On How the State Determines That You Have No “Proprietary Interest” In Your Own Tweets
Mike Konczal talks property and criminal justice over at Rortybomb.
It’s an excellent post. You really do need to read it. And I’m sure plenty of people here at the League will have something to say about it. In it, he tracks the evisceration of “liberal philosophy” through attacks from both Conservatives and Progressives in the area of criminal law and prosecution, before bring it all back to this case.
Here’s a taste,
“There’s not enough space here to really dive into it, but there’s a mind-blowing legal realist seminar on the “Myth of Ownership” taking place in the realm of “asset forfeitures” criminal justice policy right now. The government sues property and money for being illegitimate under civil law; the government can seize the proceeds of the trade of contraband as well as property instrumental to that transaction. If you drive a car solely to sell contraband, and use the surplus of those sales to buy a home, what property claim can you have to own that car or that house? Here the government is actively creating and policing the boundaries and relationships of property through denying its existence as legitimate “property,” all done under criminal law.”
Weird. I thought he was a rather proud progressive, but that reads like something I might have written, almost word-for-word.Report
He is a liberal/progressive/whatever its called. We have big tent over hereReport
Interesting. I can’t help but think that if I actually had written a lot of those things, I’d have been gently reminded by the progressives that property is just something the government kindly grants us, and that it can just as easily take it all away. For the greater good.Report
That’s what he said a lot of progressives would say.Report
I’ve been trying to reconile that all afternoon.
I haven’t gotten anywhere, but I know for one that I’m not big on property tax. And yet taxes on exchanges (sales/wages/capital gains) don’t rub be nearly the same way.
Whether that’s inconsistancy on my part motivated by capricious partisanship, or actually locates a grain of truth regardin a real difference, who can say.
I do know that nothing pisses me off more than criminal law and its assymetric applicaiton.Report
Jason…yeah people are wacky aren’t they. Most people , in every group. are more willing to listen and struggle with difficult ideas from somebody in their own group. Thats people. Also people in the out group are more likely to use terms that set the other groups on edge as opposed to gratioutous pokes in the eye.Report
Well, to the extent that he’s correct — and he’s just about 100% correct in that piece — more power to him.Report
see…if he was a libertarian you would say he is exactly 100% correct instead of “just about.” ( insert smiley face here)Report
Well, yeah. Liberals have long been trying to tell libertarians that their insistence on “PROPERTY RIGHTS OMFG” doesn’t do very much heavy lifting and usually trucks in assumptions that privilege the claims of the powerful. That’s why we hate it when TVD and James Hanley types talk about property as being somehow pre-political. It’s just preposterous.Report
You’d better remind Konczal, he seems to have forgotten.Report
Distaste with delineating property rights through government force is more left-anarchist than libertarian, no?Report
Distaste with delineating property rights via government force is more stereotypically leftist than libertarian, no?Report
Of course property is pre-political. Even the hermit has possessions.Report
The hermit’s possessions are not defended by people with guns. There’s a subtle distinction between property and possessions, and you’re missing a lot when you elide it. Even Marxists believe in possessions, after all.Report
I assume you’re talking real estate, RG. OK. There are many facets, such as the problem of the commons, that we tend to take better care of our own property than “everybody’s” property or “nobody’s” property.
Also, the story of the Mayflower colony. Although each family wasn’t given ownership of a plot of land instead of farming communally, each family was given exclusive use of a plot of land and permitted to keep the overage, and the laziness and famine of the previous summer’s experiment did indeed turn into industry and plenty.
As far as the ownership of real estate goes, the current system of fungibility [everything’s for sale] certainly beats the old feudal system—or the commie system—where the land is held by force—“guns” if you will—by land barons or the state respectively.
And yes, in the “state of nature,” I think you’ll find that land—property—is quite pre-political once you leave the hunter-gatherer phase for agriculture, that cities and politics formed around the market where you went to trade your goods and produce for other people’s produce, a bushel of wheat for a skin of wine or a shovel.
Come to think of it, Robert, it might be interesting to look at “possessions” as one’s produce, for instance the food the Ukrainian farmers hid from Stalin. [Tried to hide.]Report
TVD, you can make tragedy-of-the-commons arguments against accumulation of loads of private property. When people have more land than they can personally work, these capital owners have to employ workers, which introduces principal-agent problems that similarly separate the produce of the land stock from those who work it and raise their own incentives problems. I suspect that a scheme that relies neither on violent communist central control nor violent capitalist property enforcement would allocate resources in the least-alienated arrangement.
I also hope you realize how disanalogous your Mayflower example is to post-industrial capitalism. Do you really think you’re more likely to see advocates for family control of farm plots in the halls of finance than in #OWS?Report
TVD, you can make tragedy-of-the-commons arguments against accumulation of loads of private property.
You can, certainly, but you shouldn’t, because they’re not very good. Prinicpal-agent problems are real, but so are economies of scale. There’s a balance to be found, and this is exactly the kind of thing that markets are good at figuring out.
If a firm grows beyond its optimal size, to the point where principal-agent problems and other diseconomies of scale start to outweigh the economies of scale on the margin, then it becomes vulnerable to competition from smaller firms.
For example, in many industries with weak economies of scale, you get an equilibium in which national chains are competitive with local chains and one-offs. Restaurants, hair salons, grocery stores, things like that. Some national brands solve the principal-agent problem with a franchise model—branch owners pay for branding and product but maintain an ownership interest in performance. Some don’t, but still manage to stay competitive with much smaller firms, which suggests that the principal-agent problem isn’t really as big a deal as you’re implying.
And in some industries, economies of scale are so strong that small firms just can’t compete. Mass-market automobiles, airline jets, microprocessors, things like that. Worker ownership doesn’t solve the principal-agent problem, of course, because the impact of one worker out of ten thousand is negligible. It also transfers undue risk to the workers.
It’s perfectly feasible to set up the (non-coercive) alternative ownership arrangements favored by Marxists within the context of a free-market capitalist economy. The fact that such arrangements don’t dominate the market casts doubt on claims of their superior efficiency.Report
Brandon, I don’t know why we’d expect worker ownership to flourish in a capitalist system any more than we’d expect free-market exchange to flourish under a communist dictatorship — although one shouldn’t be surprised to see underground instantiations in either instance, they still swim against the current. And at any rate, worker ownership is further along the state communism axis than the anarcho-pacifism I envision, because presumably there would still be a state that violently defends property rights.Report
Ack – sorry for the duplicates. Anyone else having persistent problems posting comments?Report
Thanks for the kind comments! Three things Jason:
1. If there can’t be some progressive / libertarian alliances on the current state of the War on Crime, War on Drugs and mass incarceration, it’s not clear where (domestically) one could imagine an alliance.
2. If we want to disagree: I actually do think that there is no pre-political property (#teamprogressive !), or at least the government determines the boundaries and relationships of where property rights exists. (I agree in large part with Bruenig.)
But that just reinforces my commitment to having property claims that reinforce human flourishing, exchange and cooperation rather than claims that reinforce authoritarianism and the mechanisms of policing. But when I resist the latter, I don’t really think that I’m resisting on terms of an abstract, pre-political “economic liberty” or some such.
3. Do you think Justice Stevens is wrong in his quote from the post that “Congress has decided — and there is no question about its power to do so — to treat the interest in ‘privately’ possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest” ?
Because it seems settled, though it’s all about determining property, and even when I see libertarians resist it it’s usually on “there’s no perfect sniffing dog” arguments that stipulates Stevens’ argument, e.g.:
http://reason.com/archives/2005/01/28/who-let-the-dogs-inReport
In response to your points:
1. You’re right. This is an area where there can be an alliance.
2. I am not going to let disagreements about a pre-political state, which none of us has ever experienced, get in the way of a policy change that’s both good and attainable. I like political theory and all, but that’s just insane.
3. I disagree with Justice Stevens. My view of the commerce clause is far more limited than yours or his. If the intent of the clause had been that Congress could entirely prohibit various articles of commerce, and make mere possession of them a crime, then that power would have been granted more clearly. The legal apparatus and the language to do so certainly existed at the time, because state constitutions had it and used it, including against alcohol, even in the colonial era.
The federal constitution lacked those powers because the federal government wasn’t meant to have them. In 1919, it took a constitutional amendment to enact Prohibition, and by analogy I am doubtful about the constitutionality of the entire War on Drugs. (I have no patience for the doctrine of indirect effects on interstate commerce, but I hope we can set that aside for now.)
If you’d like to read up on asset forfeiture from a libertarian view, there is a lot out there, and it’s not just about drug dogs. It’s also unrelated to the commerce clause, which (honestly) is probably for the best.
Back in 1996, Roger Pilon was arguing against civil asset forfeiture because it’s an antiquated, even superstitious way to treat persons, things, and crimes. In civil asset forfeiture, the thing itself is guilty, and it needs to be punished — when you need to use that kind of a claim, you must have gone wrong somewhere.
Much work since then has been done on the gross conflict of interest that arises when a police department gets to keep the proceeds from asset forfeiture, which commonly they do.
Walter Olson has also very justly complained about the much lower standards of evidence in civil asset forfeiture cases, as well as the fact that when all your assets have been seized, it’s often difficult to hire a lawyer.
Anyway, the arguments from our team go way beyond the unreliability of drug-sniffing dogs. They’re worth checking out, and I’d encourage you to read further.Report
In 1919, it took a constitutional amendment to enact Prohibition, and by analogy I am doubtful about the constitutionality of the entire War on Drugs.
Hell of a good point, and I’m embarrassed it never occurred to me. But what about the various drug-related treaties the US has signed as a legal basis for the WOSD?Report
Mike – for all (original flavor) Prohibition’s flaws, at least it was explicitly authorized then deauthorized via Amendment process. If you ever get a chance to read up on the sneaky ways that the gov’t went about criminalizing drugs (treating the prohibition as taxes, requiring growers to have gov’t-issued tax stamps that the gov’t wouldn’t in fact issue) it’s clear they knew they needed to end-run the process. Nat Geo and History Channels have run pretty interesting docs on this.
Regarding the treaties, I thought that Constitution does in principle supersede them; so if, oh happy day, Prohibition Pt II is ever found unconstitutional, I assume they’d have to be renegotiated. I wouldn’t hold my breath there though.Report
when all your assets have been seized, it’s often difficult to hire a lawyer.
This is, in my experience, the most common justification for forfeiture laws — to prevent drug lords from hiring expensive legal teams. Of course I’m not defending that, depending as it does on presumption of guilt, but it’s being sold as a feature, not a bug.Report
“Roger Pilon was arguing against civil asset forfeiture because it’s an antiquated, even superstitious way to treat persons, things, and crimes.”
I need to think this through and read some more (not a lawyer here), but I’ve always read civil aset forfeiture as a type of “justice in transfer” check by the government.
The government believes that the property in question – hence why it is the US vs. $100,000 or whatever – is owned or has been transfered through illegitimate means, or with other illegitimate contraband property. If any person can’t justify how they own the property through just transfer then no property ownership claim is illegitimate.
Prone to abuse for all the reasons you’ve mentioned, but justifying the distribution of property through a system of legitimate transfers strikes me as comfortable with libertarian ideas (indeed essential?), instead of a “antiquated/superstitious” ideas.Report
Except this is stupid logic. No one can prove how they have acquired almost any possessions of theirs. I look around where I sit…by contacting Toshiba, I probably could prove I owned this laptop, and my Nook and iPhone via their respective companies…and that’s about it. Can I prove I own this chair? This table? My keyboard? My stereo? This monitor? My pieced-together desktop PC? Any of these books? No.
More to the point, the government seizes things the person _can_ prove how he acquired. Like cars and houses, which require a _government registered title transfer_. Anyone with a car or house can prove exactly who they got it from, and in what circumstances…and, in fact, the government already has that information! (Not is disputing the right to take cars away from car thieves, after all.)
So, despite them proving they legitimately acquired (Via the exchange of cash) that item, the government just then demands that they prove where they got the money for that from. Which, in infinite regression, is a fool’s game…no one can prove that every dime of income they have was earned via non-illegal means.Report
Right, but those links are primarily about civil asset forfeiture, which is different than criminal (or the summary forfeiture of contraband, which is Stevens’ topic). Imagine I fairly bargain as a hit man to receive money to kill someone, do so with a gun, get paid, and get then caught, tried and jailed. Do I have a property right to keep the money? Do I have a right to keep the gun?
We’ll obviously we have (vastly?) different opinions of the Commerce Clause – shouldn’t get the in way of this important issue!
I always wonder if one reason some progressives get uncomfortable about other progressives who bring up Ron Paul as an important voice on the War on Terror (or libertarians on civil liberties more broadly) do so because they think approaching the issue from a point of view hostile to public power will hit a wall quickly and undermine longer-term arguments. Or because they abandon a lot of the language already buil. I need to build that argument out. Mark Ames had a great post on how human rights groups “lost” worker rights as a human right in the Cold War.Report
Well, as murder is mostly a state issue, the commerce clause can be ignored to some extent…if there’s anyone seizing anything here, it probably should be the actual place with laws against murder. So let’s assume this is a state issue for the time being.
First, I can’t come up with any good reason to ‘seize’ the gun in any official way. It is not the result of a crime. Although that doesn’t mean the criminal is getting it back. It’s _evidence_. Likewise, convicted felons can’t generally possess guns. Although this doesn’t technically mean he doesn’t ‘own’ it…he can get someone else to take it when returned from evidence and have them sell it or keep it. You can own things you cannot legally possess, and vis versa.
As for the money…in this case, the money isn’t the result of the crime…the money transfer _itself_ was a criminal act. Paying someone money to kill someone is a crime, as is accepting money to kill someone. (I’m fairly certain most states have specific laws against murder-for-hire, but if not, it’s conspiracy to commit murder.) I don’t think anyone would have problems with seizing money that the transfer of _itself_ was a crime.
What I think is somewhat legally dubious, however, is tracking down a hitman who someone paid $5,000 (I have no idea if this is reasonable) to kill someone, charging them both, and then going through their bank records and finding a bunch of other origin-less deposits of $5,000. Well, that, in itself, is fine…and if they can track those back to other people and figure out who else hired him, that’s fine also. (With warrants and all, but those shouldn’t be too hard to get.)
What isn’t fine is being unable to track them back to anyone or any murders, but just claiming all the money is the results of a crime and seizing it also. Along with other stuff the hitman owns.
In these circumstances (And this is pretty close to how seizures WRT drugs works, except even more vague.) please note that not only has the government not proven the cash is the result of a crime, the government _has not even proven the crimes exist_.
Laws are against specific actions. Someone specifically was murdered and the hitman was paid for that. Someone specifically purchased specific drugs. Crimes are specific actions that happen at specific times and places.
If I go to court, and under oath, state I’m a hitman, or a drug dealer, or a prostitute, or a bank robbery…I cannot be arrested based on that, because ‘being’ those things isn’t illegal. A specific instance of _doing_ those things is illegal.
Drug seizure laws aren’t just ‘Guilty until proven innocent’. They’re _worse_ than that. They’re ‘We think you’re guilty of committing crimes _in general_ and we can somehow punish you for that. We not only don’t have to show you committed a specific instance of that crime, we don’t even have to come up with _any_ specific instances of that crime _at all_.’Report
One of the reasons I’m a Libertarian is that I know that if ideas such as property being something the government grants us got widely accepted, the general application would be for cronies to have protected private property in practice, and the little guys would find themselves screwed over.
You know, like the last half dozen times.Report
Unless you go full-blown anarcho-capitalist, this just entails another branch of government – the judiciary – performing a discretionary recognition of property rights instead. And it is, if anything, even more liable toward fiddling with the system. They call it ‘jurisprudence’ over there.Report
“grants” and “protects ownership rights to” are two different things.
Unless you make your laws with language like “as long as you’re a white male net-taxpayer, we will protect your property rights”, and we’ve decided as a society that we don’t want to do that.Report