Constitutional Law Enforcement
by Gerry Donaldson
Note: Includes material from Law Journal Article "Are Cops Constitutional?"
Growing up in America, we have come to believe that the mass numbers of law enforcement officers (Federal, State and Local) that we see in our daily lives are “normal.” However, professional police were COMPLETELY unknown to our American founders in 1789! Their first appearance in America was almost a half-century after the Constitution was ratified!
According to their writings, the Founders were committed to having law enforcement as primarily the duty of private citizens. The few appointed constables and sheriffs would only be called upon when necessary, predominantly for serving writs and performing civil duties. Modern law enforcement is in very many ways inconsistent with the original intent of America's founders and our founding documents.
Uniformed law enforcement numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide. The average citizen is unaware that law enforcement expenses now account for the largest segment of most municipal budgets and generally dwarf the expenses for fire, trash, and sewer services.
The colonists who framed our Constitution would have seen the modern 'police state' as completely alien to their foremost principles. Under the criminal justice model, copied from the English Common Law, professional police and law enforcement officers were completely unknown.
The general public (meaning you and I) had broad law enforcement powers and only the executive functions of the law such as the execution of writs, warrants and orders, were performed by constables or sheriffs who regularly called upon members of the community for assistance. Even the initiation and investigation of criminal cases was the almost always carried out by individual citizens of the community!
Just as in England prior to the revolution, at the time of the Constitution's ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay. Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation — whether civil or criminal — and the state was rarely a party.
Professional law enforcement, as we know them today, originated in American cities in a limited form during the second quarter of the nineteenth century and only evolved into the current form after the Civil War as a part of reconstruction and, whether we want to admit it or not, was intended as a stealthy continuance of martial law!
This fundamental change to the role of law enforcement is widely known by criminal justice historians, but it has never been addressed in our courts as a Constitutional issue. The truth of the matter is that modern law enforcement policies and procedures violate the Framers' most firmly held conceptions of criminal justice.
The frightening aspect of this fundamental change to our society under our current justice system law enforcement acts as a literal army of assistants for state prosecutors specifically attempting to enforce the state's interests and NOT the citizen’s God-given, unalienable rights!
Unbeknownst to most Americans, the Constitution contains NO explicit provisions for criminal law enforcement! Nor did the constitutions of any of the several states contain any such provisions at the time of the Founding. Early constitutions made it clear that the intention that law enforcement was a universal duty that each person owed to the community, rather than a power of the government itself. Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state performing such functions.
For decades before and after the American Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution:
(1) victims of serious crimes approached a community grand jury,
(2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and
(3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men.
Criminal actions were only slightly different than civil actions — the only material difference being that criminal claims involved more than just a single individual victim, but effected the public at large as well.
A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation’s founding. To clarify this point, for example, when a private individual prosecuted an action in the name of the state, the attorney general of the State was required to allow the prosecutor to use his name — even if the attorney general himself did not approve of the action.
Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication. Crime victims held the keys to a potential defendant's fate and often negotiated the settlement of criminal cases. After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant. Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and "not to make bargains to allow [defendants] to escape conviction, if they did not repair the injury."
Grand jurors often acted as the detectives of the period. They conducted their investigations in the manner of neighborhood sleuths, dispersing throughout the community to question people about their knowledge of crimes. They could act on the testimony of one of their own members, or even on information known to grand jurors before the grand jury convened. They might never have contact with a government prosecutor or any other officer of the executive branch.
Colonial grand juries also occasionally served an important law enforcement need by account of their sheer numbers. In the early 1700s, grand jurors were sometimes called upon to make arrests in cases where suspects were armed and in large numbers. A lone sheriff or deputy had reason to fear even approaching a large group "without danger of his life or having his bones broken." When a sheriff was unable to execute a warrant or perform an execution, he could call upon a posse of citizens to assist him. The availability of the posse comitatus meant that a sheriff’s resources were essentially unlimited.
LAW ENFORCEMENT AS A UNIVERSAL DUTY
Law enforcement in the Founders' time was a duty of every citizen. ( See Jerome Hall, Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 579 (1936).)
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."
Any person could act in the capacity of a constable without being one, (Eustis v. Kidder, 26 Me. 97, 99 (1846)), and when summoned by a law enforcement officer, a private person became a temporary member of the police department. The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.
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. 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.
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. It was generally used as a verb and meant to watch over or monitor the public health and safety.
POLICE AS A STANDING ARMY
It is largely forgotten that the war for American independence was initiated in large part by the British Crown's practice of using troops to police civilians in Boston and other cities.
Professional soldiers used in the same ways as modern police were among the primary grievances enunciated by Jefferson in the Declaration of Independence. ("[George III] has kept among us standing armies"; "He has affected to render the military independent of and superior to the civil power"; "protecting them, by a mock trial...."). The duties of such troops were in no way military but involved the keeping of order and the suppression of crime (especially customs and tax violations).
Constitutional arguments quite similar to these were made by America's Founders while fomenting the overthrow of their government. Thomas Jefferson proclaimed that although Parliament was supreme in its jurisdiction to make laws, "his majesty has no right to land a single armed man on our shores" to enforce unpopular laws.
James Warren said that the troops in Boston were there on an unconstitutional mission because their role was not military but rather to enforce "obedience to Acts which, upon fair examination, appeared to be unjust and unconstitutional."
Colonial pamphleteer Nicholas Ray charged that Americans did not have "an Enemy worth Notice within 3000 Miles of them."
"[T]he troops of George the III have cross'd the wide atlantick, not to engage an enemy," charged John Hancock, but to assist constitutional traitors "in trampling on the rights and liberties of [the King's] most loyal subjects ..."
The use of soldiers to enforce law had a long and sullied history in England and by the mid-1700s were considered a violation of the fundamental rights of Englishmen. The Crown's response to London's Gordon Riots of 1780 — roughly contemporary to the cultural backdrop of America's Revolution — brought on an immense popular backlash at the use of guards to maintain public order. "[D]eep, uncompromising opposition to the maintenance of a semimilitary professional force in civilian life" remained integral to Anglo-Saxon legal culture for another half century.
Englishmen of the Founding era, both in England and its colonies, regarded professional police as an "alien, continental device for maintaining a tyrannical form of Government."
Professor John Phillip Reid has pointed out that few of the rights of Englishmen "were better known to the general public than the right to be free of standing armies."
"Standing armies," according to one New Hampshire correspondent, "have ever proved destructive to the Liberties of a People, and where they are suffered, neither Life nor Property are secure."
If pressed, modern police defenders would have difficulty demonstrating a single material difference between the standing armies the Founders saw as so abhorrent and America's modern police forces. Indeed, even the distinctions between modern police and actual military troops have blurred in the wake of America's modern crime war.
Ninety percent of American cities now have active special weapons and tactics (SWAT) teams, using such commando-style forces to do "high risk warrant work" and even routine police duties. Such units are often instructed by active and retired United States military personnel.
In Fresno, California, a SWAT unit equipped with battering rams, chemical agents, fully automatic submachine guns, and 'flashbang' grenades roams full-time on routine patrol. According to criminologist Peter Kraska, such military policing has never been seen on such a scale in American history, "where SWAT teams routinely break through a door, subdue all the occupants, and search the premises for drugs, cash and weapons." In high-crime or problem areas, police paramilitary units may militarily engage an entire neighborhood, stopping "anything that moves" or surrounding suspicious homes with machine guns openly displayed.
Much of the importance of the standing-army debates at the ratification conventions has been overlooked or misinterpreted by modern scholars. Opponents of the right to bear arms, for example, have occasionally cited the standing-army debates to support the proposition that the Framers intended the Second Amendment to protect the power of states to form militias.
Although this argument has been greatly discredited, it has helped illuminate the intense distrust that the Framers manifested toward occupational standing armies. The standing army the Framers most feared was a soldiery conducting law enforcement operations in the manner of King George's occupation troops — like the armies of police officers that now patrol the American landscape.
As citizens of a rapidly devolving republic under increasing threat of
tyrannical government issuing a national call for Martial Law, we need to
remind our law enforcement officers (police, sheriff, marshalls, etc...)
that theirs is a position with little or no Constitutional justification.
Law enforcement and the grand jury are the responsibility of each and every
one of us. As things in America escalate towards a totalitarian police
state, we need to wake up our fellow citizens and demand responsibility.
We need to restore the fundamental principles of freedom and
self-responsibility in order to prevent the final demise of the last bastion
of freedom in the world!
As citizens of a rapidly devolving republic under increasing threat of tyrannical government issuing a national call for Martial Law, we need to remind our law enforcement officers (police, sheriff, marshalls, etc...) that theirs is a position with little or no Constitutional justification. Law enforcement and the grand jury are the responsibility of each and every one of us. As things in America escalate towards a totalitarian police state, we need to wake up our fellow citizens and demand responsibility. We need to restore the fundamental principles of freedom and self-responsibility in order to prevent the final demise of the last bastion of freedom in the world!