Are Cops Constitutional?

I didn't start out thinking this way, but over the years I have become an ardent critic of American law enforcement. As Acton observed, power corrupts, and it is no longer debatable that our cops have too much power. Over the years the ranks of all departments have swollen, and it is clear - crystal clear - that police forces have become highly militarized.

By numbers and disposition, the police now constitute a standing army.

I've no doubt the Founders would share my alarm and moral outrage at these developments. I've done what I can, largely with anecdotes, to wake people up. Now comes a fascinating and scholarly examination of law enforcement at the time of the Founding. Turns out that this was another thing the people did for themselves, and, as usual, did quite well. Much better, in fact, than it's done today, and with far more checks and balances. The notion of government paid cops was quite simply unthinkable at the time, as it should be today.

Here's the abstract: "Police work is often lionized by jurists and scholars who claim to employ "textualist" and "originalist" methods of constitutional interpretation. Yet professional police were unknown to the United States in 1789, and first appeared in America almost a half-century after the Constitution's ratification. The Framers contemplated law enforcement as the duty of mostly private citizens, along with a few constables and sheriffs who could be called upon when necessary. This article marshals extensive historical and legal evidence to show that modern policing is in many ways inconsistent with the original intent of America's founding documents. The author argues that the growth of modern policing has substantially empowered the state in a way the Framers would regard as abhorrent to their foremost principles."

And an excerpt: "Law enforcement in the Founders' time was a duty of every citizen.32 Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond "not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand."33 Any person could act in the capacity of a constable without being one,34 and when summoned by a law enforcement officer, a private person became a temporary member of the police department.35 The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.36

Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.37 But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers' era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.38

The Founders could not have envisioned 'police' officers as we know them today. The term "police" had a slightly different meaning at the time of the Founding.39 It was generally used as a verb and meant to watch over or monitor the public health and safety.40 In Louisiana, "police juries" were local governing bodies similar to county boards in other states.41 Only in the mid-nineteenth century did the term 'police' begin to take on the persona of a uniformed state law enforcer.42 The term first crept into Supreme Court jurisprudence even later.43

Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.44 Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.45 Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.46

At the time of Tocqueville's observations (in the 1830s), "the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,"47 yet Tocqueville doubted "whether in any other country crime so seldom escapes punishment."48 Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.49 Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.50 Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets"

I debated editing out those annoying footnote numbers, but decided to leave them in to show how well the author documented this work. This is the kind of research it will take to force cops back into a respectable place in society, if it's possible at this late date. Here's the whole thing, well worth reading and passing around: Are Cops Constitutional?

H/T to Pete at WRSA, linked in my blogroll.

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