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More Originalism from Justice Thomas
Michael Ramsey

In addition to his strong dissent in Pena-Rodriguez v. Colorado, Justice Thomas had two other interesting separate opinions this week.  First, he issued this statement in Leonard v. Texas (basically, concurring in the denial of the petition).  Leonard made a due process challenge to civil forfeiture; Thomas suggests that such a claim might have merit, based on the differences between modern civil forfeiture and historical practice: 

The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding. See, e.g., Bennis v. Michigan, 516 U. S. 442, 446–448 (1996). “‘English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.’” Austin, supra, at 612 (quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 682 (1974)). This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture.” 509 U. S., at 613. Other early statutes also provided for the forfeiture of pirate ships. United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111, 119 (1993) (plurality opinion). These early statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime. See Calero-Toledo, supra, at 684–685; Act of Aug. 4, 1790, §67, 1 Stat. 176–177. And, because these suits were in rem rather than in personam, they typically proceeded civilly rather than criminally. See United States v. La Vengeance, 3 Dall. 297, 301 (1796).

In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation.... I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.

First, historical forfeiture laws were narrower in most respects than modern ones. Cf. James Daniel Good, 510 U. S., at 85 (THOMAS, J., concurring in part and dissenting in part) (noting that “ambitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture”). Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts. See Herpel, Toward a Constitutional Kleptocracy: Civil Forfeiture in America, 96 Mich. L. Rev. 1910, 1918– 1920 (1998); see also id., at 1925–1926 (arguing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts). These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods). See Rumson, supra, at 121–122, 125 (plurality opinion) (Forfeiture of criminal proceeds is a modern innovation).

Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings. See, e.g., Boyd v. United States, 116 U. S. 616, 633–634 (1886) (“We are . . . clearly of [the] opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal”); but see R. Waples, Treatise on Proceedings In Rem 29–30 (1882) (collecting contrary authorities). Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt”).

(Thomas agreed with the denial, however, based on petitioner's failure to raise the issue in the lower court).

Second, Thomas dissented from denial of certiorari in Baston v. United States, a case challenging the scope of Congress' power to regulate commerce with foreign nations.  The court of appeals construed Congress' commerce power to reach prostitution involving two non-U.S. citizens in Australia.  Thomas, while conceding that "facts are not sympathetic," objected:

Thus, even if the foreign commerce power were broader than the interstate commerce power as understood at the founding, it would not follow that the foreign commerce power is broader than the interstate commerce power as this Court now construes it. But rather than interpreting the Foreign Commerce Clause as it was originally understood, the courts of appeals have taken this Court’s modern interstate commerce doctrine and assumed that the foreign commerce power is at least as broad. The result is a doctrine justified neither by our precedents nor by the original understanding.

Taken to the limits of its logic, the consequences of the Court of Appeals’ reasoning are startling. The Foreign Commerce Clause would permit Congress to regulate any economic activity anywhere in the world, so long as Congress had a rational basis to conclude that the activity has a substantial effect on commerce between this Nation and any other. Congress would be able not only to criminalize prostitution in Australia, but also to regulate working conditions in factories in China, pollution from powerplants in India, or agricultural methods on farms in France. I am confident that whatever the correct interpretation of the foreign commerce power may be, it does not confer upon Congress a virtually plenary power over global economic activity.

Post-Scalia, a more assertive Thomas?