Seton Hall Constitutional L.J. 2001, 685
ARE COPS CONSTITUTIONAL?
Roger Roots*
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.
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
Much More…
CONTINUED LINK BELOW
http://www.constitution.org/lrev/roots/cops.htm
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