Walter Olson shreds the conduct of the FBI in seizing the antiquities collection of 91-year-old Don Miller in Indiana.

FBI agents Wednesday seized “thousands” of cultural artifacts, including American Indian items, from the private collection of a 91-year-old man who had acquired them over the past eight decades.

The aim of the investigation is to determine what each artifact is, where it came from and how Miller obtained it, Jones said, to determine whether some of the items might be illegal to possess privately.

Jones acknowledged that Miller might have acquired some of the items before the passage of U.S. laws or treaties prohibited their sale or purchase.

What is happening to Miller reflects a conundrum facing anyone who had the misfortune of getting caught in the net of modernity, the effort to revisit the rules in light of current sensibilities by demanding that things that happened in the past somehow match the rules of the day.

There is no question that regulations on the sale of ivory, for example, are important to prevent the poaching of elephants, the obliteration of a species, for their tusks.  No reasonable person would think otherwise.* But does that mean the people who possess ivory lawfully obtained a century ago are now post-hoc criminals?  Well, no, but how would anyone know?

The same can be said of native American artifacts, which today would be subject to repatriation, but long ago could be lawfully found, possessed, traded, by anyone.  How would one know whether a now-embargoed item was obtained back when it was perfectly lawful rather than illegally today?

The simple answer is to demand proof from the possessor of when and where it was obtained.  And this Menckian answer is the root of the problem.

When conduct is ordinary and lawful, there is no reason to make sure to document matters in anticipation that years later, someone would decide to make it illegal.  And while the collection amassed by Don Miller in the course of his travels over eight decades strains the limits of reason, he could do nothing to stop the government from setting up tents around his home, seizing his possessions to decide if he had them illegally, and retaining them for as long as the government feels like it.  All because years later, when laws were passed that turned lawful possession into a crime, no one cared that a guy like Miller might become the target.

But consider how the same problem of post-hoc criminalization and regulation can affect pretty much anybody.  Live in an old home, constructed before your city was formed or a building code enacted?  How can you “prove” that your bathroom on the third floor isn’t in violation of the code when there is no documentation to show what was in the house when it was originally built?  Back then, there were no certificates of occupancy, no filed plans.  And there was no anticipation that anyone would ever storm into your home to prosecute you for not having a building permit. There was no such thing.

Walter has done an excellent job of documenting the problem with regard to the unusual:

I’ve written previously, elsewhere and in this space, about

the rise of a new “antiquities law” in which museums and private collectors have come under legal pressures to hand over (“repatriate”) ancient artifacts and archaeological finds to governments, Indian tribes and other officially constituted bodies, even when those artifacts have been in legitimate collector hands for 100 or more years with no hint of force or fraud.

Further regulatory regimes covering exotic and endangered animal and plant material make it dangerous to let the feds anywhere near your high-end guitar or other wooden artifact, and will soon make it unlawful to sell or move across state lines your family’s antique ivory-keyed piano (more here).

But most people see this as only an issue for the outlier, the collector of antiquities and oddities, the weird old guy down the street who has curious stuff that you don’t. So while it may be worthy of a “tsk,” it doesn’t affect you, right?

We are fortunate to have many grand old homes still standing across the country, each of which has the potential to turn its owner into a code criminal.  The original owner and builder are long since gone, making them fair game for the youthful regulatory do-gooder who can point to the many things there once quite normal but today deemed horribly unsafe.

And the risk of an owner of a classic car is manifest. Driving my 1964 Healey BJ8 last year into a “click it or ticket” checkpoint was a shot in the dark, as it bears year of origin plates, which in New York that year consisted only of a rear plate, and none of the many safety accoutrements now required of a car.**  Like seat belts.  When it was my turn at the front of the line, I looked the officer in the eye and said, “seriously?”  She laughed, sent me on my way with an admonishment to get a registration sticker closer to this decade.  I was lucky.

The issue isn’t the propriety of enlightened laws and regulations to protect elephants, or native American artifacts. These are perfectly good causes, and worthy of protection.  The issue is the presumption of regularity, that in the absence of proof that a wrong has been committed, it is presumed that the person acted lawfully and the thing is lawfully possessed.

The consequences of every change in law and regulation are rarely on the radar of those who appeal to lawmakers to regulate and criminalize conduct that had long been normal and lawful.  What, the advocates ask, are the chances that those in power won’t exercise their discretion soundly and leave people who have done nothing wrong alone?

Ask Don Miller.  At 91 year of age, does he really need to have his life of collecting fascinating objects scrutinized under today’s vision of propriety?  Was he really supposed to anticipate that 50, 60, 70 years later, someone would demand a receipt to prove that he lawfully obtained an antiquity? It never seems to dawn on those bent on creating crimes that the world existed before they got here, and it isn’t a crime to do things that were normal and lawful because someone in the future decided it was a terrible thing.

* As pointed out by my libertarian conscience, there is a legitimate question of whether a ban serves to protect elephants from poachers, or the opposite, by increasing the value of ivory due to scarcity, thus encouraging poachers to kill for the greater rewards.  But while the issue of how best to save elephants (or the target of any other ban, using elephants as merely an example) is a worthy question, it is not the subject of this post. Don’t do it.

** There is no official place where it says that 1964 was the last year that New York issued only rear plates, or that in 1965, drivers needed only a little red sticker to reregister. Why would there be? In 1964-5, everybody knew it. But that was 50 long years ago. How many people remember?