L. Neil Smith's

Number 7, April 1996

... It's a Game of Give and Take ...

by John Taylor

Exclusive to The Libertarian Enterprise

         It's a libertarian nightmare.
         It contains trace elements of prohibition, law enforcement and judicial excess, restraint of trade, invasion of privacy, and -- most directly of all -- violation of property rights.
         It should come as no surprise that the issue in question is not a violent offense committed by a street criminal, but rather one committed by the nation's leading judicial crime syndicate, the United States Supreme Court.
         Receiving little or no coverage in the "mainstream media" (at least around the periphery of the Capitol Beltway), Bennis vs. Michigan may eventually be recognized as one of the most insidious acts perpetrated by the federal government in this decade, competing successfully, albeit much more subtly, with the federal murders at Ruby Ridge and Waco and with the contortion of the World Trade Center and Murrah Federal Building's twisted wreckage into a jihad against free speech and patriotic dissent.
         It is not contested that John Bennis visited a prostitute, setting into motion a bizarre series of events. Bennis was arrested, convicted, and fined $250. Never mind that in the first place there was no crime -- at least in the traditional sense -- in that there was no victim. Not to worry, we have the government ready, willing and able to rectify that omission.
         The state confiscated the vehicle John Bennis was driving, one that just happened to belong to Bennis' wife, Tina. Tina was, needless to say, not along for the ride, and was not even aware that hubby was out living up (down?) to his name. The car had to be "arrested" and taken from the custody of Mrs. Bennis, regardless of the fact that she was not a participant of any kind in the faux-crime that precipitated the seizure. You see, the car had also committed the crime -- that's the basis for civil forfeiture.
         Needless to say, Mrs. Bennis felt wronged. She sought to have the car returned to her. The case made it all the way to the top (one wonders how it could, all the while secretly suspecting the answer). The Supremes ruled 5-4 that Michigan acted constitutionally and had not violated either the "due process" or "takings" clauses in the process of stealing Mrs. Bennis' car from her under the mantle of civil forfeiture. The court insisted that there were, in fact, legal precedents, so of course it had to be OK to do so.
         In order to make this leap of logic, the court had to disregard that the original intent of civil forfeiture was to seize smuggled goods and the pirate vessels containing them, where the vessel's owners were not subject to U.S. jurisdiction in U.S. courts. Of course, the entire premise of the original intent had to be based, in the first place, on the curious and spurious notion of "article as offender" discussed above. Historically, civil forfeiture was restricted pretty much to that original intent.
         The modern abuse of civil forfeiture really came into its own during Prohibition, as used against bootleggers. But its misuse even then pales in comparison to the grotesque injustices done in its name today in fighting the unconscionable "War on Drugs". Whether or not one accepts the Founders' original premise underlying civil forfeiture, one would be hard pressed to defend its current excesses, and I feel relatively safe in guessing that the Founders would be mortified to see what it has become. No longer even a near-miss on constitutionality, it has become a major "revenue enhancer" for the ever-hungry maw of expanding government.
         With the Bennis ruling, the door to abuse swings open even wider. It is not hard to imagine that federal, state, and local agents will devise ever more creative ways to separate you from your property and your liberty whether or not you are even accused -- not to mention convicted -- of a crime, either real or imagined. Soon, all it will take to become a felon is to exist on the same planet as one already judged to be one. It's the ultimate in guilt by association. The Supremes may well have just lifted the lid on a whole new Pandora's box of demons of government abuse. Bill Clinton once said, "When personal freedom's being abused, you have to move to limit it." (MTV's "Enough is Enough" forum, April 19th, 1994.) It can fairly be said that the Clinton maladministration has done much to pursue that goal. Abuse of executive power in the White House travel office, in the cover-up of the Whitewater investigation, in the Justice and Treasury Departments; abuse of power in the legislative branch with the passage of the Brady Bill and the Crime Bill, in HR666, the Communications inDecency Act, and the Congress Terror Bill(s); now these are coupled with the most recent and quite remarkable abuse by the judicial branch in Bennis. All have contributed much to the rapid escalation of the "limiting" of our rights.
         If there is a ray of hope anywhere, it may be found in the growing number of everyday Americans just like you and I who are more directly touched by government excesses. Like some diseases, if this bout doesn't kill us, perhaps it will at least help us fight off any further occurrences. Perhaps Bennis and the other grievances will eventually exceed the threshold of tolerance and we, the people, will seek and find redress. Perhaps this "forfeiture" of our rights will galvanize us to ensure that it will be the last.

John Taylor is a husband, father, and property owner. He is also the Maryland Coordinator of the Libertarian Second Amendment Caucus.

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