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What about our right to property?

Eminent domain emphasizes that property taken must benefit the public and that the government must pay just compensation. In theory, asset forfeiture’s main objective is to dismantle crime. If used correctly within limitation, and carefully, these seem like effective, reasonable government tools. But are they?

Music by Cellophane Sam.


00:00 Bystander?: That’s not right, man.

00:01 Police Officer: That’s how it works

00:03 Bystander: That’s not right.

00:04 Beto Matias: [in Spanish] He’s taking my money!

00:05 Police Officer: Back up. Back up.

00:06 Bystander: Oh, that’s not right.

00:08 Tess Terrible: Perhaps you have seen this clip I’m playing for you now. This is Beto Matias. He is selling hotdogs on the University of California, Berkeley campus, but he is selling without a permit, technically breaking the law. A police officer approaches his stand and asks for ID. As the vendor sifts through his wallet for an ID, the officer grabs the wallet out of his hands and pulls out all the money Matias has in his wallet. The officer then folds the money into his own pocket. It’s less than $100. Matias is shocked and doesn’t know what to do. He is afraid he’s about to get arrested. This is filmed by a bystander who exclaims, “That’s not right. You’re going to keep his hard earned money?” The officer responds, “This is law and order in action. We’re keeping the money.”

01:04 Police Officer: Yup. This is law and order in action.

01:05 Bystander: Law and order. No, it’s not.


01:13 Tess Terrible: First Amendment advocates defend our constitutional right to free speech. Second Amendment advocates assert our constitutional right to keep and bear arms. Under the 14th Amendment, we have equal protection and justice under law. But what about our right to property?


01:41 Tess Terrible: This is The Pursuit, a podcast about government action and individual liberty. I’m Tess Terrible.

01:51 Christina Sandefur: Project Property brings us together. Private property keeps others out and allows us to associate with people who are like minded, it allows us to learn things about each other, it allows us to express ourselves. And the founding fathers knew that that was critical.

02:05 Tess Terrible: This is Christina Sandefur. She is the executive vice president of the Goldwater Institute in Arizona. She spoke with me about property and property rights.

02:15 Christina Sandefur: Private property is mentioned in the constitution over and over again, and that’s why even when government is given very limited power to be able to take away property rights, that power was expressly designated as being very, very limited in the constitution, because our founding fathers knew that property rights were the foundation of all of the rights. And really, when you think about property rights, the core of property rights is self‐​ownership. I own myself, I own my body, and therefore, I own the fruits of my labor. Every right in the constitution is really at its base a property right. I mean, again, even the right to freedom of speech, and free expression, that, again, relies on a foundation of private property rights. And if you don’t have the right to own a printing press down in church, you are not able to express those rights and government can take the foundation of those rights away.


03:15 Tess Terrible: There’s a long and complicated history of private property getting undermined by government action. This is Trevor Burrus. He is a research fellow here at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. He is also co‐​host of Free Thoughts podcast. I asked Trevor to explain the relationship between private property and government. We started by talking about eminent domain.

03:44 Trevor Burrus: Eminent domain is a power of the government, and it’s a long standing power going back to common law, and it’s protected in the sense that it’s allowed, but you have to pay compensation. In the Fifth Amendment which says that, “Nor shall private property be taken for public use, without just compensation.” This means, traditionally speaking, that the government can take, say, your house to build a road, and it has done this for a very long time. But if it does that, it has to pay you just compensation, but generally, that’s eminent domain.

04:18 Tess Terrible: In most cases, eminent domain is used to take physical property, like houses or other properties, and this property is used as a public good, something that directly benefits the public.

04:32 Trevor Burrus: In asset forfeiture, there are actually two types of asset forfeiture. One of them is criminal asset forfeiture, and the other one is civil asset forfeiture. Criminal asset forfeiture is when you lose the proceeds of a crime. And most people would generally endorse this. If you robbed a bank, and then you’re convicted of robbing the bank, and they take the $400,000 or whatever you took from the bank, you can’t say, “Hey, you’re taking my property.” And that comes after a conviction of a crime. That’s criminal asset forfeiture. Civil asset forfeiture is different entirely. That occurs when the government takes things based on the mere suspicion that it was involved in a crime without a conviction beforehand and possibly without a conviction ever.


05:16 Tess Terrible: Civil asset forfeiture is the legal process of seizing personal property of a person suspected of a crime. It’s important to distinguish eminent domain and asset forfeiture, while understanding that they both share the same foundational action, government seizing private property. I would argue in the abstract, both eminent domain and asset forfeiture are fairly reasonable practices. Eminent domain emphasizes that property taken must benefit the public and that the government must pay just compensation. In theory, asset forfeiture’s main objective is to dismantle crime. If used correctly within limitation, and carefully, these seem like effective, reasonable government tools. But are they?

06:12 Susette Kelo: We ate, slept and drank eminent domain for nearly 10 years, all of us. It was the first thing we thought about when we woke up, and it was the last thing we thought about before we went to bed. And that’s all we did, all day long.

06:25 Gerardo Serrano: I wanna know if my civil rights are still intact because, like I said, when this all happened to me, I knew right away there was rights being violated.

06:34 Christina Sandefur: What I wish we could do is just send every government official in the United States a copy of the Constitution and say, “When you were elected or appointed to your office, you took an oath to uphold this document, and so you need to do so.”

06:48 Tess Terrible: We have a lot to explore in the coming weeks. Stay tuned.


06:57 Tess Terrible: The Pursuit is produced and hosted by me, Tess Terrible. It is a project of the Cato Institute and Lib​er​tar​i​an​ism​.org.