“This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses,” wrote Thomas. “I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice.”That's a good originalist objection: that the original justification for the practice no longer applies to the way the practice is currently being used. Piracy and customs involve things moving into the jurisdiction of the United States that, for example, you might have reason to believe were stolen goods. "Prove that these goods were not stolen if you want to bring them here" is much more reasonable than "prove that this money in your pocket was not stolen" when you and your money were always here. The burden of proof much more obviously falls on the government when the whole affair has happened within the jurisdiction of its courts and law enforcement officers.
Thomas went on to outline his concerns, noting that legal precedent ― most recently in the Supreme Court’s 1996 Bennis v. Michigan decision ― has been based largely on “early statutes” involving property related primarily to piracy and customs.
Clarance Thomas on Civil Asset Forfeiture
By Grim on Tuesday, March 07, 2017