http://www.abajournal.com/magazine/...olice_become_a_military_force_on_the_streets/
Are cops constitutional?
In a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the U.S. Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the framers, professional police officers were unknown,” Roots writes.
The founders and their contemporaries would probably have seen even the early-19th-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history—early American statesmen like Madison, Washington and Adams were well-versed in the history of such armies in Europe, especially in ancient Rome.
If even the earliest attempts at centralized police forces would have alarmed the founders, today’s policing would have terrified them. Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.
Police departments across the country now sport armored personnel carriers designed for use on a battlefield. Some have helicopters, tanks and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units like the Navy SEALs or Army Rangers. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops—despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.
A BATTLE OVER ARMIES
After the American Revolution, the leaders of the new American republic had some difficult decisions to make. They debated whether the abuses that British soldiers had visited upon colonial America were attributable to quartering alone or to the general aura of militarism that came with maintaining standing armies in peacetime—and whether restricting, prohibiting or providing checks on either practice would prevent the abuses they feared.
Antifederalists like George Mason, Patrick Henry, Sam Adams and Elbridge Gerry opposed any sort of national army. They believed that voluntary, civilian militias should handle issues of national security. To a degree, the federalists were sympathetic to this idea. John Adams, Thomas Jefferson and James Madison had all written on the threat to liberty posed by a permanent army. But the federalists still believed that the federal government needed the power to raise an army.
In the end, the federalists won the argument. There would be a standing army. But protection from its potential threats would come in an amendment contained in the Bill of Rights that created an individual right against quartering in peacetime. Even during wartime, quartering would need to be approved by the legislature, the branch more answerable to the people than the executive.
Taken together, the Second, Third and Tenth amendments indicate the founders’ desire for the power to enforce laws and maintain order to be primarily left with the states. As a whole, the Constitution embodies the rough consensus at the time that there would be occasions when federal force might be necessary to carry out federal law and dispel violence or disorder that threatened the stability of the republic, but that such endeavors were to be undertaken cautiously, and only as a last resort.
More important, the often volatile debate between the federalists and the antifederalists shows that the Third Amendment itself represented much more than the sum of its words. The amendment was in some ways a compromise, but it reflects the broader sentiment—shared by both sides—about militarism in a free society. Ultimately, the founders decided that a standing army was a necessary evil, but that the role of soldiers would be only to dispel foreign threats, not to enforce laws against American citizens.