There must have been a time, many millennia ago, when some primitive man rushed to the mouth of his cave and howled to the predatory world outside: "My cave! My cave!" He was asserting the oldest civil right of them all, the right to possession of property.
The Supreme Court stood with the caveman the other day. In a decision that was interesting for several reasons, the court ruled that the government may not seize real property without first according the owner a hearing. The case was properly decided.No one disputed the facts. James Daniel Good was running an illicit drug operation from his home in Hawaii. In January 1985, police found 89 pounds of marijuana on the place, along with hashish oil, drug paraphernalia and thousands of dollars in cash. Good pleaded guilty as charged. He served a year in jail and forfeited the money.
Four and a half years after the original bust, in August 1989, the feds abruptly seized Good's house and land. They made no effort to give the owner notice of their belated action. Good was then living in Nicaragua. He had rented his house. The government seized the tenants' payment of rent.
When Good at last found out what had happened, he brought suit on the contention that he had been deprived of due process of law. On Dec. 13 the high court agreed.
The court split 5-4, which was one of the interesting aspects of the decision. Justice Anthony M. Kennedy wrote for the majority. Justices Harry Blackmun, John Paul Stevens, David Souter and Ruth Bader Ginsburg joined him. On the other side, in dissent, were Justices Antonin Scalia, Sandra Day O'Connor and Clarence Thomas, and Chief Justice William H. Rehn-quist.
Is a new alignment shaping up? Most observers have been predicting a 3-3-3 division, with Blackmun, Stevens and Ginsburg consistently on the left; Kennedy, O'Connor and Souter inconsistently in the middle; and Rehnquist, Scalia and Thomas steadfastly on the right. But if Kennedy shakes and Souter wobbles, this tidy outfield could be dramatically rearranged.
Such speculation may be irreverent and surely it is immaterial. The nine justices, holding lifetime appointments, will vote as they please. The conjecture does provide renewed confirmation of the truism that ours is a government of men, not of law - or in this case, a government of seven gentlemen and two ladies. As their views change, so the Constitution changes. It has been this way from the beginning.
Getting back to the Good decision as such: Chief Justice Rehnquist filed a dissenting opinion that fairly dripped with sarcasm. He looked at a perfectly clear sentence in Kennedy's majority opinion and sneered, "whatever that means." He thought the majority's position was ill-considered, disruptive, novel and unpersuasive. He was quite wrong.
Most philosophical conservatives will disagree with the conservative chief justice. Like the caveman, we political troglodytes put great store by property rights. When private property is taken for public use or benefit, we believe just compensation should be paid. When real property is seized as civil punishment, as in this case, we hold that due process demands at least a pro forma hearing.
As Justice Thomas remarked in his dissenting opinion, a hearing probably would have made no difference anyhow. James Daniel Good was not an "innocent owner," in the legal phrase. He came back into court as a convicted dealer in illicit drugs. The government will yet seize his land and his house. Even so, the case will serve a good purpose if it sends a message to the feds: Slow down, gentlemen, and play fair.