From: sasafw@dobo.unx.sas.com (Fred Welden)
Newsgroups: alt.society.civil-liberty,misc.legal,talk.politics.drugs
Subject: Re: Needed: Constitutional Amendment Abolishing Civil Forfeiture!
Date: 6 Apr 92 13:31:06 GMT
Article-I.D.: unx.1992Apr6.133106.28934
    <1992Mar31.142837.13303@unx.sas.com> 
    <1992Apr4.171207.11954@eskimo.celestial.com>
Organization: SAS Institute Inc.
Originator: sasafw@dobo.unx.sas.com
X-Bytes: 5263

In article <1992Apr4.171207.11954@eskimo.celestial.com>, kurt@eskimo.celestial.com (Kurt Cockrm 762-6417) writes:
|In article <1992Mar31.142837.13303@unx.sas.com> sasafw@dobo.unx.sas.com (Fred Welden) writes:
|>In article <mjgjgj#.feustel@netcom.com>, feustel@netcom.com (David Feustel) writes:
|>|The increasing adoption of civil forfeiture as a means of confiscating
|>|property without conviction under criminal charges is the most serious
|>|threat to civil rights yet concocted by federal and state governments.
|>|
|>|Please write your congressional representatives and demand a
|>|constitutional amendment abolishing this practice.
|>
|>No, thanks, already got one.  The 4th Amendment:
|>
|>      The right of the people to be secure in their persons, houses, papers,
|>   and effects, against unreasonable searches and seizures, shall not be
|>   violated, and no warrants shall issue, but upon probable cause, supported by
|>   oath or affirmation, and particularly describing the place to be searched,
|>   and the persons or things to be seized.
|
|The problem is that no matter how the Constitution is tinkered and fine-tuned,
|lawyers will comb it with a fine-tooth comb looking for the right combination
|of words which will make it look like the Constitution is *not* being violated
|but *will* permit the powers-that-be to do what they want to do.
|
|An example of the problem is that civil forfeitures *are* considered
|"reasonable" seizures, by virtue of long-established common law.
|All the Constitution does in cases where something is qualified by
|"reasonable", "lawful", "natural", "probable", etc., etc., ad nauseam, is
|leave the question up to the "prejudices" of a judge.  That's the whole
|purpose of all these caveats and qualifications -- to make it easier, by
|sophistic chains of legal reasoning, for the authorities to do what they
|damned well please without presenting onlookers with embarrassing
|contradictions which might tend to undermine "respect for the law".

Naive as I know this sounds, I think the framers of the Constitution
wrote it hoping to create a governmental system that would preserve
their revolutionary ideals without the need for further violent
revolutions every few decades.  I don't think they cynically tried to
sprinkle it with loopholes for later generations of sleazy lawyers
and demagogues to exploit.

|Also, a 40-page opinion on why, in a particular case, blatant violation
|of the Constitution is justified, presents an aura of erudition which
|is extremely intimidating to the lay person, who says, "...wow...I never
|thought of that...gawrsh, society is sure complicated..."; even if the
|opinion is overturned *later*, it still allows the authorities to proceed
|while maintaining the appearance of legality.
|
|>Wait, make that two.  The 5th Amendment, in part:
|>
|>   . . . nor shall private property be taken for public use without just compensation.
|
|Note qualifier "just" here, not that it's needed; it just cuts lawyers and
|judges some slack.  People whose property is forfeited via "in rem" seizures
|get receipts, which would probably qualify as "compensation".  See, the
|receipt is evidence that "due process" was followed.  Now the person whose
|property was seized has to follow more "due process" to get her property
|back; all the powers-that-be have to do is make the "due process" so arduous
|that all but the most hardy fall by the wayside and give up.

Note what this would look like without the qualifier "just," and tell me
you like it better.

|>I can't see how ANOTHER amendment would command any greater respect in
|>the courts than these two.  Don't elect judges who are willing to
|>ignore the Constitution.
|
|Trouble is, that the judges that have the greatest impact in this area
|are *appointed*, not elected.
|
|>                          Don't elect candidates who will appoint
|>such judges.
|
|What would be a suitable litmus test, if any?

Ask them.  Then hold them to their answers when the occasion arises.

|What if there are no
|candidates who would *not* do this?  No matter who you vote for, or
|even if you vote at all, the government gets in.
|
|>              Call for impeachment of any government official who does
|>ignore the Constitution, on the grounds that they've violated their
|>oath of office and abused their power.
|
|Good luck getting their peers to agree.  This only works with the stupidest
|officials, who are likely to be preemptively impeached anyway, to maintain
|the appearance that the system does work.
|
|>--Fred, or another blind 8th-century BC  |  sasafw@dobo.unx.sas.com
|>        Hellenic poet of the same name.  |
|
|kurt@grogatch.celestial.com (Kurt Cockrum)

Well, gosh, Kurt!   Some folks said they wanted a new amendment to fix
a problem.  I said there are existing amendments that address the very
problem they're talking about, and the appropriate fix is to insist that
those amendments be respected.  Now you tell me that it's all simply
hopeless.   I guess the only sensible thing to do is draw a hot bath,
get in it, and slash our wrists.  Or did you have something constructive
to suggest?

-- 
--Fred, or another blind 8th-century BC  |  sasafw@dobo.unx.sas.com
        Hellenic poet of the same name.  |