Another project. This is a comparative, linguistic analysis between a historic work and a contemporary one: “Völuspá,” an excerpt of the Poetic Edda, and “Before the Beginning, and After,” taken from Neil Gaiman’s magnificent Norse Mythology. If you know the guy, feel free to pass this along.
For this project, I plan to analyze and compare two works of Norse mythology. “Völuspá,” or “The Prophecy of the Seeress,” is a creation poem featured in both Snorri Sturluson’s Prose Edda and the elder Poetic Edda of the Codex Regius (“Royal Book”), which remains unattributed to an author. “Before the Beginning, and After,” is an excerpt from Norse Mythology, a collection of Norse myths retold by best-selling fiction author Neil Gaiman. The English translation of “Völuspá” used in this paper was originally published by Henry Adams Bellows in 1936 and is now a work of public domain. Small fragments of the translated prose were altered in 2006 by Dr. Marion Ingham, to reflect a more literal translation of Old Norse. The original manuscripts of the Prose and Poetic Eddas date back to the early 13th century. In comparison, Gaiman’s Norse Mythology was published quite recently, in February of 2017.
Both versions of the narrative provide some measure of context for the entire Norse mythos, introducing the Nine Worlds and how they each came to be. The creation of gods, giants, men, and dwarves—and the conflict and chaos that eternally rules their existence—is laid out within these verses. The traditional telling of “Völuspá” is from the perspective of a certain volva, or wise-woman, raised from the dead by Odin to foretell of Ragnarök, or “The Fate of the Gods”. In Gaiman’s adaptation, the author serves in place of the oracle, imparting a quick and easily digestible framework for the Norse chaos/creation/destruction myths.
II. Morphological, Phonological, and Semantic Analysis
Before being recorded in piecemeal by Christian missionaries, Norse mythology was strictly an oral tradition. Gaiman had similar intentions for his own retellings of the Norse mythos—he himself is the narrator of the audio version of Norse Mythology, and his introduction urges readers to “…on some dark and icy winter’s evening, or on a summer night when the sun will not set, tell your friends what happened when Thor’s hammer was stolen, or how Odin obtained the mead of poetry for the gods…” (6). From a linguistic perspective, I thought it would be compelling to examine the shifts in language from traditional Skaldic poetry (translated) to English (U.K.) fiction. Because these works were intended to be spoken, I think a phonemic analysis may provide curious insights into how the sounds of our storytelling traditions have changed over nearly ninety years, since Bellow’s 1936 translation.
Verses 33 and 34 of “Völuspá” features more voiced constants than voiceless, the voiced of which are emphasized here:
33. From the branch which seemed | so slender and fair
Came a harmful shaft | that Hoth should hurl;
But the brother of Baldr | was born ere long,
And one night old | fought Othin‘s son.
34. His hands he washed not, | his hair he combed not,
Till he bore to the bale-blaze | Baldr‘s foe.
But in Fensalir | did Frigg weep sore
For Valhall‘s need: | would you know yet more? (33-4)
Reading the prose aloud, I was struck by the sound of these verses in particular; though not pure alliteration, there are similar voiced and voiceless consonant and vowel sounds repeated within each line. Alveolar consonant phonemes are the most prevalent, but they also appear to generally be the most prevalent within the English language—there are more sounds listed in that column than any other, so that may simply be expected. The third line of verse 33 and the second line of verse 34 repeat the bilabial / b / stop four times within each respective line. These stress of these word-initial consonants starkly contrast the nasal, glide, and liquid manners of articulation that comprise most of the sounds in these verses. The stops seemed to act as a sort of punctuation, causing the narrator to slow and annunciate each / b /, where the rest of the sounds behave in a way congruent to their descriptors: the mouth moves with a gliding, liquid-like buoyancy in comparison to the choppy / b / breakers.
In Gaiman’s “Before the Beginning, and After,” another alliterative sentence caught my attention: “Niflheim was colder than cold, and the murky mist that cloaked everything hung heavily” (14). Beyond the obvious repetition of consonant sounds seems to be an almost formulaic sound construction: Nasal, glide, stop, fricative, stop, nasal, fricative, nasal, nasal, fricative, stop, fricative, glide, glide. As they did in “Völuspá,” the / k / stops here—all the same phoneme—seem to serve as a rhythmic punctuation between silkier sounds, drawing the listener’s attention and forcing the narrator to articulate carefully to avoid slipping the tongue. Repeating the consonant sounds most likely to be stressed when speaking, you end up with something like [ kuh-kuh-muh-muh-kuh-huh-huh ] (colder/cold, murky/mist, cloaked, hung/heavily). The repetition of sound and stress here echoes the poetic and near-lyrical quality of the “Völuspá” verses.
“Before the Beginning, and After,” and “Voluspo,” are both works of fiction; the latter is more likely to be defined as literature than the former, though both cover the subject matter of the ancient Norse mythos. Due to the fictional nature of the two works, an examination of the figurative language contained within both pieces seemed the most appropriate choice in semantic analysis. According to Linguistics for Everyone (2013),figurative language is generally defined as “language that shifts meaning from the primary meaning of the word” (p. 310). However, there are many specific types of figurative language, a few of which will be explored in these selected works.
Metaphors are probably the most common and easily recognizable category of figurative language. We use metaphors in our everyday language to draw comparisons between one idea and another: something is like something else. Denham and Lobeck (2013) inform us that the word metaphor comes from the Greek metaphero, which means to “transfer” or “carry over” (p. 312). Metaphors are often heavily used in fictional writing as a means to convey an image, idea, or sensation to the reader through imagery and association: He said the words, and her heart cracked like an old mirror. In this example, the girl’s heart isn’t actually anything like an old mirror, but the figurative comparison allows the reader to draw a mental imagery and association of things broken, shattered, irreparable, and so on.
Gaiman is a celebrated fantasy author, but the writing in “Before the Beginning, and After,” takes an almost scholarly tone, and the information contained therein—though rooted in mythology and entirely fictional—is presented in a straightforward and largely factual manner, lending Gaiman’s voice an authoritative quality. This deliberate separation from commonly used figurative literary devices makes the creation story of Gaiman’s Norse mythos more comparable to canonized religious texts, such as the Bible; there is a marked difference in the writing here when compared to the other plot-driven and traditionally-presented narratives contained in Norse Mythology.
In order to achieve this scholarly tone, Gaiman’s writing in “Before the Beginning” is markedly restrained in the use of metaphors and other non-literal language, though there are still a select few buried within the text: “The land was aflame with the roaring heat of a blacksmith’s fire,” (p. 14) or “a person bigger than worlds” (p. 15). What is interesting about these metaphors is that, though they draw comparisons between two concepts or ideas—a piece of land as a blacksmith’s pit, or a humanoid entity larger than a planet—these ideas are still expressed in a way which maintains continuity of Gaiman’s authoritative and factual voice. Gaiman seems to deliberately avoid the word like: Ymir, ancestor of all giants, is not presented as like a planet, but “a person bigger than worlds” (p. 15). The latter phrasing lends more weight than the former, presenting the idea as concrete and indisputable rather than imaginative. The same presentation is given in Gaiman’s description of the flame-world of Muspell. The land is not like the heat of a blacksmith’s fire, but rather, the blistering heat of a blacksmith’s fire is undeniably contained within the land.
Personification is a specific type of metaphor, and another example of a commonly used figurative device. Denham and Lobeck (2013) define personification as the “attribution of human qualities to something that is not human” (p. 313). Personification is not always immediately obvious—a sentence like the tree’s branches grasped at her hair might not immediately strike a casual reader as personification, though in actuality, a tree’s branches lack the nervous system, muscle, nerves, tendons, and bones, and other tissues to be able to grasp anything the way a human hand would, as is suggested by the text. Thus, personification is simply a more specific characterization of something is like something else.
Personification is used heavily throughout the writing in “Voluspo”: “The sun, the sister / of the moon, from the south / Her right hand cast / over heaven’s rim” (stanza 5). The sun is entirely devoid of any true human attributes, but mythology across all cultures often utilizes personification in the description of many earthly and celestial elements. This particularly makes sense when you consider that many cultures’ mythology includes ideals of animism, or the belief that both animate and inanimate entities (animals, trees, rocks, rivers, stars, etc.) contain a human-esque consciousness, awareness, or soul (Solomon & Higgins, 2003). The heavy use of personification in many mythological works, including “Voluspo,” likely has ties to the animistic beliefs of pagan and Viking cultures.
Drawing comparisons between human beings and non-human objects, ideas, or entities may have been a more effective use of non-literal language and imagery versus other methods; in the early 13th century, when the oral traditions of the Norse peoples were first transposed to written record by Christian missionaries, worldviews and education were likely to be highly limited, particularly among the “common” folk these myths so often entertained. Drawing comparisons between human attributes and non-human entities/objects/ideas could be reasonably seen as one of the most effective and easily understood uses of figurative language. Human beings are inherently social creatures, intimately knowledgeable from a tender age of the expressions, movements, sounds, and other non-verbal cues that humans use to convey meaning. Thus, it would seem logical that personification would be a common well of comparison to draw from, easily understood and put into the proper context by the masses.
III. Register Levels
In any written or spoken work, the narrator’s selection of language affects the register of the text or dialogue. Denham and Lobeck (2013) define register as a “speech or writing style adopted for a particular audience” (p. 350). This means that humans adapt the style, word selection, formality, and tone of our language depending on the context of the situation and intended audience. In his article titled “What Is Register in Linguistics?” (2018), linguistics professor and English expert Dr. Richard Nordguist explains that there are five generally accepted forms of register: frozen (or “static”), meaning language that is intended to remain unchanged, such as the recitation of a formal prayer; formal, which is used in academic and professional settings; consultative, which is the register used when imparting specialized knowledge or advice; casual, which is the relaxed and informal register used between friends and family; and intimate, which is a private—often loving, sexual, or conspiratorial—register used between two people.
As touched on previously, the register level within “Before the Beginning, and After,” reads differently than the subsequent chapters. This part of the narrative is conveyed factually, with unadorned language, consistent grammar, few figurative devices, and no dialogue; Gaiman’s seeming canonization of an uncanonized belief system lends the opening chapter a consultative register, such as that of a scholar or historian. In contrast, subsequent stories in Norse Mythology heavily feature informal and non-literal language (euphemisms, idioms, similes, metaphors, etc.), slang, dialogue exchanges, expletives, and so on. Once the setting and cast of characters have been formally introduced by Gaiman, the register takes on a much more lively and unceremonious tone. Though the creation myth contained in “Before the Beginning” is highly imaginative and entirely fictional, Gaiman chose practical language and heavily favorited literal description in creating the readers’ context for the remainder of the mythos.
The register of “Voluspo” is a bit more difficult to ascertain, largely due to the archaic language and poetic structure of the narrative. In this story, Odin summons a volva, meaning a seer, oracle, or wise-woman, from her grave in order to discover the future which awaits the gods. The volva initially addresses the gods with a tone somewhere between formal and consultative, seeking to impress the gathering of gods with her formidable knowledge of past, present, and future events. However, despite the formality of the volva’s language, slang, euphemisms, personification, metaphors, similes, and other forms of poetic license are heavily at play. Thus, it is necessary to make a distinction between the register of the characters and the overall register of the writing, which is lively, highly imaginative, and grammatically impractical in comparison to contemporary language use (though this is common in all poetry, even modern). So, while the register of volva to gods reads as formal and consultative, the overall register of the piece can be perceived as casual: the imparting of a wildly imagined tale from storyteller to audience; the tone is engaging, and the language, vivid.
The dialect of “Voluspo” can make interpretation and analyzation of the piece more challenging than other works of poetry, particularly when compared to contemporary pieces. The edition of “Voluspo” analyzed in this paper was translated by Henry Adams Bellows in 1936; even considering how recent that translation is in comparison to the timeline of the Edda’s existence, there are still peculiarities in the dialect that stem from conversion from Old Norse to English, artistic license and interpretation, grammatical irregularities, and so on. The language, structure, grammar, and voice of “Voluspo” immediately indicate to the audience that this work is likely historic. When reading through the piece, it’s often necessary to laboriously rearrange and contextualize the language to properly comprehend the message conveyed by the writing. Though much must be left to the interpretation of the translator, Bellows’ likely prerogative was to preserve the integrity of the original work as much as possible; this potentially affects word choice in the translation and may result in some measure of grammatical or contextual oddities within the text.
Though Neil Gaiman hails from Portchester in the United Kingdom, there is a stark absence of regionally-specific English in his writing. I imagine this is likely the work of skillful editors and, were a reader to buy the U.K. edition of Norse Mythology, they would likely find discrepancies between the American-English version and British-English version of the books. This is not an uncommon occurrence; take, for example, Harry Potter and the Sorcerer’s Stone, which is alternately titled Harry Potter and the Philosopher’s Stone throughout the European nations. The title change in the North American release was simply due to the fact that J.K. Rowling’s publisher did not believe American children would be interested in reading a book with the word philosopher in the title; sorcerer imparted a more exciting and magical inflection.
The dialect within “Before the Beginning” is difficult to specify, as the opening chapter reads more like the retelling of a myth that would perhaps be contained within a textbook on anthropology or philosophy or religion: factual (though it indeed is not), unembellished, and largely expository. The most curious feature within the dialect of this work are the names—both of geographic locations and characters—which efficiently inform a non-Nordic reader of the tale’s exotic origins: Niflheim, Hvergelmir, Muspell, Ymir, Ginnungagap, and so on. These are not words (or even arrangements of letters or phonemes) that would seem intuitive to a native English speaker and indicate to the audience that Gaiman’s story takes place in a time and/or location different than our own.
V. Stylistic Elements, Use of Language, Intended Message, and Recommendations
The writing of “Voluspo” certainly informs the audience of the period from which it originated, but that is not the most interesting stylistic element of the piece. “Voluspo” is narrated through one character—the volva, or oracle—and the stylistic elements of her speech to the gods takes an interesting journey through the sixty-odd stanzas that comprise the poem. Her recollections of past, present, and future are not presented to the reader or listener on a linear timeline, but they are effective enough in informing the audience of a general series of events that leads from the creation of the gods, giants, and the Nine Worlds to the eventual (and inevitable) destruction of the known universe—Ragnarok.
Word repetition seems to play two key roles within “Voluspo”. First, names and/or locations appear repetitious when signifying importance, either in status or relevance to the plot. For example, Othin (Odin) is almost exclusively referred to by his proper name throughout the body of the text. In contrast, many other major characters are described within the tale in more indirect ways: Freyja is “Oth’s bride,” Fjalar is “the rust-red bird,” Fenrir is simply “the wolf” (stanzas 25, 43, 40). The repetitious use of Othin’s name seems to set him apart from the other gods, which makes sense in the context of the Norse mythos: Othin is the All-Father, the Heerfather, the Old One; he is the most wise, ancient, and powerful of the gods. The repeated use of his name, in this instance, seems to serve as an honorific to distinguish Odin from the rest of the characters.
Secondly, repetition of certain phrases is used to convey and stress certain messages to the audience of gods within the myth, as well as the reader. Near closing of the prose, the volva presents Odin with a question at the end of each of her revelations: “Would you yet know more?” (stanzas 48-66). The repetition of this phrase creates tension in the plot, as the oracle flaunts her power (with a decided measure of haughtiness) in the face of the most powerful and terrible of all the gods. These demonstrations of prophesy and the challenge the volva presents to Odin at the end of each one also signals to the reader the impending climax of the narrative, which is the foretelling of Ragnarok, the “Twilight of the Gods”.
Where Gaiman’s approach is straightforward and studious, the originating poem is a madcap whirlwind of places, periods, events, and characters. The word choice is vivid and melodic; the prose is heavy with imagery, figurative language, and grammatical flexibility. Though the formatting of “Voluspo” reads as decidedly nonstandard in today’s world, without a proper understanding of the syntax of Old Norse, it’s difficult to ascertain whether grammatical inconsistencies are a result of translation or whether they are built within the framework of the poem’s original structure. Lines such as “Loud roar the dwarfs / by the doors of stone,” demonstrate nonstandard but not unintelligible grammar; were the sentence written in “plain English,” it would likely translate to “By the doors of stone, the dwarves loudly roar,” or some variation thereof. However, shifting the grammatical structure does a fundamental disservice—if not outright damage—to the lilt and rhythm of the prose. In contrast, Gaiman’s approach to grammar is entirely standard and fairly unremarkable: “The giant drank the milk, and grew” (p. 16). Much like the straightforward approach Gaiman took to language, voice, and style in this piece, this fastidiously minimalist approach seems rooted in a desire to mute the absurdity of the myth and instill in his audience a sense of factualness and believability.
VI. Changes and Differences Throughout Time
In “Before the Beginning, and After,” Gaiman lays an expository framework for his mythological retellings in the form of the Norse creation/origin story. “Voluspo” similarly deals with the Norse destruction myth, though only in its foretelling; “Voluspo” is not the poem of Ragnarok. Additionally, the volva featured in “Voluspo” through which the poem is narrated makes several passing references to the original creation myth; thus, “Before the Beginning” and “Voluspo” both deal with a small measure of overlapping subject matter. Because of this, it is not necessary to entirely speculate at what “Voluspo” might look like in modern interpretation; there are a few small examples of contemporary shifts hidden within Gaiman’s work. Consider stanzas three and four from Henry Bellows’ 1936 translation of “Voluspo”:
3. Of old was the age | when Ymir lived;
Sea nor cool waves | nor sand there were;
Earth had not been, | nor heaven above,
But a yawning gap, | and grass nowhere.
4. Then Bur’s sons lifted | the level land,
Mithgarth the mighty | there they made;
The sun from the south | warmed the stones of earth,
And green was the ground | with growing leeks. (Bellows)
In examining changes from a phonetic view, there are two notable phoneme shifts comparable between the Bellows’ translation of “Voluspo” and Gaiman’s “Before the Beginning”. First, the consonant evolution of the voiceless fricative / θ / to the voiced stop / d /, observable in shifts such as Mithgarth to Midgard and Othin to Odin; secondly, the vowel shift of the mid-central / ^ / (but) to the mid-back / o / (boat) in words such as Bur to Bor and Skuld to Skold (Denham and Lobeck, 74-85). The phonological processing of the consonants / θ / → / d / seems intuitive when you consider how frequently English (particularly American) speakers unconsciously shift / t / → / d /. For example, the word butter is generally heard as “budder” rather than “but-ter” in the majority of North American diction. The vowel shift from / ^ / → / o / is likely a form of phonetic assimilation, where one vowel sound is overtaken by a similar vowel sound depending on regional, cultural, or environmental norms. Consider the many different pronunciations of bag in the English language: bahg, baeg, baag, beag.
The fact that “Voluspo” is a work of prose lends the piece a large measure of flexibility concerning grammatical structure; poetry tends to violate grammatical rules of English more often than follow them, generally from a motivation of artistic expression. “Before the Beginning” is decidedly standard in its use of grammar. Compare Bellows’ translation of the aforementioned third stanza to Gaiman’s take on the same subject: “There was no sea and no sand, no grass nor rocks, no soil, no trees, no sky, no stars” (16). Gaiman makes a notable shift from the subject + adverb structure used almost exclusively in “Voluspo” to an adverb + subject form, which is more commonly used in standard grammatical English (“I walked the dog” versus “The dog I walked”). However, the non-standard use of grammar in “Voluspo” could easily be argued as artistic, and therefore still applicable in a contemporary, prose-driven interpretation of the work.
Beyond proper nouns—names of specific people and locations—the vocabulary of “Voluspo” is not wildly different than the word selection featured in Gaiman’s contemporary work. This is more likely due to Gaiman’s desire to maintain a certain amount of continuity and integrity between the original Norse myths and his reinterpretation of them. The register of Gaiman’s work in “Before the Beginning” is formal and consultative; had he chosen to write from a more casual register, the vernacular and style may have created a drastically different impression on its audience. In the 82 years between Bellows’ translation and Gaiman’s reinterpretation of the myths, the formal use of English has shifted only slightly, while the colloquial use of English has seen dramatic change—consider recent dictionary additions such as weak sauce (n.) or facepalm (v.), or the newly-introduced verb form of the noun ghost (Debczak). Gaiman, therefore, shows a good measure of restraint and reflection of the original work in his word choice in order to retain a certain formality and create an appropriately anachronistic feel to the narrative; his deliberate selection of language enhances his intended message, rather than hindering it.
VII. Environmental, Historical, and Cultural Influences
Though there are examples of now-dated language used throughout “Voluspo”—words such as oft, hither, girdled, trodden are infrequently used in contemporary English—context and semantics would likely allow for any average reader to discern their meaning. Confusion is more likely to arise from grammatical structure, which, as previously noted, often takes the opposite form of standard, present-day English. For example, take the first two lines of stanza 23: “On the host his spear / did Othin hurl, / Then in the world / did war first come” (“Voluspo”). Though the vocabulary is fairly unremarkable, the reader will likely make a mental rearrangement of the lines before discerning the intended message: “Did Othin hurl / on the host his spear / Did war first come / then in the world,” which can then translate to something such as, “Odin and the gods take up arms, and the first war of the Nine Worlds is waged.” Though the grammar used in “Voluspo” often requires the contemporary reader to carefully analyze and restructure the language to discern the intended meaning, poetry often presents this challenge, even in modern forms. Thus, it is necessary to consider that the intended message may include the artistic structuring of the language; the non-standard use of grammar often creates a distinction between prose and literature, and may be essential to maintaining the overall integrity of the narrative.
Gaiman’s general avoidance of slang, idioms, euphemisms, metaphors, and regionally-specific or colloquial language—even the marked absence of dialogue within the story—lends the piece a certain formality which could be argued as historically influential. The restraint and simplicity demonstrated throughout “Before the Beginning” allows the work to be easily connected to the original myth, where a more casual register or relaxed approach to vocabulary may have obscured the myth beyond recognition.
Still, Gaiman’s approach does away with the outdated vernacular seen throughout “Voluspo”—you rather than ye, had over hath. Likewise, Bellows’ translation of Old Norse demonstrates significant changes in English language use between the Cottle translations (1796) and his own (1936). Consider the format and vocabulary of this excerpt from Cottle’s version of “Voluspo”:
With magic rites the concave rung;
Necromantic airs he sung;
Hyperborean climates view’d;
Runic rhymes around he strew’d;
Deep the incantation wrought;
Then the maid sepulchral sought. (Cottle, 105)
Where Bellows’ vocabulary feels only slightly dated when compared with Gaiman’s language use, the word choice in Cottle’s translation adds an additional level of obscurity, more so than the prose structure alone: words such as hyperborean and sepulchral, or the seemingly peculiar use of concave, might require a good deal of mental gymnastics for the average reader to properly comprehend.Much in the same way Gaiman’s reinterpretation of the Norse mythos feels appropriately modern, Bellows’ translation likely read as quite contemporary in 1936, when compared to previous translations of the Eddas. The evolution of the same myths—from English translations dating two hundred and twenty-two years apart—demonstrates remarkable shifts in vocabulary, grammar, structure, pronunciation, spelling, and definition.
The evolution of storytelling, speech, mythology, and
narrative is directly tied to the evolution of language. Distinct and recognizable
shifts in pronunciation, grammar, slang, word choice, and so on are essential
to informing the reader of not just the when,
but also the where and likely
even the why of a given narration. The
stories contained within “Before the Beginning” and “Voluspo” are essentially
the same; it is the selection and application of language which makes these two
works entirely distinct from one another. However, through attentive and
meticulous analyzation, it is still entirely possible to trace the roots of one
myth to another. Understanding where language originates from, how it is used,
and how it changes over time lends a deeper and richer understanding of the
cultures built around language, the nuances and subtleties of human
communication, and the way those two elements converge to endlessly shape and
reshape the expression of unique ideas.
Cottle, A.S. “The Edda of Saemund Translated into English Verse”. Magdalen College, 1796, p 102, PDF, accessed 30 November 2018.
Debczak, Michele. “30 of the New Words Added to the Merriam-Webster Dictionary”. Mental Floss, 8 February 2017, retrieved from mentalfloss.com/article/92032/30-new-words-added-merriam-webster-dictionary, accessed 30 November 2018.
Denham, Kristin, and Anne Lobeck. Linguistics for Everyone. Wadsworth Publishing, 2013, pp 69-103, MBS Direct, accessed 30 November 2018.
Gaiman, Neil. “Before the Beginning, and After”. Norse Mythology, Bloomsbury Publishing, 7 February 2017, pp 6-14, Google Play Books, accessed 10 November 2018.
“Völuspá”. Poetic Edda, circa13th century, translated by Henry Adams Bellows (1936), edited by Marion Ingham, 2006, verses 33-4, retrieved from voluspa.org/voluspa31-35.htm, accessed 10 November 2018.
Nordguist, R. “What Is Register in Linguistics?” ThoughtCo, 2018. Retrieved from https://www.thoughtco.com/register-language-style-1692038
Solomon, Robert, and Kathleen Higgins. From Africa to Zen: An Invitation to World Mythology, 2003, Rowman & Littlefield, MBS Direct, accessed 16 December 2018.
Copyright E.J.R. Webster, 2018, all rights reserved.
This was a paper I composed for my American Politics 210 course, back in mid-2017. If I get motivated enough, I’ll do an update on significant changes between the time this was written and the recent Timbs vs. Indiana Supreme Court ruling (woot).
Though the idea has Biblical roots, civil forfeiture (or civil asset forfeiture) originated in the United States as practice of import regulation. Born from demand to seize smuggled or non-tariffed goods, civil forfeiture was a way to legalize these seizures without first prosecuting overseas property holders. Four subsequent acts of government have pushed the scope of civil forfeiture immeasurably beyond the original intentions of the Founders. I will argue that our government deliberately allowed the creation of a gaping loophole within the Fourth and Fifth Amendments, allowing for immediate and complete avoidance of due process, imposition of excessive fines, and unreasonable government search and seizure of the property of U.S. citizens.
Civil forfeiture was first ruled on by the Supreme Court in 1827, in the case of The Palmyra, 25 U.S. 1, 14(1827). The Palmyra was a private vessel under commission of the King of Spain and was believed to have been used for piracy against other U.S. ships. The Grampus, a U.S. vessel of war, captured The Palmyra, brought it to port, and the government attempted to seize the ship and all goods upon it. When the ship’s captain brought forth the argument that the Palmyra could not be forfeited until he was proven he was guilty of a crime, the Supreme Court ultimately ruled that “the thing is here primarily considered the offender, or rather the offence is attached primarily to the thing” (Fuchs 2014).
This first ruling still seems somewhat bizarre – perhaps born more from convenience of prosecution than from honest and labored reflection of the Constitution. However, the scope of this decision was at the time limited to circumstances of jure belli, the laws or acts of war, or marine tort, meaning “injury, loss or damage caused to a person or their interests in a maritime setting” (Stonecypher 2008). This resulted in a narrow set of circumstances allowing for a civil, rather than a criminal, in rem seizure of property without requiring a preceding in personam criminal conviction of the property owner(s). This means the government had the right to seize property or vessels in maritime settings that were acting against U.S. law without first bringing criminal charges against the holders of the property. Civil forfeiture was most commonly used to seize smuggled goods in payment of circumvented import taxes (Keblesh 2017). These laws have been in effect since the founding of the United States (Jones 2017).
Civil forfeiture remained a narrow and uncommon practice until the 1970s, though the Prohibition-era enactment allowing for warrantless search of automobiles later influenced the scope of civil forfeiture as it stands today (Carroll 1925). The enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970 was the first expansion of civil forfeiture, extending the practice to the seizure of illegal drugs, drug paraphernalia, and drug manufacturing equipment (Jones 2017). The idea was to apply civil forfeiture laws to assist in crippling the manufacturing and trafficking of illicit drugs.
Though the 1970 expansion widened the umbrella of civil forfeiture, the practice did not skyrocket until the eighties. During the Reagan administration’s “tough on crime” reforms, the Comprehensive Crime Control Act of 1984 was passed, albeit under varying bipartisan support. The twenty-three chapters of updated crime statutes included a broad loosening of civil forfeiture. Title III of this act and one additional piece of legislation in 1986 allowed civil forfeiture to include seizure of “money, securities, and other proceeds traceable to drug transactions… property equal in value to forfeitable property that is no longer available or accessible… cash, bank accounts, jewelry, cars, boats, airplanes, businesses, houses, and land” (Drug Policy Alliance 2014). Beyond the expansion of what and how property could be forfeited, the act also created the Department of Justice Assets Forfeiture Fund. This fund was created to deposit the proceeds of forfeitures outside of the Treasury’s General Fund and allow “equitable sharing” of profits between federal and local law enforcement agencies. This allowed local law enforcement to bypass stricter state regulation on forfeiture, with as much as 80% of any seizure’s value returning to the coffers of local law enforcement participating in the program.
Few measures were initially put in place to avoid abuse, and with the extremely high return on investment, law enforcement agencies now had incredible incentive to actively seek out civil forfeiture. Limited oversight in the spending of the proceeds meant that law enforcement could use their newly-acquired funding in just about any way they pleased. Many states began to pass legislation to reflect the federal standards of civil forfeiture. Today, there are only 9 states with strict regulation on the practice; in the other 41 states, between 50-100% of proceeds go back into the hands of local law enforcement without requiring the “adoption” of goods by the federal government (Drug Policy Alliance 2014). The laws of the other 9 states are easily circumvented by participation in the federal Equitable Sharing program. From 1985 to 1993, more than $3 billion in assets was seized by the government (Enders 1993). Those numbers have not decreased; in 2014 alone, the Assets Forfeiture Fund deposited over $5 billion – $1.5 billion more than all burglaries in the United States that same year (Ingraham 2015). The estimated total revenue of the past decade is estimated to be around $28 billion, though quite questionably, “the federal government doesn’t keep data collections on its forfeiture programs for further program study” (Ford 2017). States and the federal government are often unwilling to impose limiting statutes because it would fall on the state or law enforcement agency to close the massive budget gaps that abandoning the current practice of civil forfeiture would leave.
The financial incentive of forfeiture has become so engrained that a survey of law enforcement agencies reported that “forty percent of police executives believe civil forfeiture funds are ‘necessary as a budget supplement’” (Jones 2017). In 1990, the Attorney General announced “we must significantly increase forfeiture production to reach our budget target… Every effort must be made to increase forfeiture income” (Drug Policy Alliance 2014). Police actively seek out forfeiture, often targeting innocent civilians to ramp up department revenue, particularly small business owners, long-distance travelers, minorities, and low-income citizens who may be less likely to keep funds in bank accounts or in the process of transporting cash (O’Harrow, et al. 2014, Ford 2017). These easy targets often also lack the means to challenge forfeitures in court. The ever-increasing emphasis on seizures could mean that law enforcement agencies are putting their most deliberate efforts in taking money from citizens to supplement their budgets and neglecting other objectives that explicitly and directly impact public safety.
Tens of thousands of cases of alleged abuse have been brought to court, but civilians have their work cut out for them. Civil forfeiture allows for seizure under mere suspicion of ties to a crime; it does not require any criminal charges levied against a person or that any party be found guilty. Instead, it is a civil matter levied against the property itself (Jones 2017, Keblesh 2017). Because these cases are civil lawsuits against an inanimate object, the Supreme Court has ruled that the protections of the Constitution do not apply. The seized property is treated as an entity independent from the owner of the property and the “entity” is not awarded due process, right to an attorney, assumption of innocence, or objection to hearsay, and guilt does not require proof beyond a reasonable doubt (Jones 2017, Fuchs 2014). It often takes years and tens of thousands of dollars in court and legal fees for citizens to regain seized assets; many of these cases end up as settlements with the government keeping a substantial portion of the proceeds (Sallah, et al. 2014). Small business owners have had their accounts drained due to legally-reported large cash deposits; families have had their homes seized due to alleged (and unsubstantiated) drug dealings; vehicles have been seized due to misdemeanor infractions; travelers have had their cash savings confiscated simply for travelling within “known drug corridors” (Seo 2017). Police officers regularly ask for disclosure of large amounts of cash during routine traffic stops. Almost anything can be confiscated by the loosest implications of crime, and there is very little opportunity of remittance for citizens subjected to the “stop-and-seizure” behavior of law enforcement (Sallah, et al. 2014).
The magnitude of the current practice of civil forfeiture has been the subject of widespread outcry from citizens, representatives across party lines, and by organizations such as the ACLU, Heritage Foundation, Institute for Justice, American Civil Liberties Union, and the Justice Department’s Office of the Inspector General (Ford 2017). Attorney General Jeff Session’s 2017 repeal of the Obama administration’s regulations on civil forfeiture opens the issue up for challenge by the Supreme Court, and Justice Clarence Thomas has made it apparent that he intends on challenging the precedents of the court (Ford 2017, Seo 2017). There are grounds to do so: there is a strong argument that the current practice of civil asset forfeiture directly violates the Fourth and Fifth Amendments. It has only been the Supreme Court’s earlier decisions that these protections do not apply to civil matters that has kept civil forfeiture a booming business for the government. Those who favor judicial restraint must recognize that the original laws of civil forfeiture were only meant to enforce customs and tax law, and that the expansion of civil forfeiture to rampant, highly unregulated, nationwide criminal enforcement was not the intention of the Founders. Judicial activism played the largest role in the expansion of civil forfeiture. Modern interpretation of the Constitution allowed for the application of warrantless searches beyond sea vessels to automobiles during the 1920s, and allowed the further expansion of the scope of civil forfeiture.
While some criminal activity is hindered by civil asset forfeiture, it has largely impacted innocent civilians. In a recent study of 100 DEA forfeiture cases by the Inspector General, only 44 of those cases had any ties to current investigations or resulted in new investigations – meaning that over half of the cases did nothing to further the inherent purpose of the Drug Enforcement Agency (Seo 2017). A report on these findings from the Inspector General reprimanded the DEA, stating “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution” (Seo 2017). Reform is necessary to place protections on innocent civilians and keep the spirit of the Constitution intact.
The Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Modern technology negates the necessity for warrantless automobile searches; law enforcement officers can now communicate easily and instantaneously with judges via platforms like Skype and FaceTime (Seo 2017). The staggering revenue, lack of criminal convictions or investigations, and number of contested cases of civil forfeiture is grounds for violation of the Fourth Amendment. Additionally, there are thousands of cases never contested in court due to the hardship it would impose upon the property owner (Sallah, et al. 2014).
The Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Supreme Court needs to address issues of double jeopardy in which citizens are subjected to both criminal and civil forfeiture proceedings and essentially punished twice for the same crime (Drug Policy Alliance 2014). The deprivation of property without the due process of law – such as the lack of criminal conviction, holding of a trial without representation, the right to testify, the right to object to hearsay, or even the right to be a party at the civil proceedings – is a glaring issue of current civil forfeiture practices (Drug Policy Alliance 2014).
Requiring criminal conviction as a
prerequisite to forfeiture, providing legal counsel for parties involved in
proceedings, imposing a greater burden of proof in civil proceedings,
redirecting funds of forfeiture out of the hands of the federal government and
state law enforcement, abolishing the Equitable Sharing loopholes and allowing
for state regulation are reforms that would massively alter the rampant malpractice
of civil asset forfeiture. The Founders put these Amendments of the
Constitution in place to safeguard the citizens from abuse by the government,
but that is inarguably what has happened within this broad and unregulated
practice. In a recent statement, Supreme Court Justice Clarence Thomas said,
“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… In the absence of this
historical practice, the Constitution presumably would require the Court to
align its distinct doctrine governing civil forfeiture with its doctrines
governing other forms of punitive state action and property deprivation” (Seo
2017). Civil asset forfeiture as it stands is entirely unconstitutional – and I
believe the Founders would strongly agree.
Carroll v. United States. 267 U.S. 132. (1925). Retrieved from http://supreme.justia.com/cases/federal/us/267/132/case.html
Drug Policy Alliance. (2014, Jan). Civil asset forfeiture. Retrieved from http://www.drugpolicy.org/resource/civil-asset-forfeiture
Enders, John. (1993, April). Forfeiture law casts a shadow on presumption of innocence. Los Angeles Times. Retrieved from http://articles.latimes.com/1993-04-18/local/me-24209_1_forfeiture-law
Ford, Matt. (2017, April). Justice Thomas’s doubts about civil forfeiture. The Atlantic. Retrieved from https://www.theatlantic.com/politics/archive/2017/04/clarence-thomas-civil-forfeiture/521583/
Fuchs, Erin. (2014, Nov). Why cops can seize your property even if you’re innocent. Business Insider. Retrieved from http://www.businessinsider.com/supreme-court-ruling-on-civil-forfeiture-2014-11
Ingraham, Christopher. (2015, Nov). Law enforcement took more stuff from people than burglars did last year. Washington Post. Retrieved from http://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-took-more-stuff-from-people-than-burglars-did-last-year/?utm_term=.081e0b322987
Jones, Rachel. (2017, May). Excessively unconstitutional: civil asset forfeiture and the excessive fines clause in Virginia. William & Mary Bill of Rights Journal, 25(4), 1393-1422. Retrieved from SNHU Shapiro Library. HTML.
Keblesh, Michael J. (2017, June). Using insurance to regulate civil forfeiture. Creighton Law Review, 50(3), 455-478. Retrieved from SNHU Shapiro Library. PDF.
O’Harrow, Robert Jr., et al. (2014, Sept). They fought the law. Who won? Washington Post. Retrieved from http://www.washingtonpost.com/sf/investigative/2014/09/08/they-fought-the-law-who-won/?utm_term=.be9f299db84a
Sallah, Michael, et al. (2014 Sept). Stop and seize: Aggressive police take hundreds of millions of dollars from motorists not charged with crimes. Washington Post. Retrieved from http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/?utm_term=.cdba0f31f36a
Seo, Sarah A. (2017, June). How the fight over civil forfeiture lays bare the contradictions in modern conservatism. Washington Post. Retrieved from http://www.washingtonpost.com/news/made-by-history/wp/2017/07/24/how-the-fight-over-civil-forfeiture-lays-bare-the-contradictions-in-modern-conservatism/?utm_term=.4a4e2dc949d5
Stonecypher, Lamar. (2008, Dec). Maritime law torts. Bright Hub Engineering. Retrieved from http://www.brighthubengineering.com/seafaring/21140-maritime-law-torts/
The Palmyra. 25 U.S. 1. (1827). Retrieved from https://supreme.justia.com/cases/federal/us/25/1/
Copyright E.J.R. Webster, 2017, all rights reserved.