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  1. #1

    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.

    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...........................................72 8

    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


    Continue... http://www.constitution.org/lrev/roots/cops.htm



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  3. #2
    Most cops enforce unconstitutional laws. I can't recall reading anything in the Constitution about having cops either.

  4. #3
    Quote Originally Posted by QueenB4Liberty View Post
    Most cops enforce unconstitutional laws. I can't recall reading anything in the Constitution about having cops either.
    Limited federal law enforcement is under Article 1, Section 8 of the U.S. Constitution. State's have their own constitutions; however, most state constitutions mandate an elected sheriff.

  5. #4
    Quote Originally Posted by AFPVet View Post
    Limited federal law enforcement is under Article 1, Section 8 of the U.S. Constitution. State's have their own constitutions; however, most state constitutions mandate an elected sheriff.
    +1

    cops are state based.

    The Constitution is federal based.

    Some things transfer - like the 4th amendment.

  6. #5
    Quote Originally Posted by tangent4ronpaul View Post
    +1
    cops are state based.
    I thought most were city-based? And are really just private security forces since cities are incorporated? no?

  7. #6
    Quote Originally Posted by specsaregood View Post
    I thought most were city-based? And are really just private security forces since cities are incorporated? no?
    There are state, county and city (town) cops.

    Seems pretty clear that they are constitutional

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  8. #7
    Quote Originally Posted by tangent4ronpaul View Post
    +1

    cops are state based.

    The Constitution is federal based.

    Some things transfer - like the 4th amendment.
    Isn't that the 14th amendment?
    "I am, therefore I'll think" - Ayn Rand

  9. #8
    This will be a good read. Can't wait!



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  11. #9

  12. #10
    I suspect this is going to be really good.
    Out of every one hundred men they send us, ten should not even be here. Eighty will do nothing but serve as targets for the enemy. Nine are real fighters, and we are lucky to have them, upon them depends our success in battle. But one, ah the one, he is a real warrior, and he will bring the others back from battle alive.

    Duty is the most sublime word in the English language. Do your duty in all things. You can not do more than your duty. You should never wish to do less than your duty.

  13. #11
    10th amendment. Yes, cops are constitutional because they are established by local authorities. Would the FBI and CIA be constitutional? No probably not- but that said with a government this size I wish the FBI was merely an organization to investigate and prosecute corruption in the federal government.
    "Gentlemen, I have had men watching you for a long time and I am convinced that you have used the funds of the bank to speculate in the breadstuffs of the country. When you won, you divided the profits amongst you, and when you lost, you charged it to the bank...You are a den of vipers and thieves. I intend to rout you out, and by the grace of the Eternal God, will rout you out."- Andrew Jackson (The Guy on the 20)

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  14. #12
    Damn, I did a quick scan (speed read) and that is really good.
    It seems to mirror the position that I have often taken on this board.
    I have often read and really like http://www.constitution.org/
    I will have to re read this slowly and in detail, but I suspect it will only reinforce my views.

    The very concept of "police" is abhorrent.
    Last edited by pcosmar; 02-13-2011 at 02:18 PM.
    Liberty is lost through complacency and a subservient mindset. When we accept or even welcome automobile checkpoints, random searches, mandatory identification cards, and paramilitary police in our streets, we have lost a vital part of our American heritage. America was born of protest, revolution, and mistrust of government. Subservient societies neither maintain nor deserve freedom for long.
    Ron Paul 2004

    Registered Ron Paul supporter # 2202
    It's all about Freedom

  15. #13
    Quote Originally Posted by pcosmar View Post
    Damn, I did a quick scan (speed read) and that is really good.
    It seems to mirror the position that I have often taken on this board.
    I have often read and really like http://www.constitution.org/
    I will have to re read this slowly and in detail, but I suspect it will only reinforce my views.

    The very concept of "police" is abhorrent.
    I don't know. It seems to me that it would be okay at least for local authorities to have some form of law enforcement. I don't see the public ever doing it for fear of getting involved. This is one of those concepts that I have a hard time with. It seems libertarianism almost goes too far here. I mean, sure, the CIA and the FBI are unconstitutional, but why can't states and other local offices establish law enforcement?
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  16. #14
    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

  17. #15
    Quote Originally Posted by aGameOfThrones View Post
    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
    At this time, people who enforce the law as originally intended end up being labeled a vigilante and often fined by those they apprehended and turned in to the authorities. This reminds me of the ranch owner along our southern border who has been fined by illegal aliens for holding them and calling the border patrol to take them off of his land.

  18. #16
    Quote Originally Posted by Dr.3D View Post
    At this time, people who enforce the law as originally intended end up being labeled a vigilante and often fined by those they apprehended and turned in to the authorities. This reminds me of the ranch owner along our southern border who has been fined by illegal aliens for holding them and calling the border patrol to take them off of his land.
    I am more and more convinced that we are living in Bizzaro World.
    Liberty is lost through complacency and a subservient mindset. When we accept or even welcome automobile checkpoints, random searches, mandatory identification cards, and paramilitary police in our streets, we have lost a vital part of our American heritage. America was born of protest, revolution, and mistrust of government. Subservient societies neither maintain nor deserve freedom for long.
    Ron Paul 2004

    Registered Ron Paul supporter # 2202
    It's all about Freedom



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  20. #17
    Quote Originally Posted by pcosmar View Post
    I am more and more convinced that we are living in Bizzaro World.
    I am starting to wonder if the ranch owner has learned his lesson. Perhaps he is now thinking, dead people can't sue.

  21. #18
    Quote Originally Posted by Dr.3D View Post
    I am starting to wonder if the ranch owner has learned his lesson. Perhaps he is now thinking, dead people can't sue.
    I was told that by a Cop years ago, In regards to personal carry.
    Liberty is lost through complacency and a subservient mindset. When we accept or even welcome automobile checkpoints, random searches, mandatory identification cards, and paramilitary police in our streets, we have lost a vital part of our American heritage. America was born of protest, revolution, and mistrust of government. Subservient societies neither maintain nor deserve freedom for long.
    Ron Paul 2004

    Registered Ron Paul supporter # 2202
    It's all about Freedom

  22. #19
    Quote Originally Posted by Dr.3D View Post
    I am starting to wonder if the ranch owner has learned his lesson. Perhaps he is now thinking, dead people can't sue.
    Dead people don't need to sue, as long as they have living next of kin that wish to. Ask OJ Simpson.
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  23. #20
    The discussion is starting to confuse the idea of a police for with the unconstitutional actions of that police force.

  24. #21
    Quote Originally Posted by ItsTime View Post
    The discussion is starting to confuse the idea of a police for with the unconstitutional actions of that police force.
    Police didn't even exist before 1850s by and large. There is a huge difference between having an elected sheriff in charge of local deputies calling a posse out when needed, and unelected law enforcement.

    Police are "policy enforcers" with standing orders, like a standing army, to do certain things. Traditionally, policy enforcers have been either collection agents or military with "standing orders". Peace officers, elected by the local citizens, only become active when witnessing actual crimes. There is no difference between what are called "police" now and what was called a "standing army" in colonial days. Changing the name does not make it legal.

    If the police are not what is a standing army, then it would be elected and by the local citizens. There is no excuse in a democracy to have any law enforcement that is not elected by the citizens - except the United States does now, and it didn't use to. Elected law enforcement is slowly being eliminated in America, and Americans haven't even seen it happening. "Gun control" is only one part of two parts. The other part is police control, so all force is unelected and out of the hands of the people.

    More easy to see perhaps is private prosecution. Public prosecutors didn't even use to exist. Victims, and only victims, complain and initiate criminal suits. This eliminates all victimless crimes and "crimes against the state", and also makes it impossible for charges to be ignored for establishment figures.

    Our justice system is where the real damage has occured while everyone has been focusing on national issues. Why can't criminals be brought to justice in the government? The above two things plus real grand juries is the answer.

    Perhaps government could still try to create crimes against the state, but in a pure form of private prosecution, it couldn't. Nor would police be able to harm citizens without the sherieff or chief being recalled in an instant. That is what needs to be striven for. It's arguable, it makes sense, and it's historical and how it use to be.
    Last edited by SpiritOf1776_J4; 02-22-2011 at 09:50 PM.

  25. #22
    Quote Originally Posted by SpiritOf1776_J4 View Post
    Police didn't even exist before 1850s by and large. There is a huge difference between having an elected sheriff in charge of local deputies calling a posse out when needed, and unelected law enforcement.

    Police are "policy enforcers" with standing orders, like a standing army, to do certain things. Traditionally, policy enforcers have been either collection agents or military with "standing orders". Peace officers, elected by the local citizens, only become active when witnessing actual crimes. There is no difference between what are called "police" now and what was called a "standing army" in colonial days. Changing the name does not make it legal.

    If the police are not what is a standing army, then it would be elected and by the local citizens. There is no excuse in a democracy to have any law enforcement that is not elected by the citizens - except the United States does now, and it didn't use to. Elected law enforcement is slowly being eliminated in America, and Americans haven't even seen it happening. "Gun control" is only one part of two parts. The other part is police control, so all force is unelected and out of the hands of the people.

    More easy to see perhaps is private prosecution. Public prosecutors didn't even use to exist. Victims, and only victims, complain and initiate criminal suits. This eliminates all victimless crimes and "crimes against the state", and also makes it impossible for charges to be ignored for establishment figures.

    Our justice system is where the real damage has occured while everyone has been focusing on national issues. Why can't criminals be brought to justice in the government? The above two things plus real grand juries is the answer.

    Perhaps government could still try to create crimes against the state, but in a pure form of private prosecution, it couldn't. Nor would police be able to harm citizens without the sherieff or chief being recalled in an instant. That is what needs to be striven for. It's arguable, it makes sense, and it's historical and how it use to be.
    My county still has elections for sheriff. I didn't realize there were any that didn't have elections. Exactly how far are you willing to take this principle? The federal government can't have a standing army, but that doesn't limit local law enforcement officials.
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  26. #23
    Quote Originally Posted by PaulConventionWV View Post
    My county still has elections for sheriff. I didn't realize there were any that didn't have elections. Exactly how far are you willing to take this principle? The federal government can't have a standing army, but that doesn't limit local law enforcement officials.
    Read the Link.
    Damn
    Why do you want to argue against something you have NOT EVEN READ???
    http://www.constitution.org/lrev/roots/cops.htm
    The Constitution contains no explicit provisions for criminal law enforcement. Nor did the constitutions of any of the several states contain such provisions at the time of the Founding. 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. Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state.
    Liberty is lost through complacency and a subservient mindset. When we accept or even welcome automobile checkpoints, random searches, mandatory identification cards, and paramilitary police in our streets, we have lost a vital part of our American heritage. America was born of protest, revolution, and mistrust of government. Subservient societies neither maintain nor deserve freedom for long.
    Ron Paul 2004

    Registered Ron Paul supporter # 2202
    It's all about Freedom

  27. #24
    Quote Originally Posted by pcosmar View Post
    Read the Link.
    Damn
    Why do you want to argue against something you have NOT EVEN READ???
    http://www.constitution.org/lrev/roots/cops.htm
    Sorry, brother. I hadn't even gotten to your last post before posting that response. I was just skimming throug the thread because I just got here.
    I'm an adventurer, writer and bitcoin market analyst.

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  29. #25
    Should the federal government forbid states from having a police force? If so why?

  30. #26
    Quote Originally Posted by ItsTime View Post
    Should the federal government forbid states from having a police force? If so why?
    What is the difference between a police force and a standing army?

  31. #27
    Quote Originally Posted by Dr.3D View Post
    What is the difference between a police force and a standing army?
    So your argument is that the federal government should control local police?

  32. #28
    Quote Originally Posted by ItsTime View Post
    So your argument is that the federal government should control local police?
    That would still be a standing army. There is not supposed to be a standing army.

  33. #29
    Quote Originally Posted by ItsTime View Post
    So your argument is that the federal government should control local police?
    No it is my position that they are unneeded and unnecessary in a free society. And that a free people should not tolerate even the Idea of police.

    I would like the very concept of police to vanish like the concept of the sun moon and stars revolving around the earth.
    Liberty is lost through complacency and a subservient mindset. When we accept or even welcome automobile checkpoints, random searches, mandatory identification cards, and paramilitary police in our streets, we have lost a vital part of our American heritage. America was born of protest, revolution, and mistrust of government. Subservient societies neither maintain nor deserve freedom for long.
    Ron Paul 2004

    Registered Ron Paul supporter # 2202
    It's all about Freedom

  34. #30
    Quote Originally Posted by pcosmar View Post
    No it is my position that they are unneeded and unnecessary in a free society. And that a free people should not tolerate even the Idea of police.

    I would like the very concept of police to vanish like the concept of the sun moon and stars revolving around the earth.
    What good is the law without enforcement? The Framers made many mentions of the rule of law as a fundamental part of society. How can there be a rule of law if people are really free to do what they want? How would that even be practical in today's world? Furthermore, why would it be unconstitutional to have local law enforcement authorities? I'm all for gun rights and the rights of citizens to have the same weapons as cops, but what's wrong with cops, themselves?
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