Thursday, August 05, 2004
thoughts on forfeiture.
there's a crescat post about some vice squad musing about asset forfeiture,what has encourged me to brush up on the topic slightly. i m a fan of FEAR, www.fear.org, an ngo that works on this issue. I haven't looked closely at it since Austin, eleven years ago.
In a 1996 case from Michigan, Bennis, Justice Thomas, concurring, makes the point that due process under the 14th A. doesn't mean whatever Justice Thomas feels this week; he looks to history of how english law treated such cases. Under the tudors, the monarch was weak, like a weak-mayor-strong-city-council-city manager form of government. The tudor monarchy was like the articles of confederation; the central government was at the mercy of whatever financial support it could scrape up, so it governed a delicate coalition. My source for all this is Churchill; if Churchhill is wrong, I'm wrong. The Stuart King, King James, had a more modern view; the state is everything, the rest of us exist only to serve the state to the best of our abilities. The leviathon approach of Hobbes. There are limits, and Cromwell reminded Charles II of those limits, by cutting off his head. Locke and Hume suggested a more restrained monarchy,a nd the prime minister and parliament took on a greater role after the glorious revolution, the restoration, all that. I received a doctorate in law while knowing nothing about the history of the common law; it wasn't on the bar exam. Justice Thomas's opinions are part of what got me to look at it a little deeper, and I still know very little.
Bush is like James, an absolutist. Clinton, LBJ, Nixon, there were imperial presidencies,
echoing the debauchery and decadence of imperial Rome. The Court, like a council of elders, is one of the few checks and balances on Bush's tyranny. Not so much Bush personally as the army of clerks who run the show.
I forgot, lately, I cannot write simple clear statements; everything becomes a rant. I've having my meds adjusted shortly.
My point is Thomas isn't likely to be persuaded by 14th A arguments unless they are well-grounded in history. In Lawrence, he was explicit: It's a bad a law, evil, but that isn't the same as a 14th A violation.
I'm leading up to a point here, there is some groundwork to do to get to it.
The Michigan case was about a woman who lost her car to the state because her husband used it to be naughty. I do not have a good grasp of the takings analysis in that case, except it seems to say, well we've doing it this way so long, why stop now?
Missing in the Mich. case is any 8th A claim, which prevailed in Austin and Bajakajian .
The issue isn't, is taking somebody's car unconstitutionally wrong. It's finding the right clause to point to. The institute for justice has been premised on the idea that the right clause is privileges and immunities under the 14th, and they have been building consensus toward that view, but have a ways to go. Recently, they've gone in an exciting new direction - looking to state constitutions as a source of rights. I couldn't agree more.
I suppose I should put my 1994 thesis, state constitutional protection of democratic pluralism, online. The version I have is missing the footnotes, after some computer mishaps, but it better than nothing.
State constitutions often protect liberty and property in more explicit and concrete terms than mere "due process" or p&i. Often, but not always, state courts just ignore the text, as federal courts often ignore the 2nd Amendment. But the text, when combined with the policy preferences of state judges not too different than Thomas, may be enough.
Michigan's supreme court* has found such a principle - would it have worked for the woman who lost her car? I'm not sure, of either the facts or the law. But that's the kind of work for groups like FEAR and IJ to be doing. * Hathcock, will travel: http://volokh.com/archives/archive_2004_08_00.shtml#1091688790.
Now, on to a further point.
The eighth A's excessive fines clause comes from the English bill of Rights, 1689 I think, part of the deal to restore the monarch as a limited entity, ala Locke rather than Hobbes.
Under Locke, the government can't just take your car when they feel like it.
(the government has taken many, many, of my cars, so when I was pulled over last night I drove to a private parking lot before stopping for the cop, so my car was not towed; I got it home safely.)
The Bill of Rights in turn was based in part of the magna carta (not to be confused with the manga carta.) I think there is an argument to be made that the magna carta says the government can't fine you without a trial by jury, and that that principle was incorporated into the Bill of Rights of 1689, and that that principle was incorporated into the excessive fines clause of the eight amendment, and that therefore there is an eighth amendment right to a jury trial. A fine is excessive when a jury says so - the proportionality of punishment is a jury question.
The place to first test out this somewhat far-fetched idea might be in state courts under state excessive fines causes, in cases with good facts, a friendly forum, deep pockets to litigate it. It's beyond my abilities - I take only the easy cases, and lose then half the time. This would be a hard case. or a fun law review article. Ok, enough rant for a day.
there's a crescat post about some vice squad musing about asset forfeiture,what has encourged me to brush up on the topic slightly. i m a fan of FEAR, www.fear.org, an ngo that works on this issue. I haven't looked closely at it since Austin, eleven years ago.
In a 1996 case from Michigan, Bennis, Justice Thomas, concurring, makes the point that due process under the 14th A. doesn't mean whatever Justice Thomas feels this week; he looks to history of how english law treated such cases. Under the tudors, the monarch was weak, like a weak-mayor-strong-city-council-city manager form of government. The tudor monarchy was like the articles of confederation; the central government was at the mercy of whatever financial support it could scrape up, so it governed a delicate coalition. My source for all this is Churchill; if Churchhill is wrong, I'm wrong. The Stuart King, King James, had a more modern view; the state is everything, the rest of us exist only to serve the state to the best of our abilities. The leviathon approach of Hobbes. There are limits, and Cromwell reminded Charles II of those limits, by cutting off his head. Locke and Hume suggested a more restrained monarchy,a nd the prime minister and parliament took on a greater role after the glorious revolution, the restoration, all that. I received a doctorate in law while knowing nothing about the history of the common law; it wasn't on the bar exam. Justice Thomas's opinions are part of what got me to look at it a little deeper, and I still know very little.
Bush is like James, an absolutist. Clinton, LBJ, Nixon, there were imperial presidencies,
echoing the debauchery and decadence of imperial Rome. The Court, like a council of elders, is one of the few checks and balances on Bush's tyranny. Not so much Bush personally as the army of clerks who run the show.
I forgot, lately, I cannot write simple clear statements; everything becomes a rant. I've having my meds adjusted shortly.
My point is Thomas isn't likely to be persuaded by 14th A arguments unless they are well-grounded in history. In Lawrence, he was explicit: It's a bad a law, evil, but that isn't the same as a 14th A violation.
I'm leading up to a point here, there is some groundwork to do to get to it.
The Michigan case was about a woman who lost her car to the state because her husband used it to be naughty. I do not have a good grasp of the takings analysis in that case, except it seems to say, well we've doing it this way so long, why stop now?
Missing in the Mich. case is any 8th A claim, which prevailed in Austin and Bajakajian .
The issue isn't, is taking somebody's car unconstitutionally wrong. It's finding the right clause to point to. The institute for justice has been premised on the idea that the right clause is privileges and immunities under the 14th, and they have been building consensus toward that view, but have a ways to go. Recently, they've gone in an exciting new direction - looking to state constitutions as a source of rights. I couldn't agree more.
I suppose I should put my 1994 thesis, state constitutional protection of democratic pluralism, online. The version I have is missing the footnotes, after some computer mishaps, but it better than nothing.
State constitutions often protect liberty and property in more explicit and concrete terms than mere "due process" or p&i. Often, but not always, state courts just ignore the text, as federal courts often ignore the 2nd Amendment. But the text, when combined with the policy preferences of state judges not too different than Thomas, may be enough.
Michigan's supreme court* has found such a principle - would it have worked for the woman who lost her car? I'm not sure, of either the facts or the law. But that's the kind of work for groups like FEAR and IJ to be doing. * Hathcock, will travel: http://volokh.com/archives/archive_2004_08_00.shtml#1091688790.
Now, on to a further point.
The eighth A's excessive fines clause comes from the English bill of Rights, 1689 I think, part of the deal to restore the monarch as a limited entity, ala Locke rather than Hobbes.
Under Locke, the government can't just take your car when they feel like it.
(the government has taken many, many, of my cars, so when I was pulled over last night I drove to a private parking lot before stopping for the cop, so my car was not towed; I got it home safely.)
The Bill of Rights in turn was based in part of the magna carta (not to be confused with the manga carta.) I think there is an argument to be made that the magna carta says the government can't fine you without a trial by jury, and that that principle was incorporated into the Bill of Rights of 1689, and that that principle was incorporated into the excessive fines clause of the eight amendment, and that therefore there is an eighth amendment right to a jury trial. A fine is excessive when a jury says so - the proportionality of punishment is a jury question.
The place to first test out this somewhat far-fetched idea might be in state courts under state excessive fines causes, in cases with good facts, a friendly forum, deep pockets to litigate it. It's beyond my abilities - I take only the easy cases, and lose then half the time. This would be a hard case. or a fun law review article. Ok, enough rant for a day.
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