The notion of limiting civil asset forfeiture is good and noble. In the United States, we have essentially no independent mechanism by which the people might limit the scope and breadth of police actions. The law enforcement machine, consisting of law enforcement agencies and personnel, courts and prosecutors are the police of the police. In a society that was created to be free this has become the prime detriment to that freedom and if unchecked will lead to a perilous end.
Taken and viewed in that light the Supreme Court’s unanimous decision in Timbs v Indiana to reel in asset forfeiture must be seen as a step in the right direction and a commendable act.
There is something more nefarious afoot in this decision. There is an air of fait accompli associated with the decision as it relates to the 14th Amendment and the doctrine of incorporation. The decision is lazy, uncreative, dishonest and adds to the danger that the concept of incorporation has visited upon the American polity since it was first created out of thin air.
I remain among the very small minority of individuals that contend that the 14th Amendment was never properly ratified, rather it was imposed through deception and threat. The amendment itself cannot be legitimate law based upon the unscrupulous and extraordinary events surrounding its imposition. I discuss this in a chapter of The Annotated Secessionist Papers but Dr. Forrest McDonald provides a better and more detailed analysis in his 1991 paper, Was the 14th Amendment Constitutionally Adopted?.
All of that aside, considering that the vast majority of the legal profession simply accept that the 14th is law and considering that so much of our court cases revolve around the 14th, what then of all of this incorporation non-sense and why is it so dangerous and damaging? After all, in the Timbs case, the court ruled on the side of right even if I contend that they went about it all wrong.
The danger of this decision is that it expanded yet again the purview and scope of the federal government and solidified in yet another case the entire notion that the states are subservient to the federal government and beholding to the concept that the Bill of Rights apply to the states and not just the federal government as written and indented.
Incorporation has resulted in less freedom, not more. Chicago or California should be able to restrict gun ownership as their politicians and electorate see fit. Alabama should be able to display the Ten Commandments in their state supreme court. Allowing states to decide such matters would result in more freedom. Our votes would have more impact on the direction of our states (and lives) versus being directed from on high to a universal standard decreed by the US Supreme Court. If one were dissatisfied with the direction and temperament of their particular state, they could simply vote or move to a state more in line with their views. None of this is possible since the Supreme Court invented the concept of incorporation.
It was not always so. In Barron v. Baltimore (1833) the court rightly ruled that the Bill of Rights only applied to the federal government. In United States v. Cruickshank (1876) ruled again that the First and Second Amendments applied only to the federal government. That decision was eleven years after the fourteenth was enacted upon the people of the US. The 6th and 7th Amendments are still not fully incorporated – how inconsistent that logic is. It was not until the progressing era of the 1920’s that the court began acting contrary to the original intent and creating law where none existed.
The Timbs decision is thus just another decision along those same lines of logic.
If one agrees that civil asset forfeiture has gone too far and law enforcement agencies needed to be held in check how should the Supreme Court have handled this case without doing further damage to our constitution?
Within the opinion of the court exist all of the justification needed without relying upon the 14th Amendment. The prohibition against excessive fines has been part of our received common law since the Maga Carta.
…protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties. They can be used, e.g., to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue…
Full stop. No need to incorporate the 8th Amendment. The Court could simply have relied upon 800 years of progressively elaborated rights and protections against such nefarious governmental actions such as civil asset forfeiture. That would be a proper use and definition of common law vice the notion that the common law exists only in prior court decision.
If the Court had done the right thing in the right way, this would be a good decision.
Law does not have to be written or adjudicated to be law. Any decent thinking Freeman knows that confiscation of personal property by armed men, often when one has not been convicted of a crime, is wrong and illegal. We did not need to further incorporate the dastardly 14th Amendment to arrive at that conclusion.