82
points out, ante, at 74-76, since the Civil War we have upheld statutes allowing for the civil forfeiture of real property. A strong argument can be made, however, that § 881(a)(7) is so broad that it differs not only in degree, but in kind, from its historical antecedents. See, e. g., Brief for Respondents 19-21. Indeed, it is unclear whether the central theory behind in rem forfeiture, the fiction "that the thing is primarily considered the offender," J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 511 (1921), can fully justify the immense scope of § 881(a)(7). Under this provision, "large tracts of land [and any improvements thereon] which have no connection with crime other than being the location where a drug transaction occurred," Brief for Respondents 20, are subject to forfeiture. It is difficult to see how such real property is necessarily in any sense "guilty" of an offense, as could reasonably be argued of, for example, the distillery in Dobbins's Distillery v. United States, 96 U. S. 395 (1878), or the pirate vessel in Harmony v. United States, 2 How. 210 (1844). Given that current practice under § 881(a)(7) appears to be far removed from the legal fiction upon which the civil forfeiture doctrine is based, it may be necessary—in an appropriate case—to reevaluate our generally deferential approach to legislative judgments in this area of civil forfeiture.2
In my view, however, Good's due process claim does not present that "appropriate" case. In its haste to serve laudable goals, the majority disregards our case law and ignores
whether it be a hobo's hovel or the Empire State Building, can be seized by the government because the owner, regardless of his or her past criminal record, engages in a single drug transaction"), rev'd sub nom. Austin v. United States, 509 U. S. 602 (1993).
2 Such a case may arise in the excessive fines context. See Austin v. United States, 509 U. S., at 628 (Scalia, J., concurring in part and concurring in judgment) (suggesting that "[t]he relevant inquiry for an excessive forfeiture under [21 U. S. C.] § 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, 'guilty' and hence forfeitable?").
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