By: Roger Roots

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.

Read it here.

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

________________________________________________________________

Also the story with the same title I stole the above pic from.

 http://thelastbastille.wordpress.com/2013/08/05/are-cops-constitutional/

Are Cops Constitutional?

Posted by sleepysalsa on August 5, 2013

No one can completely escape using the roads, because they have become a government monopoly that serves as a ubiquitous lynchpin between physical locations. As such, the State has chosen to deploy one of its types of agents, called “police officers,” to roam amongst the citizenry, patrolling everywhere from highways to close-knit neighborhoods. Alongside the mass electronic surveillance of the public, rampant police brutality, and the all too common habit of framing political dissidents for phony non-crimes, the legitimacy of the police themselves does, in fact, beg the question – are cops indeed constitutional?


Approximately half of all citizen-police encounters are comprised of traffic stops; the other half is a conglomeration of home invasions, undercover sting operations, and riot control. Needless to say, whenever there is an encounter, there is inherently the sudden and immediate danger of losing one’s liberty or life to this kind of armed street bureaucrat (to say nothing of the likely property theft, which the cops pawn off as either impoundment or civil asset forfeiture). The fact that such modern “professional” policing emerged nearly 50 years after the ratification of the Constitution does not bode well for its very existence as being compatible with a republican form of government.
There are no enumerated powers in the Constitution to substantiate the authority of the police. This is rather significant, especially since the Founding Fathers considered law enforcement a responsibility of the citizenry. As Dr. Roots puts it:

“Law enforcement in the Founders’ time was the duty of every citizen. Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond ‘not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand.’ Any person could act in the capacity of a constable without being one, and when summoned by a law enforcement officer, a private person became a temporary member of the police department. The law also presumed that any person acting in his public capacity as an officer was rightly appointed.”

Not only that, but grand jurors possessed the ability to conduct their own criminal investigations:

“Grand jurors often acted as the detectives of the period. They conducted their investigations in the manner of neighborhood sleuths, dispersing throughout the community to question people about their knowledge of crimes. They could act on the testimony of one of their own members, or even on information known to grand jurors before the grand jury convened. They might never have contact with a government prosecutor or any other officer of the executive branch.”

Apparently, it would seem as if citizens were competent to handle investigatory and patrolling duties now ascribed to the police. Ever since the transition of the police from glorified municipal workers to crime-fighters extraordinaire (thanks in large part to the FBI, interestingly enough), actual enforcement of the Law has never been quite the same.
Statists will ceaselessly boot-lick the police by stressing in their propaganda that policing is an inherently dangerous profession, and that “we” should honor and revere cops for being such heros. Nothing could be more laughably absurd:

“Police training itself – especially the elite SWAT-type or paramilitary training that many officers crave – reinforces the ‘dangerousness’ of police work in the officers’ own minds…[h]omicide, after all, is the second leading cause of death on the job for all American workers. The taxicab industry suffers homicide rates almost six times higher than the police and detective industry. A police officer’s death on the job is almost as likely to be from an accident as from homicide. When overall rates of injury and death on the job are examined, policing barely ranks at all. The highest rates of fatal workplace injuries occur in the mining and construction industries, with transportation, manufacturing, and agriculture following close behind. Fully 98 percent of all fatal workplace injuries occur in the civilian labor force.”

I have a strong inclination to believe that miners, general contractors, truck drivers, and farmers are not going to be heralded as occupational “heroes,” as the coercively violent cops are, anytime soon. Nevertheless, these same statists insist that “we” need the monopolistic security services, as provided by the government police. Their effectiveness at providing such security is as equally ridiculous as their occupational hazards, if not more so:

“In all, it is questionable whether modern policing actually decreases the level of bloodshed on American streets. Police often bring mayhem, confusion, and violence wherever they are called. Approximately, one-third of the people killed in high-speed police car chases (which are often unnecessarily escalated by police) are innocent bystanders. Cops occasionally prevent rather than execute rescues. ‘Police practices’ ranked as the number one cause of violent urban riots of the 1960s. Indeed, police actively participated in or even initiated some of the nation’s worst riots. During the infamous Chicago Police Riot during the Democratic National Convention in 1968, police physically attacked 63 newsmen and indiscriminately beat and clubbed numerous innocent bystanders.”

Similarly, the statist claim that such counterproductive security services are cost-effective (because the costs are socialized by way of government) are equally untrue:

“In terms of pure economic returns, police are a surprisingly poor public investment. Typical urban police work is very expensive because police see a primary part of their role as intervention for its own sake – poking, prodding, and questioning the public in hope of turning up evidence of wrongdoing. Toward this end, police spin quick U-turns, drive slowly and menacingly down alleyways, reverse direction to track suspected scofflaws, and conduct pat-down searches of potential criminals absent clear indicia of potential criminality. Studies indicate that such tactics are essentially worthless in the war on crime. One experiment found that when police do not ‘cruise’ but simply respond to dispatched calls, crime rates are completely unaffected. Thus the very presence of modern policing that the public view as effective – the creation of a ‘police presence’ – is in fact a monstrous waste of public resources…University of Chicago professor John Lott has found that while hiring police can reduce crime rates, the net benefit of hiring an additional officer is about a quarter of the benefit from arming the public with an equivalent dollar amount of concealed handguns.”

If this doesn’t absolutely demolish any and all claims about the supposed “necessity” of the police, I honestly don’t know what will.
The nightmare doesn’t end there though, for in all honesty, it is not an exaggeration in the slightest to declare contemporary police as the Standing Army the Founders warned us about:

“If pressed, modern police defenders would have difficulty demonstrating a single material difference between the standing armies the Founders saw as so abhorrent and America’s modern police forces. Indeed, even the distinctions between modern police and actual military troops have blurred in the wake of America’s modern crime war. Ninety percent of American cities now have active special weapons and tactics (SWAT) teams, using such commando-style forces to do ‘high risk warrant work’ and even routine police duties. Such units are often instructed by active and retired United States military personnel.”

Yup, that’s right – 90% of American cities are infested with SWAT teams, in a country where 82% of the 315,000,000 some odd population is urbanized, and therefore, more likely than not, subjected to the operational jurisdiction of these jack-booted stormtrooper thugs. Perhaps we should get a taste of what their “special weapons and tactics” are:

“In Fresno, California, a SWAT team equipped with battering rams, chemical agents, fully automatic submachine guns, and ‘flashbang’ grenades roams full-time on routine patrol. According to criminologist Peter Kraska, such military policing has never been seen on such a scale in American history, ‘where SWAT teams routinely break through a door, subdue all the occupants, and search the premises for drugs, cash, and weapons.’ In high-crime or problem areas, police paramilitary units may militarily engage an entire neighborhood, stopping ‘anything that moves’ or surrounding suspicious homes with machine guns openly displayed.”

Well, at that rate, let’s just be totally honest and call the cops what they really are…the gendarmerie. Of course, I could go on at length about cops violating the Fourth Amendment with their so-called “no-knock warrants,” the Fifth Amendment whenever they manipulate a suspect into signing a plea agreement with their “adjudication withheld” (which is legalese for that individual becoming an informant), or the common law itself during their attempts to entrap individuals into committing mala prohibita “offenses” against the State, but I’m sure you’ve heard it all before. If there was ever a reason to roleplay police interrogations, vet and ostracize individuals from your security teams (as necessary), and evade the Big Brother surveillance apparatus that tries to scan, track, and trace every single little thing you do into an cataloged series of databases (which is then made available to the police in order to assist them in their prosecution of you or your friends and family), this is it.
Dr. Roger Roots’s Are Cops Constitutional? is a truly groundbreaking and paradigm shifting academic work that was published in the Seton Hall Constitutional Law Journal back in 2001. It calls into question one of the core pillars of the Establishment, that of the “necessity” for a government monopoly on policing. Thankfully, as Dr. Roots pointed out, the trend is starting to shift away from a strict monopoly towards both the corporatocracy and the free-market, but the reigns of the police state still hold strong. It should never be forgotten (again) that America was founded without omnipresent policemen whose job it is to coercively enforce the power of the State upon the average citizen, and that it is our sworn republican duty to investigate and apprehend criminals who violate the common law (by committing acts of mala in se). Perhaps by integrating free-market technologies and incentives to satisfy customers and real victims, American can once again exist as a truly free society.