Bitcoin Law: Justice Clarence Thomas Loves Bitcoin (or Hates Civil Forfeiture)

Bitcoin, Blockchain and the Law | December 8, 2017 By:

Justice Clarence Thomas loves bitcoin. He must.

Watchers of the court will scratch their heads having scoured opinions for even the vaguest references to cryptocurrency and come up empty.

But two cases from Texas and Thomas’s need to communicate his philosophy shed the light. Again, court onlookers will find no Thomas opinions pop into mind. Chuckle they will, knowing that Justice Thomas is maybe best known for not saying one word for 10 years during Oral Argument. Communicate? Texas?

Bitcoin is a cryptocurrency – “crypto,” as in, cryptographically-driven, and also meaning ‘hidden’, like ‘cryptic’. Is it Justice Thomas’s style that suggests his bitcoin affinity?

Bitcoin’s “crypto” nature means that the money, or the value of exchange, or the store of assets, is effectively hidden. Its users and holders therefore have a certain sense of privacy that holders of traditional financial assets do not have.

The lightbulb goes off. Citing the 150-word, lesser-known dissent to the “end of moral federalism case” Lawrence v. Texas (compared to Justice Scalia’s masterpiece), our astute court-watchers pull up the second and last paragraph:

“I can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy…'”

Justice Thomas does not believe in a general right to privacy. Bitcoin creates privacy. Where is the love?

To understand Justice Thomas, ask not what he can do for you, but what you can do for yourself. Although Justice Thomas does not believe the Constitution provides a general right to privacy – which he would be sworn to protect – it does not point to his feelings about privacy.

Particularly when it comes to money.

Lightbulb. Supreme Court aficionados think: Texas. Money. Oh.

In a “Statement Respecting Denial of Certiorari” for the case Leonard v. Texas, Justice Thomas shares his love for bitcoin. The entire statement, brief and cogent, is worth reading.

A local Texas law enforcement official takes $210,000 cash out of a car (with a bill of sale from a Pennsylvania home sale), and keeps it, presumably for law enforcement’s own purposes. The woman who owned the money (and had owned the house) wanted it back.

For the non-expert, let me cut to the chase – the good guy loses. Justice Thomas, upset about it, shares with us his invitation to fix the problem – civil forfeiture.

“These forfeiture operations frequently target the poor… Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment…which may be less susceptible to forfeiture….” [italics added]

A procedural flaw in the case had Justice Thomas vote to deny Leonard a day at the Supreme Court. The money is lost (or gained, if you are the lucky law enforcement division who takes it and keeps it).

The same poor, susceptible to government overreach, are unprotected by a right to privacy in his world. However, his oblique reference to ‘alternative forms of payment’ for the less-advantaged is mitigated by an alternative form of payment, bitcoin.

Although the Court’s rules and our lack of a general right to privacy could not and did not protect the $210,000, bitcoin would have.

Justice Thomas loves bitcoin.

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Edward “Coach” Weinhaus, a member of UCLA Anderson School of Management’s faculty, legal scholar at Washington University School of Law in St. Louis where he participates in a Supreme Court Simulation and sits in Justice Alito’s seat at the First Mondays Supreme Court podcast Conference Table. Coach Weinhaus serves as the Chairman of The Group, a bitcoin investment holding company, and BlockTribune Publisher.

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