A criticism of "Are cops constitutional?" law review article

[Declan McCullagh <declan () well com>]

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From: "George, Paul" <PCGeorge () BBandT com>
To: "'Declan McCullagh'" <declan () well com>
Subject: RE: [Politech] Are cops constitutional? -- a law review article w
        onders
Date: Mon, 5 Jan 2004 16:01:25 -0500

Hi Declan,

This response is perhaps  a mite late, but use it if you feel it is still of
interest.

I am no fan of the current level of police powers, to say the least, nor the
history of goon squads operating under corporate or municipal authority. My
cut on the article was that there was a bit of cherry picking on the
evidence, though his central thesis that a public police force was not
customary at the time of the founders is correct. However, that does not
make establishing such a thing improper, abused or not, particularly at the
local or state level.

I also ran the article past my father, B. James George, who is a fairly
respected constitutional law professor.

My father's excerpted comments:
....The resources on which he relies primarily in support of his thesis are
"libertarian" and not mainstream. Professor Akhil Amar is a well-known and
-respected source, but Root cites his work to repudiate it.

The principal (or worst) flaw in Root's analysis, I think, is that he
ignores the fact that under the federal constitutional system the states
have plenary authority to create governmental organs and enact substantive
and procedural legislation and regulations as they see the need, as long as
they do not infringe upon individual rights created or recognized under the
federal constitution. The developments Root is exercised about affecting the
creation of local and state police organs and the allocation of arrest and
related authority to them have fallen within the legitimate exercise of
state legislative authority, and I doubt that the "Founders" would have
questioned that exercise. The Supreme Court precedents he makes reference to
are focused on the issue of whether state authority and its exercise have
violated individual rights under the Fourth Amendment and other relevant
federal constitutional provisions. Most of the Court's more recent holdings
have served functionally to legitimate police investigatory practices, but
that does not seem to be important to Root.

...The Supreme Court in interpreting the Eleventh Amendment during the past
six or seven years, by a 5-4 majority, has gone back to "original Founder
intent" in denying Congress the authority to subject state-level entities to
the reach of federal legislation (unless Congress makes suitably detailed
findings as to the necessity of such regulatory legislation), but I can't
see them invalidating the now-traditional state criminal law and procedural
legislation that Root so objects to (even if Bush gets another term and
appoints 5 Clarence Thomas clones to the Court).

Paul George
-----Original Message-----
From: Declan McCullagh [mailto:declan () well com]
Sent: Thursday, December 04, 2003 2:54 PM
To: politech () politechbot com
Subject: [Politech] Are cops constitutional? -- a law review article wonders


[This is an interesting article that's worth reading. Info on the author is
here: http://www.prisoncrisis.com/founder.html --Declan]

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

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.

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