Huh? I’m pretty sure I understand what Section 5 means, and I agree with MEBuckner that Congress is within its power to use Section 5 to pass a statute regulating state civil asset forfeiture. Can you please tell us why we are wrong?
That’s a big part of it. The other part is that it doesn’t happen often enough for people to get really riled up about it.
I’ve never had anything seized from me and I don’t personally know anyone else who has had this happen to them either (to my knowledge). And I don’t recall this being an issue in any election campaigns either.
It’s common in a democracy for a small but determined minority to get their way over a much bigger but more apathetic (and less informed) majority.
I wouldn’t say Bricker is saying it is ‘proper’ by any usage of the word I’d consider normal. He’s only saying that, per the Supreme Court, it’s not unconstitutional. That’s a big difference.
The thing is, our political disputes are very often between two very different views of what is moral. Like it or not, issues of morality are deeply embedded in our politics. Is it deeply immoral to stick our grandchildren with a much hotter and less inhabitable world than the one we’ve enjoyed, or is it merely bad policy? Is it deeply immoral to toss people out of the country who’ve been here since they were six years old and barely remember the country we’re sending them ‘back’ to, or is it just unwise policy? Sometimes it’s clearly just a disagreement over what constitutes optimal public policy. Sometimes the other side really is morally in the wrong. Sometimes there’s an argument over which it is. But saying we shouldn’t speak of morals or ethics in those last two cases is bullshit.
In this case, I happen to agree with Bone’s assessment from the other thread, quoted here, that civil asset forfeiture is an abomination. That’s a word that usually has some moral freight to it; it’s even a word associated with the Antichrist (“the abomination of desolation”).
You’re on better ground there. There’s a lot of public policy that’s unwise that might should be unconstitutional, but isn’t.
Civil asset forfeiture, though, is one of those instances where, if you just read the Constitution and its amendments, and had no idea what the Supreme Court’s been doing in the meantime, most people would say, “how the fuck can this be Constitutional? How can this not violate both the Fourth and Fourteenth Amendments?”
And yeah, the Constitution means whatever five Justices say it means, but I think most of us in this thread would say that they’ve considerably eroded the straightforward meanings of those two Amendments. (We all know about Second Amendment absolutists; I think we need some Fourth Amendment absolutists. :))
If there is a conviction related to the assets in question, then I’m not really opposed to the idea of confiscating ill gotten gains - just to clarify.
The reason I think it’s an abomination is as a matter of law, it is patently absurd to proceed against an object, rather than a person. That turns the law on its head as an object cannot be guilty of anything. Yes I understand the precedents that have come before to support this practice, but if for years the courts have told me that 1+1 = 3 the length of time they have done so would not make them more correct.
The entire concept of taking action against an object should be obliterated. It could be done via the 4th amendment, ruling that there is no possible avenue for due process to be satisfied if an object is seized before charges, or held if no conviction, where an object is the subject of the charge.
And btw, I’m a big fan of the 4th amendment, but unfortunately it’s closer to death every day.
I agree with all this, but don’t think it contradicts what Bricker said. Even if one side genuinely believes the other side’s positions are immoral (which is frequently a logical and valid position to take) the question is if society as a whole is best served by “elevat[ing] any disagreement over what constitutes wise public policy to a denunciation of the morals and ethics of those on the other side”.
For example, is the public discussion of abortion issues enhanced by the two sides calling each other baby killers and misogynists?
You need to consider the practical ramifications of what you do, and if a position has enough support among the public, then taking it on by attacking the morals of all its adherents can be destructive to society, however correct you believe yourself to be.
I caught that distinction. But since it’s always been true that part of the penalty for a criminal conviction can be the reclaiming by the state of the criminal’s ill-gotten gains, ISTM that when we talk about civil asset forfeiture, we’re specifically talking about confiscation of assets in the absence of a conviction.
Totally agree with all this.
Especially the part about the dangerous absurdity of the courts’ allowing the 4th amendment to be circumvented by bringing a case against the property, rather than its owner. ISTM that even if the state brings a legal action against the money that they found in my car, it’s still presumptively my money - my ‘effects’ in the wording of the Fourth Amendment, and per that Amendment, I’m supposed to have the right to be secure against its unreasonable seizure.
I think that if a policy has a moral dimension, it’s wrong to gloss over it. I think our politics are diminished by doing so. If you really don’t think the other side has a morally valid argument, you should say so. Sometimes there aren’t legitimate arguments on both sides.
Now if name-calling is all you’ve got, that’s different. If you’re going to say that the other side’s position is morally wrong, you’ve got to be willing to make the argument, and address counterarguments.
And letting people off the hook for immoral behavior, and the consequences of that behavior to people’s lives, is even more destructive, IMHO.
I don’t get the distinction between “name-calling” and “a denunciation of the morals and ethics of those on the other side”. They seem like the same thing to me (assuming the names relate to the lack of morality and ethics of the opponents).
The difference is that in one, you lay out your argument for why you feel that this is an immoral action, and in the other, you just assert that the other person is a bad human being.
This is misunderstood quite a bit by those who look to be offended. I see oft times, someone describes how another’s actions could be perceived as having a racial bias, only to have that person recoil in anger that they are being called a racist.
It’s not a matter of being called a name, it’s a matter of calling yourself that name, and then getting offended.
Depends on how much one reads into the longer phrase, I guess. However one sees it, though, the main distinction I’d make is between plain name-calling, and a denunciation of the other side’s morals that’s backed by a strong argument.
Seems like a trivial difference to me.
So a guy thinks that a fetus is essentially equivalent to a baby, and therefore someone who has an abortion is a baby killer. Therefore discussions with or about pro-abortion proponents should focus on them being baby killers (or supporters of baby killing). You’ve got a moral position backed by an argument.
[I actually think that would be OK if 99% of the country agreed with that position. But as long as society is divided, and yet needs to get along somehow, I think it’s very unhelpful.]
And if I say that I recommend against abortion, as I see every new zygote, embryo, fetus, and baby as a unique being that will never be seen again on this earth, and that that uniqueness deserves some level of consideration when making one’s personal choices about reproduction, that puts me on the side of the pro-lifers.
If I describe my position like that, did I accuse the pro-choicer of being a baby killer?
If I tell someone how the choices that they are making are harmful to those of a marginalized ethnic status in this country, and give suggestions on how to interact differently in ways to reduce or eliminate that harm that they are causing, did I call them a racist?
I feel that on both sides, (because both are made of humans)people tend to personalize their positions, and take any criticism about the positions they hold as criticisms about their own moral character. That’s not helpful. Everyone sees themselves as the hero of their personal narrative. Everyone sees themselves as the force for what is right and what is good. Even David Duke believes that his actions are for the betterment of the society in which he wishes to live. So, when someone is questioned on their positions, they tend to take it personally. When they take it personally, they feel that they are being unfairly criticized and being called names. Then they tend to lash out and actually start insulting the other side.
ISTM that you’re arguing against a position that no one has stated in this thread.
If you make the arguments above then you’re not making “a denunciation of the morals and ethics of those on the other side”, which is what’s being discussed here.
To each his own.
Sheesh. Do I have to spell it out in full each time? The “and address counterarguments” is right up the page. You quoted it in your post of 1:25pm.
But having had to discuss this further, let me refine it to: address the strongest counterarguments. Since after all, it’s easy to hold up the crappiest rebuttal to your argument, demolish that, and pretend you’ve vanquished all opposing views.
Fair enough, and this whole thing isn’t really all that relevant to the thread. I just do see, quite often, reasoned arguments like mine turned around and used as an accusation that the one criticized with those arguments is a monster. When people hear criticisms of positions that they hold, they hear denunciations of their morals and ethics.
Now, as far as actual denunciations of morals, well, that sort of thing does happen, but not as frequently as the accusation implies. And morals are personal, I can certainly complain that you do not follow my moral code, but it is only ethics that I wish to enforce upon you. If you act immorally, I may shake my head, I may even point it out to you if it seems as though you are genuinely confused as to why people feel that you treat them poorly. If you act unethically, then you have either broken a law, or we need to update our laws to take that into account.
I assume there are some practices you would be willing to say are immoral, including at least some cases of theft, yes? And that the reason you would call such thefts immoral is not merely that they violate the law, but that they violate some basic human right (such as the right not to have one’s property taken away by force, except under a very limited set of circumstances). Yes?
That is, I assume there are some acts of “taking what doesn’t belong to you” that you would find morally objectionable, even if the law permitted them. Right?
If that’s so, I’m very curious why civil asset forfeiture, as it’s applied in this country, doesn’t fall into this class of “morally objectionable deprivation of property” for you.
To be fair, he only cited a case where a crime was actually committed. We’re talking about CAF where no crime is committed which I contend is unconstitutional.
The Supremes didn’t agree with you.
In United States v. One Assortment of 89 Firearms, 465 US 354 (1984), the Court heard a case that challenged the civil forfeiture of – bet you can guess – after the owner was acquitted of dealing in firearms without a license, in violation of 18 USC § 922(a)(1).
They said the forfeiture was permissible, even though the crime was never proved:
(internal citations omitted)
I wonder, given the changes to our view of the 4th Amendment since then, if you would get the same ruling today or if the Supremes would overrule. This seems to be a good way for liberal states to impose gun control on firearm sales, just have them under the risk of civil forfeiture - don’t even need a conviction - just something hinky in the paperwork - and no one ever does all their paperwork perfectly.
I suspect they’ll avoid Civil Forfeiture for quite a while as a legislative issue, but if it becomes abused as a revenue producing method or as a way to control something like gun sales (more than it is) and if a very egregious and clear cut case comes up, they’ll take it. And this court might not take it as they wouldn’t know exactly how they’d end up ruling, and they might strategically decide not to hear it until the outcome is clearer.