U.S. Supreme Court Puts Limits on Police Power to Seize Private Property(nytimes.com)
nytimes.com
U.S. Supreme Court Puts Limits on Police Power to Seize Private Property
https://www.nytimes.com/2019/02/20/us/politics/civil-asset-forfeiture-supreme-court.html
456 comments
I find this very remarkable about American legal system. The supreme court could have technically showed some bleeding heart by not showing judicial restraint. Instead they just did their job. Americans must thank this judicial culture.
Yes actually. The courts aren’t there to set law, that is for the legislature. Also by limiting their ruling to the narrowest ruling they can, they keep decisions as local as possible. Courts handle exceptional circumstances, and it’s important they not rule too broadly, else there can be huge overarching unintended side effects of their ruling.
The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.
The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.
>The courts aren’t there to set law, that is for the legislature
I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one.
Case law is just as much part of the law as statutes are.
This is the fundamental difference between common law systems and civil law systems.
https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one.
Case law is just as much part of the law as statutes are.
This is the fundamental difference between common law systems and civil law systems.
https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
These days there is so much statutory law in the developed world that this distinction is fading away. Yes, it’s technically possible for a common law court to grant a new form of relief that isn’t derived from legislation or binding precedent (eg. the Mabo decision in Australia), but these days the common law is really a ‘god of the gaps,’ and if the courts aren’t satisfied with the common law remedies available 200 years ago or created later by statute, they have very little power to create new remedies. Of course, written laws are always open to interpretation in both the common and civil law system, and that’s what happened in this case (the written law being the U.S. Constitution).
It's not really a 'meme', it just uses a shorthand for 'statutory law' which is what most people think of when they they see 'law'.
> It's not really a 'meme'
It is, in fact, a self-replicating unit of behavior.
(It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
It is, in fact, a self-replicating unit of behavior.
(It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
That’s like claiming any knowledge is a meme. Kinda destroys the meaning if it just means any time someone repeats a fact.
This is the original meaning given by Dawkins in The Selfish Gene. The word ‘meme’ is more than a repeated fact – first, it doesn’t have to be a fact, and second, it suggests that our culture is the result of evolution in an environment where memes are selected for reproductive fitness (‘virality’).
I've read the Selfish Gene and loved it, but I had NO idea that meme originated from that book. I must have skimmed that paragraph. Thank you for this!
If I'm remembering the book correctly, it's discussed at some length in a later chapter; maybe the last chapter.
> That’s like claiming any knowledge is a meme.
No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
Any knowledge capable of self-replication is a meme.
Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws".
There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
>Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws".
Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices.
District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices.
District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
> Isn't the difference here that Federal courts can't create law, only rule on constitutional matters.
Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
The federal courts can create law solely because overruling them is nigh impossible. The Supreme Court exists to rule on constitutional matters, but it is merely the final arbiter and uses that to its advantage based on case law they made for themselves.
Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic.
When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency.
The courts can also overrule itself in a future court case.
(The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)
Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic.
When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency.
The courts can also overrule itself in a future court case.
(The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)
A big difference between programming and law is that the programmers ultimate incentive is independent of the processors incentive. In law and politics there are multiple agents each with their own incentives, so it is extremely important to uniformize the application of the law (in order to be equal before the law). That nearly all systems do provide leeway for the judge (anglosaxon common law emphasizes this and civil law doesnt, so it's more arguing appearances) is not because it is a feature, but because the law is not that exactly specified. One could imagine each precedent by a judge to be accompanied by a democratic consultation, since in a democracy the people are supposed to govern themselves. While this could allow rampant democratic discrimination (both on factors which are recognized discriminative properties: skin tone, religion, ...; but also on factors not yet recognized as discriminative properties), it would also provide a means for proving our voting behaviour to be discriminative in some sense. In this way unintentional discrimination can be highlighted and corrected.
For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.
For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.
On reading, this sounds a lot to me like "trial by a jury of one's peers", only the response to the system being (choked for democratic consultations / having massive court backups and shortage of jurors) has unfortunately so far been mostly public apathy, and people being pushed into accepting plea deals / waiving their rights for a jury trial in many cases.
EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all.
It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.
EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all.
It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.
the current choking of the courts (with most proceedings and exact reasonings out of view of the public) has zero effect on the bigotedness of the populace, so the populace does not change attitudes. Observe how slowly for example racism dissipates. I posit that this would dissipate much faster if a direct democracy was being chocked with back and forth punishing and nonpunishing identical counts, because then it would become full frontal what we are doing. Many of the most bigoted divisive fractions of society would simply feel how they can no longer adress more important matters as long as they have to spend time toggling their votes for settings back and forth on the basis of the in- or out-groupness of some defendant... So the bigots would become apathic to keeping up toggling those specific settings to enforce their bigotry, and get on with their lives.
Currently it is the status quo that is choking the news, which is not what I propose...
I don't read snark in your comment btw... I value your contribution
It's like alphabetization, typically after introduction of one person one vote, people become alphabetic, because by the point the populace has made it clear elitism on this facet (voting) is over, the status quo has every incentive to at least educate the populace in reading and writing...
Similarily, I expect moves toward direct democracy (by popular force) to change the behaviour of the elites and the status quo such that "the brutes who will now unavoidably rule us, should at least enjoy a higher level of education with regards to law and so on", and asking questions about law, finding answers, navigating the law, ... will become standard course curricula for the bulk of the populace in high school...
Currently it is the status quo that is choking the news, which is not what I propose...
I don't read snark in your comment btw... I value your contribution
It's like alphabetization, typically after introduction of one person one vote, people become alphabetic, because by the point the populace has made it clear elitism on this facet (voting) is over, the status quo has every incentive to at least educate the populace in reading and writing...
Similarily, I expect moves toward direct democracy (by popular force) to change the behaviour of the elites and the status quo such that "the brutes who will now unavoidably rule us, should at least enjoy a higher level of education with regards to law and so on", and asking questions about law, finding answers, navigating the law, ... will become standard course curricula for the bulk of the populace in high school...
> The courts aren’t there to set law, that is for the legislature.
They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.
They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.
And then there's common law, which is essentially judge-made law.
Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
The problem is one of semantics. Law is an ambiguous term and commentators have different interpretations--let's appreciate the irony for a second.
Ha, good point. It's worth knowing the difference between law and statute...
"I say I say I say: Statutory law is not law". This kind of negativity is questionable.
That is excellent analogy. This then boils down to globalism vs fractal localism.
> showed some bleeding heart
As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?
As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?
It seems likely the person you are replying to has english as a non-first language and may be using this phrase incorrectly.
Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense.
> Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense.
That is a laughably bias interpretation. The phrase "bleeding heart" is used as an insult, suggesting the targets lack reason and are completely guided by their feelings. Your descriptions paints those you disagree with as mustache-twirling cartoon villain caricatures and comes off about as genuine as "They hate us for our freedom".
That is a laughably bias interpretation. The phrase "bleeding heart" is used as an insult, suggesting the targets lack reason and are completely guided by their feelings. Your descriptions paints those you disagree with as mustache-twirling cartoon villain caricatures and comes off about as genuine as "They hate us for our freedom".
Well, you disagree with me, and call my opinion 'bias', i.e. 'biased'. (Leaving aside the gratuitous 'laughably'.) You presumably see yourself as 'not biased'. (Nice work if you can get it.) I think 'bias' used like that doesn't make a lot of sense. Every person speaking their mind can be called 'biased' by someone who doesn't agree, but that doesn't really get us anywhere, does it. It's primarily a way of disguising (to yourself) that you're saying "You're wrong and I'm right".
Yes, 'suggesting the targets lack reason', which if they had it, I suppose, would make them more in agreement with the criticizer. (In this neo-con-ruled world people who use the term 'bleeding heart' see themselves as 'realists', i.e. follow the pronouncements of the local economist, think-tank, party-back-room guru etc without much considering the actual effects on people or the world. Money, or votes, is the prize. Everywhere is obsession with 'efficiency' and 'growth'. It's hardly noticed how many people hate their work, or that growth is unsustainable, or what's happening to the planet. We have no idea where we're going but are obsessed with getting there efficiently. But that's rant for another place..)
Yes, 'suggesting the targets lack reason', which if they had it, I suppose, would make them more in agreement with the criticizer. (In this neo-con-ruled world people who use the term 'bleeding heart' see themselves as 'realists', i.e. follow the pronouncements of the local economist, think-tank, party-back-room guru etc without much considering the actual effects on people or the world. Money, or votes, is the prize. Everywhere is obsession with 'efficiency' and 'growth'. It's hardly noticed how many people hate their work, or that growth is unsustainable, or what's happening to the planet. We have no idea where we're going but are obsessed with getting there efficiently. But that's rant for another place..)
Don’t have data about the right in Australia, but in the U.S., the term arises due to the prevalence of virtue signaling by left leaning Hollywood that doesn’t align with the reality of all the statistics pointing to far greater levels of charity as a percentage of income/wealth exhibited by those on the ‘right’.
This mismatch results in some of this derisive language in the U.S.
This mismatch results in some of this derisive language in the U.S.
> due to the prevalence of virtue signaling by left leaning Hollywood that doesn’t align with the reality of all the statistics pointing to far greater levels of charity as a percentage of income/wealth exhibited by those on the ‘right’.
Gonna need numbers on that mate, because everything I've read suggests conservatism is correlated with reduced amount, degree and frequency of charitable behaviour.
Gonna need numbers on that mate, because everything I've read suggests conservatism is correlated with reduced amount, degree and frequency of charitable behaviour.
Also, virtue signaling is common among self-described conservatives. I don't know what a MAGA hat is, if not a tangible virtue signal.
Anytime you get an opportunity to reduce the overreaching powers of the state, that's a good thing! Today, we on the right have Trump, tomorrow there'll be someone on the left as president and that won't make us happy and vice-versa.
It's a welcome check on the Executive and Legislative branches.
Anyone can become President, and anyone can become a lawmaker.
It takes a lifetime of respect to earn a seat on the Supreme Court bench.
Anyone can become President, and anyone can become a lawmaker.
It takes a lifetime of respect to earn a seat on the Supreme Court bench.
> It takes a lifetime of respect to earn a seat on the Supreme Court bench.
No, it just takes the support of the President and a sufficient number of Senators. Of which, by your own argument, anyone can become either; there is either more of a filter than you’d like to pretend on the political branches, or less than you’d like to pretend on the judiciary.
No, it just takes the support of the President and a sufficient number of Senators. Of which, by your own argument, anyone can become either; there is either more of a filter than you’d like to pretend on the political branches, or less than you’d like to pretend on the judiciary.
>> It takes a lifetime of respect to earn a seat on the Supreme Court bench.
> No, it just takes the support of the President and a sufficient number of Senators.
You're kinda both right. The legal mechanism says that "a lifetime of respect" isn't necessary, but the norms that have evolved around its use say otherwise.
Recent history demonstrates (in the extreme) that norms aren't inviolable, but I think the ones around the competency of Supreme Court confirmees is stronger than most.
> No, it just takes the support of the President and a sufficient number of Senators.
You're kinda both right. The legal mechanism says that "a lifetime of respect" isn't necessary, but the norms that have evolved around its use say otherwise.
Recent history demonstrates (in the extreme) that norms aren't inviolable, but I think the ones around the competency of Supreme Court confirmees is stronger than most.
The problem with SCOTUS is its reputation, which is dragged down by basically everything else in our politics. When politicians (on both sides of the aisle) openly talk about "liberal judges" and "conservative judges", and promise to appoint the kind that will rule the way they and their constituents want (as opposed to ruling according to what the law says) - and then those same people actually nominate or confirm appointees - it's hard to treat SCOTUS as some kind of cathedral where everybody is beyond reproach. Now it's just politics.
It's such a tragedy how much the actions of the SC are generalized and sound-bited by politicians and the media. If you go out and read the arguments they all give they are really quite elegant, especially when compared with the sheer stupidity of some of the debates that take place a block over
Yea... But I think this comment puts them in better light than perhaps is deserved. There are arguments SCOTUS are not defenders of the constitution. Look at Clarence Thomas's dissent on Gonzalez vs Raich, where somehow SCOTUS defended the Fed's oppressing someone for growing their own medical marijuana... In a state with legal medical marijuana. There is no constitutional basis for that. Using the Commerce Clause is laughable, at best. Like Thomas said, if the government can persecute you for growing a plant for your own consumption, inside your own home, to treat your own ailments, then they can persecute you for anything. I mean, what the fuck is that ruling even, honestly?
In other words, I think you are right that they are mostly-removed from the liberal vs conservative circus... But they are not really removed from those anti-constitutional and anti-liberty politics which both those parties defend.
In other words, I think you are right that they are mostly-removed from the liberal vs conservative circus... But they are not really removed from those anti-constitutional and anti-liberty politics which both those parties defend.
There's a quote right in the Wikipedia article which talks about the practical reasoning and historical basis for the decision:
> Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
> Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
I am aware of Wickard v Filburn as it is regarded as a particularly, historically bad ruling, and obviously set precedent for this case.
Did you actually read this? Have you read any parts of the constitution?
Federal powers are constitutionally enumerated, and those which are not are reserved for the states.
The premise of this discussion you've quoted here -- that the feds have the duty to centralize command and control authority over modest home production of plants for one's own consumption -- is obviously not the intent of the constitution, nor is it remotely American, nor remotely consistent with liberty.
Did you actually read this? Have you read any parts of the constitution?
Federal powers are constitutionally enumerated, and those which are not are reserved for the states.
The premise of this discussion you've quoted here -- that the feds have the duty to centralize command and control authority over modest home production of plants for one's own consumption -- is obviously not the intent of the constitution, nor is it remotely American, nor remotely consistent with liberty.
If reading to my children reduces aggregate demand for audiobooks, and therefore could impact interstate market prices, is reading to my children interstate commerce?
Pretty much.
The current legal definition seems to make the assumption that when the founders sat around writing the constitution, one of them looked up and asked for a nice punchy way to say "the complete domain of reality from the ground to the infinite reaches of the heavens above" and the reply was "oh, just say interstate commerce."
The current legal definition seems to make the assumption that when the founders sat around writing the constitution, one of them looked up and asked for a nice punchy way to say "the complete domain of reality from the ground to the infinite reaches of the heavens above" and the reply was "oh, just say interstate commerce."
> In a state with legal medical marijuana
umm.. not familiar with this case, but:
from a federal position there is no such thing as legal marijuana, and from a constitutional position federal law trumps state law -
which is not to say i disagree about the sheer human folly of regulating the existence of plants via legislation.
umm.. not familiar with this case, but:
from a federal position there is no such thing as legal marijuana, and from a constitutional position federal law trumps state law -
which is not to say i disagree about the sheer human folly of regulating the existence of plants via legislation.
Federal law trumps state law when they're in conflict. There's no conflict between federal law saying that it's illegal, and state law not saying that it's illegal. And when state legalizes it, all that means is that they're repealing state laws making it illegal.
The case itself wasn't about whether federal law trumps state law, though. It was about whether the federal law in question is constitutional in the first place - i.e. that the federal government has authority granted to it by the Constitution to prohibit a person growing marijuana plants for their own private consumption (i.e. not for sale, and especially not for sale across state lines, which would then obviously be "interstate commerce"). The plaintiff was arguing that since it's personal use and not interstate commerce, it's out of scope of the federal law. The reason why state law was relevant is to show the exact nature of harm suffered - if not for federal law, the plaintiff would have access to medical marijuana to alleviate his pain.
SCOTUS upheld an earlier decision from Wickard v. Filburn, which basically states that any production and consumption is "interstate commerce", because it affects market prices - if you grow something for your own use, you're not buying that something on the market, the reasoning went. I suggest reading about both decisions, just to see how ridiculous some of our legal reasoning is. And then keep in mind that those decisions are the only thing that makes many federal laws constitutional - it's not just drug prohibitions, but e.g. the Civil Rights Acts.
So both the left and the right have a stake in maintaining this interpretation - both want to be have broad regulatory authority on the federal level, just for different reasons. It doesn't make it any less flawed or ridiculous, but I wouldn't consider it an example of partisan court bias.
The case itself wasn't about whether federal law trumps state law, though. It was about whether the federal law in question is constitutional in the first place - i.e. that the federal government has authority granted to it by the Constitution to prohibit a person growing marijuana plants for their own private consumption (i.e. not for sale, and especially not for sale across state lines, which would then obviously be "interstate commerce"). The plaintiff was arguing that since it's personal use and not interstate commerce, it's out of scope of the federal law. The reason why state law was relevant is to show the exact nature of harm suffered - if not for federal law, the plaintiff would have access to medical marijuana to alleviate his pain.
SCOTUS upheld an earlier decision from Wickard v. Filburn, which basically states that any production and consumption is "interstate commerce", because it affects market prices - if you grow something for your own use, you're not buying that something on the market, the reasoning went. I suggest reading about both decisions, just to see how ridiculous some of our legal reasoning is. And then keep in mind that those decisions are the only thing that makes many federal laws constitutional - it's not just drug prohibitions, but e.g. the Civil Rights Acts.
So both the left and the right have a stake in maintaining this interpretation - both want to be have broad regulatory authority on the federal level, just for different reasons. It doesn't make it any less flawed or ridiculous, but I wouldn't consider it an example of partisan court bias.
you definately sound informed on this case for sure and i'm certainly not
but it seems like there are 2/3 threads being comingled in the case:
a) illegality of marijuana itself b) interstate commerce-related issues pertaining to private growth
the 'b' parts you mention definately seem like flawed, unconstitutional reasoning (e.g. expanding the definition of commercial and therefore regulated to include things that actually arent)
as for 'a' - "And when state legalizes it, all that means is that they're repealing state laws making it illegal."
this can't be true true - otherwise there would be no regulation/taxes on dispensaries, etc. in legalization states, which there certainly is..
so it's not like there is a federal law and a 'blank' at the state.. there are contradicting state laws treating it as legal, and federal ones which say it is illegal..
but it seems like there are 2/3 threads being comingled in the case:
a) illegality of marijuana itself b) interstate commerce-related issues pertaining to private growth
the 'b' parts you mention definately seem like flawed, unconstitutional reasoning (e.g. expanding the definition of commercial and therefore regulated to include things that actually arent)
as for 'a' - "And when state legalizes it, all that means is that they're repealing state laws making it illegal."
this can't be true true - otherwise there would be no regulation/taxes on dispensaries, etc. in legalization states, which there certainly is..
so it's not like there is a federal law and a 'blank' at the state.. there are contradicting state laws treating it as legal, and federal ones which say it is illegal..
The federal law requires b or it isn't valid. The only reason the Feds are allowed to regulate drugs at all is through 'b' and the ICC.
Well there are liberal and conservative judges, but not in the sense that lines up with party talking points.
Liberal judge == living constitution
Liberal judge == living constitution
Don't downvote the parent - he's just pointing out that meanings of words depend on the context. If you look at it strictly in SCOTUS context, and use the dictionary definition of "conservative" rather than treating it as a partisan political label, a "conservative" judge is the one that tries to introduce as little innovation as possible - i.e. an adherent of originalism and textualism. Conversely, then, a "liberal" judge is the innovator, the one who actively seeks new meanings.
I'm not convinced that "originalism and textualism" is the same thing as "little innovation". The claims of originalists to divine the meaning of the text, and how that meaning applies to new objects and social structures that did not exist at the time, often strike me as remarkably innovative -- in a sense they would find pejorative.
The "conservative" judges votes align extremely well with each other and with the wishes of the political party that nominated them -- which is itself frequently not "conservative" in the sense of "conserving" something. In both cases, the claim to "conservatism" strikes me as having a lot more to do with group identity than any consistent ideology or approach.
The "conservative" judges votes align extremely well with each other and with the wishes of the political party that nominated them -- which is itself frequently not "conservative" in the sense of "conserving" something. In both cases, the claim to "conservatism" strikes me as having a lot more to do with group identity than any consistent ideology or approach.
That's because we actually do have a partisan SCOTUS, with all that entails. Words like "originalism" and "textualism" - or "living constitution" for that matter - are mostly thrown around to justify certain partisan positions, and ignored with others. I wouldn't consider Scalia to have been an originalist, for example.
That's because, by and large, it also takes considerable respect in practice to become a President or Senator (sure, you can find a few exceptions, but you can for the Supreme Court, too, and there have been a lot fewer Supreme Court justices than Senators and Presidents combined.)
Convention has proven, especially recently, not to be a great thing on which to stand the propriety of a nation.
I think that's the wrong conclusion. Norms and conventions are expedients. To have to put such things into law is really inefficient and even questionable whether they too would hold up in the face of systemic corruption. The right conclusion is the importance of character assessment skill in an electorate.
I am from India and Indian courts are nothing but bunch of old men sermonizing everyone else. They often have barely read law, believe in extraordinary processes and completely arbitrary legal doctrines such as "constitutional morality" that compels them to actually ignore the law.
Digging deep I realize that this is because most of them will retire at 60 after which they either seek lucrative jobs from their political masters or they want to appear on TV debates as "experts". They have even reserved a lot of jobs for their own kind post-retirement. A number of institutions in India can only have "retired judge" as their chief.
Even though there are strong arguments why judges in USA too should have term limits or retirement age, I think there are these issues in our blindspot that need attention too.
Digging deep I realize that this is because most of them will retire at 60 after which they either seek lucrative jobs from their political masters or they want to appear on TV debates as "experts". They have even reserved a lot of jobs for their own kind post-retirement. A number of institutions in India can only have "retired judge" as their chief.
Even though there are strong arguments why judges in USA too should have term limits or retirement age, I think there are these issues in our blindspot that need attention too.
As another indian, I disagree with your stark negative characterisation of the indian judiciary. While I do agree that there are corrupt judges, and judges who acts as puppets for their political masters, this is a phenomenan common with every country (with varying degrees, and we in India perhaps do have it worse than others - a reflection of our very confused society currently going through a cultural and political disruption and change).
On the flip side, the higher courts of our judiciary do have eminent jurists, who are respected internationally. India is considered to have the most powerful judicary in the democratic world. And in my opinion, they have used this power judiciously to make more far-reaching changes to empower our democracy than abused it.
I do have criticisms too (for e.g., I don't like the idea of judges appointing judges as it upsets the delicate balance of power between the executive and the judiciary), but I recognize that despite their shortcomings they do a pretty decent job - in fact much better than most judiciaries of the developed democratic world when it comes to protecting the rights of indian citizens.
On the flip side, the higher courts of our judiciary do have eminent jurists, who are respected internationally. India is considered to have the most powerful judicary in the democratic world. And in my opinion, they have used this power judiciously to make more far-reaching changes to empower our democracy than abused it.
I do have criticisms too (for e.g., I don't like the idea of judges appointing judges as it upsets the delicate balance of power between the executive and the judiciary), but I recognize that despite their shortcomings they do a pretty decent job - in fact much better than most judiciaries of the developed democratic world when it comes to protecting the rights of indian citizens.
Look up "the switch in time that saved the nine".
It’s the same in the US
The masses are bought in and ignore it
Not one of the judges on the SC questions the correctness of the process
They just regurgitate the things they’ve been taught and studied
There is no more outside the box consideration of the system here than there is in India
And this forum is just as emotionally blind to it as all the others
The masses are bought in and ignore it
Not one of the judges on the SC questions the correctness of the process
They just regurgitate the things they’ve been taught and studied
There is no more outside the box consideration of the system here than there is in India
And this forum is just as emotionally blind to it as all the others
Not one of the judges on the SC questions their place the correctness of the process
They do this all the time...in nearly every decision...It's literally their job to question the correctness of the judicial process...
They do this all the time...in nearly every decision...It's literally their job to question the correctness of the judicial process...
You can also read their published opinions to see exactly how they came to a conclusion.
They question the correctness of decisions made by the US judiciary system from inside the system
They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
Not the correctness of the US judiciary system itself
Thomas Jefferson advocated for a system that would allow future generations to reasses it’s Constitution and laws, and adjust as necessary
We got James Madison’s version of government, who described the Senate as a legislative body to protect the rich minority from the poor majority. Thus the justice system evolved over time only assessing laws and building its existence on questions of property rights and ownership.
Not saying it’s scandalous or wrong but it’s only concerned with internal consistency, like India.
Look at how the GOP is largely pushing a platform that’s hundreds of years old, with an outcome that resembles the way things were before the New Deal
It’s just old guys advocating for their personal feelings. Exactly what the person from India said :shrug:
They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
Not the correctness of the US judiciary system itself
Thomas Jefferson advocated for a system that would allow future generations to reasses it’s Constitution and laws, and adjust as necessary
We got James Madison’s version of government, who described the Senate as a legislative body to protect the rich minority from the poor majority. Thus the justice system evolved over time only assessing laws and building its existence on questions of property rights and ownership.
Not saying it’s scandalous or wrong but it’s only concerned with internal consistency, like India.
Look at how the GOP is largely pushing a platform that’s hundreds of years old, with an outcome that resembles the way things were before the New Deal
It’s just old guys advocating for their personal feelings. Exactly what the person from India said :shrug:
>They question the correctness of decisions made by the US judiciary system from inside the system
> They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
> Not the correctness of the US judiciary system itself
It's literally their job to do work within the system. The SCotUS is explicitly restricted to interpreting the laws that already exist and were passed by existing legislatures. If you want massive, sweeping changes in the structure and nature of a law, you need to go to the legislature or otherwise pick up rifle and start a revolution. It is not the job of SCotUS to create new law. That's why they get so much flack for "legislating from the bench" when they make sweeping decisions. They're not supposed to do that, and they typically only do when making rulings surrounding the Constitution itself and it's Amendments.
> They decide if the inside of the box is working correctly in an undemocratic fashion, based upon their biases
> Not the correctness of the US judiciary system itself
It's literally their job to do work within the system. The SCotUS is explicitly restricted to interpreting the laws that already exist and were passed by existing legislatures. If you want massive, sweeping changes in the structure and nature of a law, you need to go to the legislature or otherwise pick up rifle and start a revolution. It is not the job of SCotUS to create new law. That's why they get so much flack for "legislating from the bench" when they make sweeping decisions. They're not supposed to do that, and they typically only do when making rulings surrounding the Constitution itself and it's Amendments.
We must also remember that once we accept the position that SCOTUS can create new law, it can go both ways and not sure your way.
Thomas Sowell and Walter Williams both give examples of poker. Imagine a standard Poker game where everyone knows the rule, some win some lose and yet there are no fights. Change the Poker game rules such that the dealer can change the rules at his whim and we will have fights (even though the dealer might not actually affect anyone's earnings).
SCOTUS not going out of their way is good for society.
Thomas Sowell and Walter Williams both give examples of poker. Imagine a standard Poker game where everyone knows the rule, some win some lose and yet there are no fights. Change the Poker game rules such that the dealer can change the rules at his whim and we will have fights (even though the dealer might not actually affect anyone's earnings).
SCOTUS not going out of their way is good for society.
SCOTUS can't create new legislation. But in a common law system like the US, where court decisions are part of the legal framework, simply issuing a court ruling can result in the creation of new "law."
>Thomas Jefferson advocated for a system that would allow future generations to reasses it’s Constitution and laws, and adjust as necessary
And that’s exactly what we got. I urge you to look into what the legislative branch does and look into constitutional amendments. The system changes all of the time.
Based on your description of the GOP, you sound upset that the country isn’t more socialist. That’s hardly related to the representatives having the ability to change laws.
And that’s exactly what we got. I urge you to look into what the legislative branch does and look into constitutional amendments. The system changes all of the time.
Based on your description of the GOP, you sound upset that the country isn’t more socialist. That’s hardly related to the representatives having the ability to change laws.
Reply to sibling since it’s dead:
>Then why do the laws not reflect the wishes of the public?
This isn’t a direct democracy. The law reflects the super majority of the representatives/senators or the majority of the representatives/senators and the president.
The entire purpose of that is to prevent small majorities from steamrolling in laws. 60% for legalization or whatever topic you want isn’t enough to make a federal law changes if the majority isn’t spread around all of the states as well.
Obama didn’t even want gay marriage when he went into office. People elected him again anyway. I think most of your confusion comes from the fact that you don’t understand representative democracies.
>Then why do the laws not reflect the wishes of the public?
This isn’t a direct democracy. The law reflects the super majority of the representatives/senators or the majority of the representatives/senators and the president.
The entire purpose of that is to prevent small majorities from steamrolling in laws. 60% for legalization or whatever topic you want isn’t enough to make a federal law changes if the majority isn’t spread around all of the states as well.
Obama didn’t even want gay marriage when he went into office. People elected him again anyway. I think most of your confusion comes from the fact that you don’t understand representative democracies.
On top of that is the partisan system in congress. Even legislation which could garner a majority of the senate will not be given a vote unless it has the support of a majority of the party in power.
And then even on top of that, the majority leader won't allow a vote unless he thinks the president will support it.
So there are multiple levels something has to go through before it can even get a vote.
And then even on top of that, the majority leader won't allow a vote unless he thinks the president will support it.
So there are multiple levels something has to go through before it can even get a vote.
Respect is not quite the word I'd use. Yes you have to put in your time, but politics play just as much a role in SCOTUS appointments as any other branch. The major difference is that the appointees do not pander to the public for votes, rather they pander to those we have voted into office.
Even including recent events, I think the actual judicial track record of the Supreme Court proves its legitimacy. These people put huge amounts of research, thought, and reasoning into their decision.
Every single person will have some sort of bias. We are all human. Sometimes the court will 'lean' left, sometimes it will lean right. Over the years it has been an anchor of reason and stability that is very much appreciated by this American.
Every single person will have some sort of bias. We are all human. Sometimes the court will 'lean' left, sometimes it will lean right. Over the years it has been an anchor of reason and stability that is very much appreciated by this American.
"These people put huge amounts of research, thought, and reasoning into their decision."
What makes you think the judges are the ones who actually do all that research, thought, and reasoning? They all have a staff to do that for them.
What makes you think the judges are the ones who actually do all that research, thought, and reasoning? They all have a staff to do that for them.
>Anyone can become President
Somewhat irritatingly, I (and a large number of other American Citizens) cannot ever become president because we were not citizens at birth.
Somewhat irritatingly, I (and a large number of other American Citizens) cannot ever become president because we were not citizens at birth.
I wasn't aiming for absolute technical accuracy and don't think it was expected. I'm well aware of the specific technical limitations related to age, time living in the US, and citizenship requirements.
I'll not argue as to the correctness or morality of such a requirement.
I'll not argue as to the correctness or morality of such a requirement.
>I wasn't aiming for absolute technical accuracy and don't think it was expected.
I understand. It's just something that is frustrating. Having two classes of citizenship is something that affects many parts of life, especially if you decide on a career doing anything that requires a security clearance.
I understand. It's just something that is frustrating. Having two classes of citizenship is something that affects many parts of life, especially if you decide on a career doing anything that requires a security clearance.
We have more than two classes.
Ask anyone "convicted" of a felony. "Accused" of a mental disorder.
I put the scare quotes because most convictions are plea bargains that the accused are bullied into by prosecutors and police stacking and inflating charges and the overall lack of competent and affordable legal representation.
Laws are being passed now that permit the suspension of constitutional rights without due process if you are accused of or ever seek help for many mental disorders.
Sensationalistic fear of the 'boogeyman' has destroyed many of our political processes.
Ask anyone "convicted" of a felony. "Accused" of a mental disorder.
I put the scare quotes because most convictions are plea bargains that the accused are bullied into by prosecutors and police stacking and inflating charges and the overall lack of competent and affordable legal representation.
Laws are being passed now that permit the suspension of constitutional rights without due process if you are accused of or ever seek help for many mental disorders.
Sensationalistic fear of the 'boogeyman' has destroyed many of our political processes.
Is there not also a weird clause where you have to agree in the existence of a supreme being (it can be any supreme being, I think) because otherwise you can't take the oath of office? I suppose an atheist is very unlikely to become president of the US any time soon, but I always wondered what would happen if one did get voted in.
I certainly don't think so.
There's a clause that explicitly bans religious tests for federal public office[1], and a landmark SCOTUS case clarified that state governments cannot do this either[2].
1: https://en.m.wikipedia.org/wiki/No_Religious_Test_Clause
2: https://en.m.wikipedia.org/wiki/Torcaso_v._Watkins
There's a clause that explicitly bans religious tests for federal public office[1], and a landmark SCOTUS case clarified that state governments cannot do this either[2].
1: https://en.m.wikipedia.org/wiki/No_Religious_Test_Clause
2: https://en.m.wikipedia.org/wiki/Torcaso_v._Watkins
> Is there not also a weird clause where you have to agree in the existence of a supreme being (it can be any supreme being, I think) because otherwise you can't take the oath of office?
No, in addition to the clause which directly prohibits religious tests, there is no clause which does anything like that; the required oath or affirmation is:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
No supreme being required or even directly relevant. You may be confusing the Presidency with Alcoholics Anonymous, which requires acknowledging a “higher power”.
No, in addition to the clause which directly prohibits religious tests, there is no clause which does anything like that; the required oath or affirmation is:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
No supreme being required or even directly relevant. You may be confusing the Presidency with Alcoholics Anonymous, which requires acknowledging a “higher power”.
> You may be confusing the Presidency with Alcoholics Anonymous
I do that all the time.
I do that all the time.
No. Several presidents were sworn in using documents like the Constitution and the Magna Carta instead of the Bible.
No, that’s not a thing.
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
That’s it.
“So help me god” is not part of it, despite some tradition. Not all presidents have used bibles or sworn to a god.
https://en.wikipedia.org/wiki/Oath_of_office_of_the_Presiden...
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
That’s it.
“So help me god” is not part of it, despite some tradition. Not all presidents have used bibles or sworn to a god.
https://en.wikipedia.org/wiki/Oath_of_office_of_the_Presiden...
Several of the Founders we're not even Christian, hence Adams calling Paine a "filthy athiest" (untrue: he was a Deist).
There are states outlawing atheists from holding state offices, but the oath of office for US president does not contain religious references. It is specified in the Constitution.
Oaths of office for other federal positions do contain the phrase "so help me God," but so far as I know there has never been a problem omitting it; I had several friends in Federal service do so.
Oaths of office for other federal positions do contain the phrase "so help me God," but so far as I know there has never been a problem omitting it; I had several friends in Federal service do so.
I'm sure the congress would find a workaround if that came to be. Perhaps you'd just have consider it (the swearing in) just a part of the ceremony and not part of a belief? Of course, an atheist zealot would probably have an issue with that, but I imagine the kind of atheist to get elected would be the pragmatic kind.
> Is there not also a weird clause where you have to agree in the existence of a supreme being ... ?
Quite the opposite. The first amendment's establishment clause prohibits the government from "establishing" a religion, i.e., forcing religious on someone.
Quite the opposite. The first amendment's establishment clause prohibits the government from "establishing" a religion, i.e., forcing religious on someone.
Probably the single smartest decision the founding fathers made was to separate church and state.
People here commenting that the last point isn't valid are ironically demonstrating just how much respect the bench requires.
Thankfully, blind allegations with no substantiation aren't enough to ruin a whole careers worth of earned respect.
Thankfully, blind allegations with no substantiation aren't enough to ruin a whole careers worth of earned respect.
> Thankfully, blind allegations with no substantiation aren't enough to ruin a whole careers worth of earned respect.
And apparently, neither is lying during your sworn testimony to Congress.
And apparently, neither is lying during your sworn testimony to Congress.
Yes good point. Kavanaugh's appointment showed us that if you aspire to be a SC judge you better make sure you behave well right from your teens. Some dubious instant from 30 years ago might come to hurt you.
The sexual assault allegations addressed by the reopening of his confirmation hearing for the Supreme Court seem to have made everyone forget the fairly blatant perjury about his role in Bush Admin torture policy in his confirmations hearings for the D.C. Circuit that was addressed (but let slide) in the first round of his Supreme Court confirmation hearings.
True. There were many serious concerns about his competence as a judge which were not even discussed and everyone focused on his sex life.
I would probably argue that it didn't show us that at all.
> a whole careers worth of earned respect
Hundreds of US law professors disagree with you about that respect.
https://www.theguardian.com/us-news/2018/oct/02/brett-kavana...
Hundreds of US law professors disagree with you about that respect.
https://www.theguardian.com/us-news/2018/oct/02/brett-kavana...
> It takes a lifetime of respect to earn a seat on the Supreme Court bench.
No, it really doesn't. It takes backing from powerful politicians and/or lobbyists. Respect doesn't enter into it.
No, it really doesn't. It takes backing from powerful politicians and/or lobbyists. Respect doesn't enter into it.
It has in general, but not lately.
>It takes a lifetime of respect to earn a seat on the Supreme Court bench.
If that were true, more justices would ascend to the court quite close to their deaths. In reality, it's maybe half a life, less if you subtract youth.
If that were true, more justices would ascend to the court quite close to their deaths. In reality, it's maybe half a life, less if you subtract youth.
This comment doesn't seem to of been made with the last 3 or so years of history in mind.
I'm sure lots of women would not agree with your last statement.
Minus the odd occasion of sexual assault [1].
1: https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...
1: https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...
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*alleged
Even if 'alleged', this should have been enough to stop the confirmation until it was properly investigated. Or frankly, it should have stopped it outright.
Few positions are more important, and fewer still require a higher standard of morality than a supreme court position. Why settle for less than a spotless record? The person should be beyond reproach, so much so that an invalid allegation could be easily dismissed(during the confirmation, or any time afterwards).
You are placing someone in a position where they are able to influence lives of countless people, with repercussions that can span generations.
Few positions are more important, and fewer still require a higher standard of morality than a supreme court position. Why settle for less than a spotless record? The person should be beyond reproach, so much so that an invalid allegation could be easily dismissed(during the confirmation, or any time afterwards).
You are placing someone in a position where they are able to influence lives of countless people, with repercussions that can span generations.
No, you're right: highly respected and professionally stable women often go out of their way to drag themselves and their reputations through the mud to have no effect on the nomination and subsequent appointment of a Supreme Court Justice. That makes perfect sense.
She also instantly became a hero to nearly half the country and made hundreds of thousands in a gofundme. It's not all bad
Was her reputation damaged? Did she expect no effect?
The second statement is false.
How much a candidate raises has been correlated to ability to win.
That eliminates anyone that can’t raise money.
And Kavanaugh’s nomination casts doubt on the third statement. You can be a vile POS, but become a SCOTUS judge so long as you’re networked with the right people.
How much a candidate raises has been correlated to ability to win.
That eliminates anyone that can’t raise money.
And Kavanaugh’s nomination casts doubt on the third statement. You can be a vile POS, but become a SCOTUS judge so long as you’re networked with the right people.
>How much a candidate raises has been correlated to ability to win.
Key word being correlated. Winners raise more money in large part because people donate to candidates they think will win. So your third statement is technically true, but in a very uninteresting way that you probably didn't intend.
Key word being correlated. Winners raise more money in large part because people donate to candidates they think will win. So your third statement is technically true, but in a very uninteresting way that you probably didn't intend.
Correlated != caused. As candidates gain popularity they always bring in more money.
The amount of restraint shown depends largely on the issue and justices. One of the most infamous overreaches was the Dred Scott case where the court went way beyond the issue at hand and essentially decided the case was invalid because of the defendant’s race.
Now if we could only do something about the police stealing stuff from people who aren't even accused of breaking the law.
And why is it a good thing that they didn't rule on the other merits of the case, such as clarifying that a confiscation of a $45000 car is "excessive" for a crime with a maximum fine of $1200?
IANAL, which should be evident, but..
The lower courts already felt the fine was excessive, but declined to rule so because they felt they were not subject to the 8th amendment. The Supreme Court ruled that they were in fact subject to the 8th amendment, and sent the case back to the State court to re-evaluate under the new guidance.
The Supreme court generally tries to rule as precisely and efficiently as possible. Since the most prominent question under their jurisdiction was the application of the 8th amendment to the states, they ruled on that issue and remanded for the remainder of the case to be resolved by the lower case with the 8th amendment applied.
Now the lower court, which is a perfectly capable entity, will rule on the case, applying the 8th amendment as directed by the Supreme Court. If the lower court then rules the fine was not excessive, that ruling as well would be subject to review by the higher court.
But it was not necessary at this time for the Supreme Court to rule on this as the ruling on the 8th amendment will permit the lower court to do it's job and re-evaluate.
The lower courts already felt the fine was excessive, but declined to rule so because they felt they were not subject to the 8th amendment. The Supreme Court ruled that they were in fact subject to the 8th amendment, and sent the case back to the State court to re-evaluate under the new guidance.
The Supreme court generally tries to rule as precisely and efficiently as possible. Since the most prominent question under their jurisdiction was the application of the 8th amendment to the states, they ruled on that issue and remanded for the remainder of the case to be resolved by the lower case with the 8th amendment applied.
Now the lower court, which is a perfectly capable entity, will rule on the case, applying the 8th amendment as directed by the Supreme Court. If the lower court then rules the fine was not excessive, that ruling as well would be subject to review by the higher court.
But it was not necessary at this time for the Supreme Court to rule on this as the ruling on the 8th amendment will permit the lower court to do it's job and re-evaluate.
It's standard operating procedure for the court.
They usually make the narrowest possible decisions, only in cases they felt they had to take (usually because of disagreements below, sometimes due to time considerations), and remand to lower courts to work out details left undecided.
In this case the holding leaves very little room for the lower courts to make any decision other than that the $45k property or equivalent value must be restored to the plaintiff. I suppose Indiana might want to take the $8800 between the $1200 and the max fine ($10k), but that would invite further pointless expense and embarrassment by having their rulings overturned by Federal courts, so I would bet the plaintiff gets the $45k back. I suppose the plaintiff may want interest too, but there's not enough value in that for them, but the State will surely fight that tooth an nail, especially if the courts decide that all (or many) civil asset forfeiture cases are now to open to being revisited, as the States (or their cities) will be on the hook for enormous amounts of money, and interest on that will be a lot too.
They usually make the narrowest possible decisions, only in cases they felt they had to take (usually because of disagreements below, sometimes due to time considerations), and remand to lower courts to work out details left undecided.
In this case the holding leaves very little room for the lower courts to make any decision other than that the $45k property or equivalent value must be restored to the plaintiff. I suppose Indiana might want to take the $8800 between the $1200 and the max fine ($10k), but that would invite further pointless expense and embarrassment by having their rulings overturned by Federal courts, so I would bet the plaintiff gets the $45k back. I suppose the plaintiff may want interest too, but there's not enough value in that for them, but the State will surely fight that tooth an nail, especially if the courts decide that all (or many) civil asset forfeiture cases are now to open to being revisited, as the States (or their cities) will be on the hook for enormous amounts of money, and interest on that will be a lot too.
Probably because what constitutes excessive is going to be a fairly arbitrary and subjective amount at any point in time and depending on the person in the case. I don't think that's what's really the meat of the argument. The 8th amendment not applying to states however is a huge deal as its a pretty clear violation of the 14th amendment and its broader intentions.
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Not American here, but would SCotUS even be able to rule on anything outside of their narrow window? My impression was that they only rule on constitutional issues. I guess that's why they vacated the rest. When it gets to that level, is there any oversight to ensure that they don't go beyond the boundaries of their mandate?
I think that norms are what are keep them most things in check and to preserve legitimacy they rule mostly on constitutional issues but I'm sure they can review any ruling in lower courts that they like or even overturn old rulings as they see fit. They cannot write new law as that is explicitly congress but they could take cases and interpret them broadly or narrowly to skew the desired result. If they tried to write laws themselves presumably they would be ignored or removed either via impeachment or by physical force. In a situation where parties are adhering to the rules then either congress can pass new law to clarify intent (and probably fight again) or pass an amendment to constitution or states could call constitutional convention to overrule an undesired court ruling.
The SCotUS has extremely broad leeway in it's decision making. Any court case can rise to the SCotUS, but the SCotUS also has the power to deny hearing any case it wants.
The Supreme Court has original jurisdiction (that is, the first court the case must be heard in) in a very narrow set of circumstances defined by the US Constitution (in Article III): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction."
However, the Constitution goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (More here [0].)
So, for state courts (which try violations of state or municipal law, which are the vast majority of cases), you would have your original jurisdiction court (civil court, criminal court, etc.). If the case is appealed, it goes to the state appellate court. If that decision is appealed, it goes to the state supreme court. If that decision is appealed, it goes to the SCotUS. Not all states have both a supreme court and a designated appellate court. Some cities also have their own courts for municipal laws (New York and Chicago both do) but they work the same basic way and I believe they appeal to state appellate courts.
For federal courts (which try violations of federal law or that occur on federal land or that cross state lines, but also any trial in Washington, D.C., because the federal government regulates that), you start at the district court[1]. Appeals to that cast go to the circuit court[2], and appeals to that go to the SCotUS.
There is no appealing a decision by the SCotUS. It would require an act of Congress, Constitutional Amendment, or a completely different trial where the SCotUS reversed it's prior decision. This has happened, most famously in Plessy v. Ferguson (1896) (legalized racial segregation) was overturned by Brown v. Board of Education (1954) [3].
[0]: https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_S... [1]: https://en.wikipedia.org/wiki/United_States_district_court [2]: https://en.wikipedia.org/wiki/United_States_circuit_court [3]: https://money.howstuffworks.com/10-overturned-supreme-court-...
The Supreme Court has original jurisdiction (that is, the first court the case must be heard in) in a very narrow set of circumstances defined by the US Constitution (in Article III): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction."
However, the Constitution goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (More here [0].)
So, for state courts (which try violations of state or municipal law, which are the vast majority of cases), you would have your original jurisdiction court (civil court, criminal court, etc.). If the case is appealed, it goes to the state appellate court. If that decision is appealed, it goes to the state supreme court. If that decision is appealed, it goes to the SCotUS. Not all states have both a supreme court and a designated appellate court. Some cities also have their own courts for municipal laws (New York and Chicago both do) but they work the same basic way and I believe they appeal to state appellate courts.
For federal courts (which try violations of federal law or that occur on federal land or that cross state lines, but also any trial in Washington, D.C., because the federal government regulates that), you start at the district court[1]. Appeals to that cast go to the circuit court[2], and appeals to that go to the SCotUS.
There is no appealing a decision by the SCotUS. It would require an act of Congress, Constitutional Amendment, or a completely different trial where the SCotUS reversed it's prior decision. This has happened, most famously in Plessy v. Ferguson (1896) (legalized racial segregation) was overturned by Brown v. Board of Education (1954) [3].
[0]: https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_S... [1]: https://en.wikipedia.org/wiki/United_States_district_court [2]: https://en.wikipedia.org/wiki/United_States_circuit_court [3]: https://money.howstuffworks.com/10-overturned-supreme-court-...
High-effort comment.
I would add some from libertarian or socially-liberal inclinations have criticized SCOTUS as becoming tyrannical in a sense that some socia policy was constitutionally-intended to be "experiments" by the states--something SDOC is championed.
I think a good example of this is the political economy of healthcare, which in my opinion should be handled by the states.
I would add some from libertarian or socially-liberal inclinations have criticized SCOTUS as becoming tyrannical in a sense that some socia policy was constitutionally-intended to be "experiments" by the states--something SDOC is championed.
I think a good example of this is the political economy of healthcare, which in my opinion should be handled by the states.
As an interesting side note, they don't have to rule only on constitutional issues. They used to quite regularly hear big-news criminal cases.
The SCOTUS rules on all sorts of controversies. Most often they rule on matters of procedure and statutory construction. Sometimes they rule on constitutional matters. Most cases that come to the SCOTUS are not momentous but boring, but occasionally there is a momentous case.
The SCOTUS has, for some time now, been very good at doing the following:
As to oversight, yes there is, but it goes un-exercised now for a long time. Federal judges are appointed for life, but they can be left without a court or without a jurisdiction, the various courts' jurisdictions (including the SCOTUS'!) can be narrowed statutorily, court sizes can be changed -- all of this by simple majorities of both houses of Congress and Presidential approval (or veto override). There's also two ways to amend the Constitution to change SCOTUS decisions. But none of these things have been attempted in decades. The last time there was an attempt to use statutory avenues was in the 30s, when FDR tried to pack the SCOTUS, and the Senate killed the project. Before that we'd have to go back to the income tax amendment (the 16th), and before the Reconstruction Amendments (13th, 14th, and 15th).
The most notable case I'm aware of when Congress did away with courts for political reasons, was way back when Thomas Jefferson was President. Congress then closed about half the federal district courts and left as many judges court-less. Congress has changed the size of the SCOTUS, including shrinking it, from time to time, though I think all of that was in the 18th and 19th centuries, and never did they pack the court -- it was always changes of +-1 or +-2.
There's always a risk of court packing. It seems strange that the Constitution allows it by simple majority -- it feels like a bug.
A number of politicians have threatened to pack the court the first chance they get. Given our rather nowadays-frequent wave elections, it could very well happen. The filibuster in the Senate will be no protection for the minority in the Senate the day it comes to packing the court anymore than the filibuster stands for nominations to the court (it no longer does). But it's also not guaranteed to happen. It will be very costly to whichever party does it, and since we've had so many wave elections in recent decades, any court packing scheme simply might not last.
The SCOTUS has, for some time now, been very good at doing the following:
- waiting until there is a "circuit split"
(meaning lower courts deciding the issue
differently) on some kind of controversy
before hearing appeals
- then making the narrowest possible ruling
(emphasis on possible),
- thus often leaving some issues undecided so
that lower courts may develop jurisprudence
on the matter further before the SCOTUS need
clarify,
- which then allows the SCOTUS room to maneuver
if they make bad decisions (the SCOTUS does
not like to overrule earlier decisions,
something they call "stare decisis", meaning
what is decided is decided),
- and they do this by remanding to lower courts
to decide things the SCOTUS left undecided.
As to oversight, yes there is, but it goes un-exercised now for a long time. Federal judges are appointed for life, but they can be left without a court or without a jurisdiction, the various courts' jurisdictions (including the SCOTUS'!) can be narrowed statutorily, court sizes can be changed -- all of this by simple majorities of both houses of Congress and Presidential approval (or veto override). There's also two ways to amend the Constitution to change SCOTUS decisions. But none of these things have been attempted in decades. The last time there was an attempt to use statutory avenues was in the 30s, when FDR tried to pack the SCOTUS, and the Senate killed the project. Before that we'd have to go back to the income tax amendment (the 16th), and before the Reconstruction Amendments (13th, 14th, and 15th).
The most notable case I'm aware of when Congress did away with courts for political reasons, was way back when Thomas Jefferson was President. Congress then closed about half the federal district courts and left as many judges court-less. Congress has changed the size of the SCOTUS, including shrinking it, from time to time, though I think all of that was in the 18th and 19th centuries, and never did they pack the court -- it was always changes of +-1 or +-2.
There's always a risk of court packing. It seems strange that the Constitution allows it by simple majority -- it feels like a bug.
A number of politicians have threatened to pack the court the first chance they get. Given our rather nowadays-frequent wave elections, it could very well happen. The filibuster in the Senate will be no protection for the minority in the Senate the day it comes to packing the court anymore than the filibuster stands for nominations to the court (it no longer does). But it's also not guaranteed to happen. It will be very costly to whichever party does it, and since we've had so many wave elections in recent decades, any court packing scheme simply might not last.
You are correct that they didn't rule on it. But they did write an opinion that was highly suggestive of what the particular finding in this case should have been. It doesn't carry the weight of law, but it isn't nothing, either.
Oh, definitely. It was a minimal ruling, but it's still a landmark.
Honestly, though, this case is so perfect that I almost wonder if the Supreme Court of Indiana didn't rule the way they did just to force the issue.
Honestly, though, this case is so perfect that I almost wonder if the Supreme Court of Indiana didn't rule the way they did just to force the issue.
That's roughly what they did, though they also said "hey, we're the Supreme Court of this state, and we're not just going to give it to them." Here is the money shot from the Indiana Supreme Court opinion:
> A second option is to await guidance from the Supreme Court and decline to find or assume incorporation until the Supreme Court decides the issue authoritatively. We choose this latter, more cautious approach for two reasons. First, although the Supreme Court has addressed this issue only in dicta, its statement in McDonald that the Clause has not been incorporated is entitled to more weight because it is the Court’s most recent. Second, Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated. An important corollary is that Indiana has its own system of legal, including constitutional, protections for its citizens and other persons within its jurisdiction. Absent a definitive holding from the Supreme Court, we decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.
> A second option is to await guidance from the Supreme Court and decline to find or assume incorporation until the Supreme Court decides the issue authoritatively. We choose this latter, more cautious approach for two reasons. First, although the Supreme Court has addressed this issue only in dicta, its statement in McDonald that the Clause has not been incorporated is entitled to more weight because it is the Court’s most recent. Second, Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated. An important corollary is that Indiana has its own system of legal, including constitutional, protections for its citizens and other persons within its jurisdiction. Absent a definitive holding from the Supreme Court, we decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.
The more I follow SCOTUS rulings the more I think this happens quite often.
There's a thing called "forcing a circuit split," which is a precondition for SCOTUS cert, but AFAIK it's usually a strategy by parties to a case (see: forced-birth organizations), not judges.
https://en.wikipedia.org/wiki/Circuit_split
https://en.wikipedia.org/wiki/Circuit_split
It does, in fact, carry the weight of law (not just in the instant case but in every case to which it's ruling is applicable in every US federal and state court at every level, other than the US Supreme Court itself.)
It isn't, on its own, a final judgment on the case, but that doesn't mean it lacks force of law.
It isn't, on its own, a final judgment on the case, but that doesn't mean it lacks force of law.
> Timbs sued or appealed the confiscation by Indiana, which he he could prove he didn't buy with drug money.
Shouldn't the burden of proof of financing lie with the state before property possession is carried out? It is unfair for the defendant to prove the source of funds for his own property
Shouldn't the burden of proof of financing lie with the state before property possession is carried out? It is unfair for the defendant to prove the source of funds for his own property
People have been saying that stuff for years. Unfortunately, this affects mostly folks doing illegal things or those accused of them, making the public at large have little incentive to fix it.
The crucial detail is that civil forfeiture works by suing the property, not its owner. The owner is just an "interested party" and has limited standing to fight the seizure. It's mind-blowingly bizarre.
https://en.wikipedia.org/wiki/Asset_forfeiture#United_States
https://en.wikipedia.org/wiki/Asset_forfeiture#United_States
The state did prove that Timbs and committed the crime he was being fined for, the question at hand is whether the state can take away his car.
One reason might have been if it was the proceeds of drug-dealing. But that reason is not relevant since he could prove otherwise (let alone whether the burden of proof is/should be on him).
The other reason is simpler: States can fine people for stuff, but (according to the USSC) the fine can't be excessive.
One reason might have been if it was the proceeds of drug-dealing. But that reason is not relevant since he could prove otherwise (let alone whether the burden of proof is/should be on him).
The other reason is simpler: States can fine people for stuff, but (according to the USSC) the fine can't be excessive.
This is why evil will always win, because good is dumb.
Or more precisely, evil people will happily violate entire tranches of law while the good people are stuck prosecuting one case at a time, painfully establishing precedent by precedent, and in the meantime the world has moved on.
Or more precisely, evil people will happily violate entire tranches of law while the good people are stuck prosecuting one case at a time, painfully establishing precedent by precedent, and in the meantime the world has moved on.
Blame it on police and military fetishization. At the end of the day, if you resist authority trying to take your shit illegally, it will come to blows. If you choose to defend yourself against them, you are now very much on the wrong side of the law.
It has to be less illegal to defend yourself from authority if you feel you're in danger.
It has to be less illegal to defend yourself from authority if you feel you're in danger.
On a practical level that doesn't seem very viable in a "mountain lion vs housecat" way. Accountability is certainly needed though.
I am surprised that the Indiana Supreme Court ruling basically upheld that the Bill of Rights doesn't apply to states in the absence of specific SCOTUS rulings. Can you imagine if individual states felt they have the right to suppress free speech or the press?
I read the official decision from the state court[0] but it's a bit dense for me to get through. It seems like a legal punt, of sorts, in the hopes that SCOTUS would pick up the case.
I'd love to hear someone more qualified break down the state decision.
[0] https://www.leagle.com/decision/ininco20171102267
I read the official decision from the state court[0] but it's a bit dense for me to get through. It seems like a legal punt, of sorts, in the hopes that SCOTUS would pick up the case.
I'd love to hear someone more qualified break down the state decision.
[0] https://www.leagle.com/decision/ininco20171102267
The US Supreme Court decided many decades ago that the Bill of Rights doesn’t apply wholesale to the states. Instead they held that each right has to be analyzed separately to determine if it should apply to the states. This principle is called “selective incorporation”.
At this point most of the rights have been incorporated and only a few have specifically not been incorporated, most notably the right to a grand jury indictment. The excessive fines clause was one of the stragglers that hadn’t been decided either way. (The third amendment probably never will be decided.)
At this point most of the rights have been incorporated and only a few have specifically not been incorporated, most notably the right to a grand jury indictment. The excessive fines clause was one of the stragglers that hadn’t been decided either way. (The third amendment probably never will be decided.)
Actually the third amendment has already been decided as incorporated. :)
See https://en.m.wikipedia.org/wiki/Engblom_v._Carey
See https://en.m.wikipedia.org/wiki/Engblom_v._Carey
Only in the 2nd circuit, I guess, but good call.
State Supreme Courts can't incorporate parts of the constitution against their own laws, this is the role of SCOTUS. It's not a matter of will or desire; it's a matter of jurisprudence.
Unrelated question, but who is paying for all these lawyers? Timbs himself out of his pocket?
Wikipedia says he was represented by the Institute for Justice.
https://en.wikipedia.org/wiki/Timbs_v._Indiana
Otherwise, yes, Timbs would have to pay. You can file a petition to ask the court to waive your court costs (there's a Latin legal term for it that I believe means "with pockets turned out" or "with pockets empty" but I can't remember it), but your lawyer's time isn't covered by that.
https://en.wikipedia.org/wiki/Timbs_v._Indiana
Otherwise, yes, Timbs would have to pay. You can file a petition to ask the court to waive your court costs (there's a Latin legal term for it that I believe means "with pockets turned out" or "with pockets empty" but I can't remember it), but your lawyer's time isn't covered by that.
I think in forma pauperis is the phrase you're looking for (but its literal meaning isn't what you suggest).
That is it, yes.
For reference, in forma pauperis means "in the shape of a poor man"; pockets aren't mentioned. As far as I'm aware, the Romans didn't have pockets and so there would be no way to express the concept in Latin.
Latin was the international language of Europe for almost a thousand years after the collapse of the Roman Empire, during which time many scientific advancements were made. There are plenty of Latin words for things that didn't exist in Antiquity.
There are tiny communities who use recreational Latin today. Here's the Vicipaedia article on the telephonum: https://la.wikipedia.org/wiki/Telephonum
But that doesn't really constitute a good argument that there is a Latin word for telephones.
But that doesn't really constitute a good argument that there is a Latin word for telephones.
Given that telephone is Ancient Greek (though obviously coined more recently), I don't see why there shouldn't be a Latin word for it.
Thank you, beautiful refutation of an argumentative quarralous, I would even say bad faith, assertion, which we see entirely to often now imo.
I had no idea this existed, and you just made my day with it.
> As far as I'm aware, the Romans didn't have pockets and so there would be no way to express the concept in Latin.
I know this is probably not meant to be funny, but for whatever reason, in reading it, I couldn't help but laugh.
I know this is probably not meant to be funny, but for whatever reason, in reading it, I couldn't help but laugh.
Others have more specific answers, but more broadly if you have a case that's Supreme Court worthy there are numerous organizations willing to step in to represent your side. The ACLU is sort of built on this principle.
pro bono. I think IJR is involved in this:
https://ij.org/report/policing-for-profit/
More generally, I believe that by the time a cases nears the level of the Supreme Court, legal fees typically become less of an issue in practice. There are many orgs on bath sidee that fund cases with important precedent, and plenty of great lawyers willing to argue for free since it's so prestigious.
Institute for Justice: https://ij.org/about-us/
You can help out too: https://ij.org/support/give-now
You can help out too: https://ij.org/support/give-now
Sounds like they made a very broad ruling (that the 8th Amendment does apply to the states) and left the narrow rulings (about the specifics of the case) to other courts.
Had the 8th Amendment not been considered to have been incorporated before this?
The excessive fines clause hadn't, probably in no small part because states would argue "this is a reasonable fine" rather than "we're allowed to give unreasonable fines."
I believe cruel and unusual punishment would have come up in method of execution cases, but not sure of the case.
I believe cruel and unusual punishment would have come up in method of execution cases, but not sure of the case.
>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.
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.
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.
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.
> 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.
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.
The constitution really clearly delineates between "persons" and "citizens." I hate the notion that none of the protections apply to noncitizens.
Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.
Additionally, a lot of the constitution is actually phrased as limits on the government rather than rights as citizens.
> 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.
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.
[0]: https://en.wikipedia.org/wiki/United_States_congressional_ap...
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...
> 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.
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.
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.
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.
No, I don't think that adding more representatives would help the problem
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.
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.
> it's extremely difficult to get 50 states to jump forward at the same time
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!!
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!!
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?
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.
[0]: https://en.wikipedia.org/wiki/European_Union#/media/File:Org...
[0]: https://en.wikipedia.org/wiki/European_Union#/media/File:Org...
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.
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.
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.
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.
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.)
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.
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.
Can you provide some evidence for your last paragraph?
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.
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.
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.
> 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.)
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.)
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.
Citizens have the most important privilege: the ability to vote.
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.
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).
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).
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".
And hold government office.
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)
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
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
Citizens have the special privileges of voting, being President, and having guaranteed reentry to the country.
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.
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.
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.
Corporations are not people, and the Supreme Court has never found that they are -- this soundbite is a misunderstanding of Citizens United v. FEC.
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?
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?
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.
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.
https://www.natlawreview.com/article/court-holds-corporation...
https://www.natlawreview.com/article/court-holds-corporation...
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".
...or that's how I've had it explained to me.
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 not 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.”
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.”
Corporate personhood has a very long history in the US.
https://en.wikipedia.org/wiki/Corporate_personhood
https://en.wikipedia.org/wiki/Corporate_personhood
people =/= person.
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. 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”.
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”.
They are people associating freely, however, which is protected under the First Amendment.
> 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.
It sounds wrong, but there it is.
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.
That's part of a longer list of rights. Clearly they are not all about petitioning the government.
> corporations are 'people'
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.
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.
> 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.
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.
What I am saying is, that a corporation does not have a mouth. Only people have mouths.
Therefore any time you a preventing an entity with a mouth from speaking, you are by definition preventing a person from speaking.
Therefore any time you a preventing an entity with a mouth from speaking, you are by definition preventing a person from speaking.
> 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?
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?
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 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).
For example: the right to vote, the right to run for elected office, the right to enter US territory and remain there indefinitely.
I meant beyond the obvious right to vote and be in the country etc.
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].
[1]: https://en.wikipedia.org/wiki/Foreign_Investment_in_Real_Pro...
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...
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.
Right to vote(though this can be stripped from felon citizens), right to peaceable assembly, right to bear arms.
The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.
The Constitution distinguishes natural rights of all persons vs rights and privileges of "the people" being citizens and non-citizen legal residents.
> 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).
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).
[deleted]
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.
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.
Of course using the P&I clause has important implications.
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.
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.
Background on the Slaughterhouse Cases: https://www.thirteen.org/wnet/supremecourt/antebellum/landma...
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.
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.
Thomas just wanted to use a different clause of the 14th amendment to achieve the same outcome.
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".
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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?
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?
>aliens
I really hate that usage of the word.
I really hate that usage of the word.
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.
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 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.
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.
> may then pass discriminatory laws for which the Bill of Rights no longer applies against.
Cannot they already do this to some limited extent (and perhaps are even required to do so)? For example, laws concerning voting.
Cannot they already do this to some limited extent (and perhaps are even required to do so)? For example, laws concerning voting.
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.
Germany provides many Basic Rights to everybody.
Others are only for citizens (and EU citizens, but via a strange legal method), but the most fundamental ones state "Everyone", not "every citizen".
Others are only for citizens (and EU citizens, but via a strange legal method), but the most fundamental ones state "Everyone", not "every 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.
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.
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.
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.
The average ruling in a single minor case today is longer than the entire Constitution.
> That's fine, but affording no rights to non-citizens would be highly problematic.
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.
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.
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)."
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/08/15...
"... 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...
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> 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?
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?
Abortion. And immigration.
"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
"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
RBG herself is well known to be in favor of a different grounding. If Roe is weakened or overturned, let's test that case on its merits.
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.
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.
> we extend the rights
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.
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.
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.
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The due process issue was tangential.
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
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
Its guidance for future rulings in the lower courts.
> 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 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.
[deleted]
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."
"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."
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For the curious, this is called the "incorporation doctrine".
> privileges or immunities of citizens of the United States
So resident aliens are not protected?
So resident aliens are not protected?
In the WSJ article[0], RBG appears to agree explicitly with Thomas as well.
0. https://www.wsj.com/articles/supreme-court-rules-against-exc...
0. https://www.wsj.com/articles/supreme-court-rules-against-exc...
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.
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.
Also the maximum fine for the offense is $10k, and he was given $1200 in fines. Yet a $42k car was taken.
That was 4x the maximum penalty, and almost 20x the fine. How that was ever legal remains confusing to me.
That was 4x the maximum penalty, and almost 20x the fine. How that was ever legal remains confusing to me.
It wasn't legal; that's what this case is about.
The authorities sometimes break laws.
The authorities sometimes break laws.
This case wasn't about the legality of taking the car. It was simply about whether the 8th Amendment applies to states.
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.
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.
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.
[0] (https://blog.simplejustice.us/2016/11/30/the-unreasonable-ex...)
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...)
Somebody decided to take this guy's car, even though the value of the car far exceeded the stated maximum fine. Feels like theft to me, yes.
If the only consequence for misuse of civil forfeiture is that a victim can sue to get their stuff back, nothing will change.
If the only consequence for misuse of civil forfeiture is that a victim can sue to get their stuff back, nothing will change.
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.
laws.https://www.kqed.org/news/11706921/lawsuit-rohnert-park-hopl...
laws.https://www.kqed.org/news/11706921/lawsuit-rohnert-park-hopl...
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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.
This is 100% relevant, since the "tainted" nature of the money gained from criminal activity is one of the justifications for seizure.
This case was about criminal forfeiture, not civil forfeiture. The aggrieved was convicted of crime, and the forfeiture was a fine for that.
en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States#Civil_versus_criminal_forfeiture
en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States#Civil_versus_criminal_forfeiture
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)
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)
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.
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.
Yeah I keep reading "civil" mentioned in news articles. I even say a lawyer on a news video talking about how this applies to civil forfeiture cases.
What you're saying makes sense, but I'm not seeing it reflected in any of these sources, so I'm doubtful now.
What you're saying makes sense, but I'm not seeing it reflected in any of these sources, so I'm doubtful now.
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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.
Glad this overreach was rectified but it took a good while to get corrected.
> 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.
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.
> The car is potentially proceeds of crime
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.
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!
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!
>The car is potentially proceeds of crime
Then the state must prove that case rather than it being in implicit assumption.
Then the state must prove that case rather than it being in implicit assumption.
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.
Um, no that is not the state proving that the car was bought with 'drug money' that is the accused inability to prove that it wasn't.
> it also enables the crime of dealing to be carried out
His hands also enabled the crime to be carried out, should they be chopped off?
His hands also enabled the crime to be carried out, should they be chopped off?
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.
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 executive branch can also help here. Someone can run for district attorney, say "my office won't use civil forfeiture", and it's gone.
What is scary is that that's not the platform people run on, or win elections by running on.
What is scary is that that's not the platform people run on, or win elections by running on.
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.
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.
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.
If the executive believes it to be unconstitutional then it's not an abdication of their assigned role.
It's not the executive's role to determine whether something is constitutional or not.
Yes it is, that is literally why the Framers gave them the veto power.
The modern conception of the veto as a political power rather than as one of constitutional defense was invented by Andrew Jackson.
The modern conception of the veto as a political power rather than as one of constitutional defense was invented by Andrew Jackson.
And that power can only be applied before the law is passed, not after.
Are you claiming that the legislature can compel the executive to violate the constitution? I'm pretty sure that's not right.
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.
Selective enforcement is absolutely fine.
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.
Random google hit about "fornication"
https://www.nbcnews.com/news/crime-courts/virginia-bill-decr...
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...
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.
A better way for the executive branch to help the problem would be to abolish the DEA and start work to end the war on drugs.
>Someone can run for district attorney, say "my office won't use civil forfeiture", and it's gone.
Until the next DA comes in... Being seen as "tough on crime" is what gets the votes, sadly.
Until the next DA comes in... Being seen as "tough on crime" is what gets the votes, sadly.
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.
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.
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.
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.
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.
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.
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'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).
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).
> 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.
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.
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?
[0] https://en.wikipedia.org/wiki/United_States_v._$124,700_in_U...
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...
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 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 original civil forfeiture practices were put in place at the height of "the war on drugs" in the 80's as I recall.
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.)
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.)
Fair enough.
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.
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.
Thanks for this - no idea that this was even remotely a possibility in law...
It means Austin (below) would now apply for state/local cases.
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.
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.
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?
https://casetext.com/case/von-hofe-v-us
:-)
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.
:-)
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.
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.
Non-paywalled press release from the Institute for Justice, who worked on this case as part of their mission to fight civil forfeiture: https://ij.org/press-release/u-s-supreme-court-rules-unanimo...
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.
[1] https://ij.org/about-us
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
"Ruling Requires Cities and States—Not Just the Federal Government— To Abide by the Eighth Amendment’s Excessive Fines Clause"
Wow, this is pretty big. They just extended constitutional protection of this clause to lower levels of government.
Wow, this is pretty big. They just extended constitutional protection of this clause to lower levels of government.
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.
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 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.
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".
If it applies to the state, it automatically applies to towns. The constitution only sees two legal entities - the federal government and the state.
[deleted]
BTW, if you have civil forfeiture at all (which I think should't exist), why does the money go to the seizing agency? Shouldn't it all go straight to the general fund to avoid a conflict of interest?
Ditto punitive damages in court cases (where the defendent pays, say, $3M in restitution but say $500M in punitive damages because they could easily afford the $3M and need to suffer enough to change their ways). Why doesn't that money go into the government general fund?
Ditto punitive damages in court cases (where the defendent pays, say, $3M in restitution but say $500M in punitive damages because they could easily afford the $3M and need to suffer enough to change their ways). Why doesn't that money go into the government general fund?
In the 1980s federal law was changed such that asset forfeitures could be put into the US Treasury's general fund. That was quickly changed back a few years later. My suspicion is that the Feds allow the states and agencies to keep it, as a cooperation enticement. It helped make for happy allies in the war on drugs and kept everyone on the same page. Bribe money, basically. If you don't want them to fight against (or ignore enforcement) the war on drugs as a concept, give them an economic incentive to cooperate. The sums used to be far more trivial (prior to the last decade), so the US Treasury likely didn't miss it.
Also agree it shouldn't exist, but if there were a general fund, it shouldn't go towards funding any government agencies even in a distributed fashion. Maybe credit it out to all tax payers?
If it gets credited out to taxpayers, I would expect any public pressure to get rid of civil asset forfeiture to disappear very quickly.
Essentially it would be credited to all taxpayers as less tax revenue would in principle be required but in reality it'd be a drop in the bucket, which is the point.
What would the point of suing the entity for punitive damages if you didn't see any of the money?
Some states have laws that say as such, often passed within the last decade.
Then the local law enforcement agencies "partner" with the feds and the forfeiture goes through the federal govt, and the local law enforcement gets a kickback.
This practice of kickbacks to circumvent state law was limited by the previous US President, but was now being un-limited and expanded under the current one.
Then the local law enforcement agencies "partner" with the feds and the forfeiture goes through the federal govt, and the local law enforcement gets a kickback.
This practice of kickbacks to circumvent state law was limited by the previous US President, but was now being un-limited and expanded under the current one.
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.
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!
The Sheriff's Office can be requested to serve evictions that might not go easy.
[deleted]
Finally! Joyful day!
I've not read all of the decision yet, but it seems that any decision about retroactivity was left for later. That will now lead to a bunch of fun cases where plaintiffs demand their property and monies back, and the cities and States will have a hard time ponying it up. Localities and States that play fast and loose with the Constitution should pay a steep price when it later turns out that the SCOTUS gets to make the obvious ruling. That will teach the cities and States to not violate the Constitution willy-nilly. It was obvious to anyone who bothered to read the Constitution and Incorporation case law that civil asset forfeiture was on very thin ice, both, as a matter of jurisprudence, and as a matter of plain reading of the Constitution.
I've not read all of the decision yet, but it seems that any decision about retroactivity was left for later. That will now lead to a bunch of fun cases where plaintiffs demand their property and monies back, and the cities and States will have a hard time ponying it up. Localities and States that play fast and loose with the Constitution should pay a steep price when it later turns out that the SCOTUS gets to make the obvious ruling. That will teach the cities and States to not violate the Constitution willy-nilly. It was obvious to anyone who bothered to read the Constitution and Incorporation case law that civil asset forfeiture was on very thin ice, both, as a matter of jurisprudence, and as a matter of plain reading of the Constitution.
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.
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).
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?
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?
Naming the property as a suit defendent seems like pure legal sophistry. The whole civil forfeiture scheme should run afoul of the the 4th amendment against unreasonable search and seizure.
Originally, they had the phrase "life, liberty, and property", if I recall, but "happiness" sounded more poetic or something in the Declaration of Independence. They definitely had protection of property from the government in mind when writing the Constitution.
Originally, they had the phrase "life, liberty, and property", if I recall, but "happiness" sounded more poetic or something in the Declaration of Independence. They definitely had protection of property from the government in mind when writing the Constitution.
The only argument I have heard is that it was useful for prosecuting property where no owner will claim it, or the owner is unavailable for prosecution because they are not in the country. Imagine a drug cartel shipped a large pile of cash to the US and it was seized. I could imagine it might make sense to have US vs. Big Pile of Cash because the cartel isn't going to claim it and you could prove it was likely part of the drug trade. IMHO it went sideways as soon as it was used when an owner was available.
This argument doesn't even fly. In the case that the owner is unknown you could simply file a suit against John Doe, Unidentified Owner of Big Pile Of Cash.
https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf
Here is the ruling in full if anyone is interested.
Here is the ruling in full if anyone is interested.
Listen and read the oral argument here (oyez):
—edited, correct case:
https://apps.oyez.org/player/#/roberts10/oral_argument_audio...
—edited, correct case:
https://apps.oyez.org/player/#/roberts10/oral_argument_audio...
Good thing, it only took about 35 years or so. This was one of legacies of the glorious War On Drugs.
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
It likely doesn't.
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.
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.
What is scary is that something like the Patriot Act can be signed in overnight and something like this will take decades.
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.
That's generally true, although forces today are trying to dismantle the Bill of Rights to suit their own agendas:
https://slate.com/news-and-politics/2019/02/clarence-thomas-...
https://slate.com/news-and-politics/2019/02/clarence-thomas-...
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?
>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).
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.
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".
There are numerous cases in lower courts attempting just that!
> 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? :)
Well-regulated militia. Not sure if you would qualify as a militia, but the regulation part seems to be working, right? :)
> nobody's quartering troops in my home.
At least, not yet!
[deleted]
This is good.
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.)
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.)
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?
Only if it's not excessive.
How disappointing. This leaves individuals forced to prove that a fine was excessive after police have already seized their property.
This is largely a straightforward thing to do - and this ruling will make police departments much more hesitant to seize civil assets.
Is it straightforward to do without a lawyer, though? What if you can't afford one?
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.
In at least one of those cases I think it would have to be the estate pursuing it though.
TLDR;
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.
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.
>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 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).
https://www.law.cornell.edu/wex/incorporation_doctrine
https://www.law.cornell.edu/wex/incorporation_doctrine
The 3rd was incorporated against the State of New York by the Second Circuit court of appeals, it just has never reached the Supreme Court.
https://en.wikipedia.org/wiki/Engblom_v._Carey
https://en.wikipedia.org/wiki/Engblom_v._Carey
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.
My favorite site on Supreme Court cases: https://www.oyez.org/cases/2018/17-1091
Sadly they haven't updated with the decision yet.
Sadly they haven't updated with the decision yet.
Thank goodness. Overly aggressive local, state, and national prosecutors need a reality check.
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. "
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. "
This sounds so insane to me:
"In fiscal year 2018, state and local agencies received $400 million through this arrangement, known as equitable sharing. The amount varied widely by agency — the Surprise Police Department in Arizona received $570,000, while the Buffalo Police Department in upstate New York got $130,000. The New York Police Department took in $7.8 million.
In Philadelphia, forfeiture proceeds once accounted for 20 percent of prosecutors’ budget, while agencies in New York and California tended to take in the highest sums, according to the Institute for Justice."
In Philadelphia, forfeiture proceeds once accounted for 20 percent of prosecutors’ budget, while agencies in New York and California tended to take in the highest sums, according to the Institute for Justice."
Link to the opinion: https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf
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?
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?
> To perform a civil asset seizure, a person must be convicted of a crime
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 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.
I see a bunch of confusion here.
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
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
The more significant aspect of the ruling was Justice Thomas and Gorsuch's concurring opinions, in which they emphasized that the Court's decision should have been based on the "privileges and immunities” clause and not the due process clause of Fourteenth Amendment.
It took this case to set a precedent, I’m sure there were other more high crime to value ratio forfeitures. I’m glad this is in place because it was a tactic used by low life’s to take someone’s house by slapping on a small criminal offense on someone
"Law enforcement agencies have resisted efforts to curtail civil forfeiture, saying they rely on the proceeds for sorely needed equipment"
Weird weird reasoning... "I don't have the stuff I want, so I should be able to steal the thieves things"
Weird weird reasoning... "I don't have the stuff I want, so I should be able to steal the thieves things"
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).
[1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
[1] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
[deleted]
How is it that some articles, like this one, manage to stay on the front page for more than a day, while others (which seem to be popular, based on points and comments) seemingly vanish within hours? Is the human intervention in these rankings stronger than I realize?
Edit: I'm not opposed to this article's longevity, by the way. Far from it, it is a very important topic.
Edit: I'm not opposed to this article's longevity, by the way. Far from it, it is a very important topic.
there are only two truly valuable and scarce commodities in this universe: time and the rule of law. The hegemony of Unites States( and other countries with similar attitude towards law ) lies not its army or the dollar - but in the fact that at its core it is ruled by law. this 9-0 verdict is proof of it.
Stop linking paywall articles.
paywall
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.
Please don't editorialize the title. It should be "Supreme Court Puts Limits on Police Power to Seize Private Property"
I think the NYT updated the title. Unfortunately, http://newsdiffs.org/ seems to be broken right now.
Holy cow, what a website. Those people are saints for running that website.
DigiMortal(3)
this is amazing
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.
Why not this case, in which police abused their power to pick on a citizen?
Perhaps because it's a citizen who was able to afford the expensive car by profiting off of something illegal?
He didn't. He afforded the expensive car by his father dying. (That is, he used the life insurance proceeds to buy the car.)
That is not correct. He purchased it with the proceeds of his father's life insurance policy.
Well, the court only got to set this ruling because the drug dealer in question decided to fight it all the way to the SCOTUS.
Timbs was convicted of possession/sale/whatever, jailed for a year, and fined $1,200. The state confiscated his Range Rover as well.
Timbs sued or appealed the confiscation by Indiana, which he he could prove he didn't buy with drug money. The judge of the lower court of Indiana agreed.
The state appealed the judge's ruling. The Indiana Supreme Court reversed the lower court's decision, ruling that the 8th Amendment did not apply to the states.
The SCotUS unanimously disagreed and vacated the Indiana Supreme Court's ruling. The 8th Amendment does apply to the states. However, that's all that they ruled upon. They didn't not rule on whether or not confiscating the SUV was an excessive fine, and remanded the case back to the Indiana state courts.
Now the state of Indiana will be given an opportunity to prove in Indiana court that confiscating the SUV is not an excessive fine. That seems unlikely, however, since the charge Timbs was convicted of carried a statutory maximum fine of $10,000, well below the value of the SUV.