Nelson v. Colorado, argued to the Supreme Court last week, seems like it should be an easy case. In brief oversimplification: in Colorado, certain criminal offenses require payment of money (fines, costs, etc.) to the state upon conviction -- but if the conviction is overturned on appeal and the charges are ultimately dropped, the money is not automatically refunded. Instead, to get a refund, former defendants must bring a separate claim in which they must show that they were actually innocent of the charge. Petitioners in this case are former defendants facing that situation.
That looks like a deprivation of property without due process -- the state keeps the money, even without a valid conviction, unless the former defendant can make a showing much more difficult than simply defending against a criminal charge. Further, Nelson's attorney -- UCLA law professor Stuart Banner, channeling Justice Scalia -- demonstrated without much counterargument that this sort of procedure doesn't have any traditional foundation in Anglo-American law (and only exists in Colorado).
But I have been studying Justice Scalia's opinions closely for an article I am writing, and I think it's a little more complicated. Scalia's view of the correct originalist approach to individual rights, including due process, depended on whether the challenged government action had a traditional foundation. If it did, he thought that was essentially conclusive as to its constitutionality (unless the constitutional text was unambiguous). If the challenged procedure did not have a traditional foundation, then his course was less clear. Sometimes he thought he lack of traditional foundation was very strong evidence against the practice's constitutionality, but other times he was less sure. He pointed out that the mere fact that a practice wasn't employed at the time the Constitution was adopted does not mean people at the time thought it was unconstitutional. They might have only thought it unwise, or perhaps it did not occur to them to use it.
That seems right as a general matter -- that is, non-use alone isn't enough to show unconstitutionality in the case of an ambiguous provision. We don't expect the Constitution to freeze practices (especially procedural practices) in exactly the form they existed at the time of enactment. But we (originalists, at least) do expect the Constitution to freeze some practices in the form they exist to prevent the erosion of rights supposedly protected against the development of new invasive practices. The question has to be some form of asking whether the new practice strikes at the core of the right that the constitutional provision was understood to protect.
One way to approach the problem is to see if the challenged government practice is the kind that the enactors specifically understood the constitutional protect to address. (E.g., the due process clause prevents executive detention without authority of law). But often new practices are not within the enactors' specific contemplation because they are new -- and the question becomes somewhat more hypothetical.
So in Nelson, I don't think it's enough to say Colorado's approach has no historical foundation. We need some kind of argument that it is the sort of practice against which the due process clause was understood to protect.
I think the case can be made that it is. The background assumption, reflected in both the due process clause and the takings clause, was an individual right to private property. Government could deprive individuals of their private property in various ways -- e.g., through fines after conviction, by the government paying compensation, by forfeiture -- but the government had to act within one of these traditional categories. The executive (or the judiciary) could not simply seize private property (even if purportedly authorized by the legislature) -- there had to be "due" process, which in property cases meant one of the traditional forms of transferring private property to the the government. If new forms of seizure could be invented and declared "due" by later courts, then the constitutional protection for property would be ineffectual.
In Nelson, the state's only possible argument for acting through one of the traditional forms of seizing property is the levying of fines and related penalties after a criminal conviction. But this form of seizure depends on a lawful conviction, which Colorado does not have in this case. Colorado is in effect circumventing the legal process by keeping the fines paid, even without a conviction. The fact that a statute authorizes this procedure is no answer: otherwise, the legislature could pass a law allowing fines to be collected upon arrest, with no criminal prosecution at all. The reason it can't do this is not just because it was not done at the time of the Constitution's enactment, but because the due process clause was specifically understood at the time of enactment to prevent this from happening by requiring property seizure to occur in only certain traditional categories of circumstances.
Thus my very short version of Nelson is this: The Constitution has long been understood to prevent government seizure of private property except within certain traditional categories and processes. Colorado's only justification for seizure here is that defendants were lawfully convicted and thus must pay statutorily authorized penalties. That would indeed be a justification, if the defendant's convictions were lawful. But they were not, because they were reversed on appeal and no new convictions were obtained. Thus Colorado is wrongfully retaining defendants' property, and it cannot create burdensome procedures to prevent defendants from obtaining a refund.
And so it's an easy case after all. (As I assume the Court will conclude, based on the tough questions Colorado encountered at oral argument [transcript here; argument analysis from Steve Vladeck here] -- and the fact that there seems no good reason for the Court to hear this case other than to reverse it).