The Supreme Court has said it isn’t unconstitutional as a general matter, so a lower court’s ruling won’t force that to change. And because the practice is a holdover from English law and isn’t understood (as a historical matter) to be something the constitution was meant to alter, there isn’t much basis for thinking the Supreme Court would reverse its earlier decisions.
This seems like a strong candidate for a Constitutional amendment. Twelve amendments were ratified in the 20th century—about once a decade since the end of the Civil War. However, if you exclude the 27th Amendment[1], we haven't ratified an amendment in 53 years. My favorite type of amendment is one that extends rights to people, and in this case, also to their property.
[1] The 27th Amendment took a different path compared to the other 16 amendments ratified since the Bill of Rights. It was originally proposed as part of the first 12 amendments but took 202 years to be ratified. This was largely due to the efforts of a University of Texas student in the 1980s, who, motivated by a C grade on a paper, embarked on a mission to see it finally adopted.
How do they align that reasoning with the 4th? Particularly the conservative wing of the bench, as they seem most likely to be literalists (when it suits, at least).
Reason has a good analysis. This recent case was about preliminary hearings in civil asset forfeiture cases in which it was ruled 6-3 that preliminary hearings weren’t required in such cases, but if you read into Gorsuch’s concurring opinion, it looks a lot like he believes civil asset forfeiture is over applied and shouldn’t be used outside of exigent circumstances like those covered under admiralty, customs and revenue law where a ship might leave American jurisdiction before a proper hearing could be held on the asset.
So… with the right case brought before them, the current SCOTUS bench might be ready to gut civil asset forfeiture like a trout.
I don;t think they are trying very hard. They make the claim that the property is involved in a crime (not the owner) and the property does not have rights.
The conservatives tend to be literalists when interpreting statutes and regulations. There are judicial philosophy reasons for that, but also, statutes and regulations can be changed in response to court rulings. That said, the conservatives tend to be literalists from the perspective of the legislature or regulator at the time the law was enacted, though all the justices (conservative and liberal) recognize that it’s a fiction to say Congress has a single point of view.
When it comes to interpreting the constitution, conservatives likewise tend to be focused on the point of view at enactment. But it’s even more of a fiction to say that the states had a single point of view, and in any case, the text of the constitution often isn’t precise in the way contemporary statutes are. So the conservatives are guided more strongly by the historical evidence about what the sovereign states would have “understood” themselves to be giving up, in replacing the Articles of Confederation with a central federal government.
Given that, they interpret the Fourth Amendment by reference to the historical evidence of what phenomena it was responding to. And as a historical matter, the aim of the amendment was to require warrants, not to narrow the scope of what could be searched or seized. So where there’s probable cause that a crime has been committed, a warrant may issue, and it can be directed at the property that “committed” the crime, since that was a known practice in English law at the time.
> That said, the conservatives tend to be literalists from the perspective of the legislature or regulator at the time the law was enacted
I find it ironic that they view the Constitution as "at the time the law was enacted" and continue to rule on literalism that way, even though those same people explicitly specified that laws and the Constitution should be reviewed, revised, and otherwise be interpreted as appropriate for that time, not the time of writing.
There's never really an explanation as to why "we have to treat these things like infallible perfect works" when they're not, and even their authors told us they're not.
> There's never really an explanation as to why "we have to treat these things like infallible perfect works" when they're not, and even their authors told us they're not.
They are not, though. The constitution can be changed and has been changed many times in the past. I assume they think (or justify their decisions by saying that at least) that it’s not their job to pass legislation or enact constitutional amendments without any input from the states/congress which seems like a reasonable viewpoint.
> "we have to treat these things like infallible perfect works"
They don't treat the law as perfect, they just believe they don't have the leeway to reinterpret the law as they want in contradiction of the text. The law doesn't work if justices can read between the lines to get what they want.
> That said, the conservatives tend to be literalists from the perspective of the legislature or regulator at the time the law was enacted
There’s absolutely no objective basis for this statement whatsoever.
The Supreme Court is a political body and always has been. The current rhetorical fiction that it’s some other thing is really a relic of the post-war era that became cemented because it has been a helpful fiction for both sides at various points.
The sooner we retire the nonsense idea that the court is doing anything other than make politically calculated decisions the better off we will all be.
Supreme Court justices make decisions the same way every other political actor in our system does. Because they want to, because they can get away with it, and because their constituencies and supporters demand and incentivize it.
I spent hundreds of hours hanging out in forfeiture court, it's wild. The court I was in eventually got a new judge and she took the two DAs aside and said to them "This bullshit you have going here, the 90% of cases you win because people don't even know how to fill out the paperwork. That ends today. That will not fly in my courtroom."
I remember that same day a dad came in. The State had his new $60K SUV they were trying to sell. His son had swiped the keys, taken it, got caught drunk-driving. The DAs were like "well, tough shit, it's the law" and that judge said "Did this man know his son took the car? Does he have valid insurance? Give this man his damned car back. And I want you to pay all his towing and storage fees too." "His towing fee too?" "Yes" "We don't even know how to refund that, the city has that money." "Well, you have an hour to find out. See you in an hour." LOL
If you are ever caught up in a civil forfeiture, make sure to stay on top of the paperwork. Most people lose their stuff by not doing the very simple paperwork. If you get to the first court hearing the State often gives up if it's not much value.
I wonder if judicial solutions can ever be adequate as police can simply say that an investigation is ongoing for years. And determining whether ongoing possession of seized property is legitimate involves disclosing investigation details.
How is that different than, say, indefinite detention? It’s obviously not implemented perfectly, but habeas corpus is uncontroversial at least in principle. I don’t see anything mechanistically unique about property seizure that would make this tricky to solve.
The most famous example of this kind of use of eminent domain was the Kelo case which went to the Supreme Court. By 5-4 the court rules it was permissible to use eminent domain to get the land to build a campus for Pfizer. (The majority was Stevens, Kennedy, Souter, Ginsburg, and Breyer.)
As Justice Sandra Day O’Connor wrote “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
After all of this, the land didn't get built into a corporate campus:
>...For nearly 20 years since the ruling, the entire Fort Trumbull neighborhood remained a vacant lot after being bulldozed by the city; a neighborhood once teeming with families who resided there for generations was home only to weeds and feral cats. The economic development the city promised the U.S. Supreme Court would materialize—if only the government could get its hands on the land—never materialized, even after spending more than $80 million in taxpayer money.
There was a proposal back in the discussion of extending copyright to be "forever minus one day" by the maximalist camp which included Sonny Bono, so there are hacks around "indefinitely".
Hmm, does my money have the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed?