[GavinMcG]

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.

[edub]

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.

[alistairSH]

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).

[SllX]

https://reason.com/volokh/2024/05/09/supreme-court-issues-fl...

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.

[tocs3]

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.

https://www.law.cornell.edu/wex/civil_forfeiture

[rolph]

property is also not a person.

[einpoklum]

And that's why the police always seizes the property of banks and investment firms when there is suspicion of their involvement in financial crimes.

...

Oh, wait, did I say "police seizes"?

I meant of course "government replenishes guarantees and underwrites".

[GavinMcG]

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.

[alistairSH]

Are these warrants issued retroactively? Some of the most egregious cases of civil forfeiture seem to be literal cash grabs on the side of the road.

[FireBeyond]

> 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.

[ffgjgf1]

> 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.

[oatmeal1]

> "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.

[FireBeyond]

Without arguing for or against firearms control, would you argue that the definition of a "well-regulated militia" has changed in the last 240 years?

SCOTUS certainly hasn't interpreted it "as written", but has been happy to "evolve" it.

[rootusrootus]

> would you argue that the definition of a "well-regulated militia" has changed in the last 240 years

That's a good question. And the answer is yes.

At the time it was written, that phrase would roughly mean well-organized, well-armed, well-disciplined. Not regulated in the way we use the term today, to refer to something governed by regulations.

[rolph]

the whole point of the people bearing arms, is to enable the people to regulate the activities of a militia directed by a tyrant, example being rebellion against the occupying redcoats, the commision of the war of independance, and succesion of the republic.

[mistercheph]

The prefatory clause of the 2nd amendment does not require a well-regulated militia to be in existence in order for the right to be protected, it expresses the motivation and then declares the right uninfringeable:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Maybe you'd be happier if it said:

"The right of the people to keep and bear Arms while they are members of a well-regulated militia shall not be infringed."

I am sympathetic to both sides of the jurispredential pragmatism/literalism question, but don't get your eggs twisted about what the 2nd amendment says, as only the most alien of consciousnesses could find ambiguity in its terse declaration.

[CPLX]

> 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.

[hinkley]

But we didn’t treat it this way until Ron and Nancy’s War on Drugs.

So while this might be a very old bug in the Rule of Law, it got much worse during the 20th Century.