THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, March 10, 1996 TAG: 9603080027
SECTION: COMMENTARY PAGE: J5 EDITION: FINAL
TYPE: Editorial
SOURCE: KEITH MONROE
LENGTH: Medium: 75 lines
There's a dirty little secret about the supposedly conservative Rehnquist Supreme Court. Quite often, it sides with the government against the individual and embraces a statist not a libertarian conservatism.
That was true last Monday in a Michigan case. A woman's husband was caught in the act of buying sex from a prostitute in the family sedan. The government seized the car under a 1925 law allowing confiscation of property used in a crime.
But the car was half the property of the wronged wife, Tina Bennis, who was now doubly victimized. She protested the punishment of an innocent party to no avail. A 5-4 Supreme Court decision went against her, but the dissenters, led by Justice John Paul Stevens, have it right.
``The logic of the court's analysis,'' Stevens said, ``would permit the states to exercise virtually unbridled power to confiscate vast amounts of property.'' Such a practice is of a piece with the sweeping RICO laws that the court has often upheld. They too permit abuses of police power and excessive punishments in cases having nothing to do with racketeering, the original target of the law.
This time Rehnquist argued for the majority that there's ample precedent for the forfeiture of property even if its owner is not responsible for its criminal use. But repeated wrongs don't make the practice right.
Rehnquist also argued - essentially - that the end justifies the means, that Draconian laws and unjust outcomes are acceptable if the state is trying ``to deter illegal activity that contributes to neighborhood deterioration and unsafe streets.''
But weakening constitutional protections of life, liberty and property to keep neighborhoods tidy is not a deal everyone endorses. Stevens, joined by Justices David Souter, Anthony Kennedy and Stephen Breyer, cut to the heart of the matter. ``Fundamental fairness prohibits the punishment of innocent people.''
That argument cuts no ice with Rehnquist, perhaps because he places too much faith in the good sense and restraint of the state. But as long ago as Rome they were asking: Once power is granted, who's to police the police? The enforcers of the law aren't always enthusiasts for the protection of civil liberties.
A cautious conservatism prefers to err on the side of individual liberty and to limit the power the state can exercise. Laws permitting the good guys to search and seize, to interrogate, wiretap and open mail always seem like a good idea because they are going to be used against the bad guys. But once on the books, there's little to prevent them from being used against the weak, the poor, the hapless, the innocent.
Other than the Constitution. Its framers saw the only safe solution was to limit the power of the state in the first place. That's what the Bill of Rights tries to do. But Rehnquist and his fellow statists sometimes seem willing to undercut those protections for the greater good, to buy a more civil society at the expense of a few civil rights.
There's a moment in ``A Man for All Seasons'' that comes to mind. Sir Thomas More's self-righteous son-in-law is outraged that the great man would give the benefit of law even to the devil. More asks what the zealot would do, ``cut a great road through the law to get after the Devil?''
``I'd cut down every law in England to do that!''
``And when the last law was down,'' says More, ``and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.''
It's a thought worth considering when the Supreme Court is willing to harm the innocent bystander so long as the villian gets his just desserts. This time, Tina Bennis lost her car. Next time, any of us could wind up the loser. MEMO: Mr. Monroe is editor of the editorial page of The Virginian-Pilot. by CNB