The Founders' Forfeiture

70 Pages Posted: 20 Jun 2019 Last revised: 12 Mar 2021

See all articles by Kevin Arlyck

Kevin Arlyck

Georgetown University Law Center

Date Written: October 1, 2019

Abstract

Civil forfeiture is controversial. Critics allege that law enforcement authorities use forfeiture to take property from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived tradition of largely unfettered government power to seize private property, the Court has
consistently denied constitutional protection to forfeiture’s victims. In response, forfeiture’s critics have argued that the power was historically limited, but such arguments have fallen on deaf ears.

As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article
shows—for the first time—that forfeiture at the Founding was significantly constrained. But not by judges. Instead, concern over forfeiture’s abusive potential spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to violators who lacked fraudulent intent. What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent. The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

This is an opportune moment to reexamine civil forfeiture’s historical bona fides. In addition to the growing public outcry, there are hints that members of the current Supreme Court may be willing to reconsider forfeiture’s constitutionality. The existence of meaningful constraints on forfeiture in the Founding Era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence and suggests that history may offer an affirmative basis for greater constitutional protections today.

Keywords: civil forfeiture, Fifth Amendment, Eighth Amendment, legal history, U.S. history, Alexander Hamilton

Suggested Citation

Arlyck, Kevin, The Founders' Forfeiture (October 1, 2019). 119 Colum. L. Rev. 1449 (2019), Available at SSRN: https://ssrn.com/abstract=3403208

Kevin Arlyck (Contact Author)

Georgetown University Law Center ( email )

Washington, DC

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