Are Cops Constitutional?
Roger Roots at Constitution.org - I think I've linked to this essay before, but it bears re-reading. Mr. Roots contends that the Founders would have been appalled at the very existence of the modern professional police force. As well they should be. [fija]
Uniformed police officers are the most visible element of America's criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide. Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services. Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America's roads and street corners as anything peculiar -- let alone invalid or unconstitutional.
Yet the dissident English colonists who framed the United States Constitution would have seen this modern 'police state' as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown. The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance). Initiation and investigation of criminal cases was the nearly exclusive province of private persons.
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Nothing illustrates the modern disparity between the rights and powers of police and citizen as much as the modern law of resisting arrest. At the time of the nation's founding, any citizen was privileged to resist arrest if, for example, probable cause for arrest did not exist or the arresting person could not produce a valid arrest warrant where one was needed. As recently as one hundred years ago, but with a tone that seems as if from some other, more distant age, the United States Supreme Court held that it was permissible (or at least defensible) to shoot an officer who displays a gun with intent to commit a warrantless arrest based on insufficient cause. Officers who executed an arrest without proper warrant were themselves considered trespassers, and any trespassee had a right to violently resist (or even assault and batter) an officer to evade such arrest.
Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations. Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody. The doctrine of non-resistance against unlawful government action was harshly condemned at the constitutional conventions of the 1780s, and both the Maryland and New Hampshire constitutions contained provisions denouncing nonresistance as "absurd, slavish, and destructive of the good and happiness of mankind."
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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.
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The United States of America was founded without professional police. Its earliest traditions and founding documents evidenced no contemplation that the power of the state would be implemented by omnipresent police forces. On the contrary, America's constitutional Framers expressed hostility and contempt for the standing armies of the late eighteenth century, which functioned as law enforcement units in American cities. The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Framers. The implications of this altered balance of power are far-reaching, and should invite consideration by judges and legislators who concern themselves with constitutional questions.
It jibes perfectly
It jibes perfectly. Washington's suppression of the Whiskey Rebellion was an abomination.
George Washington
Bill, I agree that it was an abomination but that is a seperate argument from the Constitutionality of a the government hiring armed men to violently enforce its laws. My point is that articles like that are distracting bunny trails that do are side no favors. George Washington's actions give lie to the statement that are founding fathers would have found modern police organization, structure, and practices abhorrent.
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"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."
How does this statement jibe with President George Washington using the milita to suppress the Whiskey Rebellion of the early 1790's?
"The Whiskey Rebellion demonstrated that the new national government had the willingness and ability to suppress violent resistance to its laws." Wikipedia. "Whiskey Rebellion" http://en.wikipedia.org/wiki/Whiskey_Rebellion
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