really that easy for US citizens to leave? Where can you go if you have neither money nor education or skills and are older?

[t-3]

Renunciation is not free - they literally charge you for it. You also can't renounce without obtaining another citizenship, which, surprise, surprise, you generally have to buy with both time and money.

[edgyquant]

The book Decline and Rise of Democracy goes into detail about this. Pretty much all nations that had a resource jugular (I.e. Egypt with the Nile) become extractive societies.

[landemva]

>> you merely buy and sell the right to rent that land from the government for as long as you can afford it.

You seem to be speaking of property tax on land. Did you know not all land is on county assesor tax roles? Have you researched how to find land not in the county tax catalog?

[zionic]

I’m not aware of any land/states with no property tax. Have a link?

[c22]

That's the thing, they're not really wrong, they just lack the army to back up their claims.

I do think people should be allowed to sue their parents for wrongful birth, though.

[kbelder]

>sue their parents for wrongful birth

Nah, not when there's an obvious and simple remedy.

[caffeine]

I think parents should be allowed to hit their kids for being ungrateful little runts.

[leephillips]

I’m not impressed. It just reminds me of children who, when they reach a certain age, start whining, “Well I didn’t ask to be born.”

[robonerd]

We tell these people about "social contracts" then smirk when they raise the common sense objection of never signing such a contract in the first place.

Of course a social contract is not at all the same as a real contract, a social contract is not a document that you sign, it applies to you whether or not you ever consented to it. But when language that seems to conflate the two is used to persuade people who don't really have a firm grasp on the way the world works, it seems cruel to laugh at their confusion.

[raincom]

It is called “legal fiction”, as judges and lawyers call it among themselves.

[Mountain_Skies]

Once it was broadly accepted that the 14th amendment made corporations into people, the die was cast on the creation of these types of legalistic shenanigans.

[couchand]

I'm not sure there's legal or historical basis for that assertion?

Edit: see this comment from elsewhere in this thread with a link to a scholarly history of civil asset forfeiture: https://news.ycombinator.com/item?id=31449092

[cameldrv]

The issue is that in rem jurisdiction was originally intended and justified for cases where the owner of the property was unknown or beyond the reach of the law (say overseas.) The early cases were things like an overseas shipper not paying proper import taxes. For cases like this, in rem seems reasonable to me.

Where things went off the rails is when they started applying this to cases where the owner of the property was known, and that owner should have their normal fourth amendment rights.

[r3trohack3r]

You give the government an inch and, historically over and over again, they take a mile.

The Presidential Surveillance Program was justified using Smith v. Maryland. The argument was that, if Smith had no reasonable expectation of privacy for metadata in isolation, no aggregate of citizens had an expectation of privacy. Therefore mass surveillance of metadata is legal. You let the government see the phone records of one citizen without a warrant and decades later you have something like 33% of all email, TCP/IP, and phone metadata being collected and analyzed by a government agency without a warrant.

The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets. You let the government regulate speech that poses a clear and present danger and they use that to make it illegal to oppose a draft.

[arcticbull]

> The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets.

This whole 'you can't yell fire in a crowded theater' thing is not a real thing.

Per @popehat:

5/ '"shout fire in a theater" is a rhetorical device used in 1919 to justify jailing people for writing anti-draft pamphlets in World War I. The First Amendment standard (to use the term generously) applied in that case has been dead for more than a half-century.'

6/ 'The same judge went on to smirk "three generations of imbeciles are enough" to justify forcible government sterilization of persons deemed undesirable by the state, so you know, he had a way with words.'

7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]

[1] https://twitter.com/Popehat/status/1356670918706089985

[8note]

There's no modern attachment to eugenics or the draft though. A person full of bad ideas can still have a good one, and it's noticeable that his others do not persist

[vkou]

> 7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]

That's true, but it's also true to criticize anyone citing the constitution by pointing out that it was written by slaveowners and perpetrators of genocide.

For some reason, though, that argument never goes over well. Maybe it's because the character of the person who made an argument hundreds of years ago is only relevant when you disagree with the argument.

[Buttons840]

So the defense of violating people's right to be secure from seizurs is some mumbo jumbo about charging objects with a crime? How does charging anyone or anything relate to the 6th amendment?

[mysterydip]

People have constitutional rights, objects do not

[alistairSH]

The right of the people to be secure in their ... effects, against unreasonable ... seizures, shall not be violated

The building was part of the person's effects. I don't understand how your argument is legal (not that I don't believe you - civil forfeiture has been going on long enough that I assume SCOTUS has heard a sampling of cases).

It beggars belief that this practice has stood for decades.

[mysterydip]

I agree with you and think it's a crazy practice. I was just saying how they justify it (flaws aside)

[Buttons840]

Seizing objects violates the owners rights, not the objects rights.

Another angle of defense might be to ask if it's even possible to violate the 6th amendment. What would violating the 6th amendment look like? I suspect the answer will closely resemble civil forfeitures.

[l33t2328]

So is it even possible to violate the 6th amendment? Could the police not just seize anything since that object has no rights?

[edrxty]

And objects can't commit crimes

[netizen-936824]

It's about being used in the commission of a crime, not that the object committed the crime itself

[function_seven]

If that's the case, then what's the point in seizing it? The crime has already been committed, the pile of money being taken doesn't change that one bit.

If I use a payphone to order a hit, is it reasonable for the government to come rip it out of the ground? What if I use a freeway to smuggle drugs? Now the road must be torn out?

Money is fungible and has all sorts of uses. Any particular pile of cash is no more or less likely to be intrinsically criminal in nature. Just like phones and freeways.

[mcphage]

If the object didn't commit the crime, then how can you bring a court case against it?

[daniel-cussen]

Yeah no guilty mind.

[pessimizer]

> People have constitutional rights, objects do not

I'm pretty sure that's been modified to US people on US soil, at least 100 miles from a border, have constitutional rights, but those rights were all intended to mean something different than what they actually say.

[mometsi]

The "defendant" arg is passed by value and can't be null.

The hack they came up with is to just disable type checking and pass in whatever object they have available.

TFA describes the inevitable runtime errors

[hn_version_0023]

This is precisely like the prohibition on “cruel AND unusual punishment” being circumvented by making cruelty usual.

I’d mourn for the US, but it seems it’s been dead & gone longer than I’ve been alive.

[R0b0t1]

I've thought about that one a lot and I think it is the real intention. The admitted purpose of punishment in the legal system is punishment, not rehabilitation. That is something that can be change, but until it is, only punishments both cruel and unusual are prohibited. Unusual but not cruel punishments allow for flexibility like forcing someone to write a paper or read a book. Other punishments, like putting someone in a cage, are necessarily cruel.

[pessimizer]

This country was founded with a workforce of slaves and indentured servants, ankle deep in the blood of natives. One might rationalize with difficulty some way to argue the US isn't racist by design because of that, but to argue that it was civil libertarian is a step too far.

The civil libertarian language comes from being heavily seeded by small Protestant cults, but not wanting to fall into European-style religious wars over it. Also, ironically, to protect the rights of a slaveholding minority.

[dimal]

How on earth is this able to stand? It’s absurd. Have challenges made it to the Supreme Court and lost?

[sandworm101]

Customs /international shipments. There is a long history of seizing illegal or suspect material at boarder crossings where the actual owner/importer is unknown or not available. A funny-named lawsuit against a box is significantly better than the alternative: zero legal process and no case recorded anywhere.

[arcticbull]

Agreed, it makes sense in some contexts. The issue with asset forfeiture is that the state pretends not to know who the owner is so they can move forward in rem.

[edit] Well, two problems: frequently the entity seizing the property gets to keep it and add it to their budget - or split the proceeds. This creates an incentive for them to move forward this way.

[R0b0t1]

It'd be better to do a John Doe case, because an item can't represent itself. A hyptothetical defndant can.

There's also the problem of you have no rights at the border anyway, even though you should.

[jazzyjackson]

> lawsuit against a box

I just can't make sense of the "vs" in the case titles, in what way is the object fighting back? Why is there a case at all and not "here is a list of contraband seized at the border" ?

[Goronmon]

Why is there a case at all and not "here is a list of contraband seized at the border" ?

I would assume the legal procedure is what determines what actually happens to the object. Just like the police arrest people but don't sentence them or put them in prison directly.

[sandworm101]

Legal Research and Writing day one: it is never written as "vs", always "v." It is Roe v. Wade, not Roe vs. Wade.

[dimal]

That makes sense in that case, but if that’s the reason, how can that apply to situations where the ownership of the property is well understood?

[marcosdumay]

Lawyers have that habit of taking an obviously false fact and rewrite it so that you can't prove by Boolean logic using laws or prior legal decisions as premises that they are false. Instead, you have to recourse for synonyms or even to the words meaning (some times, the meaning as used, not as the dictionary says). Then they pretend the new writing is a completely different thing from the meanings it convoys, and that what they said is absolutely true, since you can't algebraically prove it's false.

That practice should be a crime, by itself.

[pmyteh]

It's common in admiralty law everywhere. If you have a ship that hasn't paid its docking fees, what can you do? The owner is an ocean away and won't come to court even if you find a way to inform them. If you let the ship sail the port will never be paid. It can be arrested and, if necessary, auctioned to pay the debt. But you can't do that without a court order. So there is an in rem action against the ship itself. It makes perfect sense in that context (and in the one that other commentators have mentioned, which is unaccompanied packages of contraband). Also prize and salvage actions, which are also admiralty proceedings.

The difficulty comes when you stretch the concept like with civil forfeiture. It's not even necessary: England and Wales has the Proceeds of Crime Act to allow seizure and forfeiture of criminal property and all the cases under that are ordinary in personam actions between the state and the putative criminal.

[account42]

> If you have a ship that hasn't paid its docking fees, what can you do?

You can sue the owner. If they don't show up that doesn't mean that they automatically win the case - if anything, it's the opposite. If you can't identify the owner you can make the case against John Doe and still have a state appointed defender represent the owner's rights. You can get a court-ordered injunction to detain the ship until the case is resolved.

I don't see why you need to invent a new legal concept here at all - other that it makes things easier for the state to seize things when they don't need to worry about such pesky things as rights.

[gwright]

Hmm. I've been wondering why all the Russian yachts have been "arrested" lately in the news as opposed to "seized", for example. It sounded very strange to me as I thought that "arrested" only applied to people.

Your use in this comment make me think that usage is tied to this legal concept of in rem.

[theptip]

I didn’t know this, thanks. This is preposterous. I was already strongly opposed to civil forfeiture but the shaky constitutional foundation makes things even worse (if that was possible).

[Sohcahtoa82]

Which just goes to show how absolutely fucking insane our court system is.

Any sane court system would believe that charging an inanimate object with a crime is beyond bonkers.

[JPKab]

The case titles are utterly hilarious, and do such a great job in highlighting the absurdity of this entire process.

[whiddershins]

Creative accounting can still be fraud.

Bringing a civil suit doesn’t change the fundamental fact of this being unreasonable seizure. It’s seizure. And it’s unreasonable.

Naming it something else or inventing a process for doing it doesn’t change reality.

[the_only_law]

> The property itself is the defendant

Hope it has a good lawyer then I guess?

[thfuran]

Hah. Boxes don't have a right to representation.

[ASalazarMX]

If only the owner was reachable to answer for the boxes instead.

[r3trohack3r]

One of my favorite (although also sad) was the time the U.S. Government sued a bunch of shark fins: United States v. Approximately 64,695 Pounds of Shark Fins.

[thelock85]

I'm curious to if/how this relates to corporations having free speech rights under Citizens United vs. FEC.

Property is an asset, not a corporation (though could a corp. be an asset of a holding company?) but philosophically-speaking, "property itself as a defendant" and "corporation as a legal individual" seems connected.

[scarface74]

Of course the same party who says that corporations should have “free speech rights” are the same ones that target corporations that speak out against their policies. It almost happened in GA with Delta Airlines and did happen in Florida with Disney.

In the case of Florida, if it isn’t struck down, it’s going to caused the cities in the surrounding area to have to pay higher taxes and take on Disney’s debts.

[8note]

Next we'll start charging animals of murder again. Maybe Chassenée's rats will show up for the US government to be tried

[fnordpiglet]

Here is a lengthy and relatively accessible discussion of how the mechanics work. It’s essentially a byproduct of the language in the Controlled Substances Act and a few procedural tricks. Aka another way the war on drugs has harmed us at a fundamental, moral, and constitutional level.

https://www.yalelawjournal.org/feature/the-constitutionality...

[jjoonathan]

I know that courts just interpret the constitution to mean what they want, but they really outdid themselves on this one.

> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[oceanghost]

We "follow the constitution" for abortion rights but when it comes to NSA surveillance we look the other way.

[avs733]

lets just drop the pretense of even using that phrase

To me it is disqualifying for those analyses being taken seriously. If you are claiming that you are doing no interpretation and others are, that just not credible within the law. Of COURSE they are interpreting - that's literally the job. The idea that you aren't interpreting and instead are only divining what others meant is so incredible that it needs to stop being repeated.

Stop repeating the propaganda because it just normalizes a ridiculous phrase.

[oceanghost]

My point was, the powers that be will make any excuse so long as it increases state power.

[avs733]

Powers will use any excuse, the excuse is a distraction. It’s much clearer and more effective to properly name what they are doing rather than indulge their demand of what ever silly term they invent to justify it.

There is no such thing as textualism, there is just (1) a belief that your are doing a thing you labeled textualism but is philosophically incompatible with the concept of the law or (2) lying. Anything from the right in the us as it relates to the constitution is (2).

[vkou]

And in this country, 'state power' often includes 'the power of the states (good state power) to tyrannize their residents as they see fit, without any federal (bad state power) oversight.'

[kolanos]

Abortion isn't covered in the U.S. Constitution, aside from perhaps a right to life? Are you referring to Roe v. Wade? If so, that's a court decision.

[jaywalk]

According to Roe v. Wade, abortion is covered by the 14th Amendment. Which is ludicrous regardless of how you feel about abortion.

[sophacles]

The 9th amendment certainly covers it. It says:

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

The upcoming court ruling, denies and disparages a right that was retained by the people for the last 50 years. In fact, it leads me to believe that the very reasoning used by the SC according to the memo is unconstitutional (they argue that since the word abortion doesn't appear in the constitution that it can't be considered by the court, a position that goes against the text and spirit of the 9th amendment)

[tick_tock_tick]

Abortion is absolutely not covered in the Constitution and Roe v Wade was a one of the most twisted bits of logic I've ever seen out of the court. We need real legislation rather then trying to stretch amendments to cover things that they clearly don't.

[mindslight]

I was tempted to see it that way, but the general right to be left alone by the government is most certainly in the founding character of the country. That right to be left alone most certainly applies to medical care. The only thing novel about Roe v Wade was applying the newer standard of gender equality to extend the right to be left alone to women.

Since we're talking about abortion, let's restate what should be abundantly clear - nobody is using abortion as a substitute for birth control. "Pro-choice" is an utterly stupid term that plays right into the political tempest-in-a-tea-pot, completely on-brand for the Democratic party. An appropriate label would be pro-medical-care. This whole topic is akin to debating whether individual states should be able to prevent their residents from receiving blood transfusions.

[jessaustin]

The 9th amendment...

This argument proves too much. One might say, for example, that the right to crush annoying smartphones isn't specifically addressed in the constitution or amendments thereof, and thus we must have that right. However, the states do have laws against theft, vandalism, etc. so we don't actually have the right to crush any smartphones that annoy us. The way to preempt those state laws would be with a federal law establishing such a right.

I am pro-choice, but such a federal law addressing abortion could have been passed at any point in the decades since (or before?) Roe. My understanding of the leaked ruling is that it would be overruled by such codification.

The weakness of the appeal to 9A explains why Roe itself did not rely on that.

[robonerd]

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

That's great and all, but how did they ass-pull the third trimester restriction? Courts recognizing rights not explicitly found in the Constitution is what the 9th amendment permits. But to ass-pull a restriction to a right, when that restriction isn't found in the Constitution or any law passed by congress? Is that really what the 9th Amendment is about? That's hard to swallow if so. What if SCOTUS ass-pulls a restriction to the 1st Amendment and says it never applies to computers? Is that the sort of thing the 9th Amendment permits?

[anamax]

> The upcoming court ruling, denies and disparages a right that was retained by the people for the last 50 years.

That ruling returns the relevant power to the states, see the 10th amendment.

[hn_version_0023]

The Supreme Court has been stacked with ideologues and possibly criminals (given Mr. Kavanaugh’s history). I’ve even read that getting Gorsuch on the court required a huge payoff to Mr. Breyer — open corruption.

I’m not well versed enough in its history to know if this is abnormal. I find it unacceptable, but given the state of government in the US, I don’t have any solutions.

[Akronymus]

roe v wade also only really concerns itself on whether it is a federal or state level issue.

[robonerd]

Hmm, I don't think that's accurate. Roe v Wade did say that Texas's statutes against abortion violated the fundamental right to privacy found in the 14th amendment. If Roe v Wade had simply said "It's a federal issue, it's up to Congress to pass an amendment if they want it changed", then I think you'd be right.

But Roe v Wade went further than that, with all the talk about pregnancy trimester nonsense. I buy into the premise of a right to privacy being derived from the 14th Amendment, but there's certainly nothing about trimesters in that amendment; it reeks of the court trying legislate. Either this right to privacy exists or it doesn't, it shouldn't be conditional on trimesters. I think this is where they fucked up.

Anyway, now Congress has to do what they should have done 50 years ago and sort this mess out the proper way.

[everforward]

Their argument about trimesters isn't terribly bad. The basic gist is that there are competing interests: that of the woman and control over her body, and that of the state in its interests in protecting humans.

They basically ignore the question of whether a fetus is alive or a citizen. It's the state's interest in protecting a potential person/citizen vs the woman's right to privacy.

The trimester system allows the controlling interest to shift as the fetus becomes closer to a citizen (and thus increasing the validity of the state's interest). In the first trimester, it's not at all close to a citizen and the woman's rights reign supreme. There are some concessions for the state in the second trimester, and by the third trimester, it's close enough to a citizen that the state has a compelling interest in preventing harm.

They explicitly call out that the right to privacy is not absolute, which is basically par for the course. The 1st Amendment doesn't let you incite violence, the second doesn't guarantee your right to buy a tank and ammunition, felons can't vote, prisoners can be slaves, etc. Basically none of our rights are absolute. It's a balance between preserving the rights of the people and the interests of the state.

It's an arbitrary framework, which the SC acknowledged, but you have to draw a line somewhere. Without a consensus on when life begins, that's always going to be an arbitrary line.

[sophacles]

You should try reading the constitution some time - there's an amendment that disagrees with your reasoning. It's called the 9th amendment and it literally says that there are rights beyond those specifically enumerated in the constitution.

[martincmartin]

> There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.

There has been, and the Supreme Court upheld it. As I recall, they didn't even bother hearing the case.

[s1artibartfast]

Didn't hear /= upheld

[vmception]

Since it has been ruled constitutional, that leaves two options:

1) change all state laws to nuke the practice

2) leverage the practice much more heavily such that more important and influential people want to nuke it

[zugi]

> change all state laws to nuke the practice

Even that's just a start. According to https://www.forbes.com/sites/nicksibilla/2018/12/19/cops-can..., when one state banned civil forfeiture, it was so profitable that several cities kept doing it in violation of the state law, until courts finally forced them to stop 3 years later.

So next the federal DEA stepped in. Since the federal government still practices civil forfeiture in the state, local police agencies are encouraged to tip off the DEA to any property that might be federally seizable, and then the DEA pays kickbacks to the local police force that provided the tip.

This all sounds like racketeering and conspiracy to me. But you see, when the federal government does it, it's NOT racketeering and conspiracy.

[vmception]

yeah the fed profit sharing program is a real big one

[coryfklein]

Let's say my vehicle is stolen, and police find a vehicle at my neighbor's house with the identical make, model, and year but with the VIN sanded off. And this neighbor just so happens to operate a shipping company that specializes in shipping vehicles out of the country, but has never been convicted of anything criminal.

How would you say we should handle this scenario? We have a good reason to believe that the property is actually mine, and also that if it is not seized soon then it will be lost forever. (Since, as we all know, court rulings happen on much longer time scales.)

If you have an overly aggressive civil forfeiture law then the police can seize things when they shouldn't. But if you have none, then don't you hamstring law enforcement unnecessarily, and instead provide greater incentive for crime?

[jimrandomh]

I think you have a pretty fundamental misunderstanding of what civil forfeiture is about. Civil forfeiture would mean the police take the car, don't return it to the rightful owner, and don't charge the thieves with a crime.

Police don't need civil forfeiture to hold evidence in advance of pressing charges, or to recover stolen property and return it to its rightful owner. They only need civil forfeiture if they intend to keep the car for themselves.

[jdkee]

They can get a warrant based on probable cause signed by a judge.

[Animats]

That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.

[dragonwriter]

> That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.

You are confusing originalism with textualism (there is an argument that the current Court’s dominant philosophy [or mode of rationalization, for the more cynical] is both originalist and textualist, but your particular argument is more of an appeal to textualism than originalism.)

[zerocrates]

The Fourth Amendment is tricky... it's got that word "unreasonable" you can just drive a truck through.

And all the stuff about particularity of warrants is nice, but it doesn't actually lay out when warrants are required.

[Sohcahtoa82]

This is why Legalese was invented. They have to be as explicit as possible to avoid any possible interpretation of what was written other than what was actually meant. A legal document with any phrasing that is "subject to interpretation" will eventually be interpreted in a way the origin author did not intend.

"Unreasonable" is a highly subjective term and should not exist in legal documents.

[throwaway894345]

Seems like the ACLU should go to bat here. Isn't this exactly the sort of thing they exist to do?

[anotheracctfo]

"Do not quote laws to we who hold swords."

[thaway2839]

It clearly isn't a direct and obvious violation.

Even ignoring any say the rest of the Constitution has on civil forfeiture, even the parts that you quote do not prevent civil forfeitures on their own.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

The rub here is "unreasonable". The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.

So there is no clear answer here because unreasonable is completely subjective.

[Retric]

It’s only ambiguous if you ignore the clear intent of what was written. Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Sorry the language isn’t ambiguous, the language is being ignored.

[mlyle]

> Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year.

Generally, when trials take a very long time to happen, it's because the defendant has decided it is in their interest to waive the right to a speedy trial.

[yonaguska]

Ummm, Gitmo? J6 detainees? And countless other stories of young black men being held without trials to their own detriment.

[mlyle]

> Ummm, Gitmo?

Umm, Gitmo was messed up. But, to be clear, the United States does not guarantee constitutional rights to non-citizens who have not touched US soil, so this is a bit of a canard.

> J6 detainees?

Despite rumors of hundreds of January 6th detainees languishing in jails-- the actual number is approximately 35. Most of these have waived speedy trial. Most of these have not been detained for a very long time.

A few are still undergoing legal discovery. It's a problematic set of circumstances: further, closely related arrests happen; without providing additional information on the new arrests to existing arrestees' counsel, convictions could later be set aside. In turn, this restarts some clocks. On the other hand, judges are getting frustrated and warning the prosecution that these delays are becoming excessive.

[jessaustin]

the United States does not guarantee constitutional rights to non-citizens who have not touched US soil

I can't find this detail in my copy of the constitution. 6A in particular specifies "the accused". It's true that most Gitmo prisoners were never actually accused of anything (because they had never done anything, in particular anything related to actions undertaken by Saudi nationals under the direction of Saudi intelligence personnel), and were eventually released without apology. However, any prisoner who ever actually went to trial would certainly be classified as "accused".

[LanceH]

In the context of civil asset forfeiture, it is not uncommon for the state to drag it out and make it not worth reclaiming the money.

[mlyle]

Here in this subthread, we're talking about the right to a speedy criminal trial.

Speedy civil trials are not a constitutional right. (Though, when it comes to forfeiture, the long timelines are one of many problematic aspects).

[Retric]

These forfeiture trials are criminal trials. If the government is suing over a breech of contract or something that’s a civil matter, but when the government is acting with powers outside of those of a normal citizen it’s a criminal trial in everything but name.

So it’s doubly troubling as they are also ignoring the presumption of innocence and other such protections.

[LanceH]

Your post that I responded to put it upon the defendant who stretches things out. Regardless of whether it is the civil or criminal, it is frequently the state which delays and adds procedure to these forfeitures for the purpose of grinding out the defendant.

[leephillips]

And if they don’t waive, it’s still on the order of months in most jurisdictions, isn’t it? That’s not speedy.

[dragonwriter]

> And if they don’t waive, it’s still on the order of months in most jurisdictions, isn’t it? That’s not speedy.

Shorter would compromise the defense, who has less warning of the need to prepare for trial (that's why in the federal system, the defense, in addition to having a waivable statutory right for trial to start within 70 days of charging, also has a waivable statutory right for it to not start less than 30 days from charging.)

And it is speedy compared to the problems which motivated the guarantee.

[mlyle]

IMO-- A few months to arraign, exchange evidence, make procedural rulings before trial, etc, isn't unreasonable.

[leephillips]

I realize this is the predominant view, but it never made sense to me. I think we’ve just grown accustomed to it. The Constitution doesn’t say “prompt”, it says “speedy”. I’m sure those without the ability to pay pail, or who are denied bail, don’t regard their few months in the US’s notoriously dangerous jails as reasonable.

[femiagbabiaka]

I agree, except that it’s a long time to be in jail, especially in some of the larger counties in and around cities in the U.S.. Fatally long, in some cases.

EDIT: Nevermind, I see that you addressed this down thread.

[Retric]

The problem here is not generally but rather those cases where people haven’t waved their rights.

[mlyle]

I'm saying most of the cases where people are held up as "detained for ____ days without trial", they have waived right to speedy trial.

The overwhelming majority of defendants not waiving speedy trials get a trial within a year.

Of the remaining, there's a big share that are various kinds of edge cases where it makes sense that a trial has taken a little longer than normal.

And then there's the remaining abuses and problems, which are relatively small in number but should be addressed.

[Retric]

Look even waiting 3 months is already a failure of the speedy requirement. Saying well 1 year is too long but edge cases isn’t a minor issue… No anyone ever hitting 1 year is clear evidence of total failure of the system to even pretend to care about this issue.

[dontcare007]

I'm sure all the Jan 6 protestor have waved their right to a speedy trial...

[sokoloff]

"Shall not be infringed" is another one that is commonly interpreted quite differently than the most plain reading would suggest. (I say this as someone who does not own a firearm, so this is probably not gun-nuttery.)

[RajT88]

The modern pro-gun movement has erased the words "well-regulated militia" as well.

The thinking of course is everyone could potentially join a militia, therefore everyone is defacto covered under the second amendment.

[dontcare007]

Nah, well related militia was not a restriction on the right, it was a reason for everyone to have the right. You have to remember that the Constitution doesn't give the people rights, it delineates the governments rights. The 1st 10 amendment's were added because the anti- federalists were (rightly) worried that the government would misappropriated all powers and eventually the people would no longer be free. They were basically a list of rights for a minimum viable free society.

[s1artibartfast]

And the Anti-gun movement conveniently ignores the concept of a preposition.

Because one first part explains the rationale, the second part describes the right.

[dane-pgp]

The first part also provides a context for understanding the second part. For example the right to "bear" arms shouldn't be read as including a general right to brandish arms, even though a less constrained reading of "bear" might suggest that. Conversely, it does include a right to fire those arms, since that is necessary for a well regulated militia to bear them effectively.

[NineStarPoint]

I think it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. The preposition is part of the amendment, and its existence puts a qualification on what the right to bear arms means.

I personally think the current state of affairs does a pretty good job balancing the two parts of the amendment. States are allowed to put a lot of restrictions on how you can buy guns, and where you can carry/use them, but ultimately people are allowed to have them. You aren’t allowed a nuke, you are allowed a shotgun. Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.

[RajT88]

This is an example of what I am referring to.

Hand waving away the wording about military utility, and only focusing on the individual right.

We can, and need to have a debate about both, and not just the latter. That is my point.

[User23]

Every able-bodied American male 17 or older and under 45 is already a member of a well-regulated militia[1]. Now you may think Congress should ask more of the militia of the United States, but being a statutory organization certainly meets the well-regulated criteria.

[1] https://www.law.cornell.edu/uscode/text/10/246

[jmalicki]

The statute calls them unorganized, which is arguably not well regulated...

"(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

[RajT88]

Private gun-owning citizens are not automatically counted among active unorganized militia.

Even in the few active state militia they would be considered eligible, not members.

SCOTUS has had contradictory decisions in the past on whether private gun rights hinge on military applications of the specific firearms, but indeed this is the talking point - state militias.

Collectively, the people who parrot "Shall Not Be Infringed" are really trying to avoid the militia debate entirely.

[tonfreed]

Considering there's letters from James Madison endorsing cannon ownership, I don't think it means what you think it means either.

[bombcar]

Heh we can still get our cannons: https://www.nationalreview.com/corner/americans-can-still-bu...

[s1artibartfast]

Which is exactly the same rationale that the 2nd amendments authors used.

[hn_throwaway_99]

There is a very long history of jurisprudence over the past 2+ centuries that has done a pretty good job of defining what "unreasonable" means, and there are tons and tons of SCOTUS cases that have dealt with that. The basics, though, nearly always involve a judge reviewing the evidence to determine if a crime is probable, and issuing a warrant in that case.

The fact that civil forfeiture is so contrary to all the other definitions of "reasonable" that courts have emphasized over the years should make it a clear violation of the Constitution.

[zmgsabst]

From the US constitution:

> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable … seizures, shall not be violated, … but upon probable cause, supported by Oath or affirmation, and particularly describing the … things to be seized.

From the article:

> In a response to an interrogatory filed in the Kozbials' subsequent lawsuit against Highland Park, a city police officer answered "none" when asked to identify any predicate felony offenses justifying the seizure.

What was the probable cause supported by oath or affirmation?

[tialaramex]

One test the law likes for reasonableness is to ask a jury.

We presume the jury are reasonable people (unfortunately the US also screws up how juries work) and so if they have a consensus that must be reasonable.

The UK uses "double reasonableness" in it's anti-tax avoidance law. It says the jury should ask themselves if any reasonable person might have done this anyway. If your jurors can't conceive of how even one other reasonable person could think what you did made sense, except that it reduced tax liability, then in fact it did not reduce liability, your avoidance scheme doesn't work.

[peyton]

The broader question isn’t whether a specific action is reasonable in context, but whether civil asset forfeiture is constitutional. So it’s a question of law for the courts to decide, not a question of fact for a jury to decide.

[AnimalMuppet]

We'd love to see a constitutional ruling against civil asset forfeiture. It's the right thing.

In the absence of that, though, jury rulings against the specific seizure is the next best defense.

[twh270]

There is no clear answer to the question of reasonableness/unreasonableness, but civil asset forfeiture as used today is *far* into unreasonable territory.

[UncleEntity]

> The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.

Yes, a reasonable seizure is either through eminent domain (with just compensation) or the result of a criminal proceeding as punishment.

Unreasonable would be seizures with no criminal proceedings or just compensation.

[avs733]

reasonable here could easily be aligned with, you know, having due process.

The constitution describes people's property and makes people subject to it. Suing a car or a pile of cash is farcical - because the constitution doesn't have authority over objects, it has authority over the people who own and possess the objects.

Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.

[mlyle]

> because the constitution doesn't have authority over objects

First, the overwhelming majority of civil forfeiture happens in states, where a mere claim of the constitution not explicitly giving the federal government authority doesn't hold water (or invoke the incorporation doctrine).

Second, Federal courts have long exercised authority over objects and courts having authority over objects is something that is broadly considered constitutional.

> Suing a car or a pile of cash is farcical

It may seem farcical, but it has a decent legal basis and a reasonable reason for existance: there are times that property seems to A) be involved in crime, and B) unclaimed by owners. E.g. distant shipowners engaged in smuggling. It seems reasonable for the government to seize the property in these cases.

It's much more problematic when a clear owner can be identified (or, when an owner comes forward after seizure). I agree in those circumstances action should be brought against the people, and should require a higher standard than the preponderance of the evidence, for property to be kept.

> Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.

I don't quite see the connection.