The Supreme Court resumes its hearings tomorrow, with a single case on property rights – specifically, the limits on the government’s power to take property as a form of punishment.
Monday’s hearing: Culley v. Marshall Starting at 10 a.m., the hearing is scheduled for one hour.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Background on this case: America’s founding generation was determined to protect many rights of the people, but none more than the right to own property. That right was considered such an emblem of civic virtue that the right to vote was limited to those who owned enough property to signify that they had a genuine stake in the community.
Thomas Jefferson wrote that “the right to procure property and to use it for one’s own enjoyment is essential to the freedom of every person, and our other rights would mean little without these rights of property ownership.”
The Founders in the Constitution gave property equal rank with life and liberty: in the Fifth Amendment (added in 1791). This parallel emphasis continued in the Fourteenth Amendment (1868). Those provisions bar the government from seizing property, unless done by fair procedures (“due process”), and require the government to pay compensation if it takes private property for a public use.
This case is about the procedures a court is to follow when it orders the seizure by the government of private property as a form of punishment for how the property had been used – in legal terms, a “property forfeiture.”
The theory behind the law of forfeiture is traced in the Western legal tradition at least back to 11th Century England and the doctrine of “deodand” (Latin for “given to God”) but it may well have existed as early as 13th Century B.C., as chronicled among the Mosaic laws recited in the Bible’s Book of Exodus.
It is based on the notion that animals or inanimate objects have the capacity on their own to do harm or even to cause death, and must be forfeited (“given to God,” as it were) for doing so. Exodus tells of the ox that gores a man to death and therefore must be stoned to death, and its meat not eaten.
The Supreme Court ruled as early as 1844 that forfeiture of a vessel and all of its cargo could be ordered as a way to combat piracy and slave trafficking and to enforce customs laws. The concept developed over time in the United States as a response to drug crimes, especially during the “war on drugs” of the 1970s and 1980s. In that context, any property used to carry out the crime and any money obtained by the crime were themselves illegal and thus subject to forfeiture, separate from any conviction of the drug crime itself.
The facts of this case: This case involves two Alabama women whose cars were used by someone else and were seized by state officials after the drivers were arrested and were found to have illegal drugs in the autos. Halima Tariffa Culley of Satsuma, Ala., had allowed her son to use her car, and he was arrested; marijuana and drug devices were found in the car, so officials moved to have the car forfeited under state law. Lena Sutton of Leesburg, Ala., had allowed a friend to use her car for an errand; the driver was arrested, and the illegal drug, methamphetamine, was found in the vehicle. Officials moved to have the car forfeited.
Ultimately, both women won the right to recover their cars based on an exception in state law that recognized innocent ownership. However, Culley’s had been held by authorities for 20 months. Sutton was without her car for 15 months.
Before they won that forfeiture case, the two women filed a separate lawsuit in federal court, arguing that the initial seizures of their vehicles were unconstitutional. They contended that, aside from any rights they had in the forfeiture case, they also had an independent constitutional right to a separate hearing to test whether officials had any power to retain the cars during the forfeiture case. Such a hearing is required as “due process” under the Constitution, they asserted.
Lower federal courts ruled against them, concluding that their right to a fair process was fulfilled when officials promptly started and pursued the forfeiture proceeding after seizing the cars. They had no right to a separate hearing on their challenge to retention during that proceeding, those courts declared.
They joined in an appeal to the Supreme Court, arguing that lower federal courts are split on the question. The Biden Administration’s Justice Department has entered the case, defending the Alabama officials and urging the Court to deny any right to a separate hearing on retention of private property while a forfeiture proceeding continues, if that proceeding is fair.
The question before the Court: What constitutional rights do owners of private property have when officials seek to seize that property as an instrument of crime? Is the forfeiture proceeding itself fair enough as a procedure to protect property rights?
Significance: Few things in constitutional law are harder to pin down than what “due process” means in any given legal situation: when an individual’s rights – personal freedom or property rights – are at stake, what kind of procedure is fair, respecting both the individual’s rights and the interests of the government on the other side?
The late Supreme Court Justice Felix Frankfurter once famously remarked: “The history of liberty has largely been the history of the observance of procedural safeguards.” In popular expression, people are often more focused on what rights they have than on how fair they are treated procedurally. But the reality is that one simply does not have rights if they can be denied or taken away by arbitrary acts of government.
Over centuries of constitutional history, the Supreme Court has regularly expanded the concept of “due process.” In doing so, it has given that phrase two different meanings: it requires fair procedures, and it also has found that “due process” can be a basis for creating new substantive rights. In modern times, obvious examples of new rights founded on “due process” principles are those protecting an equal right to attend public schools without racial discrimination, or the right of opposite-race couples to get married.
This case is about the procedural side of that history. It comes down to two women’s right to have the use of their cars, if the government moves to take them away because they were used as implements of crime – by someone other than the women owners themselves.
Knowing, as a matter of popular culture, how American life is closely intertwined with the convenience of the automobile, being without a car for an extended period can be a serious loss, even if the loss is only temporary.
The lower courts in this case ruled that it is constitutionally sufficient if the seizure process, implementing government forfeiture, occurs without much delay and the property owner can take part to defend the right to the property. To decide the case that way, the Court would appear to have to rule that the retention of property is not in itself a constitutional right that needs its own procedural protection, or that, at a minimum, that right can be postponed for a time without any harm to the owner, even one who is innocent of any crime.
Because forfeiture is an often-used weapon in the arsenal of criminal law prosecutors, the outcome of this case could be profound and far-reaching.
On Tuesday, the Court will hold two hearings on this question: do public officials act unconstitutionally if they block some members of the public from access to the officials’ social media pages (on Twitter or Facebook, for example)?