Roger Roots, Are Cops Constitutional?

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…..

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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

via Roger Roots, Are Cops Constitutional?.

 

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