ABA Journal Magazine July 2013 Issue
By Radley Balko
Posted July 1, 2013 5:10 AM CDT
Editor's Note: In a remarkable speech at the National Defense University in May, President Barack Obama signaled an end to the war on terrorism; maybe not an end, it turns out, but a winding down of the costly deployments, the wholesale use of drone warfare, and even the very rhetoric of war. Click here to read the President's remarks.
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.
The Third Amendment reads, in full: "No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."
You might call it the runt piglet of the Bill of Rights amendments—short, overlooked, sometimes the butt of jokes. The Supreme Court has yet to hear a case that turns on the Third Amendment, and only one such case has reached a federal appeals court. There have been a few periods in American history when the government probably violated the amendment [the War of 1812, the Civil War and on the Aleutian Islands during World War II], but those incursions into quartering didn’t produce any significant court challenges. Not surprisingly, then, Third Amendment scholarship is a thin field, comprising just a handful of law review articles, most of which either look at the amendment’s history or pontificate on its obsolescence.
Given the apparent irrelevance of the amendment today, we might ask why the framers found it so important in the first place. One answer [lies in] the "castle doctrine." If you revere the principle that a man’s home is his castle, it hardly seems just to force him to share a portion of it with soldiers—particularly when the country isn’t even at war. But the historical context behind the Third Amendment shows that the framers were worried about something more profound than fat soldier hands stripping the country’s larders.
At the time the Third Amendment was ratified, the images and memories of British troops in Boston and other cities were still fresh, and the clashes with colonists that drew the country into war still evoked strong emotions. What we might call the "symbolic Third Amendment" wasn’t just a prohibition on peacetime quartering, but a more robust expression of the threat that standing armies pose to free societies. It represented a long-standing, deeply ingrained resistance to armies patrolling American streets and policing American communities.
And, in that sense, the spirit of the Third Amendment is anything but anachronistic.
As with the castle doctrine, colonial America inherited its aversion to quartering from England. And as with the castle doctrine, England wasn’t nearly as respectful of the principle in the colonies as it was at home. The first significant escalation of the issue came in the 1750s, when the British sent over thousands of troops to fight the Seven Years’ War (known in the United States as the French and Indian War). In the face of increasing complaints from the colonies about the soldiers stationed in their towns, Parliament responded with more provocation. The Quartering Act of 1765 required the colonists to house, feed and supply British soldiers (albeit in public facilities). Parliament also helpfully provided a funding mechanism with the hated Stamp Act.
Protests erupted throughout the colonies, [and] some spilled over into violence, most notably the Boston Massacre in 1770. England only further angered the colonists by responding with even more restrictions on trade and imports. Parliament then passed a second Quartering Act in 1774, this time specifically authorizing British generals to put soldiers in colonists’ homes. The law was aimed squarely at correcting the colonies’ insubordination. England then sent troops to emphasize the point.
Using general warrants, British soldiers were allowed to enter private homes, confiscate what they found, and often keep the bounty for themselves. The policy was reminiscent of today’s civil asset forfeiture laws, which allow police to seize and keep for their departments cash, cars, luxury goods and even homes, often under only the thinnest allegation of criminality. Read more