Judicial Power

We had civil forfeiture at the time of the founding of this nation. And the practice of civil forfeiture, at least originally, that is at the time of the drafting and ratification of the Constitution, was that of taking goods that had been involved in illegal activity. The government seizes property, saying in effect that it is the property that is guilty. Now, at first blush that may sound a little bit ridiculous. Seriously, the government is proceeding against a thing? The government is hauling a thing into court? I realize that can sound absurd. But when thinking about property that's been used for illegal activity, particularly when it is very difficult to find and punish the owner, then civil forfeiture makes a kind of sense. Think about a pirate ship, something that's been used by pirates, perhaps a ship that was stolen by pirates. And imagine that you want to compensate the victims of the pirate or that the government believes that it has suffered grave losses at the hands of the pirates and they can get the ship. At that point, can property be guilty? Can property be forfeited because it's been involved in illegal activity? Sure. Or so the argument goes. Today, property is seized by governments, federal, state, and local, that is the proceeds for which a government actor has some belief is the proceeds of a criminal act. It's not simply property that has been directly used. In addition, an enormous amount of property is being seized: Hundreds of millions of dollars. That's one reason why civil forfeiture is so controversial and across both the left and the right, across the political spectrum is, I believe, gaining in unpopularity. Defenders of the constitutionality of civil asset forfeiture point to the fact that civil asset forfeiture was known to and accepted by the framers and ratifiers of the United States Constitution. That is, civil asset forfeiture is not a new practice. This sort of thing was going on or at least something called civil asset forfeiture was going on at the time of the founding. How can it possibly be unconstitutional? Or at least, how can it possibly be unconstitutional to anyone who embraces an originalist methodology of constitutional interpretation? But on the other side, one hears the reply: Wait just a minute. The sorts of civil asset forfeiture known to the framers and ratifiers of the Constitution is qualitatively and very importantly quantitatively different from the sorts of civil asset forfeiture practices that we see in the early 21st century in the United States of America. Civil asset forfeiture was constrained, used in narrow circumstances back at around the time of the ratification of the Constitution.