E. Forfeiture and Crisis: The Theory and Its Historical Support

"[C]hanges less than revolutionary, but nonetheless changes, will be worked in the permanent structure of government and society. . . . Alterations in the structure of a constitutional government may be wrought and made permanent that do not represent the mature and collected judgment of the representatives of the people, alterations that in their nature are far more difficult to disestablish than they were to institute. Federalism and free enterprise will serve as examples of institutions easy to break down in crisis and infinitely more difficult to restore thereafter."

The current onslaught of law enforcement through civil asset forfeiture is primarily based on the belief that various crises exist which require extraordinary measures—an outright war—to quell. Asset forfeiture has seen expansive application in the wake of at least two other situations: the Civil War and Prohibition. With each, exceptions to normal constitutional standards have been seen as a necessity for combating the underlying threat.

In the midst of a war—be it on the South, on alcohol, or on drugs—mature and collected judgment is lacking. Alterations become permanent, such as those Civil War precedents that have been used in the gradual increase of state seizure powers. The public acquiesces to the government’s search for additional power out of fear.

For a moment, assume that an actual crisis exists. Though he argues that constitutional dictatorship may be necessary in certain crises, Clinton Rossiter describes several limits to the institution of such a regime. First, such alterations of power should occur only to preserve the state or the constitutional order. It is not evident that either the Constitution or the state’s existence are dependent on our ability to fight a "drug war" with a two-tiered system of rights in which property is granted less protection.

Second, specific provision for termination of the "crisis government" should exist, for no crisis government should ever be permanent. Implicit in this argument is that a crisis government should only be instituted if the crisis is actually redressible by such a government. Neither the current forfeiture regime nor the drug war itself has any clear stopping point. Furthermore, no right or procedure should be restricted more than absolutely necessary for the conquest of the crisis. Given that the forfeiture scheme sweeps up the innocent and that drug use remains a serious problem despite the application of forfeiture laws, the infringements are not sufficiently narrowed to meet Rossiter’s reasoned criteria.

But this drug crisis is not of the magnitude envisioned by Rossiter or others who defend the temporary alterations of constitutional government in times of war. The drug war is not a threat to the existence of the state. The enemy is the American citizen, not some foreign threat or rebellion. Thus, the war mindset is misguided in the current situation and often works to blind individual citizens to the harm caused by the powers created in this war government. Parents fear their children becoming prisoners of war to the opposition, drugs. Others see moral corruption and hope to eliminate it through a fight. In each case, passions and emotions, not reasoned judgment, rule the day.

Much of the modern regulatory state has resulted from the perception of crises. For example, restrictive pharmaceutical regulations are largely the result of the scare caused by birth defects attributable to thalidomide. Today, the Food and Drug Administration (FDA) has a drug approval system that errs on the side of excessive caution in an effort to avoid another thalidomide crisis. Its expansive powers to block life-saving drugs from entering the market are consistently justified by reference to this one event. Yet, the exercise of these powers prevents large numbers of persons with illnesses from using scores of medicines that may improve their health or save their lives, whether or not they voluntarily wish to take the risks associated with a lower level of testing than that required by the FDA. Those who die because a drug has not been approved are the hidden victims of that regime. As a means for enforcing its hefty power to make pharmaceutical decisions for ill persons, the FDA has the power to seize the property of those who dare to defy it. Thus, a doctor who prescribes, or who the state has probable cause to believe has prescribed, an unapproved drug could have his entire practice subject to forfeiture under RICO or other laws for doing so, even if his patient willingly accepts the risks and even if the doctor believes, in his expert opinion, that the drug or device can help cure the patient.

Consider another example. Environmental regulations are largely the result of powerful rhetoric by environmental lobbying groups proclaiming the planet’s impending doom. The environmental "crisis" has been used to justify numerous increases in state power over personal property, from restrictions on uses of private property to costly and inefficient regulation on productive economic activities. Under many of these provisions, showing probable cause to believe a citizen has violated a regulation will subject his property to forfeiture.

In each "crisis," overheated rhetoric creates the fear and support necessary for the public to believe that extreme governmental action is necessary. And once granted, as Rossiter warned, government power becomes difficult to dissolve. For example, President Franklin Roosevelt’s New Deal programs permanently weakened economic liberties, even though the programs were proposed as temporary measures to address the Great Depression crisis. People eventually came to believe that the social welfare state and the subjugation of property created by the programs needed to continue to prevent a future crisis. Similarly, people have come to believe that the drug war exception to constitutional rights like due process and private property are necessary to prevent escalation of the crisis and to eventually end the crisis. Even the courts sometimes explicitly include language in their opinions justifying the decision or the legislative statute in question on the basis of a drug "crisis." Far too often, those caught up in the emotion of the "war," fail to acknowledge the innocent casualties brought down by the unprincipled fight. But we cannot ignore the first principles inherent in the Constitution; thus, the crisis mentality must be eliminated to allow a mature and collected response to the problems of drug use.

No doubt many of the individuals supporting the fight, and its consequent means, believe that they are acting in the public interest. But, as Daniel Webster warned, "Good intention will always be pleaded for every assumption of power . . . [T]he Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters." In the process, the regulators often forget that the true goal of liberty is to allow each person to be his own master.