"It is a Constitution we are Expounding"

I am reading Radley Balko's Rise of the Warrior Cop: The Militarization of America's Police Forces, and want to comment briefly on what I've read thus far. The topic of the book is important, and Balko's zeal at looking at the harms that overly militarized police using SWAT techniques in grossly inappropriate circumstances (gambling busts, pot raids, etc.) and his inquiry into root causes of the problem is commendable.

The non-libertarian reader will run into a couple groans early on; Balko's potted history of policing in the Roman Republic and early Empire, as well as the medieval methods of law enforcement raise interesting questions but are rather dashed off. His constitutional history is broad-brush and dicey, and his depiction of a "Symbolic Third Amendment" and his downplaying the role of racism in the posse comitatus act, are unforced errors that damage this otherwise useful book. (The latter in particular can obscure the fact that he has a point about the erosion of the Act) More significantly, though, in his introduction he begins by posing the question "Are cops constitutional?" a question he draws from the work of Roger Roots, who writes:

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.

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. 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. The role of these "nightly watch" officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.

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. "Originalist" scholars of the Constitution have tended to be supportive, rather than critical of modern policing. 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. Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.

Now, Balko concludes that Roots' argument may not be practical, but it's certainly provocative." (Introduction at x) He goes on to say that ""On at least one point, most criminologists agree with him [Roots]no one can say for sure whether the Framers would have approved off modern policing, but it's relatively certain that they wouldn't have recognized it." (Id.) That last sentences, I think, indisputably true. That said, Roots' claim, that the variance of criminal justice as it is administered by the states today from the colonial and post-revolutionary era amounts to grounds upon which the modern practices can be deemed unconstitutional is no way to do constitutional law.

Let me explain. The Framers did not intend the original Constitution or the Bill of Rights to limit the police powers of the states. This isn't controversial for constitutional scholars, by the way; the Supreme Court in fact held this in 1833, in Barron v. Baltimore:

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

Of course, not every Supreme Court decision, even (especially?) those of the Marshall Court is universally accepted. But Barron is pretty solidly orthodox until the Civil War Amendments take hold. You can find it in the Federalist Papers, the writings of Justice Story, etc. It's pretty much the one thing Lawrence Tribe and Robert Bork would have agreed on. (You can read an interesting counter-argument, though, one focusing on 19th Century lower court practice, here. However, even this article accepts that the Supreme Court held this line pretty steadily, and looks at the lower court cases as capturing natural law reasoning in defense of classical civil liberties values in an era where the lower federal courts believed they could create state law precedent from universal values.)

So, no. The Framers might very well have found modern policing entirely alien, might have found it antithetical to their values, but not unconstitutional if adopted by the states themselves.

A longish post about a small point--one that is at best peripheral to the author's argument, and in fact is better directed at Roots' claims than Balko's citation of it as a means of measuring where we have come from the early 19th Century. So if this reads like a slam at Balko, I don't mean it to be; the book is, once when gets into the specifics and the compendious research he has done, compelling reading.

[Edited for Clarity and to remove some word salad]