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.
PART I
INTRODUCTION……………………………………………………….686
THE CONSTITUTIONAL TEXT……………………………………….688
PRIVATE PROSECUTORS…………………………………………….689
LAW ENFORCEMENT AS A UNIVERSAL…………………………..692
POLICE AS SOCIAL WORKERS………………………………………695
THE WAR ON CRIME………………………………………………….696
THE DEVELOPMENT OF DISTINCTIONS…………………………..698
RESISTING ARREST……………………………………………………701
THE SAFETY OF THE POLICE PROFESSION……………………….711
PROFESSIONALISM?………………………………………………….713
DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE……..716
COPS NOT COST-EFFECTIVE DETERRENT………………………..721
PART II
POLICE AS A STANDING ARMY…………………………………….722
THE SECOND AMENDMENT……..725
THE THIRD AMENDMENT……………………………………………727
THE RIGHT TO BE LEFT ALONE…………………………………….728
THE FOURTH AMENDMENT…………………………………………729
WARRANTS A FLOOR, NOT A CEILING……………………………733
PRIVATE PERSONS AND THE FOURTH AMENDMENT…………..734
ORIGINALISTS CALL FOR CIVIL DAMAGES………………………739
DEVELOPMENT OF IMMUNITIES……………………………………743
THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF PROBABLE SUSPICION…………………………………………744
POLICE AND THE “AUTOMOBILE EXCEPTION”………………….745
ONE EXCEPTION: THE EXCLUSIONARY RULE?………………….747
THE FIFTH AMENDMENT…………………………………………….751
DUE PROCESS………………………………………………………….752
ENTRAPMENT………………………………………………………….754
CONCLUSION……………………………..757
PART I
INTRODUCTION
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.1 Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services.2 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.3 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).4 Initiation and investigation of criminal cases was the nearly exclusive province of private persons.
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.5 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 police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order.6 The role of these “nightly watch” officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.7
While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution’s imposed scheme of criminal justice.8 “Originalist” scholars of the Constitution have tended to be supportive, rather than critical of modern policing.9 This article will show, however, that modern policing violates the Framers’ most firmly held conceptions of criminal justice.
The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state’s interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others.10 Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.
THE CONSTITUTIONAL TEXT
The Constitution contains no explicit provisions for criminal law enforcement.11 Nor did the constitutions of any of the several states contain such provisions at the time of the Founding.12 Early constitutions enunciated the intention that law enforcement was a universal duty that each person owed to the community, rather than a power of the government.13 Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state.14
PRIVATE PROSECUTORS
For decades before and after the 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.15 Criminal actions were only a step away from civil actions — the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim.16 Private prosecutors acted under authority of the people and in the name of the state — but for their own vindication.17 The very term “prosecutor” meant criminal plaintiff and implied a private person.18 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.19 When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name — even if the attorney general himself did not approve of the action.20
Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication.21 Crime victims held the keys to a potential defendant’s fate and often negotiated the settlement of criminal cases.22 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.23 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 … repair the injury.”24
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.25 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.26 They might never have contact with a government prosecutor or any other officer of the executive branch.27
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.28 A lone sheriff or deputy had reason to fear even approaching a large group “without danger of his life or having his bones broken.”29 When a sheriff was unable to execute a warrant or perform an execution, he could call upon a posse of citizens to assist him.30 The availability of the posse comitatus meant that a sheriffs resources were essentially unlimited.31
LAW ENFORCEMENT AS A UNIVERSAL DUTY
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 . . .
Source: http://www.constitution.org/lrev/roots/cops.htm
The American Heritage Project 