My holiday reading: Balko, The Rise of the Warrior Cop

[markpkessinger]

I was traveling over the holidays, and found myself with a good bit of time to kill while waiting in airports. So I picked up Radley Balko's, Rise of the Warrior Cop: The Militarization of America's Police Forces. I haven't gotten all that far into it yet, but I was struck by the question Balko poses right at the outset, in the book's introduction:

Are cops constitutional?

To be honest, I had never even considered the question (nor, I'm guessing, have most folks). Here's an excerpt:

Are cops constitutional?

That may seem like an odd question—perhaps even a little nutty. Police forces have been part of the American criminal justice system since an eight man department was established in Boston 175 years ago and the first large department was created seven years later in New York City. There has never been a serious constitutional challenge to the general authority of police or to the establishment of police forces, sheriffs’ departments, or other law enforcement agencies, and it’s unlikely there ever would be. Any federal court would undoubtedly have little patience for such a challenge. And any hypothetical world where police were ruled unconstitutional would descend into chaos, probably rather quickly.

But in a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the US Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers, and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the Framers, professional police officers were unknown,” Roots writes:

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 sheriff (who might call upon the community for assistance). Initiation and investigation of criminal cases was nearly the exclusive province of private persons. . . . The advent of modem 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 Founders.

< . . . . >

This isn’t to say that the colonial era’s more individualized, private methods of law enforcement would work today. As American towns grew from close-knit communities of people of similar ethnicities, with shared traditions, values, and religion, to cities whose di verse populations of immigrants had none of that in common, centralized police forces emerged to preserve order and enforce a common set of laws. Once neighbors stopped speaking the same language and worshiping in the same buildings, shunning and social stigmatization lost their effectiveness.

Even so, Roots’s question is a useful starting point for this book because it shows just how far we have come. The Founders and their contemporaries would probably have seen even the early-nineteenth-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history—early American statesmen like Madison, Washington, and Adams were well versed in the history of such armies in Europe, especially in ancient Rome.

< . . . >

Certainly it is an interesting concept to contemplate, even if one recognizes the need for modern police forces and is fully cognizant of the fact that federal courts are not exactly likely to begin ordering the disbanding of police forces on constitutional grounds!

[Comrade Grumpy]

1. This is an excellent book, and certainly critical topical reading these days.

[5X]

2. Too many cops now days don't follow the law and make up their own.

Police unions enforce this and manipulate it. They are state sanctioned terrorists.