Archive for November 2010

Some Thoughts on Public Education

Some Thoughts on Public Education

Gary Hunt
Outpost of Freedom
November 29, 2010


Public Education in America has a long history.  In the Cape Code area, a public school was established in the early seventeen hundreds.  The pay for the schoolmaster was in the form of part of the catch of fish.  Public Education was not established by government, rather, by the parents and members of the community.

Today, we have a “public education system” that has deviated from that original intent to such a point that, except for the name, they bear little resemblance to each other.

The current form has become an administrative nightmare; a means of social reform (indoctrination); and, fails, miserably, to achieve its intended purpose as a mechanism for the diffusion of knowledge, focusing instead, on an institutional evaluation of the failure of that system.

So, let’s look at what public education was, from Jefferson through the end of the 19th century.

Historical perspective

Thomas Jefferson, the principle advocate of public education, is probably the finest source of the intent of that system.  Below are a number of historical quotes by Jefferson regarding the subject:

“I have indeed two great measures at heart, without which no republic can maintain itself in strength: 1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom.  2. To divide every county into hundreds, of such size that all the children of each will be within reach of a central school in it.” –Thomas Jefferson to John Tyler, 1810.

Education not being a branch of municipal government, but, like the other arts and sciences, an accident [i.e., attribute] only, I did not place it with election as a fundamental member in the structure of government.” –Thomas Jefferson to John Taylor, 1816.

“The present consideration of a national establishment for education, particularly, is rendered proper by this circumstance also, that if Congress, approving the proposition, shall yet think it more eligible to found it on a donation of lands [this applied beginning with the lands acquired under the Treaty of Paris — Ohio Territory], they have it now in their power to endow it with those which will be among the earliest to produce the necessary income.  The foundation would have the advantage of being independent on war, which may suspend other improvements by requiring for its own purposes the resources destined for them.” –Thomas Jefferson: 6th Annual Message, 1806.

A bill for the more general diffusion of learning… proposed to divide every county into wards of five or six miles square;… to establish in each ward a free school for reading, writing and common arithmetic; to provide for the annual selection of the best subjects from these schools, who might receive at the public expense a higher degree of education at a district school; and from these district schools to select a certain number of the most promising subjects, to be completed at an University where all the useful sciences should be taught. Worth and genius would thus have been sought out from every condition of life, and completely prepared by education for defeating the competition of wealth and birth for public trusts.” –Thomas Jefferson to John Adams, 1813.

The less wealthy people… by the bill for a general education, would be qualified to understand their rights, to maintain them, and to exercise with intelligence their parts in self-government; and all this would be effected without the violation of a single natural right of any one individual citizen.” –Thomas Jefferson: Autobiography, 1821.

The most effectual means of preventing [the perversion of power into tyranny are] to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts which history exhibits, that possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes.” –Thomas Jefferson: Diffusion of Knowledge Bill, 1779.

It is an axiom in my mind that our liberty can never be safe but in the hands of the people themselves, and that, too, of the people with a certain degree of instruction.  This is the business of the state to effect, and on a general plan.” –Thomas Jefferson to George Washington, 1786.

Nearly a century later, we can observe the view and understanding of the public school system from, “Elements of Civil Government, A text-book for use in public schools High schools and normal schools and a manual of reference for teachers, by Alex. L. Peterman, 1891″. From that book:


Introductory. — When children reach the age of six or seven years, they enter the public school and become subject to its rules.  We are born under government, and we are educated under it.  We are under it at home, in school, and in after life.  Law and order are everywhere necessary to the peace, safety, liberty, and happiness of the people.  True liberty and true enlightenment can not exist unless regulated by law.

Definition and Purposes. — A school district or sub-district is a certain portion of the town or county laid off and set apart for the purpose of establishing and maintaining a public school.  It exists for educational reasons only, and is the unit of educational work.  The public schools are supported by funds raised partly by the State, and partly by the county or the township.  They are frequently called common schools or free schools.  It is the duty of the State to provide all children with the means of acquiring a plain English education, and the State discharges this duty by dividing the county into districts of such size that a school-house and a public school are within reach of every child.

Formation. — The limits of the school district are usually fixed by the chief school officer of the county, by the town, by the school board, or by the people living in the neighborhood…

Functions. — The functions, or work, of the school are solely educational.  The State supports a system of public schools in order that the masses of the people may be educated.  The country needs good citizens: to be good citizens the people must be intelligent, and to be intelligent they must attend school.


The members of the school district are the people living in it.  All are interested, one way or another, in the success of the school.  In most States the legal voters elect the school board, or trustees, and in some States levy the district school taxes.  Those who are neither voters nor within the school age are interested in the intelligence and good name of the community, and are therefore interested in the public school.

Children. — The children within the school age are the members of the school, and they are the most important members of the school district.  It is for their good that the school exists.  The State has provided schools in order that its children may be educated, and thus become useful men and women and good citizens.


Parents, their Rights and Duties. — All parents have the right to send their children to the public school, and it is also their duty to patronize the public school, or some other equally as good.  Fathers and mothers who deprive their children of the opportunities of acquiring an education do them lasting injury.  Parents should use every effort to give their children at least the best education that can be obtained in the public schools.


The school has rules to govern it, that the pupil may be guided, directed, and protected in the pursuit of knowledge.  Schools can not work without order, and there can be no order without government.  The members of the school desire that good order be maintained, for they know their success depends upon it; so that school government, like all other good government, exists by the consent and for the good of the governed.


Duties. — In most States it is the duty of the district officers to raise money by levying taxes for the erection of school-buildings, and to superintend their construction; to purchase furniture and apparatus us; to care for the school property; to employ teachers and fix their salaries; to visit the school and direct its work; to take the school census; and to make reports to the higher school officers.


Powers. — The teacher has the same power and right to govern the school that the parent has to govern the family.  The law puts the teacher in the parent’s place and expects him to perform the parent’s office, subject to the action of the directors or trustees.  It clothes him with all power necessary to govern the school, and then holds him responsible for its conduct, the directors having the right to dismiss him at any time for a failure to perform his duty.



Introductory –In our study, thus far, we have had to do with special forms of government as exercised in the family and in the school.  These are, in a sense, peculiar to themselves.  The rights of government as administered in the family, and the rights of the members of a family, as well as their duties to each other, are natural rights and duties; they do not depend upon society for their force.  In fact, they are stronger and more binding in proportion as the bands of society are relaxed.

In the primitive state, before there was organized civil society, family government was supreme; and, likewise, if a family should remove from within the limits of civil society and be entirely isolated, family government would again resume its power and binding force.

School government, while partaking of the nature of civil government, is still more closely allied to family government.  In the natural state, and in the isolated household, the education of the child devolves upon the parents, and the parent delegates a part of his natural rights and duties to the teacher when he commits the education of his child to the common school.  The teacher is said to stand in loco parentis (in the place of the parent), and from this direction, mainly, are his rights of government derived.

The school, therefore, stands in an intermediate position between family government and civil government proper, partaking of some features of each, and forming a sort of stepping-stone for the child from the natural restraints of home to the more complex demands of civil society.  The school district, also, while partaking of the nature of a civil institution, is in many respects to be regarded as a co-operative organization of the families of the neighborhood for the education of their children, and its government as a co-operative family government.

From Webster’s 1828 Dictionary:

Public, a. [L.publicus, from the root of populus, people; that is, people-like.]

1. Pertaining to a nation, state or community; extending to a whole people; as a public law, which binds the people of a nation or state, as opposed to a private statute or resolve, which respects an individual or a corporation only.  Thus we say, public welfare, public good, public calamity, public service, public property.

Education, n.

The bringing up, as of a child, instruction; formation of manners.  Education comprehends all that series of instruction and discipline which is intended to enlighten the understanding, correct the temper, and form the manners and habits of youth, and fit them for usefulness in their future stations.  To give children a good education in manners, arts and science, is important; and an immense responsibility rests on parents and guardians who neglect these duties.

Knowledge, n.

1. A clear and certain perception of that which exists, or of truth and fact; the perception of the connection and agreement, or disagreement and repugnancy of our ideas.  Human knowledge is very limited, and is mostly gained by observation and experience.
2. Learning; illumination of mind.

Public Schools

Jefferson realized that knowledge was essential, in the people, if the government was to be of service to those people, when he said, “The most effectual means of preventing [the perversion of power into tyranny are] to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts which history exhibits, that possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes.” He also provided that such knowledge would “enable every man to judge for himself what will secure or endanger his freedom.”

It is clear that education was not a service to or by the government, only to be encouraged and provided for by the government, when he suggested that parents could utilize the public or private schools, though the minimum education would be that afforded by the public school.

He further suggests the limitation of federal government involvement in education by allowing that they only provide “donations of land” which would “endow” the schools to “produce the necessary income”.  Though he suggested the division of land into districts, he never suggested that the government was a player in that education, rather, that it would educate all, thereby “defeating the competition of wealth and birth for public trusts“.  How could you entrust those of birth and wealth with controlling education if the purpose was to defeat their control of that education?

The ultimate purpose of the public education was to assure that the less wealthy people “would be qualified to understand their rights, to maintain them, and to exercise with intelligence their parts in self-government,” warning, also, that ” our present state of liberty [is] a short-lived possession unless the mass of the people could be informed to a certain degree.”

In establishing that the responsibility for providing the public education is not a function of government, he says, “Education not being a branch of municipal government, but, like the other arts and sciences, an accident [i.e., attribute] only, I did not place it with election as a fundamental member in the structure of government.”

Now, it is possible that what Jefferson has told us could be considered as conjecture, not of practice.  This would suggest that he was in error and the government must take a greater role in the education of our children.  If that were the case, surely, practice would have changed shortly after Jefferson left the scene and would have removed itself from that “public” sphere and into the realm of government control by the end of that century.  So, let us look at public education as it was described and practiced in 1891:

From “Elements of Civil Government”, we find government is a rather broad term.  It applies “in home, in school, and in after [later] life.”  That “[i]t is the duty of the State to provide all children the means of acquiring” an education“.  So, here we come to a crux in the difference between public education and what we have, today.  The means of an education versus the education, itself.  Providing you the means of fishing does not provide you the fish — only the means to acquire the fish.  Education is, likewise, from the standpoint of government, only the means, not the education.

The members of the school district are the people living in it.  All are interested, one way or another, in the success of the school.”  This would exclude people not living in the district, say, in the State capital, or, Washington, D.C.  What conceivable interest could politicians totally unrelated, and, probably, unaware of the nature of the district, should be interested in the outcome of the education?  Surely, if they were other than simply pretending to be interested, we could expect that any true interest would be divisive, and, perhaps as was suggested by Jefferson, a result of their “ambition under all of its shapes, and prompt to exert their natural powers and defeat its purpose”.  After all, if the truth is what is legislated, there is no role for the people to judge what the government is doing.  It is, for all intents and purposes, a “perversion of power into tyranny“.

Looking at the relationship of the teacher to the student, we find that “The teacher has the same power and right to govern the school that the parent has to govern the family.  The law puts the teacher in the parent’s place and expects him to perform the parent’s office.”  This is further supported by the fact that when we look at the Civil District (city or county), we find that there are “special forms of government as exercised by the family and the school” that are “peculiar to themselves“.

To assure a proper understanding of the relationships stated above, let me repeat from that source that:

“School government, while partaking of the nature of civil government, is still more closely allied to family government.  In the natural state, and in the isolated household, the education of the child devolves upon the parents, and the parent delegates a part of his natural rights and duties to the teacher when he commits the education of his child to the common schoolThe teacher is said to stand in loco parentis (in the place of the parent), and from this direction, mainly, are his rights of government derived.

“The school, therefore, stands in an intermediate position between family government and civil government proper, partaking of some features of each, and forming a sort of stepping-stone for the child from the natural restraints of home to the more complex demands of civil society.  The school district, also, while partaking of the nature of a civil institution, is in many respects to be regarded as a co-operative organization of the families of the neighborhood for the education of their children, and its government as a co-operative family government.

So, when you send your child to school, you have made the teacher in loco parentis.  If you have not assigned that right to the federal government, the state government, or even the school district, then, should that authority apply only to those to whom you have granted, should it extended to people unknown, in places unknown, for purposes unknown?

Government Schools

The United States Department of Health, Education and Welfare (Welfare has since been changed to “human services”) was formed in 1953.  Given that the Founders and Framers only saw fit to provide grants of land, at the federal level, for the support of the public education system, we must wonder why this expansive move into the rights previously held by the parents.  However, these intervening 57 years have clearly established the consequences of the establishment of that Department.  It has resulted in a near complete takeover of the education process and moved it into absolute (despotic?) control of the federal government, including denial of the parent’s right to involve themselves in the education process.

Along with the expansion of federal authority in the realm that was previously reserved to the community, the State governments have also encroached well beyond their original enrolment in education.  BY submitting to federal dictates, mandates and funds allocation, they have become co-conspirators with the federal government to undermine the purpose of public education, as envisioned by the Founders and practiced, for over a century, as a right of the local community and the parents, resulting in the subjugation of our children to an indoctrination program the prescribes social relationship, undermines religious and moral values, and, subjects the children to a belief in the absolutism of government’s authority.


The Constitution stands mute on the subject of education and schools.  The only authority that the federal government had was with regard to the “public lands”.  That authority underlay Jefferson’s desire to found the federal support only to the “donation of lands”.  Clearly, no authority was granted by the Constitution to subvert the rights of the parents and the school district in matters of education.  Even an expansive misrepresentation of “the General Welfare” could not subordinate the authority of the parents and the school district, even if they were failing, miserable, in the pursuit of a proper education.  After all, who but the parents could determine whether there was a failure in the process? 

That ascension of authority to the federal government made way for the ascension of State authority, well beyond that which was intended.  Initially, states could set certain guidelines, and, historically, these were quite limited and included the matter of taxation for funding, usually granted to the county or district, and protections to be afforded the district and schools for protection from abuse.

Taxes for the support of public schools were, for many decades, raised through ad valorem (on property) taxes.  This did provide for inequality in education, however, this inequality was no different from the inequality in housing and diet.  Those who worked harder received greater benefit.

This did not demean education.  The basics of reading, writing, mathematics, and science were necessary as a foundation for subsequent learning, whether through the educational system or the ability to acquire additional knowledge by reading books, periodicals, and newspapers.  It was the foundation that was the necessity of public education.  Those who proved themselves worthy were able to take advantage of scholarships to increase their education, though that route was, and should only be, available to those competent, desirous of, and willing to pursue such higher education.  It was, and should be, the foundational education that came within the purview of “public” education.

The consequence of attempting to assure that all people had such higher education available was that the higher education has been lowered in quality to accommodate those who were not mentally capable of such aspirations, though they had been convinced that it was their “right” to achieve what would otherwise be beyond their abilities.  This has resulted in college graduates with 6th grade reading skills, and, and overall reduction of the equality of education of the higher levels, except where wealth has afforded certain individuals with access to expensive private colleges.  The entire country has suffered as a result of this malaise in education by allowing those to have degrees that are not indicative of their scholarly achievements, rather, the fact that they have completed a course of education without regard to the quality thereof.

Public education, to serve the intentions and practices under which it was first instituted, must return to that which serves the people rather than the government.  To allow the government to impose any more than the “means” to educate; to allow the government to subvert the needs of the people, as defined by the people through their school boards of local, interested parties; is to allow the government the means of indoctrination of the people, especially the young, into acceptance of despotism and subjugation.

The Plan for the Restoration of Constitutional Government – Abbreviated Version

The following is a much abbreviated version of “The Plan for the Restoration of Constitutional Government“. The entire Plan consumes many pages of detail regarding the Plan as well as hundreds of pages of reference materials.

* * * * * * * * * * * * *

The Plan for the Restoration of Constitutional Government

Abbreviated Version
(includes only a few portions of the overall plan)


This Plan for the Restoration of Constitutional Government, as explained in “The Question”, is purely hypothetical.  It is, however, a natural evolution from the “You Have Tread On Me – Petition“, as the Revolutionary War was a natural evolution from the Olive Branch Petition.

In adapting this sequence of events to modern times, it needs to be understood that times have changed and the possibility of a gathering of “revolutionary” delegates in one place would be fatal to the cause.

Understanding this difficulty, the expedient for today is that individuals would sign and submit, to their respective representatives in the federal government, individual petitions as “redress of grievances, as per Article I of the Bill of Rights.

Absent a positive response to the Petition, one could safely conclude that the government had no more intention of addressing the grievances than King George III did.  This, by colonial standards, would put one in a “state of nature” — absent an operating Constitutional government — wherein he, as a free man, has every right to associate with others of similar circumstance.

An earlier article, by the author of this Plan, provides some insight into this aspect of the Founders’ thinking process when they realized that they could no longer live under government that did not recognize their rights (see Sons of Liberty #14).

As you progress through this hypothetical Plan, you will not that there are short sketches (Historical Perspective) that provide a brief example of the historical conditions that can be equated with each part of the Plan.

The Plan, then, is an effort to parallel the activities of the Founders into a theoretical plan that emulates the progression of events, culminating in the creation of the United States of America.

The Plan is made as detailed as expedient for the variety of possible circumstance that might arise.  Plans, however, can never be made so rigid that they will work under all conditions.  Therefore, it is intended to provide sufficient detail so that creative minds could easily refine the Plan into a working model for immediate and local conditions.

Often, elements of the Plan call to mind other works by this author, and, works by others, in which cases, links are provided to those works to provide additional insight which might assist in more detailed planning.

The Plan is provided for your pleasure and education.  What you do with it is up to you, and, what you do not do with it is a point of consideration for your posterity.

G. H.

* * * * * * * * * * * * *

The Question:

A question was raised, a few months ago, in a conversation with a friend.  The question was, “Could a Revolution be conducted in the modern world considering modern technology, extensive government troops, and battle field weapons?”  At first thought, the task seems so ominous, so daunting and against such odds, that it would be impractical, if not impossible.

Upon reflecting on what must have been equally daunting to the Founding Fathers, it is not, as first anticipated, such an ominous task.

The Founding Fathers faced British forces — the best-trained and most successful military in the then world.  Its navy was master of the seas; its land forces had recently defeated the French and had forced colonization around the world.  It controlled the local government, and had enacted laws that gave it nearly arbitrary control over the colonies.

The colonies had few things working for them.  They had a lack of experience, except those who had recently fought alongside the British in the French-Indian Wars; some had learned to defend themselves against hostile Indians, and thus learned fighting tactics used by the Indians.  They had local knowledge of the topography.  And, they had the fortitude and persistence that had helped their forefathers, and themselves, overcome the obstacles of taming a land that had been little changed from its natural state.

Against them were: Substantial numbers of highly trained soldiers; Unlimited supplies and resources, although most of them were located across the ocean and had to be transported, this taking months; A multitude of locations, bases, within and around the colonies; Mastery of the waterways; And, many of the military leaders had experience both with fighting Indians and working alongside the colonists.

In those first eventful days of April, May, and June 1775, the colonists learned what their weaknesses were and what some of their strengths were.  They learned that they were not trained, nor were they inclined to fight face-to-face on the battlefield.  They learned that the tactics of the Indians, ambush by surprise and hit and run tactics would damage both morale and manpower of the British.  They learned that living to fight another day was more important than victory in a battle; that skirmishes were the best tactic, unless a major battle had a high degree of probability of being won..  One of the major drawbacks in their efforts was that of selecting officers who were astute enough to challenge the ways of traditional warfare.

But, they did, with their persistence and their faith in God, prevail — not by might, rather by tactics and fortitude.

Just how would they fight, today?  Surely, they would adapt their tactics to the ‘battlefield’ and would realize the political necessity of securing faith and assistance from the non-combatants.  There are many other generalities that can be addressed, but of greater importance will be the actual circumstances of today’s world and the necessity to develop new tactics in order to overcome obstacles that present themselves, as the battle begins.  This is a theoretical answer to that question.

* * * * * * * * * * * * *

Some Thoughts

This plan, after years of discussion and contemplation, coupled with an understanding of what the Founders did to challenge the authority of the power of government, was developed as a guideline that would answer the question of whether it would be possible, today, to emulate the actions of those Founders to achieve the same end.

The desire to change government back to its Constitutional limitations would best be served if no blood were shed.  The impracticality of achieving that end, along with the knowledge that blood has already been shed, moves us to the second position — that the minimum amount of blood be shed, and, that of if blood is to be shed, that it include an absolute minimum of innocent blood.

There is little doubt that during a conflict, blood will be shed, when necessary, in the course of that conflict.  Knowing that any innocent blood shed is a detriment to the image of those who seek to return to Constitutional government, every effort should be made to “pick the ground” for open conflict, with special consideration to locations that will have the least impact on innocent bystanders.

In the selection of ‘targets’, outside of the normal area of conflict (aggravation), the following should be taken into consideration.

Though accident, error, and, perhaps, judging wrongly, the actions of those who might be targeted, it is far better to isolate those errors to people who, if not guilty, at least are in a position and have acted in such a manner that their guilt is probable.

There is also the moral consideration — that those who are willing to strike, as the Founders did, do so in violation of the laws, as they exist, today.  When they make a decision to “target” someone, or, something, they should consider just how the “target” would be construed by those who will, eventually, make judgment on their actions.  The most important consideration, however, would be the judgment made by God and the person doing the act.  If that act is motivated for purposes of revenge, God will judge, and, the person will have to live with, the consequences.

On the other hand, if the act is one that is surely one of retribution for acts of the target, whether corporate property or an individual life, and has clearly demonstrated by a pattern on the part of the person or entity, then, surely, God will judge as necessary, and, the actor will have a clear mind.

Where possible, all players in the act, and, even more desirable, others who can safely be associated with and brought into, if not the plan, at least the determination of the validity of the ‘target’, the collective judgment, serving as a sort of jury, considering both the guilt and the demonstrable necessity of the action, will provide the best assurance of a desirable final judgment, and a clear conscience for those involved.

If blood is to be shed, every consideration should be made that the blood deserves to be shed.

Some considerations for the evaluation of a ‘target’:

  • Have lives been lost as direct, or indirect, result of the actions of the ‘target’, acting in violation of the Constitution or constitutional laws of the land?
  • Has there been a continual loss of property by people who should have had that property protected, under the Constitution or constitutional laws?
  • If a foreign nation, say, Russia, were to invade the United States, would the target become a collaborator, turning against the United States and the Constitution?

Note: The possibility that if there were sufficient ‘friends” (collaborators) of a foreign power, these ‘friends’ who might encourage participation by that foreign power, is to be considered.  The discouragement of his sort of person (potential collaborators) would be as desirable as the discouragement of all other potential ‘targets’.

* * * * * * * * * * * * *

The remainder of the Plan can be found at The Plan for Restoration of Constitutional Government

Or an audio version at Discourse on “The Plan for Restoration of Constitutional Government”


Some Thoughts on Taxation

Some Thoughts on Taxation

Gary Hunt
Outpost of Freedom
November 24, 2010


Taxation is often considered one of the most burdensome and oppressive duties of government.  “There are only two things certain; Death and Taxes”, quite adequately describes the effect of taxes upon our daily lives.

Though far from truth, schoolbooks have, for generations, proclaimed that “No Taxation without Representation” was the cause of the Revolutionary War.  There is no doubt that the fact that the colonies had no representation in Parliament was one of many points of contention between colonies and Crown.  This very fact was the subject of many speeches, on both sides of the Atlantic.

It has been suggested, on the western side of the Atlantic, that if the colonies were allowed to raise their own taxes, based upon both their needs and requisitions from Parliament, this objection would have been overcome.  So, let’s keep that thought in mind as we look at our history with regard to the subject of taxation.

We need to understand that the Framers had to deal with the touchy subject of taxation based upon the role it played in leading up to separation from England as well as the brief history and problems posed between Independence and the Constitution.  The former has just been addressed, so we will look at the later.

Two situations provided the Framers some concern in dealing with the subject.  The first was that the requisitions imposed by the Continental Congress, both before and under the Articles of Confederation were ignored by a number of states, ultimately resulting in abandoning efforts to collect the requisitions and relieving those debts not paid.

The second situation was known as Shay’s Rebellion [1787].  Farmers in Western Massachusetts had been taxed by the State, the purpose being for the State to be able to pay its obligations to the Congress, as well as have operating funds for the function of the Massachusetts government.  This was compounded by the absence of specie (gold or silver) through the colonies.  Repayment of debt on foreign loans required specie.

Now, to source documents:


Article I, Section 2, clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons…

Article I, Section 7, clause 1:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article I, Section 8, clause 1:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article I, Section 9, clause 1:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Article I, Section 9, clauses 4 & 5:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

Article I, Section 10, clauses 1 thru 3:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Amendment 16 [1913]:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Amendment [XVII] [1913]

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.  The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

Amendment 19 [1964]:

Section 1–The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Federalist Papers

The Federalist Papers are accepted as an indication of the intent to the Framers, and, of those who ratified that Constitution.

Federalist Papers #12, Alexander Hamilton:

The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares….  It has been found in various countries that, in proportion as commerce has flourished, land has risen in value.


The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates.  Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury.


But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue.  There are other points of view, in which its influence will appear more immediate and decisive.  It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation.  Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty.


No person acquainted with what happens in other countries will be surprised at this circumstance.  In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises.  Duties on imported articles form a large branch of this latter description.


Revenue, therefore, must be had at all events.  In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land.

Federalist Papers #30, Alexander Hamilton:

Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged.  We will presume, for argument’s sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union.  Thus circumstanced, a war breaks out.  What would be the probable conduct of the government in such an emergency?  Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defence of the State?  It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety.

Federalist Papers #45, James Madison:

If the federal government is to have collectors of revenue, the State governments will have theirs also.  And as those of the former will be principally on the sea-coast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side.  It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; then an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States.


The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people and the internal order, improvement, and prosperity of the State.

Constitutional Intent

Representation and Direct Taxes shall be apportioned among the several States” provides an insight into one of the methods of funding for the federal government.  Representation was to be based upon population, and, the funds needed in excess of those derived by other means were to be supplemented proportioned on the strength of voting power of each state in the House of Representatives.

Let’s look at the relationship between taxation, spending, and representation.  First, we have “All Bills for raising Revenue shall originate in the House of Representatives“, giving that representative body the exclusive power to raise taxes, though concurrence by the Senate and the President were still required.

Now, let’s look at the Senate.  Senators were appointed by the State legislatures, prior to the adoption of the 17th Amendment, and, consequently, would look out for the interest of the State, while the representatives would look out for the interests of the people who comprised their constituency.  So, we have both the people and the state with representation to look out for their respective interests.

If the Representatives felt a need for raising revenue, the would “originate” a bill to that effect.  The Senate, if the burden were put upon the states to raise the revenue, might be concerned and refuse to approve the bill, saving the respective legislatures from having to raise taxes to raise revenues to meet the needs of the federal government.

In a sense, we would have three, independent bodies exerting caution over any increase in revenue; the House of Representatives ; the Senate; and, the respective state legislatures, which would have the responsibility of raising additional revenue, as well as the ire of the people in so doing. 

If we delve a bit deeper into this concept, we can see that there is a consistency with the feelings of the Founders when they coined the phrase, “No Taxation without Representation“.  If we equate the Parliament with the Congress, and, the state legislatures with the colonial assemblies, we can see a parallel, which would require the state legislature (colonial assembly) to enact revenue laws based upon requisitions by the Congress (Parliament).  Clearly, this concept has strong support from our history books.

To address the Founders concerns, perhaps it would be appropriate to have representatives in the Congress to enact and approve revenue bills, and then, requisition to the states; the state legislature to raise the revenues so required.

Also, the intent of the involvement of the states in collecting the revenue was made clear by James Madison (FP #45), when he said, “It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; then an option will then be given to the States to supply their quotas by previous collections of their own.” 

We need not wonder why this method, of the state paying quotas, was not primary.  The experience of the recent past had proven, under the Articles of Confederation, that collection would be, at best, difficult.  There had been no experience under the Constitution and strengthened federal government to dispel such concern.  Recent history, however, has demonstrated that the federal government is quite able to enforce compliance, which makes moot this concern.

Madison also points out, in the same number, that the primary need for additional revenue would be consistent with, “The powers delegated by the proposed Constitution to the federal government [which] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

Subsequently, in 1913, this whole concept of taxation was turned on end.  With the enactment of the 16th and 17th Amendments to the Constitution (coincidently, the same year that the Federal Reserve Act and currency contrary to the Constitution) were ratified, changing our whole economic structure by rendering gold and silver equal to, or subordinate to, promissory notes (Federal Reserve Notes).  Money was relegated to a system without value.

Clearly, the type of expenditures we have today were not within the scope imagined by Madison.  Quite possibly, if the tax structure was maintained along the original concepts, we would not have the enormous debt to repay.

Continuing on with the subject, let’s see what Alexander Hamilton thought should be the primary source of revenue. 

In Federalist Papers # 12, he said, “The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares…” 

He continues, “The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates.  Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury.”

He then advises that, “[i]t is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation…”

In support of the use of commerce as the primary source of revenue, he says, “No person acquainted with what happens in other countries will be surprised at this circumstance.  In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, for the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises.  Duties on imported articles form a large branch of this latter description.”  Included in this is a comparison to England, where the rich are well defined, and a source of revenue.  Something that might be worthy of consideration.

Finally, in this number, he concludes with the significance of the burden on other sources than revenue, when he says, “Revenue, therefore, must be had at all events.  In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land.”

To demonstrate the nature of change in how government operates, we can look at the concerns that Mr. Hamilton placed upon the ability of the country to borrow money, should the need arise, in Federalist Papers #30:

Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged.  We will presume, for argument’s sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union.  Thus circumstanced, a war breaks out.  What would be the probable conduct of the government in such an emergency?  Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defence of the State?  It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety.

Clearly, times have changed.  The ability of the government to borrow money on the “public credit” is, without question, indisputable.  So, many of the concerns of the Framers have fallen by the wayside.  Perhaps legitimate under the then circumstances, times, and the new federal government under the Constitution, have changed.  Perhaps, now, it is time to reevaluate the method of federal taxation to be consistent with what was expressed, then, though not put into service because of those concerns.

Some Definitions

From Webster’s 1828 Dictionary:

Apportion, v. t.
To divide and assign in just proportion; to distribute among two or more, a just part or share to each; as, to apportion undivided rights; to apportion time among various employments.

Duty, n.
Tax, toll, impost, or customs; excise; any sum of money required by government to be paid on the importation, exportation, or consumption of goods.  An impost on land or other real estate, and on stock of farmers, is not called a duty, but a direct tax.

Impost, n.
1.  Any tax or tribute imposed by authority; particularly, a duty or tax laid by governments on goods imported, and paid or secured by the importer at the time of importation.

Excise, n.
An inland duty or impost, laid on commodities consumed, or on the retail, which is the last stage before consumption; as an excise on coffee, soap, candles, which a person consumes in his family.  But many articles are excised at the manufactories, as spirit at the distillery, printed silks and linens at the printers, &c.

Capitation, n.
1.  Numeration by the head; a numbering of persons.
2.  The tax, or imposition upon each head or persons; a poll tax.

Income, n.
That gain which proceeds from labor, business or property of any kind; the produce of a farm; the rent of houses; the proceeds of professional business; the profits of commerce or of occupation; the interest of money or stock in funds.

Tarif, n.
1.  Properly, a list or table of goods with the duties or customs to be paid for the same, either on importation or exportation, whether such duties are imposed by the government of a country, or agreed on by the princes or governments of two countries holding commerce with each other.
2.  A list or table of duties or customs to be paid on goods imported or exported.


There can be little doubt that the structure of government and apportionment had a purpose, in the minds of the Framers.  At the time of the Federal Reserve Act, 16th and 17th Amendments [1913], the national debt had remained relatively level with that of just after the Civil War, about 2.5 billion dollars.  Within just a few years, it has gone from that stable 2.5 billion to nearly 5,000 times that amount in 2010.  Can there be any question as to the ability of the government to borrow money.  The problem remains, however, that as we continue to borrow, can that debt be repaid.  Taxation has become a means to pay the interest, though it is not sufficient to retire the debt.

By having direct taxes, without apportionment, easily imposed upon us, we have implemented a direct line from our wallets to the government.  Considering that all direct taxes were intended to be apportioned, we can look at the Sixteenth Amendment to see what it really says.  Remember, the Constitution required apportionment, and, it anticipated that direct taxes would be on land, not on the earnings of a workingman.  The Amendment reads:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Rather than going in to the legal ramifications of the Amendment, which has yet to be resolved by the courts, we can wonder what “gain” (definition of income) meant, then, as well as, if it was a direct tax upon something not previously granted, why it had to include the exclusion of apportionment.

If our debt had not grown since the civil war, and there was no need for additional revenue, why would Congress propose, and the states ratify, an amendment that created a completely new method of taxation.  After all, they had not exercised all of those taxes anticipated by the Framers, though in the slow evolution of the “income tax” to what it has become, invading our private records for information; multitudes of new officers to seize our property.  After all, from an historical perspective, we can look to the Declaration of Independence to see that such a means as was to be used to collect this new tax was well defined in the objections to the British Rule that resulted in our independency.  From the enumerated complaints in the Declaration, “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance”.  What conceivable method of taxation could require more new offices and officers to harass our people and eat out their substance?

Now, with this in mind, what impelled Congress to establish the most burdensome and intrusive means of tax collection possible?  Duties are based upon tariffs, and easily collected at ports of entry.  Excise taxes are collected by those licensed for the particular activity upon which the tax applies.  Finally, land, which doesn’t move, is already assessed as to value, and has collection methods in place.  Instead, the Congress established a new form of taxation, never before conceived as to being practical, and at present, requiring review and collecting from over two hundred million people, along with the forces necessary to review, audit and collect those taxes.  To add to the idiocy of that system, how many of the people’s own hours of life are committed, each year, to the production of the necessary records to satisfy those tens of thousands of agents, taking that time away from them, their families, their leisure, and their productive pursuits?

We need to consider, too, a couple more events in our history that reflect on taxation.  First was the excise tax on WHISKEY, resulting in the Whiskey Rebellion in 1791.  The country needed money.  They imposed a tax on the production of whiskey.  Whiskey was a product of surplus grain. Since the producers of whiskey in Pennsylvania had very little in the way of circulating money, they were unable to pay the taxes.  So, they would either have to stop producing, which meant that they could not barter with the whiskey, or they would have to find some “hard currency” to pay the taxes.  They were put down by force, and all we have to gain from this event is the experience of the effect of misplaced excise taxes.

The other situation lead to the bloodiest war in our history.  Contrary to popular belief, the slave issue was not the primary event leading to the Civil War.  Slavery did not become an issue until well into the war, though states had seceded from the Union even before Lincoln was inaugurated.

Congress, however, had enacted tariffs that were unequal, and detrimental to the South and its economy.  High important tariffs forced them to buy manufactured goods from the North, paying more than what overseas source would require for the same products.  It was based upon forms of taxes more than slavery that forced the disjointing of the Union.


Federal taxes must be Constitutional, and should be as little burden on the people as possible.  Regardless of what the tax is imposed on, the people will ultimately be the source of that revenue.  If on import duties, the people will pay higher prices.  If on excise taxes, the people will pay higher prices.  The importers and manufacturers will simply add the cost to the product to recover the cost of the taxes.

Excise, impost and duties can be applied in an equitable manner if due consideration (not benefit for contributions to campaigns) of their source is considered. 

Let’s look at Duty taxes.  If the duty is on a product produced in a foreign country, and also produced in the United States, a duty tax that penalized the foreign importer in favor of the American producer might be warranted, unless it was high enough to be protective of the American product, allowing excessive profit to the American Manufacturer.  Balance of trade should also be considered with regard to import duties.  If we allow too many imports and reduce our exports, we create an imbalance of trade whereby we owe foreign nations more than they owe us.  Ultimately, this will have a detrimental effect on our whole economy.

Consideration should also be made as to whether a product is a necessity, or, for comfortable life, or, a luxury, something only desired by a small portion of our population.  Consideration of the circumstance that lead to the Civil War, where the duties tended to place an economic burden on an entire region should be avoided.

To provide fairness in such taxes, perhaps a list of general categories could be developed and all products within that category be taxed at the same rate, or a very small range within that category.

Excise taxes pose a different sort of problem.  When the tax is applied to one object, the price of that object is increased.  In many instances, today, the tax on an item may well exceed the cost to produce, distribute, and sell that item.  This amounts to an extremely unfair burden on those who use that product.  It might also provide an economic favor to a similar item that is not subject to the same excise tax.

* * *

Now, let us look at the direct taxes.  At the time of the Constitution, there were two forms of direct tax.  One was on land; the other was a capitation tax, which was an equal tax on each ‘head’.  One form of capitation tax was the poll tax, which was made illegal by the 19th Amendment.  The only tax even remotely similar to the Capitation Tax, that we have, today, though not envisioned by the Framers, is the income tax.  It is not apportioned, though the Framers considered apportioning to be absolutely necessary in both direct taxes and representation.  Surely, the impracticality, along with the expense associated with collecting the income tax, makes it a likely candidate for history, not for a means of efficiently and effectively raising revenue.

Perhaps an alternative in the method of collection, consistent with what Mr. Madison gave us, would be in order.  Suppose we realize that the federal government will never again face the difficulty in receiving monies due from requisitions to the states.  Can there be any doubt that the means, and, more than likely, the willingness to “pay up”, by the states, exists?  Especially, if the 17th Amendment is repealed, thereby returning to the state legislatures the means to resist excessive taxation that they will have to eat out [the] substance of their constituent’s pockets?  Clearly, they understand more than the federal government the economic abilities of their own state.  Clearly, they would best represent us in defending against excessive spending by the federal government.

We can include another benefit to this method of collection.  Today, the federal government collects taxes through their burdensome system.  They then establish a bureaucracy, which is assigned the responsibility to determine redistribution back to the states, based upon evaluation of need determined by people appointed, not elected, into that capacity.  How susceptible to undue influence is such a system?  And, how many dollars are squandered in the re-administration of funds that left the state only to be returned to them?  Finally, how much influence has the redistribution given to the state and local government by simply putting conditions, probably detrimental to the people, on those agencies that are the beneficiary of these returned funds?  Are not our local and state governments more qualified to determine where this money should go to support the needs of the state?  Need we pay federal people to ask state people, whom we also have to pay, to decide the what, where and how much will come back to the state, and pay both ends of this middleman when he is not even necessary if the State collects the funds before settling the requisition, and then retains that which is left?

Some Thoughts on the Election Process

Some Thoughts on the Election Process

 Gary Hunt
Outpost of Freedom
November 22, 2010


Whether we want to refer to the United States as a Democracy, a Republic or a Constitutional Republic is inconsequential.  It is how the government operates that really matters.

In all three decryptions, it is assumed that there will be elections, and that we will have our choice of candidates — to represent us in local, state, and federal offices.

We must wonder, considering the results of elections, especially in our recent past, whether we have been exercising that franchise in a proper manner — as was intended by the Framers.

Understand that what we are talking about is “electors”.  This is not to be misunderstood as to be referring to the electors in the “electoral college” any more than students of a grade school would be misunderstood to include students of a college.

Though the minimum qualifications may be the same, the various levels of electors are based upon their function.  The function described herein is of those at the lowly level of electors within a Republican (Article IV, Section 4) State.


Article I, Section 2, clause 1:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article I, Section 4, clause 1:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Article II, Section 1, clause 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Amendment XIV [1868]

Section 1–All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2–Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.  But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 5–The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Amendment XV [1870]

Section 1–The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Amendment [XIX] [1920]

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Amendment [XXIV] [1964]

Section 1–The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Amendment [XXVI] [1971]

Section 1–The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Federalist Papers

In Federalist Papers #52, James Madison says, Those of the former [House of Representatives] are to be the same with those of the electors of the most numerous branch of the State legislature.  The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.  It was incumbent on the convention, therefore, to define and establish this right in the Constitution.  To have left it open for the occasional regulation of the Congress, would have been improper…”

Later, in that same Paper, he says, “Who are to be the electors of the federal representatives?  Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.  The electors are to be the great body of the people of the United States.  They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.

Other Historical Sources

Delaware Charter of 1701:

FOR the well governing of this Province and Territories, there shall be an assembly a yearly chosen, by the Freemen thereof

Address of General Assembly of New York to Lieutenant Governor George Clarke,
September 7, 1737.

Persons that are fairly and freely chosen, have only right to represent the People, and are most likely to do the most effectual, as well as the most acceptable Service to the Public: Whereas those who have recourse to Frauds and unbecoming Arts, to procure themselves to be raised to those Stations, must be under the Government of narrow and selfish Views, unworthy any Representation of a free People, and will no doubt basely submit to those same detestable Measures, to continue themselves (by any Means) in the Exercise of a Trust unjustly acquired.  It is by such as these, that the Liberties of the most free People have been in various Ages of the World, undermined and subverted: And it is to prevent this, as much as we may, that we gave Leave to bring in the Bill, for regulating of the Elections.

William Blackstone, Commentaries 1:165, [1765]

1.  As to the qualifications of the electors.  The true reason for requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own.  If these persons had votes, they would be tempted to dispose of them under some undue influence or other.  This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with the general liberty.  If it were probable that every man would give his vote freely, and without influence of any kind, and, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life.  But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.

John Adams, On the Importance of Property for the Suffrage [1776]

James Sullivan, a member of the provincial congress of Massachusetts, corresponded with John Adams in May 1776 when the latter was a member of the Second Continental Congress.  On May 6, Sullivan wrote a letter to Adams in which he discussed the principles of representation and legislation and called for some alterations in the qualifications for voters.  Adams replied in the following letter of May 26, 1776.

IT IS CERTAIN, in theory, that the only moral foundation of government is the consent of the people.  But to what an extent shall we carry this principle?  Shall we say that every individual of the community, old and young, male and female, as well as rich and poor, must consent, expressly, to every act of legislation?  No, you will say, this is impossible.  How, then, does the right arise in the majority to govern the minority against their will?  Whence arises the right of the men to govern the women without their consent?  Whence the right of the old to bind the young without theirs?

But let us first suppose that the whole community, of every age, rank, sex, and condition, has a right to vote.  This community is assembled.  A motion is made, and carried by a majority of one voice.  The minority will not agree to this.  Whence arises the right of the majority to govern, and the obligation of the minority to obey?

From necessity, you will say, because there can be no other rule.

But why exclude women?

You will say, because their delicacy renders them unfit for practice and experience in the great businesses of life, and the hardy enterprises of war, as well as the arduous cares of state.  Besides, their attention is So much engaged with the necessary nurture of their children that nature has made them fittest for domestic cares.  And children have not judgment or will of their own.  True.  But will not these reasons apply to other?  Is it not equally true that men in general,  in every society, who are wholly destitute of property are also too little acquainted with public affairs to form a right judgment, and too dependent upon other men to have a will of their own?  If this is a fact, if you give to every man who has no property a vote, will you not make a fine encouraging provision for corruption by your fundamental law?  Such is the frailty of the human heart that very few men who have no property have any judgment of their own… talk and vote as they are directed by man of property who has attached their minds to his interest.

Upon my word, Sir, I have long thought an army a piece of clockwork, and to be governed only by principles and maxims, fixed as any in mechanics; and, by all that I have read in the history of mankind and authors who have speculated upon society and government, I am much inclined to think a government must manage a society in the same manner; and that this is machinery too.

Harrington has shown that power always follows property.  This I believe to be as infallible a maxim in politics, as that action and reaction are equal is in mechanics.  Nay, I believe we may advance one step farther, and affirm that the balance of power in a society accompanies the balance of property in land.  The only possible way, then, of reserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society; to make a division of the land Into small quantities, so that the multitude may be possessed of landed estates.  If the multitude is possessed of the balance of real estate, the multitude will have the balance of power, and in that case the multitude will take care of the liberty, virtue, and interest of the multitude in all acts of government.  I believe these principles have been felt, if not understood, in the Massachusetts Bay from the beginning; and therefore I should think that wisdom and policy would dictate in these times to be very cautious of making alterations.  Our people have never been very rigid in scrutinizing into the qualifications of voters, and I presume they will not now begin to be so.  But I would not advise them to make any alteration in the laws, at present, respecting the qualifications of voters.

Your idea that those laws which affect the lives and personal liberty of all, or which inflict corporal punishment, affect those who are not qualified to vote, as well as those who are, is just.  But so they do women as well as men; children as well as adults.  What reason should there be for excluding a man of twenty years eleven months and twenty-seven days old from a vote, when you admit one who is twenty-one?  The reason is you must fix upon some period in life when the understanding and will of men in general is fit to be trusted by the public.  Will not the same reason justify the state in fixing upon some certain quantity of property as a qualification?

The same reasoning which will Induce you to admit all men who have no property to vote with those who have, for those laws which affect the person, will prove that you ought to admit women and children; for, generally speaking, women and children have as good judgments, and as independent minds, as those men who are wholly destitute of property; these last being to all intents and purposes as much dependent upon others who will please to feed, clothe, and employ them, as women are upon their husbands, or children on their parents.

As to your idea of proportioning the votes of men, in money matters, to the property they hold, it is utterly impracticable.  There is no possible way of ascertaining, at any one time, how much every man in a community is worth; and if there was, so fluctuating is trade and property that this state of it would change in half an hour.  The property of the whole community is shifting every hour, and no record can be kept of the changes.

Society can be governed only by general rules.  Government cannot accommodate itself to every particular case as it happens, nor to the circumstances of particular persons.  It must establish general comprehensive regulations for cases and persons.  The only question is, which general rule will accommodate most cases and most persons.

Depend upon it, sir, it is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it.  New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing will demand an equal voice with any other, in all acts of state.  It tends to confound and destroy all distinctions and prostrate all ranks to one common level.

North Carolina Constitution of 1776, Arts.  7 – 8

VII. That all freemen, of the age of twenty-one years, who have been inhabitants of any one county within the state 12 months immediately preceding the day of any election, and possessed of a freehold within the same county of 50 acres of land, for six months next before, and at the date of the election, shall be entitled to vote for a member of the Senate. 
VIII.  That all freemen of the age of twenty-one years, who have been inhabitants of any one county within the state 12 months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the House of Commons for the county in which you resides.

Georgia Constitution of 1777, Art. 9

ART. IX. All male white inhabitants, of the age of twenty-one years, and possessed in his own right of ten pounds value, and liable to pay taxes in this state


We can see that the Constitution recognized that every state was guaranteed “a Republican Form of Government”.  That being the case, the Constitution clearly made the determination of who shall be “electors” a prerogative of each state.  The only federal intervention was to set qualifications as to who may hold office in the legislative and executive branches of government.

The states, in their “republican” capacity could determine who was qualified as an elector for the most numerous branch (House of Representatives or equivalent), and that those so qualified could also participate as an elector in all federal elections.

The “Time, Places and Manner of holding Elections” could be regulated by the Congress, though nothing is said of the qualifications of the electors.  Clearly, then, the qualifications of electors was not within the purview of the Congress and the federal government.

Even the selection of the electoral college was not restricted, rather was simply defined as to the number of such electors and a prohibition against anyone serving in such capacity if they were a “Senator or Representative, or Person holding an Office of Trust or Profit under the United States”.

This absence of authority was further recognized in the Federalist Papers, by James Madison, when he explained that “the right of suffrage is very justly regarded as a fundamental article of republican government”, and, that “[t]o have left it open for the occasional regulation of the Congress, would have been improper.”

So, it would be improper, and, a denial of that Republican Form of Government to allow the federal government to intrude upon the right of any state to determine just who could be an elector, and, who could not.

Even after the Civil War, the Congress realized that it could not go where the Constitution provided prohibition against its intrusion.  With the ratification (this raises a whole new question, which will not be addressed in this paper) of the 14th Amendment [1868], Congress realized that they could not determine who could be an elector, and, who could not.

Following the only recourse that the Constitution allowed, they modified the representation, for the number of Representatives to be adjusted based upon denial of allowing some males over twenty-one the franchise of voting, the representation would be reduced by the same proportion as those not allowed to vote to the whole number of such class of males.  Congress realized that they had no authority to remove the right of the state, in its “Republican Form of Government”, to determine who the electors could be.

It is also interesting to note that the anti-slavery amendment was the first, though not the last, to incorporate the wording that “Congress shall have power to enforce this article by appropriate legislation”, as if to provide them authority which was not granted by the Constitution — to legislate outside of their originally granted powers.

It would appear, however, that having been able to pass two Amendments to the Constitution (“anti-slavery and 14th), that they felt that they could go beyond the authority granted by the Constitution (usurpation — the unlawful encroachment or assumption of the use of property, power or authority which belongs to another.), so, two years later [1870], they passed to the states and obtained ratification of the 15th Amendment.

The Fifteenth Amendment, taking advantage of the newly created class of “citizen” (see Two Classes of Citizen), provided that “race, color or previous condition of servitude” could not be cause for denying a member of this new class of citizen to vote — including both federal and state elections.

Though many states had already allowed women to vote, apparently, given the success of previous usurpations, determined that they wanted the states to extent equal suffrage (contrary to what the Constitution and Madison had declared as the right of the states) to women with the 19th Amendment [1920].

By 1964, the 24th Amendment removed the obstacle that required a demonstration of commitment (see “Qualification”, below) to allow one to vote.  Though many states had already dropped the provision for a “poll tax”, the Congress was looking for total equality in the election process.

In a final blow to the authority reserved to the States, in the Constitution, and in the pursuit of equality (submission of the “Republican Form of Government” within the respective states), they removed the centuries old provision for age twenty-one and incorporated a whole new class of voters — those who had yet to have experienced life and its responsibilities, with the ratification of the 26th Amendment [1971].  The argument was that if they could go to war, they should be able to vote, notwithstanding the fact that the Revolutionary War, the Civil War, and, World Wars I and II were fought by young men who had no right to participate. 

It becomes difficult to imagine that a franchise that should be so sacred can be extended even further.  In all of the above, the rights extended to the voting franchise only apply to “citizens of the United States”.  Though without an amendment on the subject, it does seem that Congress has removed the State’s right to determine if a potential elector has that qualification.

The extension of the voting franchise had been subordinated to federal authority, and the pool of participants was increased to allow all to vote.  This, along with current prohibition regarding determination of citizenship, have made American elections open to just about anybody who is present at the time of elections and willing to take the time to vote.


Beginning with the 15th Amendment (above), we see that there has been a change in the method of addressing the franchise.  This, and the subsequent amendments on the subject, do not address qualifications of electors; rather, they talk about the right to vote. 

From Webster’s 1828 Dictionary:

elector, n.

One who elects, or one who has the right of choice; a person who has, by law or constitution, the right of voting for an officer.  In free governments, the people or such of them as possess certain qualifications of age, character and property, are the electors of their representatives, &c., in parliament, assembly, or other legislative body.  In the United States, [also] certain persons are appointed or chosen to be electors of the president or chief magistrate.

freeholder, n.

One who owns an estate in fee-simple, fee-tail or for life; the possessor of a freehold [basically, a land owner],   Every juryman must be a freeholder.

freehold, n. 

That land or tenement which is held in fee-simple, fee-tail, or for term of life.  It is of two kinds; in deed, and in law.  The first is the real possessor of such land are tenement; the last is the right of a man as to such land are tenement, before is entry or seizure.
In the United States, a freehold is an estate which a man holds in his own right, subject to no superior nor to conditions.

Freeman, n. 

1. One who enjoys liberty, or who is not subject to the will of another; one not a slave or vassal.
2.  One who enjoys or is entitled to a franchise or peculiar privilege, as the freemen of a city or state.

From Black’s Law Dictionary, Fifth Edition:


A duly qualified voter; one who has a vote in the choice of any officer; a constituent.  One who elects or has the right of choice, or who has the right to vote for any functionary, or for the adoption of any measure.  And in a narrower sense, one who has the general right to vote, and the right to vote for a public officers.  One authorized to exercise the elective franchise.
[also]  One of the persons chosen to comprise the electoral college.


One having title to realty; either of inheritance or for life; either legal or equitable title.  A person who possesses a freeholder estate.


A person in the possession and enjoyment of all the civil and political rights accorded to the people under a free government.

From colonial times through the 14th Amendment, the colonies/states have always had the right to determine just who should be an elector, and who should not.  In early colonial times, a freeman had to have an estate of 14 schillings.  This means that he had to have 14 schilling above and beyond any debt obligation that he might have.

The Delaware Constitution of 1701 simply requires that one be a “Freeman”.  A Freeman, as defined above, is someone who is not a slave or vassal.  A vassal is one who owed servitude.  And, since credit, as we know it today, was unheard of in colonial times, and if an obligation was owed, it was owed to the point that it would require no less than servitude until the obligation was satisfied, it would seem that a Freeman is one without obligation.

When Lt. Governor Clarke addressed the New York General Assembly, he justified the enactment of a “Bill, for regulating of the Elections”.  In so doing, he made clear that “those who have recourse to Frauds and unbecoming Arts” to secure elections, and, when elected, must be “ of narrow and selfish Views, unworthy any Representation of a free People, and will no doubt basely submit to those same detestable Measures, to continue themselves (by any Means) in the Exercise of a Trust unjustly acquired.”  This was the justification to pass laws necessary to assure that those elected were “fairly and freely chosen”.

If we consider some of the problems we face, today, we can see that they are not new to this country, nor the history of man.  Divisive people pursuing public office will use divisive means to gain and retain that office.

William Blackstone provides us some insight into why ownership of property (freeholder) should be a requisite to becoming an elector.  He explains that those without property have proven to be in “so mean (vulgar, lacking dignity) a situation that they are esteemed to have no will of their own”.  Suggesting that they would subject their vote to influences that should not be considered in choosing proper officers or representatives.

In 1776, North Carolina adopted one of the first Constitutions subsequent to the Declaration of Independence.  In that document, the need to qualify electors for both houses of the legislature, each qualification being different, is clearly understood.  For the higher house, the Senate, ownership (freehold) of fifty acres was required.  For the House of Commons, one need only be a taxpayer.  In both instances, he must be twenty-one years of age.

Georgia, just one year later, required that one have ten pounds of his own money and pay taxes.

There can be little doubt that the understanding that the electors must be both mature (aged twenty-one) and responsible was a condition of becoming an elector.  The idea that someone who was unable to make well for himself was, in any way, competent to make decisions so important to the community, state or federal government, was not worthy of consideration.

One might wonder what good is served by extending the franchise to everybody, without consideration of maturity or ability.  Well, from history, the 14th and 15th Amendments, we know that the federal government wanted to punish the Confederate States for the insurrection by both denying the vote to those who fought for the South and to give the vote to those who had never demonstrated their ability to be responsible for their own lives, which leads to a nearly untenable situation for many decades, putting the ex-slaves as masters over the white man, at least politically.

In a rather curious turn of events, we can see that by 1920, nine states had granted women suffrage.  Obviously, as per the Constitution, the prerogative was left with the states.

Since just a few years before, in 1913, the Seventeenth Amendment, requiring popular vote for Senators, taking the state legislature’s assertion of state input into Congressional decisions away, we see that though only the nine states had enacted suffrage, three quarters of the states ratified the Nineteenth Amendment, granting women suffrage.  One must wonder why only nine states had granted suffrage and then 36 states (of the then 48) ratified the universal suffrage amendment.  Both a usurpation and a statistical quandary.

One of the early measures of participation in the election process was that of status.  If one was a freeholder or freeman, he could participate.  Some had to pay public taxes.  A poll tax was a measure of that capability and some states retained that qualifier in the form of a poll tax.

In 1964, the Twenty-fourth Amendment was ratified, which outlawed this measure of participation and commitment on the part of the elector, “the right of the elector… shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”  This provision made room for participation by those who could not even take responsibility for their own lives, though they were now qualified to help determine the course and future of the state and country.


Both William Blackstone and John Adams provide us some insight into the reasons behind the existence of the qualification for electors.  Clearly, the more one participated in his community, by ownership of land (which is, nowadays, rather easily achieved by those who wish to and are willing to work for it), or, at least, by independency and his ability to care for his family, without reliance upon others.

Age, another consideration of whether one has the maturity and ability to judge and reason, is probably more significant today than in 1776.  Ages fourteen to 17 allowed entry into the military service.  Many college students entered their institution of learning at age 12.  By 21 years of age, most males had already established their own home, and, were far more worldly than those of the same age, today.

Should these requisites be considered in the determination of who is qualified as an elector?

Should electors and candidates have clearly established investment in their community?

Should registration of electors be as carefully scrutinized as many other aspects in our society?


In the early years of this country, nobody ran for office, as they do, today, though their friends and associates would encourage voting for them.  Today, massive campaigns are conducted, many costing in the tens to hundreds of millions of dollars for a job that pays less than two million for a full term.  Therefore, we must carefully consider what effect the qualifications of electors would have on the election process.

Let’s start with the candidates, themselves.  Residence requirements were six months or a year, required citizenship, and, in many instances, required a freehold (land ownership).  Back then, six months in a community would familiarize you with the community and the people who resided in it.  Commuting dozens of miles was impractical, and simply renting space to establish ‘residency’ was unheard of.  Where your family was and lived, was where you had your roots set.

Nowadays, you can buy an expensive house in New York (having moved from Arkansas to Washington, and then deciding that Arkansas was too backward and lacked influence), stop there from time to time to furnish the house, and then, having establish national name recognition, running for Senator from that state in complete violation of the intent, as described above.

This modern age has made transient living quite easy.  That being the case, perhaps, to achieve the intent of investment in the community, the time for residency of a candidate should be longer than it was in our past.

Now, for the electors.  Were Adams, Blackstone and the various constitutions correct in judging that certain requirements imposed upon qualifying as an elector provide a more reasoned and qualified elector?  Surely those who have earned their way in life, and, in so doing, have provided more to the upkeep of the nation (via various forms of taxation); have a vested interest in the course and cost of government by virtue of land ownership; and, are inclined to keep the expense of government down, since they are, ultimately, the ones who most pay the cost of maintaining government, are more qualified to make rational decisions with regard to those who take the reins of government and make decisions that will affect all.

It is unlikely that a corporation would allow employees to vote in the election of officers, though shareholders, by all means, should be allowed to participate.  After all, they are vested in the corporation and have far more at stake than the employees have.  Their concern for the productive direction of the corporation is far greater than that of the employees.

Should a country be any different?  Should those vested, or, at least, productive in support of the country be considered more competent to make rational decisions with regard to the course of the country than those who would be more inclined to vote because of influence, threats, coercion, or, to achieve gain for themselves?

Declaration of Dissolution of Government

Declaration of Dissolution of Government

When a government, properly instituted under the authority of the People, by virtue of the Constitution for the United States of America, has abrogated its responsibility under said Constitution, and has removed itself from responsibilities imposed upon it by said Constitution, and, when those People choose to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to recognize such Dissolution of Government.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and property.  That to secure these rights within a society, governments are instituted among men of that society, deriving their just powers from the consent of the governed.

When that government becomes destructive of these ends, by usurpation of authority not granted by the People, or by abrogation of responsibilities, it is the right of the people to reinstitute that government on its original foundation and to amend that foundation to assure that such usurpations and abrogations do not recur.

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly, all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they have become accustomed.  But when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.

Such has been the patient sufferance of these States united under and by said Constitution; and such is now the necessity which constrains them to amend their former systems of government.  The history of all three branches of the present government is a history of repeated injuries and usurpations, all having direct object the establishment of an absolute tyranny over these States.  To provide this, let facts be submitted to a candid world.

  • They have created a fourth branch of government (Administrative Agencies) that is independent of, and not subject to the will of the People;
  • Their courts have refused to rule upon the Constitutionality of matters before them;
  • They have imposed taxes that appropriate fully one-third of the value of one’s labor;
  • They have generated a debt obligation on our posterity, still unborn, into the unforeseeable future;
  • They have seduced millions of their people into dependence upon that government, at the expense of their neighbors;
  • They have secured for themselves benefit packages approaching those realized by members of Royal courts;
  • They have allowed the appointment of officials in capacities not recognized by the Constitution, and barred from recourse by the People;
  • They have established control over State and local governments by funding and obligations associated therewith;
  • The have supported the creation of a standing army amounting to over one million officers who have both civil and military authority given them by the government;
  • They have expanded the standing army by granting policing powers to many agencies of government who have no need to be armed and authorized to use those arms;
  • They have provided undue immunity and impunity to those who have been given such powers;
  • They have failed, in most instances, to subject their agents and employees to trial by jury, so that the judicial process can determine innocence or guilt, instead, allowing heinous crimes against the People to go unpunished;
  • They have enacted laws that have effectively limited the selection of government office holders from two primary parties.
  • They have endeavored to create empire around the world, which serves not the People of this nation;
  • They have waged war without a proper deceleration of war stating who the enemy is and what event will conclude those wars;
  • They have enacted laws well outside of any police powers anticipated by the Framers of the Constitution;
  • They have subjected States to arbitrary control of the federal government contrary to the guaranteed form of Republican Government within the States;
  • They have created Duplicitous Laws, often in conflict with state laws, creating a dilemma whereby if one complies with state law, he finds himself in violation of federal law;
  • They have allowed the use of fiat currency, contrary to the Constitution, and have continued this practice under the guise of a national emergency, which has existed for over 80 years;
  • They have allowed favored financial institutions to loan money that does not exist to the people, at usurious rates;
  • They have loosened the immigration laws that have served this country well through its history, and refuse, now, to enforce those laws that had been enacted to protect our nation from invasion;
  • They have taken States of the Union to court for the State enforcing laws that the federal government refuses to enforce;
  • They have extended their jurisdiction over the jurisdiction of the States, nullifying the State’s right to a Republican Form of Government;
  • They have enacted laws that conflict with duly enacted state laws, subjecting people who are acting lawfully under state constitutions and laws to punishment for violation of federal laws or rules.
  • They have assumed jurisdiction in foreign lands, enforced by kidnapping, torture, and assassination;
  • They have suppressed traditions held dear, for centuries, in this nation;
  • They have removed the rights of traditional churches and have granted rights to churches foreign to our heritage;
  • They have assumed authority not granted by the Constitution;
  • They have denied the States and the People rights guaranteed and protected by the Bill of Rights;
  • They have charged and tried people for exerting their protected rights of Free Speech, Press, Peaceable Assembly, and Bearing Arms, endeavoring to remove those fundamental rights of expressing dissatisfaction of government activities;
  • They have denied longstanding and protected usage of the Public Lands;
  • They have removed Public Lands from the beneficial use of the Public, in favor of business and foreign interests;
  • They have refused to abide by the “Separation of Powers” doctrine by allowing members of the judicial branches of government to hold office in the legislative and executive branches of government;
  • They have granted to fictitious entities (corporations, associations, unions and other organizations) rights that are recognized to be granted by the Constitution only to the people, in their individual capacity;
  • They have formed alliances with foreign nations which are objectionable to the intent of the Constitution, and grant favors to foreign interests over the interest of the People;
  • They have converted the intent of the “Treaties” clause of the Constitution to circumvent constitutionally prohibited enactments, in the form of rules or regulations;
  • They have accused large groups of our population, including veterans who have fought for the country, of being a source of threat to that government, naming them as terrorists, while allowing a freely flowing invasion of our country with people known to be hostile to our Constitution and way of life.

Nor, have we been deficient in informing the government of their failure to acknowledge their obligations under the Constitution.  The government has ignored campaigns, letters, phone calls, and demonstrations, and those who have voiced objection have been slandered by representatives of the government, or charged with crimes and incarcerated.  A government that has become so inured to its belief in its own supremacy so as not to recognize their obligation to respond, with truthful answers, to the question posed by numbers of People (Redress of Grievances), proves a disdain for those governed by that government.  We have appealed to their magnanimity and, in return, have been chastised as incompetent and called names indicative of their supposed superiority.  They have been deaf to the voice of the People, and of Justice.

For these reasons, we have found that this government has dissolved itself, and, our allegiance thereto, and forced us into a state of nature, until such time as the Constitution is restored as the Supreme Law of the Land.

Some Thoughts on the Judicial Process

Some Thoughts on the Judicial Process

Gary Hunt
Outpost of Freedom
November 16, 2001


If you watch a child grow, you see every stage of that child’s life and cannot really discern the transition from infant to adult, except upon reflection.

If, however, you are introduced to an adult, you have no means by which to recognize the infancy and growth to the point where you have met.

Of course, if you look at a scrapbook, carefully prepared by a doting mother, though you will not have an entire picture of those many transitions of life, you will be able to begin to understand the foundation that brought that person from infancy to adulthood.

Our legal system is introduced to us in much the same way.  When we first become aware of what the entire judicial system is, we acquire most of our understanding from both the television and schooling.  We tend not to look for that scrapbook; rather, we accept what we are taught, at face value.

If we are among the older observers, we might recognize that there has been a lot of ‘growing’ in that judicial system since we were first introduced to it, though we tend to accept those changes as necessary, since we still rely upon television or other media, even the courts, to determine what course this system should take.

We understand those changes to be a result of progress.  Progress, however, is a rather interesting word, though we seldom give much thought to what it really means.

We can progress in our studies, with the objective of an education and a degree to be the goal of that progress.  If we make progress in a trip, we know that we are getting closer to a destination, with the goal being a location which course was set out at the beginning of our journey.  As we progress through life, our destination is what we perceive to be the end result of that journey, most often defined as passing out of this life — a goal which might not be sought though it is inevitable.  We can clearly see, then, that progress has in mind a goal — a purpose for the pursuit of that progression.

So, let’s return to the progress we see in the judicial system.  What, exactly, or even remotely, is the goal that we are pursuing?  Is it a higher degree of justice?  Perhaps a more equitable administration of justice.  Not much difference between the two, however, it is hard to conceive of a positive goal that would not pursue one or the other.

On the other hand, and, once again referring to the older amongst us, if we stop and look back at what has occurred in our lifetime, we can see that the changes that have occurred, though couched in the term of law and order, generate little semblance to a progression in that direction.

So, let’s see if we can find the scrapbooks that will give us a better picture of the transition, from the beginning to the present, of our American judicial system.

So as to develop a foundation upon which the judicial system was created, we will look, first, at the Constitution.


In the Preamble, the Constitution sets forth the authority and responsibility of the government:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Establishing Justice is one of the principle objectives in the creation of both the government and the Union known as the United States of America.  Note that it does not say that it is to establish “Law”, rather, to establish “Justice”.  This is an important consideration in the transition from what was to what is.

Next, we can look at what created the federal judiciary, in Article III of the Constitution:

Section 1– “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish….  “

Section 2– “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…”

So, we have a supreme Court established as well as inferior courts that the Congress might “ordain and establish“.  We also see that the power of these courts “extends to all Cases, in Law and Equity, arising under” the Constitution and the Laws of the United States.  This, of course, would include all laws made pursuant to the Constitution, so, obviously, they cannot conflict with the Constitution.

Next, we find in Article III:

Section 2, clause 3– “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

So, all crimes shall be tried by a jury (more later on the proper role of the jury) and we have the introduction of jurisdiction, whereby such trial “shall be held in the State where the said Crimes shall have been committed“.

To understand what is meant by this limitation on jurisdiction, we need to look back at Article I

Section 8– “The Congress shall have Power …”
Clause 17 “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;…”

Note that the Congress has the power for “exclusive Legislation” only in the venue (geographic area where the injury or crime occurred) defined as Washington, D.C. (District – not exceeding ten Miles square), all Places purchased by the Consent of the Legislature of the State (which, too, have to have cession of jurisdiction to be included in the exclusive legislative jurisdiction) for purposes related to government functions.  Land simply purchased by the government, without the State having granted jurisdiction, does not fall in this category.

It might be worthwhile to point out that the Supreme Court has recognized that there are three United States’, from a legal standpoint, when they ruled in Hooven & Allison Co. v. Evatt, [324 U.S. 652], when they declared that, “The term {United States} has several meanings.  It may be merely the name of the sovereign occupying the position analogous to that of other sovereigns in the family of nations, it may designate territory over which sovereignty of the United States extends, or it may be collective name of the states which are united by and under the Constitution.  “The lands described in Section 8, above, fall within the second definition, “territory over which sovereignty of the United States extends”.  It might also be worth noting that subsequent decisions extended that sovereignty over territories that have not become states.  The States which were members of the Union (the United States of America) fall, clearly, within the third definition.

The, in Article IV, we find a reference which suggests that the Common Law (more on that, later) is the means by which justice will be established.

Section 1– “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

“Full Faith and Credit”, this provides a means of establishing justice on an equitable, or, at least, relatively equal basis throughout the States.  This is a concept of common law, not of civil law.

The Bill of Rights was ratified on December 15, 1791.  It was prefaced with an oft-overlooked Preamble that included the following, to set forth its purpose:

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

First, we find in Amendment IV:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This protection evolves from what was practiced in England, and was ignored here, here, in colonial times.  William Pitt, a Member of Parliament said, in the House of Commons, “The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter — but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!”  This might begin to explain that old adage; “a man’s home is his castle”.

Early on, well before the War of Independence, James Otis spoke out against Writs of Assistance.  A Writ of Assistance was, quite simply, a blanket search warrant.  It did not say exactly what was being looked for, nor, did it say exactly where it was to be looked for.  It might best be described as a “fishing expedition”, and was, without question, intolerable, in the eyes of the Framers.

The Oath or affirmation is a sworn statement of personal knowledge.  It is not third party, or hearsay, it is absolute knowledge.  That “John Doe told me that you robbed a bank” is only personal knowledge that “John Doe” told you something.  Only John Doe can swear to what you told him.

We are then provided the protections contained in Amendment V”

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

So, we can see that the Framers were concerned over the power of the government to make arrests (held to answer), even in capital offenses (death penalty) or infamous crimes (felonies, which would be any crime that would include at least 1 year of imprisonment), unless on a presentment or indictment of a Grand Jury.  The significance of the Grand Jury will become more apparent as we go on.

Next, we will visit Amendment VI:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.”

So, here we have a guarantee of a speedy and public trial by an impartial jury (more on the petit jury, later), again, held where the crime was committed.  He is assured that he has a right o know the “nature and cause” of the accusation.  We also see that the right to confront all witnesses against the accused is assured and that he has a right to counsel (it does not say lawyer) for his defense.

Finally, within the Bill of Rights, we have Amendment VII:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

This speaks for itself, except that it does say that the decision of thee jury may not be reexamined in any court.

There were subsequent amendments that had minor effect on the judiciary, though they are not worth mentioning.

What might be worthy of your consideration is that within the Federalist Papers, the arguments published in support of ratification of the Constitution, and, recognized as the best representation of the intent of that Constitution, mentions “courts of justice” eight times, though never once mentions a “courts of law.”

Common Law

To understand the Common Law is a rather complex study.  There have been numerous older books written on the subject.  Many recent claims that its foundation is on Christian or, Judeo-Christian principles is unfounded, though there is no doubt that these principles have influenced the course of Common Law.

In the earliest accounts, ordeal by fire was a means of judging, and, a person could not be compelled to enter the court (or, whatever forum was in use at the time).  That evolution had proceeded over 11 centuries when that Common Law, as it had evolved, was adopted by the new States who had come together under the banner of the United States of America.

Many old state statute books (perhaps some still do) included something similar to, “and adopt the common law of England as it existed on July 4, 1776”.  It was qualified that the common law so adopted could not be in conflict with the constitution or statutes.

So, in body, where not in conflict, and, in principle, the common law was adopted by all of the states except Louisiana (which had its Napoleonic Code).  Many state’s statutes have been revised to remove this reference, though we must wonder why.

To have a general understanding of the Common Law, sufficient to the purpose of this paper, we can look to Black’s Law Dictionary, Fifth Edition:

From Black’s Law Dictionary, Fifth Edition:

Common lawAs a distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the governments and security of persons and property, which derive their authority solely from usages and customs of a immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England.  The “common law” is all the statutory and case law background of England and the American colonies before the American revolution. 

Common-law consists of those principles, usages and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature.

As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals.

California civil code, section 22.2, provides that the “common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decisions in all the courts of this State.”

In a broad sense, “common law” may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs.

JudgeAn officer so named in his commission, who presides in some court; a public officer, appointed to preside and to administer the law in a court of justice; the chief member of a court, and charged with the control of proceedings and the decisions of questions of law or discretion.

“Judge”, “justice”, and “court” are often used synonymously or interchangeably.

PresideTo occupy the place of authority as of president, chairman, moderator, etc.  To direct, control or regulate proceedings as chief officer, moderator, etc.  To posses or exercise authority.  To preside over a court is to “hold” it.  — to direct, control and govern it as the chief officer.  A judge may “preside” whether sitting as sole judge or as one of several judges.

MagistrateThe term in its generic sense refers to a person clothed with power as a public civil officer, or the public civil officer invested with executive or judicial power.

U. S. magistratesA judicial officer, appointed by judges of federal DISTRICT courts, having some but not all of the powers of a judge.  In the federal district courts magistrates may conduct many of the preliminary or pre-trial proceedings in both civil and criminal cases.

Perhaps, from the above, you can begin to see what is relevant to the Common Law and what is not a part of the Common Law.

Properly, a Common Law Court (not those that you hear about on the news, rather, those which were acknowledged as our right), could only be deemed courts of justice.  A court of law is the administration of rules in an arbitrary manner and is based upon Roman Civil Law.

Common Law, then, is made more by the people and less by the government.  “How so?” you ask.  Well, to understand this we must look at who decides innocence or guilt, for that interpretation would tell us what crime really is.  The juries, both Grand and Petit, achieve this, in Common Law.

Grand Jury

Early reference to the Grand Jury process can be found in the Magna Carta (1215 AD), in Article 36, In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.  It shall be given gratis, and not refused.”

Grand juries have been described in numerous ways, over the centuries.  In 1694, Lord Somers described them as, “security of Englishmen’s lives”.  They have also been described as the “conserver of liberties” and “the noblest check upon the malice and oppression of individuals and states”.

From Webster’s 1828 Dictionary:

Jury, n.
A number of freeholders, selected in the manner prescribed by law, empanneled [sic] and sworn to inquire into and try any matter of fact, and to declare the truth on the evidence given them in the case.

Grand juries consist usually of twenty-four freeholders at least, and are summoned to try matters alleged in indictments.

The purpose they serve is to consider complaints (not limited to those submitted by the state, rather, the including of any complaint against state officials), and determine whether a petit jury trial is warranted to determine innocence or guilt.

Through their history, Kings have enacted statutes that wrested control of the Grand Jury from the people and provided the King more leeway in prosecuting people, though these changes were apt to be turned over by outrage, violence, or even revolution.

They were not, as they are construed, now, especially on the federal level, simply an arm of government for the prosecution of people who violate laws.  They were instituted to determine if any crime, including a denial of rights, was committed, based upon investigation by the Grand Jury, itself, and having available to them the right to call any witness, including the accused, to determine if an indictment or true bill was warranted.

Once issued, the indictment or true bill could not be quashed and the matter had to go to trial.  Nowadays, many states and the federal government allow a prosecutor to refuse a true bill, denying a trial where the Grand Jury had called for it.  The best-known instance of this had to do with an FBI sniper named Ron Horiuchi, who was indicted by an Idaho Grand Jury under the charge of murder, based upon his killing of Vicki Weaver.  Probable cause was established by the Grand Jury, though the federal court usurped the authority of the State to try the case and moved it into federal jurisdiction.  The federal court then determined, contrary to the Idaho Grand Jury, that no crime had been committed and the accused never stood trial.

Each state has its own laws regarding grand juries, and they vary, often significantly.  The primary elements, however, used to include little or no control by government officers and gave broad inquisitorial powers to the jury.  Without these, they would not be safeguard to our liberties.

To fully understand the history and authority of grand juries in the United States, see an article by G. B. Edwards on “Essay on the Grand Jury in America” (1904), at the Outpost of Freedom Library.

Petit Jury

More often simply called “petty juries”, trial juries”, “common juries”, or, just plain “juries”.  These are the mainstay of a system of justice, and, can be a tool of oppression in a system of laws.

Here is how Webster’s 1828 Dictionary explains them:

Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions.  The decision of a petty jury is called a verdict.

Notice that he said that this jury would decide “both the law and the fact”, not just the fact, as we are told, today.  And, understand that Webster’s definition is the same definition understood by the Framers when they mentioned juries in the Constitution.

Through our history, from John Peter Zenger, in 1735, where the jury rejected the law, to trials regarding slaves, where juries refused to convict those who violated the laws regarding the return of slaves to their master, to during the Prohibition Era, where juries refused to convict many of those accused of “moon shining”, we have seen the jury reject law (which is often followed by the legislature overturning the law) when the facts presented clearly suggested a violation of that “law”.

The power to judge the law was an inherent right in the days of the Framers.  Since we are a self-governed people, the ultimate responsibility to judge what we must abide by MUST be in our hands, not the hands of those in government.

Here is how Lysander Spooner sets out the purpose of petit juries:

“FOR more than six hundred years that is, since Magna Carta, in 1215 there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.”

To understand more about petit juries and jury trials, see the entire Lysander Spooner “Essay on Trial by Jury” (1852) at the Outpost of Freedom Library.


First, let’ look at what a court is, as perceived by the Framers, according to Webster’s 1828 Dictionary (irrelevant definitions excluded):

Court.  n.

3. A palace; the residence of a king or sovereign prince.

4. The hall, chamber or place where justice is administered.

5. Person who compose the retinue or council of a king or emperor.

6. The persons or judges assembled for hearing and deciding causes, civil, criminal, military, naval, or ecclesiastical: as a court of law; a court of chancery; a court martial; a court of admiralty; an ecclesiastical court’ court baron; &c.


7. Any jurisdiction, civil, military or ecclesiastical.

When we look at these definitions, we might wonder whether the meaning of the word (definition #4) as intended by the Framers is the one that the government has continued to operate on our behalf.

Courts, as they are perceived today, are tribunals intent on imposition of laws, fines and penalties, whose primary beneficiary is the State.  Restitution, “making whole” of a victim of a crime, is left to the victim.  If he has insurance, he has paid for the privilege of restitution; if he has none, then he must bear his loss.

This raises the question as to whether the courts that we have become familiar with are those same courts that the Framers intended for their Posterity.

As mentioned earlier, the Federalist Papers recognized “courts of justice”, though they made no mention of “courts of law”.

Courts of Justice are “The hall, chamber or place where justice is administered“.  They would include the grand and petit juries, as intended, and would have consideration of any injury, whether imposed by a private individual or a government official.

Courts of law, on the other hand, are courts of punishment.  They are intended to force the will of the government on the people and endeavor to impress upon all the consequences of violation of the government’s rules.

It is true that there are beneficial results couched in these forums of obedience, where truly bad people are sent to prison, though, often, those truly bad people are back on the streets in a short period of time, to redo their misdeeds.

It is also true that those in government who do misdeeds under color of law [“The appearance or semblance, without the substance, of legal right” – Black’s Law Dictionary] are, for the most part, exempt from any criminal prosecution, regardless of whether their crime is simple, as a misdemeanor, or capital, as murder.

We need to return to courts of justice, and remove the taint of obedience to the King through courts of law from our landscape.  Without such change, we will remain vassals in the country of our birthright, which our forefathers were willing to give their lives to assure to us.


Crime is a word that can be defined in many ways, today.  However, when crime is coupled with justice, the definition narrows considerably.  From Webster’s 1828 Dictionary:

Crime.  n,

1.  An act which violates a law, divine or human; an act which violates a rule of moral duty; an offense against the laws of right, prescribed by God or man, or against any rule of duty plainly implied in those laws.  A crime may consist in omission or neglect, as well as in commission, or positive transgression.  The commander of a fortress who suffers the enemy to take possession by neglect, is as really criminal, as one who voluntarily opens the gate without resistance.

But in a more common and restricted sense, a crime denotes an offence, or a violation of public law, of a deeper and more atrocious nature; a public a wrong; or a violation of the commands of God, and the offenses against the laws made to preserve the public rights; as treason, murder, robbery, theft, arson, &c.  The minor wrongs committed against individuals or private rights, are denominated trespasses, and the minor wrongs against public rights are called misdemeanors.  Crimes and misdemeanors are punishable by indictment, information or public prosecution; trespasses or private injuries, at the suit of the individuals injured.  But in many cases an act is considered both as a public offense and a trespass, and is punishable both by the public and the individual injured.

2. Any great wickedness; iniquity; wrong.

Capital crime, a crime punishable with death.

The Framers, when they devised the Constitution, the document that defined just what powers the new government was to have, were very cautious in what was perceived as crime.  Of what they did perceive, there were two types of crime envisioned.  First would be those that were to secure rights and protect individuals from transgressions by others.  These provide the authority to pass laws that would give a source of recourse to those offended by another.  An example would be Article I, Section 8, clause 8, the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries, which provided legal recourse if others violated that right.

The other is those activities that threaten the government directly.  Of this second class, in their wisdom, they were only able to define three crimes of this nature:

Article I, Section 8, clause 6, “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.

Article I, Section 8, clause 10, “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”.

Article III, Section III, clause 2, “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Though they were given powers to enact other laws, it is apparent that they had determined that crimes against the state were the only crimes that could be defined by the federal government, except while in military service, or in service to the government — those being employees or officers of the government).

Crime is, by its nature, an offense, whether that offense be against another individual or against the public [understand that public is not the government, it is the people — see Charity and General Welfare].  When against an individual, a damage or injury would be the result.  When done against the public, it can only be appropriate to a crime that affects those within a limited community, for, how can it be an offense against someone in another state, or even another county, if committed in this county?  If it is too broad in its coverage, it is an attempt by a few (those who legislate) to dictate how others may live their lives.  This, in concept, is contrary to the ideals of self-government, and is indicative of an attempt at social engineering.

When the ability of any legislature to impose upon larger bodies of people their will, whatever the incentive, that power will grow in its effect and administration until the large body of people come under abject subjugation.  When carried to the next logical step in the subjugation and oppression of the people, even the remotest possibility of someone committing a crime becomes a crime, in itself.  (See Thought Crimes)

When determining what crime really is, when the activity causes a damage or injury, laws instituted to punish that crime make sense, so long as they leave the discretion of punishment to the jury.

However, when laws, by their very nature, create crime, which does not result in loss or injury, the laws, themselves, have become the crime.  The laws result in injury or loss where none existed, absent the law, when the accused has, then, become the victim.


Arrest is nothing less than denial of liberty.  Liberty was one of the major maxims for the War of Independence.  It, unlike freedom, is best defined as being free, where freedom, generally, has to do with not being obligated or enslaved.

Let’s look at how these two words would be perceived by the Framers, from Webster’s 1828 Dictionary:

Arrest v.t.

1. To obstruct; to stop; to check or hinder motion; as, to arrest the current of a river; to arrest the senses.

2. To take, seize or apprehend by virtue of a warrant from authority; as, to arrest one for debt or for a crime.

Arrest, n.

1. The taking or apprehending of a person by virtue of a warrant from authority.  An arrest is made by seizing or touching the body.

2. Any seizure, or taking by power, physical or moral.

3. A stop, hindrance or restraint.

4. In law, an arrest of judgment is the staying or stopping of a judgment after verdict, for causes assigned.  Courts have power to arrest judgment for intrinsic causes appearing upon the face of the record; as when the declaration varies from the original writ; when the verdict differs materially from the pleadings; or when the case laid in the declaration is not sufficient in point of law, to found an action upon.  The motion for this purpose is called a motion in arrest of judgment.

Freedom, n. A state of exemption from the power or control of another; liberty; exemption from slavery, servitude or confinement.

Liberty, n.

1. Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind.  The body is at liberty, when not confined; the will or mind is at liberty, when not checked or controlled.  A man enjoys liberty, when no physical force a operates to restrain his actions or are volitions.

2.  Natural liberty, consists in the power of acting as one thinks fit, without any restraint or control, except from the laws of nature.  It is a state of exemption from the control of others, and from positive laws and the institutions of social life.  This liberty is abridged by the establishment of governments.

3.  Civil liberty, is the liberty of men in a state of society are, or natural liberty, so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation.  A restraint of natural liberty, not necessary or expedient for the public, is tyranny or oppression.  Civil liberty is an exemption from the arbitrary will of others, which exemption is secured by established laws, which restrain every man from injuring or controlling another.  Hence the restraints of law are essential to civil liberty.

The liberty of one depends not so much on the removal of all restraint from him, as on the due restraint upon the liberty of others.

In this sentence, the letter word liberty denotes natural liberty.

4.  Political liberty, is sometimes used as synonymous with civil liberty.  But it more properly designates the liberty of a nation, the freedom of a nation or state from all unjust abridgment of its rights and independence by another nation.  Hence, we often speak of the political liberties of Europe, or in the nations of Europe.

5.  Religious liberty, is the free right of adopting and enjoying opinions on religious subjects, and of worshipping the Supreme Being according to the dictates of conscience, without external control. 

Clearly, then, when someone is arrested, he is restrained of his liberty, as well as having his freedom removed.  It is liberty, then, that is offended when one is arrested.  This, according to the Constitution, can only occur when warranted (warrant), which can only be issued by a jury, grand or petit, or by “Probable cause supported by Oath or affirmation” [Article IV, Bill of Rights].  There have been some exceptions, under the Constitution, such as allowing a person to be arrested to stop the completion of a felony [John Bad Elk v. US, 177 U.S. 529 (1900)].

Now, if the arrest was made and no indictment by a Grand Jury, the person who sought the warrant was liable for false arrest.  After al, he denied the accused his liberty and could not prove his claim.

To begin to see the child that we have not been able to see grow, and must piece together the transition to what we accept as lawful, today, we can review what arrest was treated like by the United States Supreme Court in 1900.

John Bad Elk was told that he was under arrest by deputies, though they had no warrant for his arrest.  One of the deputies had a gun, but did not raise it to threaten John Bad Elk, though the means of threat of force to retrain liberty were present.  John Bad Elk shot and killed the deputy and was convicted of murder.  The case then went to the Supreme Court where the Court ruled that, absent a lawful warrant, John Bad Elk had every right to shoot and kill the officer who was trying to restrain his liberty — that it would be a misdemeanor, or not crime, at all.  (See The Right to Self Defense).

As astounding as they may appear to us, today, if we understand just what was intended, perhaps we can return to true freedom and liberty.

Can you imagine a world where the government hardly ever made an arrest?  Where if an arrest had to be made, the person filing the complaint was responsible for making the arrest?  Where the person making the complaint need simply go to a Justice of the Peace, a magistrate, or the Sheriff, swear out an affidavit, and get the arrest warrant?  Where he gathered a posse of citizens, and even the Sheriff, if he chose to, to make the arrest?  Where justice was administered not by the government, but, by the people, themselves?

Considering the apparent gross disparity between what we have today versus that which was, and that which we should still have, proof of that stated in the above paragraph, is even more lost in childhood.

More information can be found at Are Cops Constitutional?

The ability to arrest, as you will learn from the above references, was reserved to the people, not to the government.  Government was not allowed to restrain our liberty without the consent of at least a small body of people who were not a part of that government, or an individual who had been wronged and was willing to “swear out an arrest warrant”..


To understand what an indictment is, we will refer to Webster’s 1828 Dictionary:

Indictment, n.

The written accusation or formal charge of a crime or misdemeanor, preferred by a grand jury under oath to a court.

2.  The paper or parchment containing the accusation of a grand jury. 

Once the Grand Jury issues an indictment, it is indicative of the determination of “probable cause” for the accused to stand trial.  At trial, the accused will have the rights, protected by the Constitution, for a speedy and public trial with the right to meet the accuser and call the witnesses.

By the Constitution, there is no other means by which one can be held to answer to a criminal charge.  What is generally known as an “information” does not satisfy those judicial protections provided for in the Constitution.


Amendment VII (bill of Rights provides, as explained earlier, that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial“,

This does not preclude the accused agreeing to be tried at the “bench”, where the judge sits as the jury, though it does guarantee his right to insist on the jury trial.  In either case, the other rights, as to witnesses, etc., is not diminished.  This, however, is the only instance where the judge becomes the trier of facts and law.

So, we have both civil and criminal trials before juries.  Interestingly, we have been raised to believe that the judge is senior to the jury and can overrule them; can instruct them, with an extensive checklist, what they must do to determine innocence or guilt; and, can actually tell them what the laws means/says, as if the jurors are incompetents, unable to even read our language.  Is this the sort of person that we should trust with the administration of justice?

That is not the way that it was intended, though we have, through a progression through over a century, allowed the exodus justice to be replaced by what is no less than Roman Civil Law, with all decisions made by the judge, or, at least, so strongly influenced as to effect, negatively, the ability of the people to judge both law and fact.

Another term that we have heard often associated with juries, though not written into the Constitution, is “a jury of our peers”.  Peerage is a separation of classes.  In olden times, it separated lords from serfs.  So, if my peer is one of equal rank, can I be judged by a jury that is composed of foreigners, or others, that, by the way that they accept the condition impose by government, believe that we must submit to such abuse of the judiciary process?

If one were to understand that he was a citizen of a state, while some of those sitting on a jury believed that they were citizens of a country, would they be peerage?  Can they judge lawfully if they believe that the government is all-powerful and always right (i.e.  The King can do no wrong)?

For a better understanding of the two classes of citizen, you would recommend reading Two Classes of Citizen.


Punishment applies to both criminal and civil trials.  We’ll begin with the criminal variety.

Punishment can take two forms.  It can be intended to discourage future behavior, or, it can be intended to be retribution or revenge.  In the sense of justice that we have been taught, it is intended to be the former.  However, quite often in the press, it takes on the meaning of the latter.  In true justice, the former can be quite more severe than the latter, or, it can be much more lenient.

We can look at what has happened to the jury’s right to judge fact, law and determine punishment as a means where each case is judged, by supposedly intelligent people (or, why would we have the alternatives that follow?) who can review the evidence, are intimately familiar with the case, and, can look in to the eyes of the accused and judge his actions and reactions, if determined to be guilty, to determine if there is guilt, if it was an unintentional crime, if he shows malice or regret, and, from this information judge which punishment best suits all of the circumstances surrounding the crime.

Instead, we have had imposed upon us two rather cold and rigid ‘systems’ under the headings of “Sentencing Guidelines” and “The Three Strikes Rule”.

Sentencing guidelines require that if the accused stole bread to feed his starving children, he is subject to the same sentence as one who stole bread to sell for money to buy drugs.  Can that possibly be defined as justice?

The Three Strike Rule is based upon three convictions.  In some states, the mandate is life in prison for the third violation, regardless of the type of crime.  So, if you stole bread three times, or robbed a bank three times, you are destined to spend the remainder of your life in prison.  Of course, the judge administering such “justice” will apologize and say that the law made him do it.  Can that possibly be defined as justice?

We will not enter a realm that makes exceptions for certain behavior by certain classes of people, except to say that if you kill a cop, you will probably be sentenced, under statutory law, to execution, while, if a cop kills you, he will get time off, with pay, and more than likely not even go to trial.

Let’s go to the last step in punishment — Capital Crimes.  These would be any that may result in a punishment of execution.

We have all lived through the period of public proclamation that the death penalty is unconstitutional, or, is cruel and unusual punishment.

Of the latter, how can that be cruel and unusual when execution (recognition that there are capital crimes, see Amendment V, above) is in the Constitution?  Considering that cruel and unusual did not include a firing squad or hanging, we have opted for some very unpleasant “cruel and unusual punishments.  Gas chamber and the electric chair were fallible.  Reports of witnesses indicate grotesque contortions in the gas chamber and failures of the electric chair resulting in fried people waiting to die.

In an endeavor to be less cruel, we now watch people see a series of injections, each one depriving him of pain, awareness, and, finally, life.  Wouldn’t car exhaust into a closed area be less painful and less expensive?  However, we seem to have a passion for creativity in killing people.  Why?  They deserve the sentence that the jury finds, if justice is to be served.

Along that line, at what point do we consider, as a collective society, that some criminals serve no useful purpose to that society?  I believe that this was the purpose of the death sentence, in the first place.  What else would motivate a society to get rid of a human life?

Given that the purpose is to dispose of those who have nothing to offer to society, why have we set so many steps, expensive in lawyer’s fees, time and providing for the accused,

Now, in civil matters, the punishment comes in the form of restitution and rewards to the injured party.  The court will recognize these real damages and punitive damages.

Real damages can be easily calculated.  They are based upon loss, including, but not limited to, lost wages, medical expenses, replacement of damaged property, etc.

Punitive Damages used to be awarded, or not, based upon a rather simple formula.  If there was no negligence, then only real damages would be awarded.

For the other two, we can look to Black’s Law Dictionary, 5th Edition:

Negligence (simple).  The omission to do something that a reasonable man, guided by those ordinary considerations that ordinarily regulate human affairs, would do, or of the doing of something that a reasonable and prudent man would not do.

Gross negligence.  The intentional failure to perform a manifest duty and reckless disregard of the consequences as affecting the life or property of another.

Awards of up to three times the real damages could be awarded for simple negligence.  This was expected to encourage more caution in the future.

In the determination of gross negligence, the award could be up to 10 times the real damages.  This, obviously, was more punitive in nature, encouraging a greater concern for the life or property of others, in the future.

Understand that awards of millions of dollars, such as overly hot coffee causing serious burns, serve only to punish the society, as a whole.  When awarded by a jury, the millions of dollars must be paid.  The accuser’s attorney will probably receive 40% and the injured party will receive the remaining 60%.  However, the entire 100% will be paid by those who drink coffee and are intelligent enough to not to burn themselves.  Is this justice?

We have allowed attorneys to manipulate juries into thinking that unreasonable awards serve a valid purpose, that on top of the fact that we have a proliferation of rules requiring labeling (i.e. “coffee is very hot”), and those who don’t heed the warning are, as a result, worthy of receiving compensation from everybody for their idiocy.

We need to return to reasonable punishment for both criminal and civil crimes, for, without such reasonableness, we have a lottery and the luck of the draw.

The Ultimate Court

Going just a bit further, we can look at what has transpired in the judicial community of the United States.  When a trial is held, there is an appellate process that can lead all of the way to the United States Supreme Court.  If either party is dissatisfied with the verdict, the trial can be appealed.  It must stand “on the record”, meaning that the case will not be retried, only that based upon the record of the original trial, a higher court can rule on what has already been presented.

So, for instance, if you believe that your Constitutional rights were violated, or that the government was operating outside of its authority under the law, their methods, or any other aspect of what had occurred, you can seek redress in that Supreme Court.  Interestingly, that Court, in its early years, actually rode circuit to hear cases appealed from the lower courts.  Over time, however, they attained a more noble stature by holding all of their sessions in single building in Washington, D.C.

Within two decades of its creation, this Supreme Court established its authority to rule on the Constitutionality of any case brought before it.  Judicial review, then, became what we have, in our lifetimes, always respected as the ultimate decision on the Constitutionality of a matter that could be brought to that level of review.

We expect that any law passed by the Congress (or even under its authority) can be tested as to its Constitutionality by this ultimate review.  After all, if we have a Constitution that limits the power of government and affords them only certain privileges, this ultimate court must be our protection from the governments violation of that very Constitution that created it.

Occasionally, we read of a Supreme Court decision that makes us want to scratch our head in wonderment.  How could they possibly rule that a certain decision was decided in a manner that does not seem to fit what we perceive the Constitution to say?  We tend to assume that they, by their articulate arguments, must understand something that we are not able to comprehend — about the Constitution.

Well, quite often, we may be more correct in our interpretation than the ruling of that august body.  In 1937, that court, by its own admission, declared that ruling on the Constitutionality of a matter before them, well, let me use their words to say this, “The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it…  ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.

To understand more why the Court will, only in a last resort, rule on the Constitutionality, I would suggest that you read About Ashwander v. TVA


Since that infant (the judicial system) was conceived in 1776 and came into life in 1789, it had grown through its infancy by 1860.  As it reached adulthood, it was well matured, though, perhaps, gone astray.

We have learned to look at it only in its very senior years, and have no idea what it was as in its youth.  Unfortunately, that wonderful child has gone through some changes during its lifetime that have obscured what it was when it was brought into life, with loving care.

As if relegated to a senior citizen’s home, cared for by abusive and self-serving attendants, the judicial process has been abused, manipulated, and, lost all semblance of that great and wonderful object of adoration that it was to the Framers.  It is only by virtue of a scrapbook that we can see that transition, and, perhaps, restore that child to the dignity and respect that it truly deserves.

The Right to Self Defense

from the Waco White Papers:

From: Gary Hunt at the Outpost of Freedom in Waco, Texas
Date: December 21, 1993


I have often wondered what it was like when communities were small, and everybody knew everybody.

This thought occurred to me while I was driving through Tombstone, Arizona, site of the famous gunfight. As was reported in the papers of the day (not television news), the Earps and Doc Holliday were walking down the street, knowing that the Clantons and Lowery were at the corral. These factions had been at odds with each other for years, and on this day there appeared to be a plan, for as the Earps and Doc walked by the Clantons, the Earps threw some hateful words out. This, apparently, did not provoke the desired action, so Doc pulled his shotgun from under his coat, turned and fired. The Earps then joined in and only two of the others got away.

Similarly, here in Waco, one faction, with color of law, was able to open up on the other in a devastating gunfight that left 9 dead. The color of law was sufficient, at least for the time being, to vindicate the aggressors. In both cases the side with color of law would have, if circumstances warranted, been given time off, with pay, while adjudication occurred. The other side would have been incarcerated until adjudication was completed. Those with color of law would not be charged with a crime, but the others would be charged with serious crimes.

While I was here during the siege I ran across an interesting piece of Texas law. In the Texas Penal Code, §9.31 (C), reads as follows:

§9.31 (C) The use of force to resist arrest or search is justified:
(1) If, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

There must have been a reason for this law to have been passed, so I went back and reread the definition of:

liberty 1. Exemption from slavery, bondage, imprisonment, or control of another. 2. Freedom from external restraint or compulsion (Webster’s New Collegiate Dictionary).

LIBERTY Freedom; exemption from extraneous control. The power of the will to follow the dictates of its unrestricted choice, and to direct the external acts of the individual without restraint, coercion, or control from other persons. (Black’s Law Dictionary – Third Edition)

It appears, then, that the right for each of us to walk freely, subject to not harming or injuring another person or his property is the concept of liberty that the Founding Fathers spoke of, and we have let our liberty be lost in a myriad of regulation, rule and control.

What gives a “peace officer” the right to take a persons liberty, or property? Obviously the Texas legislators realized that excessive force could be used, unlawfully, justifying lawful retaliation. Perhaps they understood human nature and knew that personal bias might play a part when one person, operating under color of law, might exceed lawful exertion of force. Understanding that abuse of power might occur, isn’t it possible that both time and extension of power might result in “law enforcement” officers exerting an authority that is beyond lawful authority?

Wondering how, and why, the scope of law enforcement may have changed, I began searching further and ran into an interesting account of a significant change that came as a result of a major trauma in the history of the United States of America. During World War II, especially with the troops being an occupation army after the armistices, there was a rather carefree attitude among those who thought they may never see home again. To control the servicemen the Military Police had to impose arbitrary authority under the maritime jurisdiction that all soldiers were subject to. Meanwhile, back in the states, police officers approaching retirement during the war tended to stay on to help out in the war effort. As the MP’s began returning stateside (literally tens of thousands of them) they began to fill the ranks of local law enforcement, filing in the gap made by those now retiring. The attitude of arbitrary enforcement was ingrained in the returnees, and, although tempered by training as they joined the local ranks, still became a prevalent attitude which began a change of servant to master.

I looked further (American’s Bulletin, September 1993) and found an interesting article, portions of which follow:

This fundamental premise was upheld by the Supreme court of the United States in the case of John Bad Elk v. U.S., 177 U.S. 529 (1900) when the court stated: “…where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest, from what it does if the officer had no right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.

“an arrest made with a defective warrant; or one issued without affidavit; or one that fails to allege a crime is without jurisdiction, and one who is being arrested may resist arrest and break away. If the arresting officer is killed by one who is resisting, the killing will be no more than involuntary manslaughter.

In reviewing the case we find that:

“The court charged the jury: “The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. .. In this connection I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose of arresting the defendant [John Bad Elk] he would have the right to show his revolver. He would have had the right to use only so much force as necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgot his duties as an officer and had gone beyond the force necessary to arrest the defendant, and was about to kill him or to inflict great bodily injury upon him, which was not necessary for the purpose of making the arrest.

The jury, relying on these instructions, convicted John Bad Elk of murder and the case went to the higher court on error. The higher court stated:

“We think the court clearly erred in charging that the policeman had the right to arrest the plaintiff [John Bad Elk] in error, and to use such force as was necessary to accomplish the arrest, and that the plaintiff had no right to resist it.

“At common law, if a patty resisted arrest by an officer without a warrant, and who had no right to arrest him, and if in the course of resistance the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had the right to arrest, to manslaughter. .. So we can clearly see that something has happened that has had the affect of allowing us to be arrested (lose our liberty) by the design of a law enforcement officer when the Supreme Court has held that the officer has no right unless certain procedures (constitutional protections) are adhered to.

Perhaps we have been led to believe that law enforcement has superhuman rights. Perhaps the Founding Fathers, and those that followed recognized that no special privilege could be granted to normal humans who took a job that put them at risk. Perhaps arrest cannot be made, unless by indictment, properly obtained information or if a serious crime, not minor, is committed in the presence of the officer, and, perhaps not even in this last case unless property or lives are at stake.

As a general rule we have accepted the fact that we may shoot another person to protect our lives, property or money. But what is property or money if not a previous conversion of time. The time exerted to achieve the money or property surely had value. When someone attempts to “steal” that time prior to conversion are we not able to understand that even more is being taken away than when property is? Just because a man is wearing a badge gives him no right to take from us what we would not allow to be taken by someone without a badge. Why have we come to a point that we accept authority, such as that which invaded Mt. Carmel Center, Waco, Texas, without question? However, when the matter comes to life or death we are willing to protect our property, by any means necessary, when just the property is jeopardized.

Are Cops Constitutional?

Seton Hall Constitutional L.J. 2001, 685


Roger Roots*


[PDF file available at Are Cops Constitutional? (PDF)]



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.

* Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island. He is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous proof-reading efforts and thoughtful insights.



































Uniformed police officers are the most visible element of America’s criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide.[1] Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services.[2] Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America’s roads and street corners as anything peculiar — let alone invalid or unconstitutional.

Yet the dissident English colonists who framed the United States Constitution would have seen this modern ‘police state’ as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown.[3] The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance).[4] Initiation and investigation of criminal cases was the nearly exclusive province of private persons.

At the time of the Constitution’s ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay.[5] Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation — whether civil or criminal — and the state was rarely a party. Professional police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order.[6] The role of these “nightly watch” officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.[7]

While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution’s imposed scheme of criminal justice.[8] “Originalist” scholars of the Constitution have tended to be supportive, rather than critical of modern policing.[9] This article will show, however, that modern policing violates the Framers’ most firmly held conceptions of criminal justice.

The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state’s interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others.[10] Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.


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]


For decades before and after the Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution: (1) victims of serious crimes approached a community grand jury, (2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and (3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men.[15] Criminal actions were only a step away from civil actions — the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim.[16] Private prosecutors acted under authority of the people and in the name of the state — but for their own vindication.[17] The very term “prosecutor” meant criminal plaintiff and implied a private person.[18] A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation’s founding.[19] When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name — even if the attorney general himself did not approve of the action.[20]

Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication.[21] Crime victims held the keys to a potential defendant’s fate and often negotiated the settlement of criminal cases.[22] After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant.[23] Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and “not to make bargains to allow [defendants] to escape conviction, if they … repair the injury.”[24]

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.[25] 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.[26] They might never have contact with a government prosecutor or any other officer of the executive branch.[27]

Colonial grand juries also occasionally served an important law enforcement need by account of their sheer numbers. In the early 1700s, grand jurors were sometimes called upon to make arrests in cases where suspects were armed and in large numbers.[28] A lone sheriff or deputy had reason to fear even approaching a large group “without danger of his life or having his bones broken.”[29] When a sheriff was unable to execute a warrant or perform an execution, he could call upon a posse of citizens to assist him.[30] The availability of the posse comitatus meant that a sheriffs resources were essentially unlimited.[31]


Law enforcement in the Founders’ time was a duty of every citizen.[32] 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.”[33] Any person could act in the capacity of a constable without being one,[34] and when summoned by a law enforcement officer, a private person became a temporary member of the police department.[35] The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.[36]

Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.[37] But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers’ era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.[38]

The Founders could not have envisioned ‘police’ officers as we know them today. The term “police” had a slightly different meaning at the time of the Founding.[39] It was generally used as a verb and meant to watch over or monitor the public health and safety.[40] In Louisiana, “police juries” were local governing bodies similar to county boards in other states.[41] Only in the mid-nineteenth century did the term ‘police’ begin to take on the persona of a uniformed state law enforcer.[42] The term first crept into Supreme Court jurisprudence even later.[43]

Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.[44] Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.[45] Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.[46]

At the time of Tocqueville’s observations (in the 1830s), “the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,”[47] yet Tocqueville doubted “whether in any other country crime so seldom escapes punishment.”[48] Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.[49] Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.[50] Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.[51]

Formal criminal justice institutions dealt only with the most severe crimes. Misdemeanor offenses had to be dealt with by the private citizen on the private citizen’s own terms. “The farther back the [crime rate] figures go,” according to historian Roger Lane, “the higher is the relative proportion of serious crimes.”[52] In other words, before the advent of professional policing, fewer crimes — and only the most serious crimes — were brought to the attention of the courts.

After the 1850s, cities in the northeastern United States gradually acquired more uniformed patrol officers. The criminal justice model of the Framers’ era grew less recognizable. The growth of police units reflected a “change in attitude” more than worsening crime rates.[53] Americans became less tolerant of violence in their streets and demanded higher standards of conduct.[54] Offenses which had formerly earned two-year sentences were now punished by three to four years or more in a state penitentiary.[55]


Few of the duties of Founding-era sheriffs involved criminal law enforcement. Instead, civil executions, attachments and confinements dominated their work.[56] When professional police units first arrived on the American scene, they functioned primarily as protectors of public safety, health and welfare. This role followed the “bobbie” model developed in England in the 1830s by the father of professional policing, Sir Robert Peel.[57]

Early police agencies provided a vast array of municipal services, including keeping traffic thoroughfares clear. Boston police made 30,681 arrests during one fiscal year in the 1880s, but in the same year reported 1,472 accidents, secured 2,461 buildings found open, reported thousands of dangerous and defective streets, sidewalks, chimneys, drains, sewers and hydrants, tended to 169 corpses, assisted 148 intoxicated persons, located 1,572 lost children, reported 228 missing (but only 151 found) persons, rescued seven persons from drowning, assisted nearly 2,000 sick, injured, and insane persons, found 311 stray horse teams, and removed more than fifty thousand street obstructions.[58]

Police were a “kind of catchall or residual welfare agency,”[59] a lawful extension of actual state ‘police powers.’[60] In the Old West, police were a sanitation and repair workforce more than a corps of crime-fighting gun-slingers. Sheriff Wyatt Earp of OK Corral fame, for example, repaired boardwalks as part of his duties.[61]


Toward the end of the nineteenth century, police forces took on a brave new role: crime-fighting. The goal of maintaining public order became secondary to chasing lawbreakers. The police cultivated a perception that they were public heroes who “fought crime” in the general, rather than individual sense.

The 1920s saw the rise of the profession’s second father — or perhaps its wicked stepfather — J. Edgar Hoover.[62] Hoover’s Federal Bureau of Investigation (FBI) came to epitomize the police profession in its sleuth and intelligence-gathering role. FBI agents infiltrated mobster organizations, intercepted communications between suspected criminals, and gathered intelligence for both law enforcement and political purposes.

This new view of police as soldiers locked in combat against crime caught on quickly.[63] The FBI led local police to develop integrated repositories of fingerprint, criminal, and fraudulent check records. The FBI also took over the gathering of crime statistics (theretofore gathered by a private association),[64] and went to war against “Public Enemy Number One” and others on their “Ten Most Wanted” list.[65] Popular culture began to see police as a “thin blue line,” that “serves and protects” civilized society from chaos and lawlessness.[66]


But the constitutions of the Founding Era gave no hint of any thin blue line. Nothing in their texts enunciated any governmental power to “fight crime” at all. “Crime-fighting” was intended as the domain of individuals touched by crime. The original design under the American legal order was to restore a semblance of private justice. The courts were a mere forum, or avenue, for private persons to attain justice from a malfeasor.[67] The slow alteration of the criminal courts into a venue only for the government’s claims against private persons turned the very spirit of the Founders’ model on its head.

To suggest that modern policing is extraconstitutional is not to imply that every aspect of police work is constitutionally improper.[68] Rather, it is to say that the totality and effect of modern policing negates the meaning and purpose of certain constitutional protections the Framers intended to protect and carry forward to future generations. Modern-style policing leaves many fundamental constitutional interests utterly unenforced.

Americans today, for example, are far more vulnerable to invasive searches and seizures by the state than were the Americans of 1791.[69] The Framers lived in an era in which much less of the world was in “plain view” of the government and a “stop and frisk” would have been rare indeed.[70] The totality of modern policing also places pedestrian and vehicle travel at the mercy of the state, a development the Framers would have almost certainly never sanctioned. These infringements result not from a single aspect of modern policing, but from the whole of modern policing’s control over large domains of private life that were once “policed” by private citizens.


The treatment of law enforcement in the courts shows that the law of crime control has changed monumentally over the past two centuries. Under the common law, there was no difference whatsoever between the privileges, immunities, and powers of constables and those of private citizens. Constables were literally and figuratively clothed in the same garments as everyone else and faced the same liabilities — civil and criminal — as everyone else under identical circumstances. Two centuries of jurisprudence, however, have recast the power relationships of these two roles dramatically.

Perhaps the first distinction between the rights of citizen and constabulary came in the form of increased power to arrest. Early in the history of policing, courts held that an officer could arrest if he had “reasonable belief both in the commission of a felony and in the guilt of the arrestee.[71] This represented a marginal yet important distinction from the rights of a “private person,” who could arrest only if a felony had actually been committed.[72] It remains somewhat of a mystery, however, where this distinction was first drawn.[73] Scrutiny of the distinction suggests it arose in England in 1827 for more than a generation after ratification of the Bill of Rights in the United States.[74]

Moreover, the distinction was illegitimate from its birth, being a bastardization of an earlier rule allowing constables to arrest upon transmission of reasonably reliable information from a third person.[75] The earlier rule made perfect sense when many arrests were executed by private persons. “Authority” was a narrow defense available only to those who met the highest standard of accuracy.[76] But when Americans began to delegate their law enforcement duties to professionals, the law relaxed to allow police to execute warrantless felony arrests upon information received from third parties. For obvious reasons, constables could not be required to be “right” all of the time, so the rule of strict liability for false arrest was lost.[77]

The tradeoff has had the effect of depriving Americans of certainty in the executions of warrantless arrests. Judges now consider only the question of whether there was reasonable ground to suspect an arrestee, rather than whether the arrestee was guilty of any crime. This loss of certainty, when combined with greater deference to the state in most law enforcement matters, has essentially reversed the original intent and purpose of American law enforcement that the state act against stern limitations and at its own peril. Because arrest has become the near exclusive province of professional police, Americans have fewer assurances that they are free from unreasonable arrests.

Distinctions between the privileges of citizens and police officers grew more rapidly in the twentieth century. State and federal lawmakers enshrined police officers with expansive immunities from firearm laws[78] and from laws regulating the use of equipment such as radio scanners, body armor, and infrared scopes.[79] Legislatures also exempted police from toll road charges,[80] granted police confidential telephone numbers and auto registration,[81] and even exempted police from fireworks regulations.[82] Police are also protected by other statutory immunities and protections, such as mandatory death sentences for defendants who murder them,[83] reimbursement of moving expenses when officers receive threats to their lives,[84] and even special protections from assailants infected with the AIDS virus.[85] Officers who illegally eavesdrop, wiretap, or intrude upon privacy are protected by a statutory (as well as case law) “good faith” defense,[86] while private citizens who do so face up to five years in prison.[87] The tendency of legislatures to equip police with ever-expanding rights, privileges and powers has, if anything, been strengthened rather than limited by the courts.[88]

But this growing power differential contravenes the principles of equal citizenship that dominated America’s founding. The great principle of the American Revolution was, after all, the doctrine of limited government.[89] Advocates of the Bill of Rights saw the chief danger of government as the inherently aristocratic and disparate power of government authority.[90] Founding-era constitutions enunciated the principle that all men are “equally free” and that all government is derived from the people.[91]


Nothing illustrates the modern disparity between the rights and powers of police and citizen as much as the modern law of resisting arrest. At the time of the nation’s founding, any citizen was privileged to resist arrest if, for example, probable cause for arrest did not exist or the arresting person could not produce a valid arrest warrant where one was needed.[92] As recently as one hundred years ago, but with a tone that seems as if from some other, more distant age, the United States Supreme Court held that it was permissible (or at least defensible) to shoot an officer who displays a gun with intent to commit a warrantless arrest based on insufficient cause.[93] Officers who executed an arrest without proper warrant were themselves considered trespassers, and any trespassee had a right to violently resist (or even assault and batter) an officer to evade such arrest.[94]

Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations.[95] Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody.[96] The doctrine of non-resistance against unlawful government action was harshly condemned at the constitutional conventions of the 1780s, and both the Maryland and New Hampshire constitutions contained provisions denouncing nonresistance as “absurd, slavish, and destructive of the good and happiness of mankind.”[97]

By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance,[98] (2) criminalized the resistance of any officer acting in his official capacity,[99] (3) eliminated the requirement that an arresting officer present his warrant at the scene,[100] and (4) drastically decreased the number and types of arrests for which a warrant is required.[101] Although some state courts have balked at this march toward efficiency in favor of the state,[102] none require the level of protection known to the Framers.[103]

But the right to resist unlawful arrest can be considered a constitutional one. It stems from the right of every person to his bodily integrity and liberty of movement, among the most fundamental of all rights.[104] Substantive due process principles require that the government interfere with such a right only to further a compelling state interest[105] — and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest.[106] Thus, the advent of professional policing has endangered important rights of the American people.

The changing balance of power between police and private citizens is illustrated by the power of modern police to use violence against the population.[107]

As professional policing became more prevalent in the twentieth century, police use of deadly force went largely without clearly delineated guidelines (outside of general tort law).[108] Until the 1970s, police officers shot and killed fleeing suspects (both armed and unarmed) at their own discretion or according to very general department oral policies.[109] Officers in some jurisdictions made it their regular practice to shoot at speeding motorists who refused orders to halt.[110] More than one officer tried for murder in such cases — along with fellow police who urged dismissals — argued that such killings were in the discharge of official duties.[111] Departments that adopted written guidelines invariably did so in response to outcries following questionable shootings.[112] Prior to 1985, police were given near total discretion to fire on the public wherever officers suspected that a fleeing person had committed a felony.[113] More than 200 people were shot and killed by police in Philadelphia alone between 1970 and 1983.[114]

In 1985, the United States Supreme Court purported to stop this carnage by invalidating the use of deadly force to apprehend unarmed, nonviolent suspects.[115] Tennessee v. Garner[116] involved the police killing of an unarmed juvenile burglary suspect who, if apprehended alive, would likely have been sentenced to probation.[117] The Court limited police use of deadly force to cases of self defense or defense of others.[118]

As a practical matter, however, the Garner rule is much less stringent. Because federal civil rights actions inevitably turn not on a strict constitutional rule (such as the Garner rule), but on the perception of a defendant officer, officers enjoy a litigation advantage over all other parties.[119] In no reported case has a judge or jury held an officer liable who used deadly force where a mere “reasonable” belief that human life was in imminent danger existed.[120] Some lower courts have interpreted Garner to permit deadly force even where suspects pose no immediate and direct threat of death or serious injury to others.[121] The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability of an agent who shot and killed an innocent person to prevent another person from retreating to “take up a defensive position,” drawing criticism from Judge Kozinski that the court had adopted the “007 standard” for police shootings.[122]

Untold dozens, if not hundreds, of Americans have been shot in the back while fleeing police, even after the Garner decision. Police have shot and killed suspects who did nothing more than make a move,[123] reach for their identification too quickly,[124] reach into a jacket or pocket,[125] “make a motion” of going for a gun,[126] turn either toward or away from officers,[127] ‘pull away’ from an officer as an officer opened a car door,[128] rub their eyes and stumble forward after a mace attack,[129] or allegedly lunge with a knife,[130] a hatchet,[131]or a ballpoint pen.[132] Cops have also been known to open fire on and kill persons who brandished or refused to drop virtually any hand-held object — a Jack Daniel’s whiskey bottle,[133] a metal rod,[134] a wooden stick,[135] a kitchen knife (even while eating dinner),[136] a screwdriver,[137] a rake[138] — or even refused an order to raise their hands.[139]

Cops who shoot an individual holding a shiny object that can be said to resemble a gun — such as a cash box,[140] a shiny silver pen,[141] a TV remote control,[142] or even a can opener[143] — are especially likely to avoid liability. In line with this defense, police officers nationwide have been caught planting weapons on their victims in order to make shootings look like self defense.[144] In one of the more egregious examples ever proven in court, Houston police were found during the 1980s to have utilized an unofficial policy of planting guns on victims of police violence.[145] Seventy-five to eighty percent of all Houston officers apparently carried “throw-down” weapons for such purposes.[146] Only the dogged persistence of aggrieved relatives and the firsthand testimony of intrepid witnesses unraveled the police cover-up of the policy.[147]

Resisting arrest, defending oneself, or fleeing may also place an American in danger of being killed by police.[148] Although the law clearly classifies such killings as unlawful, police are rarely made to account for such conduct in court.[149] Only where the claimed imminent threat seems too contrived — such as where an officer opened fire to defend himself from a pair of fingernail clippers[150] — or where abundant evidence of a police cover-up exists, will courts uphold damage awards against police officers who shoot civilians.[151]

As Professor Peter L. Davis points out, there is no good reason why police should not be liable criminally for their violations of the criminal code, just as other Americans would expect to be (and, indeed, as the constables of the Founding Era often were).[152] Yet in modern criminal courts, police tend to be more bulletproof than the Kevlar vests they wear on the job. Remember that the district attorneys responsible for prosecuting police for their crimes are the same district attorneys who must defend those officers in civil cases involving the same facts.[153] Under the Framers’ common law, this conflict of interest did not arise at all because a citizen grand jury — independent from the state attorney general — brought charges against a criminal officer, and the officer’s victim prosecuted the matter before a petit jury.[154] But the modern model of law enforcement provides no real remedy, and no ready outlet for the law to work effectively against police criminals. Indeed, modern policing acts as an obstruction of justice with regard to police criminality.

The bloodstained record of shootings, beatings, tortures and mayhem by American police against the populace is too voluminous to be recounted in a single article.[155] At least 2,000 Americans have been killed at the hands of law enforcement since 1990.[156] Some one-fourth of these killings — about fifty per year — are alleged by some authorities to be in the nature of murders.[157] Yet only a handful have led to indictment, conviction and incarceration.[158] This is true even though most police killings involve victims who were unarmed or committed no crime.[159]

Killings by police seem as likely as killings by death-row murderers to demonstrate extreme brutality or depravity. Police often fire a dozen or more bullets at a victim where one or two would stop the individual.[160] Such indicia of viciousness and ferocity would qualify as aggravating factors justifying the death penalty for a civilian murderer under the criminal laws of most states.[161]

From the earliest arrival of professional policing upon America’s shores, police severely taxed both the largess and the liberties of the citizenry.[162] In early municipal police departments, cops tortured, harassed and arrested thousands of Americans for vagrancy, loitering, and similar “crimes,” or detained them on mere “suspicion.”[163] Where evidence was insufficient to close a case, police tortured suspects into confessing to crimes they did not commit.[164] In the name of law enforcement, police became professional lawbreakers, “constantly breaking in upon common law and … statute law.”[165] In 1903 a former New York City police commissioner remarked that he had seen “a dreary procession of citizens with broken heads and bruised bodies against few of whom was violence needed to affect an arrest…. The police are practically above the law.”[166]


Defenders of police violence often cite the dangerous nature of police work, claiming the police occupation is filled with risks to life and health. Police training itself — especially elite SWAT-type or paramilitary training that many officers crave — reinforces the “dangerousness” of police work in the officers’ own minds.[167] There is some truth to this perception, in that around one hundred officers are feloniously killed in the line of duty each year in the United States.[168]

But police work’s billing as a dangerous profession plummets in credibility when viewed from a broader perspective. Homicide, after all, is the second leading cause of death on the job for all American workers.[169] The taxicab industry suffers homicide rates almost six times higher than the police and detective industry.[170] A police officer’s death on the job is almost as likely to be from an accident as from homicide.[171] 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.[172] Fully 98 percent of all fatal workplace injuries occur in the civilian labor force.[173]

Moreover, police work is generously rewarded in terms of financial, pension and other benefits, not to mention prestige. Police salaries may exceed $100,000 annually plus generous health insurance and pension plans — placing police in the very highest percentiles of American workers in terms of compensation.[174] The founding generation would have been utterly astonished by such a transfer of wealth to professional law enforcers.[175] This reality of police safety, security and comfort is one of the best-kept secrets in American labor.

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.[176] Approximately one-third of the people killed in high-speed police car chases (which are often unnecessarily escalated by police) are innocent bystanders.[177] Cops occasionally prevent rather than execute rescues.[178] “Police practices” ranked as the number one cause of violent urban riots of the 1960s.[179] Indeed, police actively participated in or even initiated some of the nation’s worst riots.[180] 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.[181]


If the modern model of cop-driven criminal justice has any defense at all, it is its “professionalism.” Private law enforcement of the type intended by the Framers was supposedly more inclined toward lax and arbitrary enforcement than professional officers who are sworn to uphold the law.[182] Upon scrutiny, however, the claim that professional police are more reliable, less arbitrary, and more capable of objective law enforcement than private law enforcers is drastically undermined.

The constitutional model of law enforcement (investigation by a citizen grand jury, arrest by private individuals, constables or citizens watch, and private prosecution) became seen as inefficient and ineffective as America entered its industrial age.[183] Yet the grand jury in its natural and unhobbled state is more, rather than less, able to pursue investigations when compared to professional police. Grand jurors are not constrained by the Fourth, Fifth or Sixth amendments — or at least the “exclusionary rule” fashioned by the courts to enforce those amendments.[184]

In the absence of police troops to enforce the law, the early criminal justice system was hardly as hobbled and impotent as conventional wisdom suggests. Private watch groups and broad-based advocacy groups existed to enforce laws and track criminals among jurisdictions. Thousands of local anti horse thief associations and countless ‘detecting societies’ sprang up to answer the call of crime victims in the nineteenth century.[185] In Maine, the “Penobscot Temperance League” hired detectives to investigate and initiate criminal cases against illegal liquor traffickers.[186] In the 1870s a private group called the Society for the Suppression of Vice became so zealous in garnering prosecutions of the immoral that it was accused in 1878 of coercing a defendant into mailing birth control information in violation of federal statutes,[187] one of the earliest known instances of conduct that later became defined as entrapment.[188] Although some of these private crime-fighting groups were invested with limited state law enforcement powers,[189] they were not police officers in the modern sense and received no remuneration.

Such volunteer nonprofessionals continue to aid law enforcement as auxiliary officers in many American communities.[190] Additionally, private organizations affiliated with regional chambers of commerce, neighborhood watch and other citizens’ groups continue to play a substantial — though underappreciated — role in fighting crime.[191] America also has a long history of outright vigilante justice, although such vigilantism has been exaggerated both in its sordidness[192] and in its scope.[193]

Moreover, government-operated policing is hardly a monopoly even today, neither in maintaining order nor over matters of expertise and intelligence-gathering.[194] There are three times more private security guards than public police officers and even activities such as guarding government buildings (including police stations) and forensic analysis are now done by private security personnel.[195]

The chief selling point for professional policing seems to be the idea that sworn government agents are more competent crime solvers than grand juries, private prosecutors, and unpaid volunteers. But this claim disintegrates when the realities of police personnel are considered. In 1998, for example, forty percent of graduating recruits of the Washington, D.C. police academy failed the comprehensive exam required for employment on the force and were described as “practically illiterate” and “borderline-retarded.”[196] As a practical matter, police are more dependent upon the public than the public is dependent upon police.[197]

Cops rely on the public for a very high percentage of their investigation clearances. As the rate of crimes committed by strangers increases, the rate of clearance by the police invariably declines.[198] Roughly two-thirds of major robbery and burglary arrests occur solely because a witness can identify the offender, the offender is caught at or near the crime scene, or the offender leaves evidence at the scene.[199] In contrast, where a suspect cannot be identified in such ways, odds are high that the crime will go unsolved.[200]

Studies show that as government policing has taken over criminal investigations, the rates of clearance for murder investigations have actually gone down. For more than three decades — while police units have expanded greatly in size, power and jurisdiction — the gap between the number of homicides in the United States and the number of cases solved has widened by almost twenty percent.[201] Today, almost three in ten homicides go unsolved.[202]


Moreover, a surprisingly high number of police conclusions are simply wrong. Since 1963, at least 381 murder convictions have been reversed because of police or prosecutorial misconduct.[203] In the 25-year period following the Supreme Court’s ruling in Gregg v. Georgia[204] reaffirming the use of capital punishment, one innocent person has been freed from death row for every seven who have been executed.[205] In Illinois, Thirteen men have been freed from death row since 1977 after proving their innocence — more than the twelve who were actually put to death over the same period. Governor George Ryan finally ordered a moratorium on executions until the death penalty system could be revamped,[206] referring to the death penalty system as “fraught with error.”[207]

Yet death penalty cases are afforded far more due process and scrutiny of evidence than noncapital cases. If anything, the error rate of police in noncapital cases is likely substantially higher. Governor Ryan’s words would seem to apply doubly to the entire system of police-driven investigation.

The advent of DNA analysis in the courtrooms of the 1990s greatly accelerated the rate at which police errors have been proven in court, even while avenues for defendants’ appeals have been systematically cut off by Congress and state legislatures.[208] DNA testing before trial has exonerated at least 5000 prime suspects who would likely have otherwise been tried on other police evidence.[209] Often, exculpatory DNA revelations have come in cases where other police-generated evidence was irreconcilable, suggesting falsification of evidence or other police misconduct.[210] The sheer number of wrongly accused persons freed by DNA evidence makes it beyond dispute that police investigations are far less trustworthy than the public would like to believe.[211]

Even more unjustified is the notion that a justice system powered by professional police possesses higher levels of integrity, trustworthiness and credibility than the criminal justice model intended by the Framers. Within the criminal justice system, cops are regarded as little more than professional witnesses of convenience, if not professional perjurers, for the prosecution.[212] Almost no authority credits police with high levels of honesty. Indeed, the daily work of cops requires strategic lying as part of the job description.[213] Cops lie about the strength of their evidence in order to obtain confessions,[214] about giving Miranda warnings to arrestees when on the witness stand,[215] and even about substantive evidence when criminal cases need more support. Cops throughout the United States have been caught fabricating, planting and manipulating evidence to obtain convictions where cases would otherwise be very weak.[216] Some authorities regard police perjury as so rampant that it can be considered a “subcultural norm rather than an individual aberration” of police officers.[217] Large-scale investigations of police units in virtually every major American city have documented massive evidence tampering, abuse of the arresting power, and discriminatory enforcement of laws according to race, ethnicity, gender, and socioeconomic status. Recent allegations in Los Angeles charge that dozens of officers abused their authority by opening fire on unarmed suspects, planting evidence, dealing illegal drugs, or framing some 200 innocent people.[218] More than a hundred prosecutions had to be dismissed in Chicago in 1997 due to similar police misconduct.[219] During the infamous “French connection” case of the 1970s, New York City narcotics detectives were caught diverting 188 pounds of heroin and 31 pounds of cocaine for their own use, making the City’s Special Investigating Unit the largest heroin and cocaine dealer in the city.[220]

Police criminality was so acute in New Orleans during the 1980s and 1990s that people were afraid to report crimes for fear that corrupt officers would retaliate or tip off organized crime figures. One New Orleans officer was convicted of ordering the execution of a witness who reported him to the internal affairs unit for allegedly pistol-whipping a teenager.[221] Thirty-six Washington, D.C. officers were indicted on charges such as drug dealing, sexual assault, murder, sodomy and kidnapping in 1992.[222]

In Detroit, repeated corruption allegations have seen a number of low- and high-ranking officers go to prison for drug trafficking, hiring hit men, providing drug protection, and looting informant funds.[223] Police burglary rings have been uncovered in several cities.[224]

Patterns of police abuse tend to repeat themselves in major American cities despite endless attempts at reform.[225] New York City police, for example, have been the subject of dozens of wide-ranging corruption probes over the past hundred years[226] yet continue to generate corruption allegations.[227] Police exhibit unique levels of occupational solidarity.[228] Review boards and internal affairs commissions inevitably fail to penetrate police loyalty and find resistance from every rank.[229] Cops inevitably form an isolated authoritarian subculture that is both cynical toward the rule of law and disrespectful of the rights of fellow citizens.[230] The code of internal favoritism that holds police together may more aptly be described as syndicalism rather than professionalism. Historically, urban police “collected” from local businesses.[231] Today, a more subtle brand of racketeering prevails, whereby police assist those businesses which provide support for police and undermine businesses which are perceived as antagonistic to police interests. This same shakedown also applies to newspaper editors and politicians.[232]

Even at the federal level, where national investigators presume to police corruption and oversee local departments, favoritism toward the police role is rampant. In 1992, for example, the federal government filed criminal charges in only 27 cases of police criminality.[233] A federal statute criminalizing violations of the Fourth Amendment has never been enforced even a single time, although it has been a part of the U.S. Code since 1921.[234] Throughout the 1980s and ’90s, the FBI Crime Laboratory actively abetted the misconduct of local police departments by misrepresenting forensic evidence to bolster police cases against defendants.[235]


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 sidewalk pat-down searches of potential criminals absent clear indicia of potential criminality.[236] Studies indicate, however, 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.[237]

Thus the very aspect of modern policing that the public view as most effective — the creation of a ‘police presence’ — is in fact a monstrous waste of public resources.[238] Similarly, the history of America’s expenditures in the war on drugs provides little support for the proposition that money spent on policing yields positive returns.[239] 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.[240]

There is no doubt that modern police are a creation of lawful representative legislatures and are very popular with the general public.[241] But the rights of Americans depend upon freedom from government as much as freedom of government.[242] Constitutions must provide a countermajoritarian edifice to the threat posed by the will of the masses, and courts must at times pronounce even the most popular programs invalid when they contravene the fundamental liberties of a minority — or even the whole people at times when they inappropriately devalue their liberties.[243]



It is largely forgotten that the war for American independence was initiated in large part by the British Crown’s practice of using troops to police civilians in Boston and other cities.[244] Professional soldiers used in the same ways as modern police were among the primary grievances enunciated by Jefferson in the Declaration of Independence. (“[George III] has kept among us standing armies”; “He has affected to render the military independent of and superior to the civil power”; “protecting them, by a mock trial….”).[245] The duties of such troops were in no way military but involved the keeping of order and the suppression of crime (especially customs and tax violations).

Constitutional arguments quite similar to the thesis of this article were made by America’s Founders while fomenting the overthrow of their government. Thomas Jefferson proclaimed that although Parliament was supreme in its jurisdiction to make laws, “his majesty has no right to land a single armed man on our shores” to enforce unpopular laws.[246] James Warren said that the troops in Boston were there on an unconstitutional mission because their role was not military but rather to enforce “obedience to Acts which, upon fair examination, appeared to be unjust and unconstitutional.”[247] Colonial pamphleteer Nicholas Ray charged that Americans did not have “an Enemy worth Notice within 3000 Miles of them.”[248] “[T]he troops of George the III have cross’d the wide atlantick, not to engage an enemy,” charged John Hancock, but to assist constitutional traitors “in trampling on the rights and liberties of [the King’s] most loyal subjects …”[249]

The use of soldiers to enforce law had a long and sullied history in England and by the mid-1700s were considered a violation of the fundamental rights of Englishmen.[250] The Crown’s response to London’s Gordon Riots of 1780 — roughly contemporary to the cultural backdrop of America’s Revolution — brought on an immense popular backlash at the use of guards to maintain public order.[251] “[D]eep, uncompromising opposition to the maintenance of a semimilitary professional force in civilian life” remained integral to Anglo-Saxon legal culture for another half century.[252]

Englishmen of the Founding era, both in England and its colonies, regarded professional police as an “alien, continental device for maintaining a tyrannical form of Government.”[253] Professor John Phillip Reid has pointed out that few of the rights of Englishmen “were better known to the general public than the right to be free of standing armies.”[254] “Standing armies,” according to one New Hampshire correspondent, “have ever proved destructive to the Liberties of a People, and where they are suffered, neither Life nor Property are secure.”[255]

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.[256] 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.[257] Such units are often instructed by active and retired United States military personnel.[258]

In Fresno, California, a SWAT unit equipped with battering rams, chemical agents, fully automatic submachine guns, and ‘flashbang’ grenades roams full-time on routine patrol.[259] 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.”[260] 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.[261]

Much of the importance of the standing-army debates at the ratification conventions has been overlooked or misinterpreted by modern scholars. Opponents of the right to bear arms, for example, have occasionally cited the standing-army debates to support the proposition that the Framers intended the Second Amendment to protect the power of states to form militias.[262] Although this argument has been greatly discredited,[263] it has helped illuminate the intense distrust that the Framers manifested toward occupational standing armies. The standing army the Framers most feared was a soldiery conducting law enforcement operations in the manner of King George’s occupation troops — like the armies of police officers that now patrol the American landscape.


The actual intent of the Second Amendment — that it protect a right of people to maintain the means of violently checking the power of government — has been all but lost in modern American society.[264] Modern policing’s increasing monopoly on firepower tends to undermine the Framers’ intent that the whole people be armed, equipped, and empowered to resist the state. Many police organizations lobby incessantly for gun control, even though the criminological literature yields scant empirical support for general gun control as a crime-prevention measure.[265]

Nor is there much legitimacy to the claim that professional police are more accurate or responsible with firearms than the armed citizenry intended by the Framers. To this day, civilians shoot and kill at least twice as many criminals as police do every year,[266] and their ‘error rate’ is several times lower.[267] In a government study of handgun battles that lead to officer injuries, it was found that police who fired upon their killers were less than half as accurate as their civilian, nonprofessional, assailants.[268]

Moreover, police seem hardly less likely to misuse firearms than the general public.[269] In New York City, where private possession of handguns has been virtually eliminated for most civilians, problems with off-duty police misusing firearms have repeatedly surfaced.[270] Los Angeles police have been found to fire their weapons inappropriately in seventy-five percent of cases.[271] Between early 1989 and late 1992, more than one out of every seven shots fired by Washington, D.C. police officers was fired accidentally.[272]


Although standing armies were not specifically barred by the final version of the Constitution’s text, some authorities have pointed to the Third Amendment[273] as a likely fount for such a conceptual proposition.[274] Additionally, the Amendment’s proscription of quartering troops in homes might well have been interpreted as a general anti-search and seizure principle if the Fourth Amendment had never been enacted.[275] The Third Amendment was inspired by sentiments quite similar to those that led to passage of the Second and Fourth Amendments, rather than fear of military operations. Writing in the 1830s, Justice Story regarded the Third Amendment as a security that “a man’s house shall be his own castle, privileged against all civil and military intrusion.”[276]

The criminal procedure concerns that dominated the minds of the Framers of the Bill of Rights were created not only before the Revolution but also after it. In the five years following British surrender, the independent states vied against each other for commercial advantage, debt relief, and land claims. Conflict was especially fierce between the rival settlers of Pennsylvania and Connecticut on lands in the west claimed simultaneously by both states.[277] Both states sent partisan magistrates and troops into the region, and each faction claimed authority to remove claimants of the rival state.[278] Magistrates occasionally ordered arrest without warrant, turned people out of their homes, and even ordered submission to the quartering of troops in homes.[279] In 1784, a Pennsylvania grand jury indicted one such magistrate and forty others for abuse of their authority.[280] Many agents had to be arrested before the troubles finally ended in 1788 — the very moment when the Constitution was undergoing its ratification debates.[281] These troubles, and not memories of life under the Crown, were fresh in the minds of the Framers who proposed and ratified the Bill of Rights.

The Third Amendment’s proscription of soldiers quartered in private homes addressed a very real domestic concern about the abuse of state authority in 1791. This same fear of an omnipresent and all-controlling government is hardly unfounded in modern America. Indeed, the very evils the Framers sought to remedy with the entire Bill of Rights — the lack of security from governmental growth, control and power — have come back to haunt modem Americans like never before.[282]


The ‘police state’ known by modern Americans would be seen as quite tyrannical to the Framers who ratified the Constitution. If, as Justice Brandeis suggested, the right to be left alone is the most important underlying principle of the Constitution,[283] the cop-driven model of criminal justice is anathemic to American constitutional principles. Today a vast and omnipotent army of insurgents patrols the American landscape in place of grand juries, private prosecutors, and the occasional constable. This immense soldiery is forever at the beck and call of whatever social forces rule the day, or even the afternoon.[284]


Now to the Fourth Amendment. The Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[285] This protection was clearly regarded as one of the more important provisions of the Bill of Rights during debates in and out of Congress prior to ratification.[286] To this day, the Amendment is probably the most cited constitutional provision in challenges to police action.

The cold, hard reality, however, is that the interest protected by the amendment — security from certain types of searches and seizures — has been drastically scaled back since 1791. In saying this, I am mindful that there are those among the highest echelons of the bench and academy who claim that current Fourth Amendment law is more protective than the Framers intended.[287] Indeed, there are those claiming the mantles of textualism and originalism who would decrease Fourth Amendment rights even further.[288] The ever-influential Akhil Amar, for example, has argued that the Fourth Amendment’s text does not really require warrants but merely lays out the evidentiary foundation required to obtain warrants.[289] Amar joins other “originalist” scholars who emphasize that the only requirement of the Fourth Amendment’s first clause (“The right of the people to be secure in their persons, papers, and effects from unreasonable searches and seizures shall not be violated”) is that all searches and seizures be “reasonable.”[290] The warrant requirement pronounced in many Supreme Court opinions, according to Amar, places an unnecessary burden upon law enforcement and should be abandoned for a rule Amar considers more workable — namely civil damages for unreasonable searches after the fact as determined by juries.

This type of “originalism” has appealed to more than one U.S. Supreme Court justice,[291] at least one state high court,[292] and various legal commentators.[293] Indeed, it has brought a perceivable shift to the Supreme Court’s Fourth Amendment jurisprudence.[294] Even the U.S. Justice Department has adopted this argument as its own in briefs filed in the U.S. Supreme Court arguing for elimination of the warrant requirement.[295]

The problem with this line of interpretation is that it does not square with the original view of the Framers. Even the most cursory examination of history reveals that law enforcers of the Founding Era, whether private persons, sheriffs or constables, were obligated to procure warrants in many circumstances that modern courts do not require warrants.[296] The general rule that warrants were required for all searches and seizures except those involving circumstances of the utmost urgency seems so well settled at the time of ratification that it is difficult to imagine a scholar arguing otherwise.[297] But Professor Amar does. “Supporters of the warrant requirement,” the professor writes, “have yet to find any cases” enunciating the warrant requirement before the Civil War.[298]

Perhaps Amar has overlooked the 1814 case of Grumon v. Raymond, in which the Connecticut Supreme Court held both a constable, who executed an improper search warrant, and a justice of the peace who issued the warrant, civilly liable for trespass.[299] The court in Grumon clearly stated that the invalidity of the search warrant left the search’s legality “on no better ground than it would be if [the search had been pursuant to] no process.”[300] Or maybe Amar is unfamiliar with the 1807 case of Stoyel v. Lawrence, holding a sheriff liable for executing a civil arrest warrant after the warrant’s due date and declaring that the warrant “gave the officer no authority whatever, and, consequently, formed no defence”;[301] or the 1763 Massachusetts case of Rex v. Gay, acquitting an arrestee for assaulting and beating a sheriff who arrested him pursuant to a facially invalid warrant;[302] or Batchelder v. Whitcher, holding an officer liable for ordering the seizure of hay by an unsealed warrant in 1838;[303] or Conner v. Commonwealth, in which the Pennsylvania Supreme Court concluded in 1810 that if the requirement of warrants based on probable cause could be waived merely to allow constables to more easily arrest criminals, “the constitution is a dead letter.”[304]

Even the cases Amar cites for the proposition that search warrants were not required under antebellum Fourth Amendment jurisprudence do not squarely support such a proposition.[305] Most of them merely repeat the “warrant requirement” of the common law and find that their given facts fit within a common law exception.[306] Similarly, the cases Amar cites that interpret various Fourth-Amendment equivalents of state constitutions by no means indicate that Founding-era law enforcers could freely search and seize without warrant wherever it was “reasonable” to do so. [307]


Under Founding-era common law, warrants were often considered as much a constitutional floor as a ceiling. Warrants did provide a defense for constables in most trespass suits, but were not good enough to immunize officials from liability for some unreasonable searches or seizures.[308] The most often-cited English case known to the Framers who drafted the Fourth Amendment involved English constabulary who had acted pursuant to a search warrant but were nonetheless found civilly liable for stiff (punitive, actually) damages.[309]

For more than 150 years, it was considered per se unconstitutional for law enforcers to search and seize certain categories of objects, such as personal diaries or private papers, even with perfectly valid warrants.[310] Additionally, Fourth Amendment jurisprudence prohibited the government from seizing as evidence any personal property which was not directly involved in crime, even with a valid warrant.[311] The rationale for this “mere evidence” rule was that the interests of property owners were superior to those of the state and could not be overridden by mere indirect evidentiary justifications.[312] This rule, like many other obstacles to police search and seizure power, was discarded in the second half of the twentieth century by a Supreme Court much less respectful of property rights than its predecessors.[313]


Under the Founders’ Model, a private person like Josiah Butler, who lost twenty pounds of good pork under suspicious circumstances in 1787, could approach a justice of the peace and obtain a warrant to search the property of the suspected thief for the lost meat.[314] Private individuals applied for many or most of the warrants in the Founders’ era and even conducted many of the arrests.[315] Even where sworn constables executed warrants, private persons often assisted them.[316] To avoid liability, however, searchers needed to secure a warrant before acting.[317] False arrest was subject to strict liability.[318]

The Founders contemplated the enforcement of the common law to be a duty of private law enforcement, and assumed that private law enforcers would represent their interests with private means. However, the Founders viewed private individuals executing law enforcement duties as “public authority” and thus intended for the Fourth and Fifth Amendments to apply to such individuals when acting in their law enforcement capacities.[319] Consequently, the Supreme Court’s 1921 decision in Burdeau v. McDowell[320] — often cited for the proposition that the Fourth Amendment applies only to government agents — was almost certainly either wrongly decided or wrongly interpreted by later courts.[321]

Some of the earliest English interpretations of the freedom from search and seizure held the protection applicable to private citizens as much as or more so than government agents.[322] Massachusetts and Vermont were apparently the first states to require that search and arrest warrants be executed by sworn officers.[323] New Hampshire adopted the same rule in 1826, more than a generation after the Bill of Rights was ratified.[324] It is likely that some states allowed private persons to execute search warrants well into the nineteenth century.

Because many Founding-era arrests and searches were executed by private persons, and early constables needed the assistance of private persons to do their jobs, the Fourth Amendment was almost certainly intended for application to private individuals. Burdeau cited no previous authority for its proposition in 1921, and early American cases demonstrate an original intent that the Fourth Amendment apply to every searcher acting under color of law.[325] On the open seas, most enforcement of prize and piracy laws was done by “privateers” acting for their own gain but who were held accountable in court for their misconduct.[326]

Later courts have taken this holding to mean that “a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment.” Walter v. U.S. 447 U.S. 649, 656 (1979). See also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (saying “This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable to a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.”).

As explained in Part I, early constables had powers no greater than those of other individuals, so they needed warrants before engaging in law enforcement activities beyond any citizen’s authority. Like you or I, a constable would be thought outside the bounds of good etiquette (and well outside the law) were he to conduct an unconsented search of another’s person, property or effects, and should — very reasonably — expect to be jailed, physically repulsed, or sued for such conduct.

A private person’s only defense was the absolute correctness of his allegations. A person was liable if, for example, his complaint was too vague as to the address to be searched,[327] he misspelled the name of the accused in his complaint,[328] or he sought the execution of a warrant naming a “John Doe” as a target.[329]

This was the constitutional model secured to America by the Framers. The idea of police having special powers was only a seedling, alien to the scheme of ordered liberty and limited government created by the Constitution. Eventually, police interceded between private individuals and magistrates altogether, and today it is virtually unheard of for a private person to seek a search warrant from a magistrate.

Freedom from search and seizure has been retracting in favor of police ever since the ink was dry on the Bill of Rights. The Framers lived under a common law rule that required warrantless arrests be made only for felonies where no warrant could be immediately obtained.[330] By the early to mid-1800s, the rule had changed to allow warrantless arrests for all felonies regardless of whether a warrant could be obtained.[331] Early American courts also apparently allowed warrantless arrests for misdemeanor breaches of peace committed in the arrestor’s presence. Toward the end of the nineteenth century, most state courts had changed to allow warrantless arrest for all crimes of any kind committed in an officer’s presence, as well as for all felonies committed either within or without an officer’s presence regardless of whether a warrant can be obtained.[332]

By the mid-1900s, arrest had become the almost-exclusive province of paid police, and their power to arrest opened even wider. A trend toward allowing police to arrest without warrant for all crimes committed even outside their presence has recently developed,[333] with little foreseeable court-imposed impediment.[334] Almost every American jurisdiction has legislated for the erosion of common law limitations with regard to domestic violence arrests and arrests for other high profile misdemeanors.[335]

Despite the Fourth Amendment, the Supreme Court has imposed almost no limits on warrantless arrest at all. Only forcibly entering a residence without warrant to arrest someone inside has been found to violate the Fourth Amendment.[336] Outside the home, modern police have been essentially licensed by the Court to arrest almost anyone at any time so long as probable cause exists.[337] The Supreme Court effectively buried the original purpose of warrantless arrest entirely in 1985, declaring that “[r]estraining police action until after probable cause is obtained… might… enable the suspect to flee in the interim.”[338]

Long forgotten is the fact that common law allowance for warrantless arrest was precipitated solely on an emergency rationale and allowed only to protect the public from immediate danger.[339]

The rationale for the felon exception to the warrant requirement in 1791, for example, was that a felony was any crime punishable by death, generally thought to be limited to only a handful of serious crimes.[340] Felons were considered “outlaws at war with society,”[341] and their apprehension without warrant qualified as one of the “exceptions justified by absolute necessity.”[342] By the late twentieth century, however, many crimes the Framers would have considered misdemeanors or no crime at all had been declared felonies and the rationale for immediate community action to apprehend “felons” had changed greatly.[343] The courts, however, have been slow to react to this far-reaching change.[344] In any case, the vast majority of arrests (seventy to eighty percent) are for misdemeanors,[345] which would have been proscribed without warrant under the Framers’ law.


The writings of most modern “originalist” scholars promote civil suits against police departments, instead of exclusion of evidence, as a remedy for police misconduct. Professor Amar, for example, champions a return to civil litigation, but with, somehow, a better return than such actions currently bring.[346] He invents a fantastically implausible cause of action where “government should generally not prevail.”[347] He bases this idea on actual cases from the nineteenth century where people prevailed against constables and sheriffs in relatively routine circumstances, often with heavy damage awards.[348]

These cases actually occurred — but in an age before police took over American law enforcement. Civil damages really were a better remedy when many or most searches were sought — and sometimes conducted — by private persons who stood strictly liable in court if their allegations proved false or their conduct proved overzealous.[349] American law provided recovery for every false arrest. If it was not the constable who executed the warrant, the private person, who lodged the original insufficient complaint, was liable.[350]

Under Founding-era common law, liability for officers was in many respects higher than for private persons. Sheriffs and deputies could be held liable for failing to arrest debtors for collection of debts[351] or to serve other process,[352] for allowing an imprisoned debtor to escape,[353] for failing to keep entrusted goods secure[354] or to deliver goods in custody at a proper time,[355] or for failing to keep faithful accounting and custody of property.[356] Sheriffs were also obligated to return writs within a specific time period, at pain of civil damages.[357] They were liable to debtors whose property was sold at sheriffs sales if proper advertisement procedures were not followed[358] and for negligently allowing other creditors to obtain priority interests on attached property.[359]

Law enforcers were liable for false imprisonment, even where they acted with court permission, if procedures were improper.[360] A deputy was liable for damages to an arrestee whom he arrested outside his jurisdiction.[361] Sheriffs were even liable if their deputies executed civil process in a rude and insolent manner.[362] When executing writs, sheriffs were liable for any unnecessary violence against innocent third persons who obstructed them.[363]

The Founders’ law knew no “good faith” defense for law enforcers. Sheriffs and justices who executed arrests pursuant to invalid warrants were considered trespassers (as were any judges who granted invalid warrants). Any person was justified in resisting, or even battering, such officers.[364] Justices of the peace could be held liable for ordering imprisonment without taking proper steps.[365]

Any party who sued out or issued process did so at his peril and was civilly responsible for unlawful writs (even if the executing officer acted in good faith).[366]

Nor did state authority provide the umbrella of indemnification that now protects public officers. Sheriffs of the nineteenth century often sought protection from liability by obtaining bonds from private sureties.[367] Their bonds were used to satisfy civil judgments against them while in office.[368] If the amount of their bonds was insufficient to satisfy judgments, sheriffs were liable personally.[369] It was not uncommon for a sheriff to find himself in jail as a debtor for failing to satisfy judgments against him.[370] Even punitive damages against officers — long disfavored by modern courts with regard to municipal liability — were deemed proper and normal under the law of the Framers.[371]

Unlike the early constables, uniformed police officers were generally introduced upon the American landscape by their oaths alone and without bonds. Their municipal employers (hence, the taxpayers) were on the hook for their civil liabilities. Although courts tended to treat police identically to bonded officials,[372] their susceptibility to civil redress was much lower. This change in the law of policing had the effect of depriving Americans of remedies for Fourth Amendment (and other) violations.[373] The evil that now pervades criminal justice — swarms of officers unaccountable in court either criminally or civilly — was the very evil that the Founders sought to remedy in the late eighteenth century.[374]


But immunities follow duties, and duties placed upon police by lawmakers have exploded since 1791.[375] Immunities grew slowly, beginning with a slight deference to officer conduct so long as there was no bad faith, corruption, malice or “misbehavior,”[376] and ending with broad qualified immunity.[377] When the practice of professional policing arrived from England upon American shores (for the second time, actually, if we consider modern police to be akin to the “standing armies” of the Founders’ generation), cases began to enunciate a general deference to police conduct, permitting that the actions of officers in carrying out their duties “not to be harshly judged.”[378] Appellate courts began to reverse jury verdicts against officers upon new rules of law granting privileges unknown to private individuals.[379]


Probable cause for the issuance of warrants has also become less strict.[380] The Supreme Court regarded hearsay evidence as insufficient to constitute probable cause for seventeen years in the first half of the twentieth century,[381] but has since given police free reign to construct probable cause in whatever way they deem proper. Instead of probability that a crime has been committed, the courts now require only some possibility, a relaxed standard that “robs [probable cause] of virtually all operative significance.”[382] This watered-down “probable cause” for the issuance of ex parte warrants would have shocked the Founders.[383]

At common law, one could sue and recover damages from a private person who swore out a false or misleading search warrant affidavit.[384] In contrast, few modern officers will ever have to account for lies on warrant applications so long as they couch their “probable cause” in unprovables. “Anonymous citizen informants,”[385] material omissions and misrepresentations,[386] irrelevant or prejudicial information,[387] and even outright falsities are now common fixtures of police-written search warrant applications.[388] For years, Boston police simply made up imaginary informants to justify searches and seizures.[389] Police themselves refer to the phenomenon as “testilying” — an aspect of normal police work regarded as “an open secret” among principle players of the criminal justice systern.[390]


The courts have been particularly unkind to Fourth Amendment protections in the context of motor vehicle travel. Since the 1920s, Fourth Amendment jurisprudence has allowed for a gaping and ever-widening exception to the warrant requirement with regard to the nation’s roadways.[391] Today, police force untold millions of motorists off the roads each year to be searched or scrutinized without judicial warrant of any kind.[392] Any police officer can generally find some pretext to justify a stop of any automobile.[393] In effect, road travel itself is subject to a near total level of police control,[394] a phenomenon that would have confounded the Framers, who treated seizures of wagons, horses and buggies as subject to the same constraints as seizures of other property.[395]

The courts have laid down such a malleable latticework of exceptions in favor of modern police that virtually any cop worth his mettle can adjust his explanations for a search to qualify under one exception or another. When no exception applies, police simply lie about the facts.[396] “Judges regularly choose to accept even blatantly unbelievable police testimony.”[397] The practice on the streets has long been for police to follow their hunches, seek entrance at every door, and then attempt to justify searches after the fact.[398] Justice Robert Jackson observed in 1949 that many unlawful searches of homes and automobiles are never revealed to the courts or the public because the searches turn up nothing.[399]


Conventional wisdom suggests there is one important exception to the long decline of Fourth Amendment protections: the exclusionary rule. Since 1914, the Supreme Court has required the exclusion of evidence seized in violation of the Fourth Amendment from being used against a defendant in federal court.[400] In 1961, this rule was applied to the states in Mapp v. Ohio.[401] Shortly thereafter, the Supreme Court expanded the exclusionary rule to other protections such as the Fifth and Sixth Amendments in cases such as Miranda v. Arizona.[402]

Textualists and originalists have lobbed a steady stream of vitriol against the exclusionary rule for decades. No enunciation of such a rule, say these critics, can be found in the writings or statements of the Framers.[403] Moreover, say such critics, the rule places a heavy burden on the efficiency of police (but simultaneously, somehow, fails to deter them in any way), and unfairly frees a small but not insignificant percentage of “guilty” offenders.[404] So-called “conservative” legal scholars remember the Warren Court’s imposition of the exclusionary rule upon the states in the 1960s as a bare-knuckled act of judicial activism[405] and argue that the Court “[took] it upon itself, without constitutional authorization, to police the police.”[406]

The Miranda and Mapp decisions provoked an onslaught of hostility by police organizations and their sympathizers that has not subsided decades later. High-ranking authorities (not the least of which were Justices Harlan and White, who dissented in Miranda) wrote that such decisions put society at risk from criminals.[407] The Miranda rule, according to Justice White, would force “those who rely on the public authority for protection” to “engage in violent self-help with guns, knives and the help of their neighbors similarly inclined.”[408] Even more outraged was the chief of police of Garland, Texas, who responded, “We might as well close up shop.”[409]

Yet the dire predictions that followed the Miranda and Mapp decisions were ultimately proved false.[410] Rather than returning to what Justice White decried as “violent self-help” (as the Constitution’s framers truly intended), America continued its slide into increased dependence upon police for the most mundane aspects of law enforcement. If anything, reliance upon police for personal protection has increased since the 1960s.

I propose an altogether different interpretation of Mapp, Miranda, and some of the Warren Court’s other criminal procedure decisions. While I concede that this jurisprudence grossly violated certain constitutional principles (most importantly, principles of federalism), I submit that such rulings were attempts to bring constitutional law into accord with the alien threat posed by modern policing. Professional policing’s arrival upon the American scene required that the Court’s Bill of Rights jurisprudence splinter a dozen ways to accommodate it. Thus, Mapp and Miranda were an application of brakes to a foreign element (modern policing) that is itself without constitutional authorization.

In many ways, the Warren Court was the first U.S. Supreme Court to face criminal procedural questions squarely in light of the advent of professional policing. The Miranda and Mapp decisions, according to noted criminal law expert David Rudovsky, “at least implicitly acknowledged widespread police and prosecutorial abuse,”[411] a phenomenon that would have bedeviled the Framers. Mapp’s holding was brought on more by the need to make the criminal justice system work fairly than by any other consideration.[412] The same realities gave way to the rule of Bivens v. Six Narcotics Agents, in 1971, in which the Court conceded that an agent acting illegally in the name of the government possesses a far greater capacity for harm than any individual trespasser exercising his own authority (as prevailed as the common form of law enforcement in 1791).[413]

Furthermore, the notion that exclusion cannot be justified under an originalist approach is not nearly as well-founded as its harshest critics suggest.[414] Critics of the rule point to the 1914 case of Weeks v. United States[415] as the rule’s debut in Supreme Court jurisprudence.[416] However, the rule actually debuted in dicta in the 1886 case of Boyd v. United States.[417] Even this seemingly late date of the rule’s debut can be attributed to the Court’s lack of criminal appellate jurisdiction until the end of the nineteenth century.[418] The reality is that Boyd, the Court’s first suggestion of the rule, represents, for practical purposes, the very first Fourth Amendment case decided by the Supreme Court. The exclusionary rule thus has a better pedigree than it is credited with.[419]


In a previous article, I described the limitation of common law grand jury powers by Rule 6 of the Federal Rules of Criminal Procedure as an unconstitutional infringement of the Fifth Amendment Grand Jury Clause.[420] The fact that most criminal charges are now initiated not by crime victims but by armed state agents who serve the state’s interests represents a drastic alteration of Founding-era criminal procedure.[421] The suppression of grand jurors’ lawful powers belies the intent of the Constitution that law enforcement officials be subject to stringent oversight by the citizenry through grand juries. Modern policing, in effect, acts as a middleman between the people and the judicial branch of government that was never contemplated by the Framers.

The Fifth Amendment also prohibits the compulsion of self-incriminating testimony.[422] Various competing interpretations ebbed and flowed from this provision until 1966, when the Supreme Court held that police are required to actually tell suspects about the Fifth and Sixth Amendments’ protections before interrogating them.[423] The sheer volume of criticism by police organizations of the Miranda ruling over the next three decades indicates the strong state interest in keeping the Constitution’s protections concealed from the American public.

Modem police interrogation could scarcely have been imagined by the Framers who met in Philadelphia in the late eighteenth century. Police tactics such as falsifying physical evidence, faking identification lineups, administering fake lie detector tests and falsifying laboratory reports to obtain confessions are methods developed by the professionals of the twentieth century.[424] Against such methods a modern suspect stands little chance of keeping his tongue. Like the exclusionary rule and the entrapment defense, the Miranda rule operates as an awkward leveling device between the rights of American citizens and their now-leviathanic government.

In 2000, the Supreme Court upheld (indeed, “constitutionalized”) the Miranda rule in the face of widespread predictions that the police-favoring Rehnquist majority would abandon the rule.[425] The Court delivered an opinion recognizing that “the routine practices of [police] interrogation [is] itself a relatively new development.”[426] The Miranda requirement, according to Justice Rehnquist, was therefore justified as an extension of due process — a far more sustainable course than one extending from the wording of the Fifth and Sixth Amendments.[427]

The Dickerson decision illustrates the increasingly awkward peace between the Bill of Rights and the phenomenon of modern policing. Because the Framers did not contemplate wide-scale execution of government power through paid, full-time agents, modern jurisprudence reconciling the Bill of Rights with today’s police practices seems increasingly farfetched. Justices Scalia and Thomas dissented from the Dickerson majority with well-founded textualist objections, arguing that the majority was writing a “prophylactic, extraconstitutional Constitution” to protect the public from police.[428] Yet in light of the extraconstitutional nature of modern police, the Dickerson majority opinion is no less consistent with the Framers’ constitutional intent.


Due process of law depends upon assurances that a level playing field exists between rival adversaries pitted against each other.[429] The constitutional design pitted a citizen defendant against his citizen accuser before a jury of his (the defendant’s) peers. The state provided only the venue, the process, and assurances that the rule of law would govern the outcome. By comparison, a modern defendant is hardly pitted in a fair fight, facing the vast treasury and human resources of the state. While the criminal justice system of the Founding era was victim-driven, and thus self-limiting, today’s system is fueled by a professional army of police who measure their success in numbers of arrests and convictions.[430]

Police themselves often ignore standard concepts of fairness, official regulations, and statutes in their war on crime.[431] Police agencies have even been known to develop institutional means to circumvent court attempts to equalize the playing field.[432] In the face of unwanted publicity or controversy surrounding police brutality cases, police departments have been known to release arrest records to the media to vilify victims of police misconduct.[433]

The police model of law enforcement tilts the entire system of criminal justice in favor of the state. The police, though supposedly neutral investigators, are in reality an arm of the prosecutor’s office.[434] Where police secure a crime scene for investigation, they in fact secure it for the prosecution alone and deny access to anyone other than the prosecution. A suspect or his defense attorneys often must obtain court permission to view the scene or search for evidence. Only such exculpatory evidence as by accident falls into the hands of the prosecution need be revealed to the suspect or defendant.[435] In cases where police misconduct is an issue, police use their monopoly over the crime scene to prepare the evidence to suit their version of events.[436]

Mapp, Miranda and Dickerson notwithstanding, the tendency of modern courts to work around police practices, rather than nullify or restrain them, poses the very threat to due process of law the Framers saw as most dangerous to liberty. Instead of viewing the system as a true adversarial contest with neutral rules, judges and lawmakers have decided that catching (nonpolice) lawbreakers is more important than maintaining a code of integrity.[437] The “sporting theory of criminal justice,” wrote Justice Warren Burger, “has been experiencing a decline in our jurisprudence.”[438] In its place is a system where the government views the nonpolice lawbreaker as a threat to its authority and places top priority on defeating him in court.[439]


Abandonment of victim-driven, mostly private prosecution has led to consequences the Framers could never have predicted and would likely never have sanctioned. Even in the most horrific examples of colonial criminal justice (and there were many), defendants were rarely if ever entrapped into criminal activity. The development of modern policing as an omnipotent power of the state, however, has necessitated the simultaneous development of complicated doctrines such as entrapment and “outrageous government conduct” as counterweights.

It was not until the late nineteenth century that any English or American case dealt with entrapment as a true defense to a criminal charge.[440] (The case law until then had been virtually devoid of police conduct issues altogether).[441] Beginning in 1880, English case law slowly became involved with phenomena such as state agents inducing suspects to sell without proper certificates,[442] persuading defendants to supply drugs to terminate pregnancy,[443] and enticing people to commit other victimless crimes. Dicta in some English cases expressed outrage that police might someday “be told to commit an offense themselves for the purpose of getting evidence against someone.”[444] Police who commit such offenses, said one English court, “ought also to be convicted and punished, for the order of their superior would afford no defense.”[445]

Entrapment did not arise as a defense in the United States until 1915, when the conduct of government officers for the first time brought the issue before the federal courts. In Woo Wai v. United States, the Ninth Circuit overturned a conviction of a defendant for illegally bringing Chinese persons into the United States upon evidence that government officers had induced the crime.[446] Growth in police numbers and “anti-crime” warfare was so rapid that in 1993, the Wyoming Supreme Court wrote that entrapment had “probably replaced ineffectiveness of defense counsel and challenged conduct of prosecutors as the most prevalent issues in current appeals.”[447]

The growth of the use of entrapment by the state raises troubling questions about the nature and purposes of American government. Rather than “serving and protecting” the public, modern police often serve and protect the interests of the state against the liberties and interests of the people. A significant amount of police brutality, for example, seems aimed at mere philosophical, rather than physical, opposition. Police dominance over the civilian (rather than service to or protection of him) is the “only truly iron and inflexible rule” followed by police officers.[448] Thus, any person who defies police faces virtually certain negative repercussions, whether a ticket, a legal summons, an arrest, or a bullet.[449] One study found nearly half of all illegal force by police occurred in response to mere defiance of an officer rather than a physical threat.[450]

In the political sphere, police serve the interests of those in power against the rights of the public. New York police of the late nineteenth century were found by the New York legislature to have committed “almost every conceivable crime against the elective franchise,” including arresting and brutalizing opposition-party voters, stuffing ballot boxes, and using “oppression, fraud, trickery [and] crime” to ensure the dominant party held the city.[451] In the twentieth century, J. Edgar Hoover’s FBI agents burglarized hundreds of offices of law-abiding, left-wing political parties and organizations, “often with the active cooperation or tacit consent of local police.”[452] The FBI has also spent thousands of man-hours surveiling and investigating writers, playwrights, directors and artists whose political views were deemed a threat to the interests of the ruling political establishment.[453]

Police today are a constant agent on behalf of governmental power. Both in the halls of legislatures and before the courts, police act as lobbyists against individual liberties.[454] Police organizations, funded by monies funneled directly from police wages, lobby incessantly against legislative constraints on police conduct.[455] Police organizations also file amicus curie briefs in virtually every police procedure case that goes before the Supreme Court, often predicting dire consequences if the Court rules against them. In 2000, for example, the police lobby filed amicus briefs in favor of allowing police to stop and frisk persons upon anonymous tips, warning that if the Court ruled against them, “the consequence for law enforcement and the public could be increased assaults and perhaps even murders.”[456]


The United States of America was founded without professional police. Its earliest traditions and founding documents evidenced no contemplation that the power of the state would be implemented by omnipresent police forces. On the contrary, America’s constitutional Framers expressed hostility and contempt for the standing armies of the late eighteenth century, which functioned as law enforcement units in American cities. The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Framers. The implications of this altered balance of power are far-reaching, and should invite consideration by judges and legislators who concern themselves with constitutional questions.



[1] As of June, 1996, there were more than 700,000 full- and part-time professional state-sworn police in the United States. See BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 1996 (1998). Figures for earlier decades and centuries are difficult to obtain, but a few indicators suggest that the ratio of police per citizen has grown by at least four thousand percent. In 1816, the British Parliament reported that there was at that time one constable for every 18,187 persons in Great Britain. See Jerome Hall, Legal and Social Aspects of Arrest Without a Warrant, 49 HARVARD L. REV. 566, 582 (1936). Conventional wisdom would suggest that American ratios were, if anything, lower. Today there is approximately one officer for every 386 Americans.

[2] The City of Los Angeles, for example, spends almost half (49.1%) of its annual discretionary budget on police but only 17.7% on fire and 14.8% on public works. See City of Los Angeles 1999-2000 Budget Summary (visited Dec. 2000) <>. The City of Chicago spends over forty percent of its annual budget on police. See Chicago Budget 1999 (visited Dec. 2000) <> (pie chart). Seattle spends more than $150 million, or 41 percent of its annual budget, on police and police pensions. See City of Seattle 2000 Proposed Budget (visited Dec. 2000). The City of New York is one exception, due primarily to New York State’s unique system for funding education. Police and the administration of justice constitute the third largest segment, or twelve percent, of the City’s budget, after education and human resources. See THE CITY OF NEW YORK, EXECUTIVE BUDGET, FISCAL YEAR 2000 1 (2000) (pie chart).

[3] See Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 830 (1994) (saying twentieth century police and “our contemporary sense of ‘policing’ would be utterly foreign to our colonial forebears”).

[4] See id.

[5] See id. at 831 (saying the sole monetary reward for such officers was occasional compensation by private individuals for returning stolen property).

[6] See CHARLES SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 314 (1978). The City of Boston, for example, enacted an ordinance requiring drafted citizens to walk the streets “to prevent any danger by fire, and to see that good order is kept.” Id.

[7] C.f. id. (mentioning that cops’ role of maintaining order predates their role of crime control).

[8] But see, e.g., Steiker, supra note 3, at 824 (saying the “invention … of armed quasi-military, professional police forces, whose form, function, and daily presence differ dramatically from that of the colonial constabulary, requires that modern-day judges and scholars rethink” Fourth Amendment remedies).

[9] See, e.g., ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 104 (1996) (criticizing Supreme Court rulings that have “steadily expanded” the rights of criminals and placed limitations upon police conduct).

[10] Cf. E.X. BOOZHIE, THE OUTLAW’S BIBLE 15 (1988) (stating the true mission of police is to protect the status quo for the benefit of the ruling class).

[11] As a textual matter, the Constitution grants authority to the federal government to define and punish criminal activity in only five instances. Article I grants Congress power (1) “[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States,” art. I, § 8, cl. 6; (2) “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” id, cl. 10; (3) “[t]o make Rules for the Government and Regulation of the land and naval Forces,” id. at cl. 14; (4) “[t]o exercise exclusive Legislation in all Cases whatsoever, over” the District of Columbia and federal reservations. id. at cl. 17; see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426 (1821) (“Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the states”). Likewise, (5) Article III defines the crime of “Treason against the United States” and grants to Congress the “Power to declare [its] Punishment….” U.S. CONST. art. III, § 3.

[12] Several early constitutions expressed a right of citizens “to be protected in the enjoyment of life, liberty and property,” and therefore purported to bind citizens to contribute their proportion toward expenses of such protection. See DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, § 10; PA. CONST. of Sept. 28, 1776, Dec. of Rights, § VIII; VT. CONST. of July 8, 1777, Chap. 1, § IX. Other typical provisions required that the powers of government be exercised only by the consent of the people, see, e.g., N.C. CONST. of Dec. 18, 1776, § V, and that all persons invested with government power be accountable for their conduct. See MD. CONST. of Nov. 11, 1776, § IV.

[13] The constitutions of several early states expressed the intent that citizens were obligated to carry out law enforcement duties. See, e.g., DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, § 10 (providing every citizen shall yield his personal service when necessary, or an equivalent); N.H. CONST. of June 2, 1784, Part I, art. I, § XII (providing that every member of the community is bound to “yield his personal service when necessary, or an equivalent”); VT. CONST. of July 8, 1777, Chap. 1, § IX (providing every member of society is bound to contribute his proportion towards the expenses of his protection, “and to yield his personal service, when necessary”).

[14] C.f. JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF AMERICAN LIBERTY 51 (1st ed. 1994) (discussing Revolution-era perception that the law was a means to restrain government and to secure rights of citizens).

[15] Originally, all criminal procedure fell under the rule of private vengeance. A victim or aggrieved party made a direct appeal to county authorities to force a defendant to face him.

See ARTHUR TRAIN, THE PRISONER AT THE BAR 120 n. (1926). From these very early times, “grand” or “accusing” juries were formed to examine the accusations of private individuals. Id. at 121 n. Although the accusing jury frequently acted as a trial jury as well, it eventually evolved into a separate body that took on the role of accuser on behalf of aggrieved parties. It deliberated secretly, acting on its members’ own personal information and upon the application of injured parties. Id. at 124 n.

[16] In the early decades of American criminal justice, criminal cases were hardly different from civil actions, and could easily be confused for one another if “the public not being joined in it.” Clark v. Turner, 1 Root 200 (Conn. 1790) (holding action for assault and battery was no more than a civil case because the public was not joined). It was apparently not unusual for trial judges themselves to be confused about whether a case was criminal or civil, and to make judicial errors regarding procedural differences between the two types of cases. See Meacham v. Austin, 5 Day 233 (Conn. 1811) (upholding lower court’s dismissal of criminal verdict because the case’s process had been consistent with civil procedure rather than criminal procedure).

[17] See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (involving action by private individual seeking public sanction for his prosecution).

[18] See, e.g., Smith v. State, 7 Tenn. 43 (1846) (using the term prosecutor to describe a private person); Plumer v. Smith, 5 N.H. 553 (1832) (same); Commonwealth v. Harkness, 4 Binn. 193 (Pa. 1811) (same).

[19] See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275, 281-90 (1989) (saying that any claim that criminal law enforcement is a ‘core’ or exclusive executive power is historically inaccurate and therefore the Attorney General need not be vested with authority to oversee or trigger investigations by the independent counsel).

[20] See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (holding the Attorney General must allow his name to be used by the prosecutor).

[21] Private prosecutors generally had to pay the costs of their prosecutions, even though the state also had an interest. See Dickinson v. Potter, 4 Day 340 (Conn. 1810). Government attorneys general took over the prosecutions of only especially worthy cases and pursued such cases at public expense. See Waldron v. Turtle, 4 N.H. 149, 151 (1827) (stating if a prosecution is not adopted and pursued by the attorney general, “it will not be pursued at the public expense, although in the name of the state”).

[22] See State v. Bruce, 24 Me. 71, 73 (1844) (stating a threat by crime victim to prosecute a supposed thief is proper but extortion for pecuniary advantage is criminal).

[23] See Plumer v. Smith, 5 N.H. 553 (1832) (holding promissory note invalid when tendered by a criminal defendant to his private prosecutor in exchange for promise not to prosecute).

[24] Shaw v. Reed, 30 Me. 105, 109 (1849).

[25] See In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956).

[26] See Goodman v. United States, 108 F.2d 516 (9th Cir. 1939).

[27] See Krent, supra note 19, at 293

[28] C.f. Ellen D. Larned, 1 History of Windham County, Connecticut 272-73 (1874) (recounting attempts by Windham County authorities in 1730 to arrest a large group of rioters who broke open the Hartford Jail and released a prisoner).

[29] Id. at 273

[30] See Buckminster v. Applebee, 8 N.H. 546 (1837) (stating the sheriff has a duty to raise the posse to aid him when necessary).

[31] See Waterbury v. Lockwood, 4 Day 257, 259-60 (Conn. 1810) (citing English cases).

[32] See Jerome Hall, Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 579 (1936).

[33] Barrington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y. 1928).

[34] See Eustis v. Kidder, 26 Me. 97, 99 (1846).

[35] By the early 1900s, courts held that civilians called into posse service who were killed in the line of duty were entitled to full death benefits. See Monterey County v. Rader, 248 P. 912 (Cal. 1926); Village of West Salem v. Industrial Commission, 155 N.W. 929 (Wis. 1916).

[36] United States v. Rice, 27 Fed. Cas. 795 (W.D.N.C. 1875).

[37] The Constitution is not without provisions for criminal procedure. Indeed, much of the Bill of Rights is an outline of basic criminal procedure. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 118 (2d ed. 1985). But these provisions represent enshrinements of individual liberties rather than government power. The only constitutional provisions with regard to criminal justice represent barriers to governmental power, rather than provisions for that power. Indeed, the Founders’ intent to protect individual liberties was made clear by the language of the Ninth Amendment and its equivalent in state constitutions of the founding era. The Ninth Amendment, which declares that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” provides a clear indication that the Framers assumed that persons may do whatever is not justly prohibited by the Constitution rather than that the government may do whatever is not justly prohibited to it. See Randy E. Barnett, Introduction: James Madison’s Ninth Amendment, in THE RIGHTS RETAINED BY THE PEOPLE 43 (Randy E. Barnett ed., 1989).


[39] The term “policing” originally meant promoting the public good or the community life rather than preserving security. See Rogan Kersh et al., “More a Distinction of Words than Things”: The Evolution of Separated Powers in the American States, 4 ROGER WILLIAMS U. L. REV. 5, 21 (1998).

[40] See, e.g., N.C. CONST. of Dec. 18, 1776, Dec. of Rights, § II (providing that people of the state have a right to regulate the internal government and “police thereof); PA. CONST. of Sept. 28, 1776, Dec. of Rights, art. III (stating that the people have a right of “governing and regulating the internal police of [the people]”).

[41] See Police Jury v. Britton, 82 U.S. (15 Wall.) 566 (1872). The purpose of such juries was 1) to police slaves and runaways, (2) to repair roads, bridges, and other infrastructure, and (3) to lay taxes as necessary for such acts. Id. at 568. See also BLACK’S LAW DICTIONARY 801 (abridged 6th ed. 1991).

[42] When Blackstone wrote of offenses against “the public police and economy” in 1769, he meant offenses against the “due regulation and domestic order of the kingdom” such as clandestine marriage, bigamy, rendering bridges inconvenient to pass, vagrancy, and operating gambling houses. 4 WILLIAM BLACKSTONE, COMMENTARIES 924-27 (George Chase ed., Baker, Voorhis& Co. 1938) (1769).

[43] See, e.g., Wolf v. Colorado, 338 U.S. 25,27-28 (1948) (proclaiming that “security of one’s privacy against arbitrary intrusion by the police” is at the core of the Fourth Amendment (clearly a slight misstatement of the Founders’ original perception)).

[44] See Roger Lane, Urbanization and Criminal Violence in the 19th Century: Massachusetts as a Test Case, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 445, 451 (Graham & Gurr dir., 1969) (saying citizens were traditionally supposed to take care of themselves, with help of family, friends, or servants “when available”).

[45] See, e.g., Kennard v. Burton, 25 Me. 39 (1845) (involving collision between two wagons).

[46] Lane, supra note 44, at 451.

[47] ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 96 (J.P. Mayer ed., Harper Perennial Books 1988) (1848).

[48] Id.

[49] See id. at 96.

[50] See Pauline Maier, Popular Uprisings and Civil Authority in Eighteenth-Century America, 27 WM. & MARY Q. 3-35 (1970).

[51] DE TOCQUEVILLE, supra note 47, at 72.

[52] Lane, supra note 44, at 450.

[53] See id.

[54] Id.

[55] See id. at 451.

[56] See, e.g., Lamb v. Day, 8 Vt. 407 (1836) (involving suit against constable for improper execution of civil writ); Tomlinson v. Wheeler, 1 Aik. 194 (Vt. 1826) (involving sheriff’s neglect to execute civil judgment); Stoyel v. Edwards, 3 Day 1 (1807) (involving sheriffs execution of civil judgment).

[57] If the modern police profession has a father, it is Sir Robert Peel, who founded the Metropolitan Police of London in 1829. See SUE TITUS REID, CRIMINAL JUSTICE: BLUEPRINTS 58 (5th ed. 1999) (attributing the founding of the first modern police force to Peel). Peel’s uniformed officers — nicknamed ‘Bobbies’ after the first name of their founder — operated under the direction of a central headquarters (Scotland Yard, named for the site once used by the Kings of Scotland as a residence), walking beats on a full-time basis to prevent crime. See id. Less than three decades later, Parliament enacted a statute requiring every borough and county to have a London-type police force. See id.

The ‘Bobbie’ model of policing caught on more slowly in the United States, but by the 1880s most major American cities had adopted some type of full-time paid police force. See id. at 59 (noting that the county sheriff system continued in rural areas).


[59] Id. at 151.

[60] See id. at 152 (describing early police use of station houses as homeless shelters for the poor). This same type of public problem-solving still remains a large part of police work. Police are called upon to settle landlord-tenant disputes, deliver emergency care, manage traffic, regulate parking, and even to respond to alleged haunted houses. See id. at 151 (recounting 1894 alleged ghost incident in Oakland, California). Police continue to provide essential services to communities, especially at night and on weekends when they are the only social service agency. See SILBERMAN, supra note 6, at 321.


[62] See REID, supra note 57, 65 (5th ed. 1999).


[64] See id.

[65] See id. at 130

[66] See E.X. BOOZHIE, THE OUTLAW’S BIBLE 15 (1988).

[67] Private prosecution was not without costs to taxpayers. The availability of free courtrooms to air grievances tended to promote litigation. In 1804, the Pennsylvania legislature acted to allow juries to make private prosecutors pay the costs of prosecution in especially trifling cases. Act of Dec. 8, 1804 PL3, 4 Sm L 204 (repealed 1860). Private persons were thereafter liable for court costs if they omitted material exculpatory information from a grand jury, thereby causing a grand jury to indict without knowledge of potential defenses. See Commonwealth v. Harkness, 4 Binn. 194 (Pa. 1811). This protection, like many others, was lost when police and public prosecutors took over the criminal justice system in the twentieth century. See United States v. Williams, 504 U.S. 36 (1992) (holding prosecutor has no duty to present exculpatory evidence to grand jury).

[68] In the American constitutional scheme, the states have ‘general jurisdiction,’ meaning they may regulate for public health and welfare and enact whatever means to enforce such regulation as is necessary and constitutionally proper. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), National League of Cities v. Usery, 426 U.S. 833 (1976) (both standing for the general proposition that states have constitutional power to provide for protection, health, safety, and quality of life for their citizens). See also Lawrence Tribe, American Constitutional Law, §§ 6-3, 7-3 (2d ed. 1988). State and municipal police forces can therefore be viewed as constitutional to the extent they actually carry out the lawful enactments of the state.

[69] See infra notes 285-398 and their accompanying text.

[70] See Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 347 (1984).

[71] See Jerome Hall, Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 567 (1936).

[72] See id.

[73] See id. at 567-71 (discussing earliest scholarly references to the distinction). A 1936 Harvard Law Review article suggested the distinction is a false one owed to improper marshalling of scholarship. See id. (writing of “the general misinterpretation” resulting from a 1780 case in England).

[74] See id. at 575 n.44 (citing the case of Beckwith v. Philby, 6 B. & C. 635 (K. B. 1827)).

[75] See id. at 571-72. Although official right was apparently considered somewhat greater than that of private citizens during much of the 1700s, the case law enunciates no support for any such distinction until Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850). It was apparently already the common practice of English constables to arrest upon information from the public in the 1780’s. See id. at 572. The “earlier requirement of a charge of a felony had already been entirely forgotten” in England by the early nineteenth century. Id. at 573. According to Hall, the only real distinction in practice in the early nineteenth century was that officers were privileged to draw their suspicions from statements of others, whereas private arrestors had to base their cause for arrest on their own reasonable beliefs. See id. at 569.

[76] See Rohan v. Sawin, 59 Mass. (5 Cush.) 281, 285 (1850).

[77] See id.

[78] See 18 U.S.C. § 925 (a)(l) (2000) (exempting government officers from federal firearm disabilities).

[79] See, e.g., CAL. PENAL CODE § 468 (West 1985) (releasing police from liability for possession of sniper scopes and infrared scopes).

[80] See, e.g., FLA. STAT. CH. 338. 155 (1990).

[81] See, e.g., FLA. STAT. CH. 320.025 (1990) (allowing confidential auto registration for police).

[82] See ARK. CODE ANN. § 20-22-703 (Michie 2000).

[83] See 18 U.S.C. § 1114 (amended 1994) (providing whoever murders a federal officer in first degree shall suffer death).

[84] See CAL. PENAL CODE § 832.9 (West 1995).

[85] See, e.g., CAL. HEALTH & SAFETY CODE §§ 199.95-199.99 (West 1990) (mandating HIV testing for persons charged with interfering with police officers whenever officers request).

[86] See Electronic Communications Privacy Act, 18 U.S.C. 2511 (2000); United States v. Leon, 104 S. Ct. 3405 (1984).

[87] See Williams v. Poulos, 11 F.3d 271 (lst Cir. 1993).

[88] See, e.g., People v. Curtis, 450 P.2d 33, 35 (Cal. 1969) (speaking of the “[g]eneral acceptance” by courts of the elimination of the right to resist unlawful arrest).

[89] See HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF THE CONSTITUTION 53 (1981). The statements of James Madison when introducing the proposed amendments to the Constitution before the House of Representatives, June 8, 1789, also support such a reading of the Bill of Rights. House of Representatives, June 8, 1789 Debates, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 647, 657 (David E. Young, ed.) (2d ed. 1995) (stating “the great object in view is to limit and qualify the powers of Government”).

[90] See STORING, supra note 89, at 48.

[91] See, e.g., MD. CONST. of 1776, art. I (declaring that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole”); MASS. CONST. of 1780, art. I (“All men are born free and equal, and have certain natural, essential, and unalienable rights”); N.H. CONST. of 1784, art. I (“All men are born equally free and independent”).

[92] See Coyle v. Hurtin, 10 Johns. 85 (N.Y. 1813).

[93] See Bad Elk v. United States, 177 U.S. 529 (1900).

[94] See Rex v. Gay, Quincy Mass. Rep. 1761-1772 91 (Mass. 1763) (acquitting assault defendant who beat a sheriff when sheriff attempted to arrest him pursuant to invalid warrant).

[95] See Wolf v. Colorado, 338 U.S. 25, 30 n. 1, 31 n. 2 (1948) (citing cases upholding right to resist unlawful search and seizure).

[96] See Adams v. State, 48 S.E. 910 (Ga. 1904).

[97] See MD. CONST. of 1776, art. IV; N.H. Const. of 1784, art. X.

[98] See, e.g., State v. Kutchara, 350 N.W.2d 924, 927 (Minn. 1984) (saying Minnesota law does not recognize right to resist unlawful arrest or search); People v. Curtis, 450 P.2d 33, 36 (Cal. 1969) (holding California law prohibits forceful resistance to unlawful arrest).

[99] See, e.g., CAL. PENAL CODE § 243 (criminalizing the resistance, delay or obstruction of an officer in the discharge of “any duty of his office”). CAL. PENAL CODE § 834(a) (1957) (“If a person has knowledge … that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest”).

[100] See, e.g., United States v. Charles, 883 F.2d 355 (5th Cir. 1989) (excusing as harmless error the failure of officers executing warrant to have the warrant in hand during raid); United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973) (holding failure to deliver copy of warrant to the party being searched or seized does not invalidate search or seizure in the absence of prejudice); Willeford v. State, 625 S.W.2d 88, 90 (Tex. App. 1981) (upholding validity of search and seizure before arrival of warrant). Not only has the requirement that officers show their warrant before executing it been eliminated, but the requirement that officers announce their authority and purpose before executing search warrants has been all but eliminated. See Richards v. Wisconsin, 570 U.S. 385 (1997) (eliminating requirement that officers be refused admittance before using force to enter the place to be searched in many cases).

[101] See William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 MO. L. REV. 771 (1993) (discussing the erosion of requirements for arrest warrants in many jurisdictions).

[102] See, e.g., Polk v. State, 142 So. 480, 481 (Miss. 1932) (striking down statute allowing warrantless arrest for misdemeanors committed outside an officer’s presence); Ex Parte Rhodes, 79 So. 462, 462-63 (Ala. 1918) (holding statute unconstitutional which allowed for warrantless arrest for out-of-presence misdemeanors).

[103] See Schroeder, supra note 101, at 793.

[104] See Thor v. Superior Court, 855 P.2d 375, 380 (Cal. 1993) (saying the developing consensus “uniformly recognizes” a patient’s right to control his own body, stemming from the “long-standing importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination.”) (citations omitted). “For self-determination to have any meaning, it cannot be subject to the scrutiny of anyone else’s conscience or sensibilities.” Id. at 385.

[105] See Michael v. Hertzler, 900 P.2d 1144, 1145 (Wyo. 1995) (stating if a statute reaches a fundamental interest, courts are to employ strict scrutiny in making determination as to whether enactment is essential to achieve compelling state interest).

[106] “[Only] the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Thomas v. Collins, 323 U.S. 516, 530 (1945). A “compelling state interest” is defined as “[o]ne which the state is forced or obliged to protect.” BLACK’S LAW DICTIONARY 282 (6th ed. 1990) (citing Coleman v. Coleman, 291 N.E.2d 530, 534 (1972)).

[107] The American constitutional order grants to every individual a privilege to stand his ground in the face of a violent challenger and meet violence with violence. A “duty to retreat” evolved in some jurisdictions, however, where a defender contemplates the use of deadly force. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 461 (2d ed. 1986). But with police, the courts have never imposed a duty to retreat. See id. This, combined with the recurring police claim that an attacker might get close enough to grasp the officer’s sidearm, has meant, in practical terms, that an officer may repel even a minor physical threat with deadly force.

The effect of this exception for law enforcement officers has been to grant an almost absurd advantage to police in ‘self-defense’ incidents. Not only do cops have no duty to retreat, but they seem privileged to kill whenever a plausible threat of any injury manifests itself. See infra, notes 115-147, and accompanying text. Cops — unlike the general public — appear excused whenever they open fire on an individual who threatens any harm — even utterly nonlethal — against them, such as a verbal threat to punch the officer combined with a step forward. See infra, notes 123-147, and accompanying text.

[108] See James J. Fyfe, Police Use of Deadly Force: Research and Reform, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 134-40 (George F. Cole & Mare G. Gertz eds., 7th ed. 1998).

[109] Id. at 135 (quoting Chapman and Crocket).

[110] See People v. Klein, 137 N.E. 145, 149 (Ill. 1922) (reporting that “numerous” peace officers testified that shooting was the customary method of arresting speeders during trial of peace officer accused of murder).

[111] See id.; Miller v. People, 74 N.E. 743 (Ill. 1905) (involving village marshal who shot and killed speeding carriage driver).

[112] See Fyfe, supra note 108, at 137.

[113] See id. at 140.

[114] See id. at 141 (table showing fatal shootings per 1,000 police officers, Philadelphia). A study of Philadelphia P.D. firearm discharges from 1970 through 1978 found only two cases that resulted in departmental discipline against officers on duty. See id. at 147 n.2. One case involved an officer firing unnecessary shots into the air; the other involved an officer who shot and killed his wife in a police station during an argument over his paycheck. See id.

[115] See Tennessee v. Garner, 471 U.S. 1 (1985).

[116] 471 U.S. 1 (1985).

[117] See Fyfe, supra 108, at 136.

[118] The Garner decision has been interpreted in different ways by different courts and law-making bodies. See Michael R. Smith, Police Use of Deadly Force: How Courts and Policy-Makers Have Misapplied Tennessee v. Garner, 1 KAN. J. L. & PUB. POL’Y, 100, 100-01 (1998). Smith argues that many of these interpretations stem from inaccurate readings of Garner and that lower courts have failed to hold police officers liable according to the standard required by the Supreme Court. See id.

[119] On behalf of modern police, courts have adopted a qualified immunity defense to police misconduct claims. Essentially, where cops can justify by plausible explanation that their conduct was within the bounds of their occupational duties, there is a “good faith” defense. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); Procunier v. Navarette, 434 U.S. 555 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976); Wood v. Strickland, 420 U.S. 308 (1975). But as David Rudovsky points out, the “good faith” defense is an artificial ingredient to normal tort liability. “The standard rule,” notes Rudovsky, “is that a violation of another’s rights or the failure to adhere to prescribed standards of conduct constitutes grounds for liability.” David Rudovsky, The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 248 (David Kairys ed., 1982). The “good faith” defense for police is thus an artificial layer of tort immunity protection not normally available to other types of litigants. Under the standard rules of tort law, after all, a defendant’s good faith, intent, or knowledge of the law are irrelevant. See id. at 248.

[120] See Smith, supra note 118, at 117.

[121] See id. at 106.

[122] Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000) (Kozinski, J., dissenting).

[123] OCTOBER 22 COALITION TO STOP POLICE BRUTALITY ET AL., STOLEN LIVES: KILLED BY LAW ENFORCEMENT 307 (2d. ed. 1999) (hereinafter “STOLEN LIVES”) (saying officer shot and killed victim after victim ‘made a move’ following a foot chase).

[124] See id. at 207 (listing a 1993 Michigan case).

[125] See id. at 262 (reporting 1990 Brooklyn case in which cop had shot unarmed teenage suspect in back of head for allegedly reaching into jacket).

[126] See id. at 250 (reporting 1996 New York case in which man was shot 24 times by police while sitting in car with his hands in the air); id. at 252 (reporting shooting of alleged car thief after motion as if they were going for a gun’).

[127] See id. at 262 (reporting 1990 Bronx shooting precipitated by the decedent turning toward an officer as officer opened door of decedent’s cab).

[128] See id. at 263 (reporting 1988 New York case initiated when a driver made illegal turn and ending with police pumping 16 bullets into her).

[129] See id. at 262 (reporting 1990 Brooklyn case in which decedent was shot nine times while standing and twice in back while lying on ground).

[130] See id. at 240 (reporting a 1998 New York case).

[131] See id. at 232 (reporting 1991 New Mexico case).

[132] See id. at 220 (reporting 1998 Nevada case).

[133] See id. at 29.

[134] Id. at 44.

[135] Id. at 46. The possession of a wooden stick has cost more than one person his life at the hands of police. See also id. at 68.

[136] Id. at 53.

[137] Id. at 53.

[138] See Detroit Police Kill Mentally Ill Deaf Man, BOSTON GLOBE, Aug. 31, 2000 at A8.

[139] See STOLEN LIVES, supra note 123, at 57. 140 See id. at 60.

[140] See id. at 62.

[141] See id. at 206 (listing a 1993 Michigan case). In another Michigan case, a cop shot someone who merely had a VCR remote control in his pocket, claiming he mistook it for a gun. See id. at 205.

[142] See id. at 206 (listing a 1993 Michigan case). In another Michigan case, a cop shot someone who merely had a VCR remote control in his pocket, claiming he mistook it for a gun. See id. at 205.

[143] See id. at 305 (saying Houston police surrounded truck and fired 59 times at victim as he sat in truck holding can opener). No civilian witnesses saw the “shiny object” (can opener) police claimed they saw. See id.

[144] Police use of throwdown guns has been alleged across the country. Guns which are introduced without a suspect’s fingerprints when they should have fingerprints, and guns that are found by police officers after an initial, supposedly complete, search of a crime scene by other detectives, can be said to raise questions about police use of throw-down guns. C.f. Joe Cantlupe & David Hasemyer, Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (raising the issue in a San Diego case).

[145] See Webster v. City of Houston, 689 F.2d 1220, 1227 (5th Cir. 1982).

[146] Id. at 1222.

[147] See id. at 1221-23 (describing “damning” evidence of official cover-up and police vindication as a matter of policy).

[148] See STOLEN LIVES, supra note 123, at 72. In one 1987 Los Angeles case, a man was shot four times and killed when he picked up a discarded pushbroom to deflect police baton blows. See id. 72.

[149] See id. at iv. In one particularly egregious case, a police killing was upheld as beyond liability where officers shot a speeding trucker who refused to stop. See Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993). But see, e.g., Gutierrez-Rodriquez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) (affirming verdict against plainclothes officers who shot driver who drove away); Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987) (affirming verdict against officers who shot driver as driver reached into jacket pocket during questioning); Moody v. Ferguson, 732 F. Supp. 176 (D.S.L. 1989) (rendering judgment against officers who shot driver fleeing in vehicle from traffic stop).

[150] See Zuchel v. City and County of Denver, Colorado, 997 F.2d 730 (10th Cir. 1993).

[151] See Alison L. Patton, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L. J. 753, 754 (1993) (saying plaintiffs rarely win absent independent witnesses or physical evidence).

[152] See Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 288 (1994). Prior to the 1900s, it was not uncommon for law enforcers who killed suspects during confrontations to be placed on trial for their lives even when they reacted to violent resisters. See United States v. Rice, 27 F. Cas. 795 (C.C.N.C. 1875) (No. 16,153) (involving deputy United States Marshall on trial for murder of tax evasion suspect); State v. Brown, 5 Del. (5 Harr.) 505 (Ct. Gen. Sess. 1853) (fining peace officers for assault and false imprisonment); Conner v. Commonwealth, 3 Bin. 38 (Pa. 1810) (involving a constable indicted for refusing to execute arrest warrant). Even justices of the peace could be criminally indicted for dereliction of duties. See Respublica v. Montgomery, Dall. 419 (1795) (upholding validity of a criminal charge against a justice of the peace who failed to suppress a riot).

[153] See Davis, supra note 152, at 290 (noting the hopeless conflict of interest in handling police violence complaints).

[154] For an overview of the powers of early grand juries to accuse government officials, see Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).

[155] See Steiker, supra note 3, at 836 (saying police excesses such as beatings, torture, false arrests and the third degree arc well documented).

[156] See STOLEN LIVES, supra note 123, at vii.

[157] See International Secretariat of Amnesty International, News Release, From Alabama to Wyoming: 50 Counts of Double Standards — The Missing Entries in the US Report on Human Rights, Feb. 25, 1999.

[158] See STOLEN LIVES, supra note 123, at iv.

[159] See id. at v.

[160] Certain examples demonstrate. FBI agents in Elizabeth, New Jersey shot 38 times inside an apartment to kill an unarmed man who they first tried to say had fired first. See id. at 226. In February 1999, Bronx police fired 41 bullets at an unarmed African immigrant in his apartment doorway. See id. at 234. After this unlawful killing, cops unlawfully searched the decedent’s apartment to justify shooting, failing to find any evidence of drugs. See id. In August 1999, Manhattan cops fired a total of 35 shots at alleged robber (who probably did not fire), injuring bystander and sending crowds fleeing. See id.

[161] Most states that allow the death penalty require that aggravating factors exist before imposition of capital punishment. See, e.g., IDAHO CODE § 19-2515 (1997) (allowing death penalty for crimes involving “especially heinous, atrocious or cruel, [or] manifesting exceptional depravity” or showing “utter disregard for human life”); TEX. CRIM. P. ANN. § 37.071 (West 1981) (listing factors such as whether the crime was “unreasonable in response to the provocation”); WYO. STAT. ANN. § 6-2-102 (Michie 1999) (allowing death penalty only upon a finding of aggravating factors such as a creation of great risk of death to two or more persons or for “especially atrocious or cruel” conduct).

[162] The earliest attempts at professionalization of constables failed in the United States due to insufficiency of public funds. See Steiker, supra note 3, at 831. Some of the earliest U.S. Supreme Court decisions regarding police forces involve disputes over municipal police spending. See, e.g., Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170 (1909) (resolving dispute over debts run up by municipal police district); New Orleans v. Benjamin, 153 U.S. 411 (1894) (involving dispute over unbudgeted debts run up by New Orleans police board); District of Columbia v. Hutton, 143 U.S. 18 (1891) (dealing with salary dispute involving District of Columbia police force).

[163] See FRIEDMAN, supra note 58, at 362 (1993). Dallas police, for example, arrested 8,526 people in 1929 “on suspicion” but charged less than five percent of them with a crime. See id.

[164] The infamous case of Brown v. Mississippi, 297 U.S. 278 (1936), provides a grim reminder of the torture techniques that have been employed upon suspects during the past century. In Brown, officers placed nooses around the necks of suspects, temporarily hanged them, and cut their backs to pieces with a leather strap to gain confessions. Id. at 281-82.

[165] FRIEDMAN, supra note 58, at 151 n.20 (quoting George S. McWatters, who studied New York detectives in the 1870s).

[166] See TITUS REID, supra note 57, at 122 (citations omitted).

[167] See Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 SOC. PROBS. 1, 11 (1997).

[168] One-hundred-seventeen federal, state, and local officers were killed feloniously in 1996 — the lowest number since 1960. See Sue TITUS REID, supra note 57, at 123.

[169] See National Institute for Occupational Safety and Health, Violence in the Work Place, June 1997.

[170] See id.

[171] Approximately 40 percent of police deaths are due to accidents. See TITUS REID, supra note 57, at 123.

[172] See National Institute for Occupational Safety and Health, Fatal Injuries to Workers in the United States, 1980-1989: A Decade of Surveillance 14 (April 15, 1999); Robert Rockwell, Police Brutality: More than Just a Few Bad Apples, REFUSE & RESIST, Aug. 14, 1997 (describing the “cultivation of the myth of policing as the most dangerous occupation”).

[173] See id. at 13.

[174] See SKOLNICK & FYFE, supra note 63, at 93.

[175] See Hall, supra note 71, at 582-83 (describing early constables as “[a]bominably paid”).

[176] C.f. STOLEN LIVES, supra note 123, at v (saying when police arrive on the scene, they often escalate the situation rather than defuse it).

[177] See STOLEN LIVES, supra note 123, at vi.

[178] See, e.g., Brandon v. City of Providence, 708 A.2d 893 (R.I. 1998) (finding municipality immune from liability when cops prevented relatives of injured shooting victim from taking victim to the hospital before victim died). See also Stolen Lives, supra note 157, at 305 (saying Tennessee police prevented fire fighters from saving victim of fire in 1997 case). Other notorious examples can be cited, including the 1993 Waco fire (in which fire trucks were held back by federal agents) and the 1985 MOVE debacle in Philadelphia in which police dropped a bomb on a building occupied by women and children and then held back fire fighters from rescuing bum victims. See WILLIE L. WILLIAMS, TAKING BACK OUR STREETS: FIGHTING CRIME IN AMERICA 16 (1996) (saying investigative hearings revealed cops had held back rescuers as a ‘tactical decision’).

[179] See SKOLNICK & FYFE, supra note 63, at 75 (citing U.S. Civil Disorder Commission study).

[180] See SKOLNICK & FYFE, supra note 63, at 83 (describing police riots at Columbia University and Los Angeles).


[182] See John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 ARK. L. REV. 511 (1994) (attacking private prosecution as unfair, arbitrary, and not in the public interest).

[183] See Hall, supra note 71, at 580-85 (detailing inadequacies of private law enforcement).

[184] See United States v. Wong, 431 U.S. 174 (1977) (holding Miranda requirements do not apply to a witness testifying before a grand jury); United States v. Calandra, 414 U.S. 338 (1974) (holding grand jury witness may not refuse to answer questions on ground that they are based on evidence obtained from unlawful search); United States v. Dionisio, 410 U.S. 1 (1973) (holding seizure of a person by subpoena for grand jury appearance is generally not within Fourth Amendment’s protection).


[186] See State v. Walker, 32 Me. 195 (1850) (upholding actions of the private group).

[187] See United States v. Whittier, 28 F. Cas. 591 (C.C.E.D. Mo. 1878).

[188] See supra notes 438-445 and accompanying text for a discussion of the evolution of entrapment as a law enforcement practice.


[190] See JAMES S. CAMPBELL, ET AL., LAW AND ORDER RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT 441 (1970) (discussing successes of citizen auxiliary units in Queens, New York and other areas).

[191] See id. 437-54 (1970) (discussing successes of citizen involvement in law enforcement).

[192] American frontier vigilantism generally targeted serious criminals such as murderers, coach robbers and rapists as well as horse thieves, counterfeiters, outlaws, and ‘bad men.’ See NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 97 (Graham & Gurr, dir. 1969). Arguably, such offenders qualified as felons and would have faced the death penalty under the common law even if more conventional court processes were followed. That such vigilante movements often followed rudimentary due process of law is attested by historians such as Richard Maxwell Brown, who recounts that “vigilantes’ attention to the spirit of law and order caused them to provide, by their lights, a fair but speedy trial.” Richard Maxwell Brown, supra note 189, at 164. The northern Illinois Regulator movement of 1841, for example, provided accused horse thieves and murderers with a lawyer, an opportunity to challenge jurors, and an arraignment. See id. at 163. At least one accused murderer was acquitted by a vigilante court on the Wyoming frontier. See Joe B. Frantz, The Frontier Tradition: An Invitation to Violence, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 129-30 (Graham & Gurr, dir. 1969). Many accused were let off with whipping and expulsion rather than execution in the early decades of vigilante justice. See Brown, supra note 189, at 164. Less than half of all vigilante groups ever killed anyone. See id. Ironically, the move by vigilante groups toward killing convicted suspects began in the 1850s, — corresponding closely with the meteoric rise of professional policing. See id.

Vigilante movements occasionally developed to rescue the law from corrupt public officials who were violating the law. The case of the vigilantes who arrested and hanged Sheriff Henry Plummer of Virginia City, Montana in 1864 is such an example. See LEW L. CALLAWAY, MONTANA’S RIGHTEOUS HANGMEN (1997) (arguing the vigilantes had no choice but to take the law into their own hands).

[193] “[T]he Western frontier developed too swiftly for the courts of justice to keep up with the progression of the people.” Joe B. Frantz, supra note 192, at 128. Vigilante movements did little more than play catch-up to what can only be described as rampant frontier lawlessness. Five-thousand wanted men roamed Texas in 1877. See id. at 128. Major crimes often went totally unprosecuted and countless offenders whose crimes were well known lived openly without fear of arrest on the western frontier. See id. Vigilantes filled in only the most gaping holes in court jurisdiction, generally (but not always) intervening to arrest only the perpetrators of serious crimes. See id. and at 130 (saying “improvised group action” was the only resort for many on the far frontier).

[194] David H. Bayley & Clifford D. Shearing, The Future of Policing, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 150, 150 (George F. Cole & Marc G. Gertz, eds., 7th ed. 1998).

[195] See id. at 151, 154.

[196] Tucker Carlson, Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19

[197] See SILBERMAN, supra note 6, at 297. Silberman points out that New York City police solved only two percent of robbery cases in which a witness could not identify an offender or the offender was not captured at the scene. See id.

[198] See id. at 296 (saying clearance rate dropped precipitously between 1960 and 1976 as proportion of crimes committed by strangers increased).

[199] See id. (citing figures registered between 1960 and 1976).

[200] See id. at 296.

[201] See Laura Parker & Gary Fields, Unsolved Killings on Rise: Percent of Cases Closed Drops From 86% to 69%, USA TODAY, Feb. 22, 2000, at A1.

[202] See id.


[204] 428 U.S. 153 (1976) (finding death penalty constitutional so long as adequate procedures are provided to a defendant).

[205] See SCHECK, supra note 203, at 218.

[206] See Illinois Governor Orders Execution Moratorium, USA TODAY, Feb. 1, 2000, at 3A.

[207] See id.

[208] See SCHECK, supra note 203, at 218 (noting an average of 4.6 condemned people per year have been set free after 1996, while only 2.5 death row inmates per year were freed between 1973 and 1993).

[209] See id. at xv (noting these 5,000 exonerations came from only the first 18 thousand results of DNA testing at crime laboratories — a rate of almost 30% exonerated).

[210] C.f. id. at 180 (detailing indictment of four officers for perjury and obstruction of justice in the wake of one DNA exoneration).

[211] DNA testing has proven that at least 67 people were sent to prison or death row for crimes they did not commit. See id. at xiv. This number grows each month. See id.

[212] C.f. Morgan Cloud, The Dirty Little Secret, 43 EMORY L. J. 1311, 1311 (1994) (saying “[p]olice perjury is the dirty little secret of our criminal justice system”).


[214] See SILBERMAN, supra note 6, at 308 (describing interrogation techniques of police as “an art form in its own right.”). Lying or bluffing can often persuade a suspect to admit crimes to the police which would not otherwise be proven. See id.

[215] C.f. id. (recounting that an officer under observation would simply lie on the stand if challenged in court about whether Miranda warnings were given before questioning a suspect).

[216] See Joe Cantlupe & David Hasemyer, Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (exposing that some officers gave false testimony in case of suspected cop-killers).

[217] Andrew Horwitz, Taking the Cop Out of Copping a Plea: Eradicating Police Prosecution of Criminal Cases, 40 ARIZ. L. REV. 1305, 1321 (1998) (quoting Jerome H. Skolnick).

[218] See Daniel B. Wood, One precinct stirs a criminal-justice crisis, CHRISTIAN SCIENCE MONITOR, Feb. 18, 2000, at 1.

[219] See TITUS REID, supra note 57, at 120.

[220] See SILBERMAN, supra note 6, at 231.

[221] See Gary Fields, New Orleans’ Crime Fight Started With Police, USA TODAY, Feb. 1, 2000, at 6A.

[222] See Tucker Carlson, Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

[223] See Abuse of Power, DETROIT NEWS, May 3, 1996.

[224] See Lawrence W. Sherman, Becoming Bent: Moral Careers of Corrupt Policemen, IN “ORDER UNDER LAW”: READINGS IN CRIMINAL JUSTICE 96, 104-06 (1981) (discussing police burglary scandals of the 1960s).

[225] See Wood, supra note 218, at 5 (citing critics).

[226] See FRIEDMAN, supra note 58, at 154. The Lexow Committee of 1894 was perhaps the first to probe police misconduct in New York City. The Committee found that the police had formed a “separate and highly privileged class, armed with the authority and the machinery of oppression.” See id.. Witnesses before the Committee testified to brutal beatings, extortion and perjury by New York police. See id. at 154-55.

[227] In April 1994, for example, thirty-three New York officers were indicted and ultimately convicted of perjury, drug dealing and robbery. See James Lardner, Better Cops. Fewer Robbers, N.Y. TIMES MAG., Feb. 9, 1997, pp. 44-52. The following year, sixteen Bronx police officers were indicted for robbing drug dealers, beating people, and abusing the public. See id.

[228] See Jerome H. Skolnick, A Sketch of the Policeman’s “Working Personality,” in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 116, 123 (George F. Cole & Marc G. Gertz 7th ed. 1998).

[229] See Wood, supra note 218, at 5 (quoting critics).

[230] C.f. TITUS REID, supra note 57, at 117-119 (describing police subculture).

[231] See FRIEDMAN, supra note 58, at 154 (saying New York police of the 1890s engaged in routine extortion of businesses, collecting kickbacks from push-cart vendors, corner groceries, and businessmen whose flag poles extended too far into the street). In Chicago, police historically sought “contributions” from saloonkeepers. See id. at 155.

[232] See, e.g., PATRICK J. BUCHANAN, RIGHT FROM THE BEGINNING 283-84 (1990) (detailing police favoritism toward one St. Louis newspaper and antagonism toward its competitor); Jonathan D. Rockoff, Comment Costs Kennedy Police Backing, PROVIDENCE J., April 21, 2000, at 1B (describing police unions’ threats to drop their support for Rep. Kennedy due to Kennedy’s public remarks).

[233] See Davis, supra note 152, at 355.

[234] See Wasserstrom, supra note 70, at 293-94 n.188 (1984) (stating no one has ever been convicted under the statute, 18 U.S.C. § 2236).

[235] See U.S. Dep’t of Justice, Office of Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April 1997) (detailing Justice Department’s findings of impropriety at the FBI Crime Lab).

[236] Cf. SlLBERMAN, supra note 6, at 211-14 (observing the behavior of cops on patrol).

[237] See id. at 215-16 (citing study conducted in Kansas City in the 1970s).

[238] C.f. id. at 215 (pointing to mounting criticism of traditional approach). Studies of police pull-overs and sidewalk stops invariably demonstrate patterns of economic, racial, and social discrimination as well. See, e.g., Bruce Landis, State Police Records Support Charges of Bias in Traffic Stops, PROVIDENCE J., Sept. 5, 1999 at 1A (reporting Rhode Island traffic stop statistics demonstrate racial bias by state police).

[239] The United States’ ‘war on drugs’ is a perfect illustration of the difficulties of implementing broad-ranging social policy through police enforcement mechanisms. “Not since Vietnam ha[s] a national mission failed so miserably.” JIM MCGEE & BRIAN DUFFY, MAIN JUSTICE: THE MEN AND WOMEN WHO ENFORCE THE NATION’S CRIMINAL LAWS AND GUARD ITS LIBERTIES 43 (1996). The federal drug control budget increased from $4.3 billion in 1988 to $11.9 billion in 1992, yet national drug supply increased greatly and prices dropped during the same period. See id. at 42. The costs of enforcement in 1994 ranged from $79,376 per arrestee by the DEA to $260,000 per arrestee by the FBI, with no progress made at all toward decreasing the drug trade. See id.

[240] See JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN CONTROL LAWS 213 n.3 (1998) (citing forthcoming paper).

[241] Some two-thirds of the public say they have a great deal of respect for the police. See SHMUEL LOCK, CRIME, PUBLIC OPINION, AND CIVIL LIBERTIES: THE TOLERANT PUBLIC 69 (1999). Interestingly, however, lawyers are more than 20 percentage points lower in their general assessment of police. See id.

[242] Public opinion polls repeatedly show that a majority of the public favor decreasing constitutional protections. See, e.g., id. at 6. It must be noted, however, that the general public is more inclined than lawyers and the Supreme Court to favor protecting some civil liberties. For example, 49 percent of the public disapproves of police searching private property by air without warrant, while only 37 percent of lawyers disapprove and the Supreme Court upheld the practice in United States v. Dunn, 480 U.S. 294 (1987). See id. at 39. A majority of the public (51%) would prohibit police from searching one’s garbage without a warrant, while only 36 percent of lawyers disapprove and the Supreme Court upheld the practice in California v. Greenwood, 486 U.S. 35 (1988). See id. The public is also less inclined than lawyers to approve of using illegally obtained evidence to impeach a witness. See id. at 45.

[243] C.f. Illinois v. Krull, 480 U.S. 340, 365 (1987) (O’Connor, J., dissenting) (stating Fourth Amendment rights have at times proved unpopular and the Framers drafted the Fourth Amendment in fear that future majorities might compromise Fourth Amendment values).

[244] See JOHN PHILLIP REID, IN DEFIANCE OF THE LAW: THE STANDING-ARMY CONTROVERSY, THE Two CONSTITUTIONS, AND THE COMING OF THE AMERICAN REVOLUTION (1981) (recounting the history and constitutional background of the standing-army controversy that preceded the Revolution).

[245] THE DECLARATION OF INDEPENDENCE paras. 12, 13, 14 (U.S. 1776).

[246] See JOHN P. REID, supra note 244, at 79.

[247] See id. at 79.

[248] See id. at 50 (citation omitted).

[249] See id. at 29 (quoting the orations of Hancock).

[250] In Edinburgh in 1736, a unit of town guards maintaining order during the execution of a convicted smuggler was pelted with stones and mud until some soldiers began firing weapons at the populace. See JOHN P. REID, supra note 244, at 114-15 (recounting the history and constitutional background of the standing-army controversy which preceded the Revolution). After nine citizens were found dead, the captain of the guard was tried for murder, convicted, and himself condemned to be hanged. See id.

When officers of the crown indicated a willingness to pardon the captain, a mob of civilians “rescued” the captain from prison and hanged him. See id.

[251] See Hall, supra note 71, at 587-88.

[252] Id. at 587.

[253] Ben C. Roberts, On the Origins and Resolution of English Working-Class Protest, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 238, 252 (Graham & Gurr, dir. 1969).

[254] JOHN P. REID, supra note 244, at 80.

[255] See id. at 95 (quoting from a 1770 issue of the New Hampshire Gazette).

[256] See Kraska & Kappeler, supra note 167, at 2-3 (citing National Institute of Justice report detailing “partnership” between Defense and Justice Departments in equipping personnel to “engage the crime war”).

[257] See William Booth, The Militarization of ‘Mayberry,’ WASH. POST, June 17, 1997, at A1.

[258] See id.

[259] See id.

[260] See id. (quoting Kraska).

[261] See Kraska & Kappeler, supra note 167, at 10.

[262] See Roger Roots, The Approaching Death of the Collective Right Theory of the Second Amendment, 39 DUQUESNE L. REV. 71 (2000).

[263] See id.

[264] C.f. id.

[265] See JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN CONTROL LAWS (1998) (supporting a proposition consistent with the title); GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA (1991).

[266] KLECK, supra note 265, at 111-116, 148.

[267] See George F. Will, Are We a Nation of Cowards?, NEWSWEEK, Nov. 15, 1993, at 93. The error rate is defined as the rate of shootings involving an innocent person mistakenly identified as a criminal. See id.

[268] See ANTHONY J. PINIZZOTTO, ET AL., U.S. DEP’T OF JUSTICE, NAT’L INST. OF JUSTICE, IN THE LINE OF FIRE: A STUDY OF SELECTED FELONIOUS ASSAULTS ON LAW ENFORCEMENT OFFICERS 8 (1997) (table showing 41 percent accuracy by police as opposed to 91 percent accuracy by their assailants with handguns).

[269] See, e.g., Morgan v. California, 743 F.2d 728 (9th Cir. 1984) (involving drunk officers who backed their car into innocent civilian couple and then brandished guns to threaten them).

[270] See Shapiro v. New York City Police Dept., 595 N.Y.S.2d 864 (N.Y. Sup. Ct. 1993) (upholding revocation of pistol license of cop who threatened drivers with gun during two traffic disputes); Matter of Beninson v. Police Dept., 574 N.Y.S.2d 307 (N.Y. Sup. Ct. 1991) (involving revocation of pistol permit of cop based on two displays of firearms in traffic situations).

[271] See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 255 n. 34 (2d ed. 1995) (citing review of nearly 700 shootings).

[272] See Tucker Carlson, Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

[273] U.S. CONST. amend. III (“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”).

[274] See Morton J. Horwitz, Is the Third Amendment Obsolete?, 26 VALPARAISO U. L. REV. 209, 214 (1991) (stating the Third Amendment might have produced a constitutional bar to standing armies in peacetime if public antipathy toward standing armies had remained intense over time).

[275] See id.


[277] For a well-written local history of this conflict, see HENRY BLACKMAN PLUMB, HISTORY OF HANOVER TOWNSHIP 121-140 (1885).

[278] See id.

[279] See id. at 125-26.

[280] See id. at 130.

[281] See id. at 138 (adding that those convicted “were allowed easily to escape, and no fines were ever attempted to be collected”).

[282] See, e.g., JAMES BOVARD, FREEDOM IN CHAINS: THE RISE OF THE STATE AND THE DEMISE OF THE CITIZEN (1999) (presenting a thesis in line with the title); JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF AMERICAN LIBERTY (1994) (detailing America’s loss of freedom).

[283] See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (saying the right to be let alone is “the most comprehensive of rights and the right most valued by civilized man.”).

[284] C.f. Stephen D. Mastrofski, et al., The Helping Hand of the Law: Police Control of Citizens on Request, 38 CRIMINOLOGY 307 (2000) (detailing study finding officers are likely to use their power to control citizens at mere request of other citizens).

[285] U.S. CONST. amend. IV.

[286] See, e.g., Maryland Minority, Address to the People of Maryland, Maryland Gazette, May 6, 1788, reprinted in THE ORIGIN OF THE SECOND AMENDMENT, supra note 89, at 356, 358 (stating that an amendment protecting people from unreasonable search and seizure was considered indispensable by many who opposed the Constitution).

[287] See, e.g., AKHIL R. AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 1-45 (1997). Amar argues that the Amendment lays down only a few “first principles” — namely “that all searches and seizures must be reasonable, that warrants (and only warrants) always require probable cause, and that the officialdom should be held liable for unreasonable searches and seizures.” Id. at 1

[288] See, e.g., Richard A. Posner, Rethinking the Fourth Amendment, 1981 SUP. CT. REV. 49 (arguing that the Fourth Amendment should not provide a guilty criminal with any right to avoid punishment).

[289] See AMAR, supra note 287, at 3-17 (arguing the Framers intended no warrant requirement).

[290] See id.

[291] See California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring) (referencing Amar’s claims for support). Ten years earlier, in Robbins v. California, 453 U.S. 420 (1981), Justice Rehnquist cited a 1969 book by Professor Telfred Taylor — Amar’s predecessor in the argument that the Fourth Amendment’s text requires only an ad hoc test of reasonableness — for the same proposition. Id. at 437 (Rehnquist, J., dissenting).

[292] See, e.g., Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998) (citing Amar for proposition that Fourth Amendment requires no warrants).

[293] See, e.g., Max Boot, Out of Order: Arrogance, Corruption, and Incompetence on the Bench 66 (1998) (reciting the Amar/Taylor thesis without reservation).

[294] Since the addition of Justice Rehnquist to the Supreme Court, the Court has traveled far down the road toward ejecting the warrant requirement. See generally Wasserstrom, supra note 70. The Court has increasingly tended to adopt a mere balancing test, pitting the citizen’s “Fourth Amendment interests” (rather than his “rights”) against “legitimate governmental interests.” See, e.g., Delaware v. Prouse, 440 U.S. 648, 654 (1979).

[295] In United States v. Chadwick, 433 U.S. 1, 6 (1977), the United States Justice Department mounted a “frontal attack” on the warrant requirement and argued that the warrant clause of the Fourth Amendment protected only “interests traditionally identified with the home.” Accordingly, the Justice Department would have eliminated warrants in every other setting.

[296] Compare Howard v. Lyon, 1 Root 107 (Conn. 1787) (involving constable who obtained “escape warrant” to recapture an escaped prisoner and even had the warrant “renewed” in Rhode Island where prisoner fled), and Bromley v. Hutchins, 8 Vt. 68 (1836) (upholding damages against a deputy sheriff who arrested an escapee without warrant outside the deputy’s jurisdiction), with United States v. Watson, 423 U.S. 411 (1976) (allowing warrantless arrest of most suspects in public so long as probable cause exists).

[297] See Morgan Cloud, Searching through History; Searching for History, 63 U. CHI. L. REV. 1707, 1713 (1996) (citing the exhaustive research of William Cuddihy for the proposition that specific warrants were required at Founding).

[298] AMAR, supra note 287, at 5.

[299] 1 Conn. 40 (1814).

[300] See id. at 44.

[301] 3 Day 1, 3 (Conn. 1807).

[302] 1761-1772 Quincy Mass. Reports (1763). Perhaps Amar’s statement can be read as a commentary on the dearth of originalist scholarship among those who support strong protections for criminal suspects and defendants. “Originalism” as a means of constitutional interpretation is not always definable in a single way, and “originalists” may often contradict each other as to their interpretation of given cases. See Richard S. Kay, “Originalist” Values and Constitutional Interpretation, 19 HARV. J.L. & PUB. POL’Y 335 (1995). Professor Kay has identified four distinct interpretive methods as being “originalist” — any two of which might produce differing conclusions: 1) original text, 2) original intentions, 3) original understanding, and 4) original values. See id. at 336. This being conceded, originalism has generally been the domain of “conservative” jurists for the past generation, fueled by reactions to the methods of adjudication employed by the Warren Court. See id. at 335.

[303]  9 N.H. 239 (1838).

[304] 3 Bin. 38, 43 (Pa. 1810).

[305] Admittedly, two of Amar’s cited cases present troubling statements of the law. The rule of Amar’s first case, Jones v. Root, 72 Mass. 435 (1856), is somewhat difficult to discern. Although the case may be read as a total rejection of required warrants (as Amar contends, supra note 287, at 4-5 n.10), it may also be read as an adoption of the “in the presence” exception to the warrant requirement known to the common law. The court’s opinion is no more than a paragraph long and merely upholds the instruction of a lower court that a statute allowing warrantless seizure of liquors was constitutional. Jones, 72 Mass. at 439. The opinion also upheld the use of an illustration by the trial judge that suggested the seizure was similar to a seizure of stolen goods observed in the presence of an officer. See id. at 437.

A second case may also be read to mean that the government may search and seize without warrant, but might also be read as enunciating the “breach of peace” exception to the warrant requirement. Mayo v. Wilson, 1 N.H. 53 (1817) involved a town tythingman who seized a wagon and horses of an apparent teamster engaged in commercial delivery on the Sabbath, in violation of a New Hampshire statute. Amar quotes Mayo’s pronouncement that the New Hampshire Fourth-Amendment equivalent “does not seem intended to restrain the legislature …” But elsewhere in the opinion, the New Hampshire Supreme Court stated that an arrest required a “warrant in law” — either a magistrate’s warrant, or excusal by the commission of a felony or breach of peace. Mayo, 1 N.H. at 56. “[B]ut if the affray be over, there must be an express warrant.” Id. (emphasis added). Not much support for Amar’s thesis there.

Mayo was decided only fourteen years after the dawn of judicial review in Marbury v. Madison, 5 U.S. 137 (1803), during an era when the constitutional interpretations of legislatures were thought to have equal weight to the interpretations of the judiciary. Cf. HENRY J. ABRAHAM, THE JUDICIAL PROCESS 335-40 (7th ed. 1998) (describing the slow advent of the concept of judicial review). Indeed, the first act of a state legislature to be declared unconstitutional came only seven years earlier, see Fletcher v. Peck, 10 U.S. 87 (1810), and the first state court decision invalidated by the Supreme Court had come only one year earlier. See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). The very heart of the Mayo decision that Amar relies on (the proposition that state legislatures have concurrent power of constitutional review with the judiciary) was so thoroughly discredited soon afterward that Amar’s extrapolation that Founding era courts did not require warrants seems exceedingly far-fetched.

As judicial review gathered sanction, the doctrine apparently enunciated in Mayo became increasingly discredited. See Ex Parte Rhodes, 79 So. 462 (Ala. 1918) (saying “[t]here is not to be found a single authority, decision, or textbook, in the library of this court, that sanctions the doctrine that the legislature, a municipality, or Congress can determine what is a ‘reasonable’ arrest”).

[306] Amar cites six cases (all referred to in United States v. Watson, 423 U.S. 411 (1976)), as standing for the proposition that state Fourth Amendment equivalents did not presume a warrant requirement. AMAR, supra note 287, at 5 n. l1. The first case, State v. Brown, 5 Del. (5 Harr.) 505 (Ct. Gen. Sess. 1853), is difficult to reconcile with Amar’s thesis that antebellum courts recognized no warrant requirement. Brown upheld a criminal verdict against a night watchman who entered a residence in pursuit of a fleeing chicken thief and instead falsely arrested — without warrant — the proprietor. The second case cited by Amar, Johnson v. State, 30 Ga. 426 (1860), simply upheld a guilty verdict against a man who shot a policeman during a warrantless arrest for being an accomplice to a felony. The Georgia Supreme Court repeated the common law exception allowing that an officer may arrest felons without warrant. The third case, Baltimore & O. R.R. Co. v. Cain, 81 Md. 87, 31 A. 801 (1895), merely reversed a civil jury verdict for an arrestee on grounds that the appellant railroad company was entitled to a jury instruction allowing for a breach-of-peace exception to the warrant requirement. The fourth case, Reuck v. McGregor, 32 N.J.L. 70 (Sup. Ct. 1866), reversed a civil verdict on grounds of excessive damages — while upholding civil liability for causing warrantless arrest of an apparently wrongly-accused thief. Holley v. Mix, 3 Wend. 350 (N.Y. Sup. Ct. 1829), Amar’s fifth case, offers little support for Amar’s thesis. Holley upheld a civil judgment against a private person and an officer who arrested a suspect pursuant to an invalid warrant. Finally, Wade v. Chaffee, 8 R.I. 224 (1865), simply held that a constable was not bound to procure a warrant where he had probable cause to believe an arrestee was guilty of a felony, even though no fear of escape was present.

[307] Amar cites four cases as standing for the proposition that state courts interpreted their state constitutional predecessors of the Fourth Amendment’s text as requiring no warrants for searches or seizures. AMAR, supra note 287, at 5 n.10. Jones v. Root, 72 Mass. (6 Gray) 435 (1856), upheld a Massachusetts “no-warrant” statute in a one-paragraph opinion explained supra note 306. In Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850), Massachusetts’ highest court found that a warrantless arrest qualified under the “felon” exception to the warrant requirement. Mayo v. Wilson, 1 N.H. 53 (1817), is described supra note 306.

Finally, the 1814 Pennsylvania case of Wakely v. Hart, 6 Binn. 316 (Pa. 1814), resolved a civil suit brought by an accused thief (Wakely) against his arresters upon grounds that the arrest had been warrantless and Wakely had been guilty only of a misdemeanor. The Pennsylvania Supreme Court upheld a jury’s verdict for the arresters, upon the rather-fudged finding that Wakely had fled from the charges against him and had been guilty of at least “an offence which approaches very near to a felony,” if not an actual felony. Wakely, 6 Binn. at 319-20.

[308] See Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 VA. L. REV. 869, 874 (1985) (saying the search and seizure clause of the Fourth Amendment “embodies requirements independent of the warrant clause” but which were more strict at Founding than warrant requirement).

[309] See Wilkes v. Wood, 19 Howell’s State Trials 1153, 1167 (c.p. 1763) (stating “a jury have it in their power to give damages for more than the injury received”).

[310] See Schnapper, supra note 308, at 917 (referring to Boyd v. United States, 116 U.S. 616 (1886)). Boyd’s proposition was slowly watered down and distinguished until the case of Andresen v. Maryland finished it off. Andresen v. Maryland, 427 U.S. 463 (1976) (holding that business documents evidencing fraudulent real estate dealings could be constitutionally seized by warrant).

[311] See Gouled v. United States, 255 U.S. 298 (1921) (pronouncing “mere evidence” rule, which stood for more than 45 years).

[312] See Schnapper, supra note 308, at 923-29.

[313] See Warden v. Hayden, 387 U.S. 294 (1967) (holding that police can obtain even indirect evidence by use of search warrants). Hayden overturned at least five previous Supreme Court decisions by declaring that “privacy” rather than property was the “principle object of the Fourth Amendment.” Id. at 296 n.l, 304

[314] See Frisbie v. Butler, 1 Kirby 213 (Conn. 1787).

[315] See, e.g., Stevens v. Fassett, 27 Me. 266 (1847) (involving defendant who had obtained two arrest warrants against plaintiff without officer assistance); State v. McAllister, 25 Me. 490 (1845) (involving crime victim who swore out warrant affidavit against alleged assailant); State v. J.H., 1 Tyl. 444 (Vt. 1802) (quashing criminal charge gained by unsworn complaint of private individual).

[316] See Humes v. Taber, 1 RI. 464 (1850) (involving search by sheriff accompanied by private persons).

[317] See Kimball v. Munson, 2 Kirby (Conn.) 3 (1786) (upholding civil damages against two men who arrested suspect without warrant to obtain reward).

[318] See Wasserstrom, supra note 70, at 289.

[319] The Framers regarded private persons acting under color of “public authority” to be subject to constitutional constraints like the proscription against double jeopardy..See Stevens v. Fassett, 27 Me. 266 (1847) (holding private prosecutors were prohibited from twice putting a defendant in jeopardy for the same offense).

[320] 256 U.S. 465 (1921).

[321] Burdeau v. McDowell involved a corporate official (McDowell) who was fired by his employer for financial malfeasance at work. After McDowell’s termination, company representatives raided his office, opened his safe, and rifled through his papers. See id. at 473. Upon finding incriminating evidence against McDowell, company representatives alerted the United States Justice Department and turned over certain papers to the government. A district judge ordered the stolen papers returned to McDowell before they could be seen by a grand jury. The Supreme Court reversed, stating the Fourth Amendment “was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies.” Id. at 475.

[322] See Cloud, supra note 297, at 1716 (discussing transition during early 1700s from concept that ‘a man’s house is his castle (except against the government)’ to the legal adage that ‘a man’s house is his castle (especially against the government)’).

[323] Massachusetts and Vermont apparently required that only public officers execute search warrants in the early nineteenth century. See Commonwealth v. Foster, 1 Mass. 488 (1805) (holding justice of peace had no authority to issue a warrant to a private person to arrest a criminal suspect); State v. J.H., 1 Tyl. 444 (Vt. 1802).

[324] See Bissell v. Bissell, 3 N.H. 520 (1826).

[325] See Kimball v. Munson, which upheld civil damages against two men who arrested an alleged horse thief without warrant in response to a constable’s reward offer. 2 Kirby 3 (Conn. 1786). Kimball suggested the two private persons would have been protected from liability had they secured a warrant soon after their arrest of the suspect. See also Frisbie v. Butler, 1 Kirby 213 (Conn. 1787) (applying specificity requirement to search warrant issued to private person).

[326] See Del Col v. Arnold, 3 U.S. (3 Dall.) 333 (1796) (holding that “privateers” on the open seas who capture illegal vessels under the auspices of government authority act at their own peril and may be held liable for all damages to the captured vessels — even where the captured vessels are engaged in crimes on the high seas).

[327] See Humes v. Taber, 1 R.I. 464 (1850)

[328] See Melvin v. Fisher, 8 N.H. 406, 407 (1836) (saying “he who causes another to be arrested by a wrong name is a trespasser, even if the process was intended to be against the person actually arrested).

[329] See Holley v. Mix, 3 Wend. 350 (N.Y. 1829).

[330] See Kimball v. Munson, 2 Kirby 3 (Conn. 1786) (faulting two arrestors for failing to obtain a proper warrant immediately after their warrantless arrest of a suspected felon); Knot v. Gay, 1 Root 66, 67 (Conn. 1774) (stating warrantless arrest is permitted “where an highhanded offense had been committed, and an immediate arrest became necessary, to prevent an escape”).

[331] See Wade v. Chaffee, 8 R.I. 224 (R.I. 1865) (holding a constable is not bound to procure a warrant before arresting a felon even though there may be no reason to fear the escape of the felon).

[332] See, e.g., Oleson v. Pincock, 251 P. 23, 25 (Utah 1926); Burroughs v. Eastman, 59 N.W. 817 (Mich. 1894); Minnesota v. Cantieny, 24 N.W. 458 (Minn. 1885); William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. REV. 790-91 (1993).

[333] See Schroeder, supra note 101, at 784 n.14-16 (listing eight jurisdictions allowing such arrests).

[334] But see id. at 791 n.39 (listing four cases that have held warrantless arrests for crimes committed outside an officer’s presence unconstitutional).

[335] See id. at 779-81 n.13 (providing two pages of statutory provisions allowing warrantless arrest for domestic violence and other specific misdemeanors).

[336] See Welsh v. Wisconsin, 466 U.S. 740 (1984) (requiring warrant to forcibly enter a home to arrest someone inside for a misdemeanor traffic offense); Payton v. New York, 445 U.S. 573, 589 (1980) (requiring warrant to forcibly enter a home to arrest a suspected felon unless exigent circumstances prevail).

[337] See United States v. Watson, 423 U.S. 411, 412 (1976). Watson represents one of the starkest redrawings of search and seizure law ever pronounced by the Supreme Court. Essentially, the Court declared that officers may arrest without warrant wherever they have probable cause. Justice Thurgood Marshall released a blistering dissent accusing the majority of betraying the “the only clear lesson of history” that the common law “considered the arrest warrant far more important than today’s decision leaves it.” Id. at 442 (Marshall, J., dissenting).

[338] United States v. Hensley, 469 U.S. 221, 229 (1985).

[339] See Conner v. Commonwealth, 3 Bin. 38, 42-43 (Pa. 1810) (insisting that public safety alone justifies exceptions to the warrant requirement).

[340] See Tennessee v. Garner, 471 U.S. 1, 14 (1985). The number of crimes considered felonies varied greatly according to location and period. Plymouth Colony knew only seven in 1636: treason, willful murder, willful arson, conversing with the devil, rape, adultery, and sodomy. See Julius Goebel, Jr., King’s Law and Local Custom in Seventeenth Century New England, 31 COLUM. L. REV. 416, n.43 (1931). In general, the American colonists considered far fewer crimes to be felonies than did the people of England. C.f. Thorp L. Wolford, The Laws and Liberties of 1648, reprinted in ESSAYS IN THE HISTORY OF EARLY AMERICAN LAW 147, 182 (David H. Flaherty, ed. 1969) (saying there were far more felonies in English than in Massachusetts law).


[342] United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J. dissenting).

[343] See United States v. Watson, 423 U.S. 411, 439-440 (1976).

[344] But see id. at 438 (Marshall, J., dissenting) (“[T]he fact is that a felony at common law and a felony today bear only slight resemblance, with the result that the relevance of the common-law rule of arrest to the modern interpretation of our Constitution is minimal”).


[346] See AMAR, supra note 287, at 44. The remedial suggestions proposed by Amar (strict liability tort remedies, class actions, attorneys’ fees, statutorily-generated punitive damages, and injunctive relief) are, if anything, less loyal to originalist ideals than the warrant requirement he criticizes. See Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 828 (1994) (suggesting Amar’s departures from the Framer’s intent regarding remedies belie his proclaimed adherence to the Framers’ “vision” regarding warrants, probable cause and the exclusionary rule).

[347] See AMAR, supra note 287, at 44 n. 226 (saying the “government should generally not prevail” in Amar’s type of ideal tort actions).

[348] See AMAR supra note 287, at 12.

[349] See Wasserstrom, supra note 70, at 289 (saying false arrest was subject to strict liability in colonial times).

[350] See Holley v. Mix, 3 Wend. 350, 354 (N.Y. 1829) (stating if any person charge another with felony, the charge will justify an officer taking the suspect in custody, but the person making the charge will be liable for false arrest if no felony was committed).

[351] See Clarke v. Little, 1 Smith 100, 101 (N.H. 1805) (addressing liabilities of deputy to debtor’s creditors).

[352] Hall v. Brooks 8 Vt. 485 (1836) (holding constable liable for refusing to serve court process).

[353] See Shewel v. Fell, 3 Yeates 17, 22 (Pa. 1800) (holding sheriff liable to prisoner’s creditor for entire debt of prison escapee).

[354] See Chapman v. Bellows, 1 Smith 127 (N.H. 1805).

[355] See Morse v. Betton, 2 N.H. 184, 185 (1820).

[356] See Lamb v. Day, 8 Vt. 407 (1836) (holding constable liable for allowing mare in his custody to be used); Bissell v. Huntington, 2 N.H. 142. 146-47 (1819).

[357] See Webster v. Quimby, 8 N.H. 382, 386 (1836).

[358] See Administrator of Janes v. Martin, 7 Vt. 92 (Vt. 1835).

[359] See Kittredge v. Bellows, 7 N.H. 399 (1835).

[360] See Herrick v. Manly, 1 Cai. R. 253 (N.Y. Sup. Ct. 1803).

[361] See Bromley v. Hutchins, 8 Vt. 194, 196 (Vt. 1836).

[362] See Hazard v. Israel, 1 Binn. 240 (Pa. 1808).

[363] See Fullerton v. Mack, 2 Aik. 415 (1828).

[364] See Rex v. Gay, Quincy, Mass. Rep. 1761-1772 (1763) (acquitting defendant who battered sheriff when sheriff attempted arrest with warrant irregular on its face).

[365] See Percival v. Jones, 2 Johns. Cas. 49, 51 (N.Y. 1800) (holding justice of peace liable for issuing arrest execution against person privileged from imprisonment).

[366] See id.

[367] See Preston v. Yates, 24 N.Y. 534 (1881) (involving sheriff who obtained indemnity bond from private party).

[368] See Grinnell v. Phillips, 1 Mass. 530, 537 (1805) (involving Massachusetts statute requiring officers to be bonded).

[369] See Tilley v. Cottrell, 43 A. 369 (R.I. 1899) (holding constable liable for damages against him for which his indemnity bond did not cover).

[370] C.f. White v. French, 81 Mass. 339 (1860) (involving officer arrested when his obligor failed to pay for officer’s liability); Treasurer of the State v. Holmes, 2 Aik. 48 (Vt. 1826) (involving sheriff jailed for debt in Franklin County, Vermont).

[371] At the time of Founding, juries remedied improper searches and seizures by levying heavy damages from officers who conducted them. See AMAR, supra note 287, at 12. The ratification debates made it clear that no method of curbing “the insolence of office” worked as well as juries giving “ruinous damages whenever an officer has deviated from the rigid letter of the law, or been guilty of any unnecessary act of insolence or oppression.” Maryland Farmer, Essays by a Farmer (1), reprinted in THE COMPLETE ANTI-FEDERALIST 5, 14 (Herbert J. Storing ed., 1981). Punitive damages were apparently common in search and seizure trespass cases, and provided “an invaluable maxim” for securing proper and reasonable conduct by public officers. Today, however, municipalities never have to pay out punitive damages. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

[372] See Johnson v. Georgia, 30 Ga. 426 (1860) (holding that a policeman is as much under protection of the law as any public officer).

[373] Many Founding-Era constitutions contained statements declaring a right of remedy for every person. See, e.g., DEL. CONST. of 1776, § 12 (providing that “every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land”); MASS. CONST. of 1780, art. I, § XI (providing “Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs”); N.H. CONST. of 1784, part I, § XIV (stating “Every subject of this state is entitled to a certain remedy”). Some early proposals for the national Bill of Rights also included such remedy provisions. See, e.g., Proposed Amended Federal Constitution, April 30, 1788, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 790, 791 (David E. Young, ed.) (2d ed. 1995) (providing that “every individual… ought to find a certain remedy against all injuries, or wrongs”).

[374] C.f. THE DECLARATION OF INDEPENDENCE para. 11 (U.S. 1776) (“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance”).

[375] A small history lesson regarding the early development of officer immunity is provided in Seaman v. Patten, 2 Cai. R. 312 (N.Y. Sup. Ct. 1805). Early tax and custom enforcement agents were unsworn volunteers, having “generally received a portion of the spoil.” Id. at 315. Corresponding to this system, such agents acted at their own peril and were civilly liable for their every impropriety. This “hard rule” of high officer liability was still in force a generation after the Constitution was ratified, although courts began to hold officers less accountable for their mistakes when officers became sworn to perform certain ever-more-difficult duties. See id.

[376] See Seaman, 2 Cai. R. at 317; Bissell v. Huntington, 2 N.H. 142, 147 (1819) (declaring that sheriffs good faith acts should receive “most favourable construction.”). “[N]either the court, the bar, nor the public should favor prosecutions against them for petty mistakes.” Id. at 147.

[377] See Diana Hassel, Living a Lie; The Cost of Qualified Immunity, 64 Mo. L. REV. 123, 151 n. 122.

[378] State v. Dunning, 98 S.E. 530, 531 (N.C. 1919).

[379] See, e.g., Stinnett v. Commonwealth, 55 F.2d 644, 647 (4th Cir. 1932) (reversing jury verdict against officer on grounds that “courts should not lay down rules which will make it so dangerous for officers to perform their duties that they will shrink and hesitate from action”); State v. Dunning, 98 S.E. 530 (N.C. 1919) (reversing criminal verdict against officer who shot approaching man on grounds that the officer enjoyed a privilege to use deadly force instead of retreating).

[380] The Supreme Court’s recent jurisprudence has offered a more relaxed definition of “probable cause” as a “fluid concept” of “suspicion” rather than a fixed standard of probability. See Wasserstrom, supra note 70, at 337 (analyzing Justice Rehnquist’s opinion in Illinois v. Gates).

[381] See Grau v. United States, 287 U.S. 124, 128 (1932), overturned by Brinegar v. United States, 338 U.S. 160 (1949).

[382] Wasserstrom, supra note 70, at 274.

[383] See AMAR, supra note 287, at 20. Judges of the Founding era appear to have been somewhat more reluctant than modern judges to issue search and seizure warrants. For an early example of judicial scrutiny of warrant applications, see United States v. Lawrence, 3 U.S. 42 (1795) (upholding refusal of district judge to issue warrant for arrest of French deserter in the face of what government claimed was probable cause). Today, search warrant applications are rarely denied. The “secret wiretap court” established by Congress to process wiretap applications in 1978, has rejected only one wiretap request in its 22-year life. See Richard Willing, Wiretaps sought in record numbers, USA TODAY, June 5, 2000, at A1 (saying the court approved 13,600 wiretap requests in the same period).

[384] Private persons were liable if, for example, their complaint was too vague as to the address to be searched, see Humes v. Taber, 1 R.I. 464 (1850); misspelled the name of the accused, see Melvin v. Fisher, 8 N.H. 406, 407 (1836) (saying “he who causes another to be arrested by a wrong name is a trespasser, even if the process was intended to be against the person actually arrested); or called for the execution of a warrant naming a “John Doe” as a target, see Holley v. Mix, 3 Wend. 350 (N.Y. 1829).

[385] See Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995) (involving challenge to search warrant wrongfully obtained through false references to anonymous sources).

[386] See Hummel-Jones v. Strope, 25 F.3d 647 (8th Cir. 1994) (involving police officer’s failure to disclose to judge that an undercover deputy sheriff was the “confidential informant” referred to in a search warrant application).

[387] See David B. Kopel & Paul H. Blackman, The Unwarranted Warrant: The Waco Search Warrant and the Decline of the Fourth Amendment, 18 HAMLINE J. PUB. L & POL’Y 1, 13 (saying Waco warrant was filled with statements irrelevant to Koresh’s alleged firearm violations).

[388] See id. at 21 (noting ATF agent’s false claims that various spare parts were machine gun conversion kits).


[390] Id. at 233.

[391] The 1920’s saw an explosion of police privilege to oversee two separate — but often interrelated — elements of American life: Prohibition and the automobile. See FRIEDMAN, supra note58, at 300 (saying search and seizure became a particularly salient issue during Prohibition). In 1925, the Supreme Court, by split decision, released an opinion that would grow within the next 75 years into an immense expansion of police prerogatives while at the same time representing an enormous loss of personal security for American automobile travelers. Carroll v. United States upheld a warrantless search of an automobile for liquor as valid under the infamous Volstad Act, enacted to breathe life into the Eighteenth Amendment. 267 U.S. 137 (1925). The Carroll opinion led lower courts to more than one interpretation, see Francis H. Bohlen & Harry Shulman, Arrest With and Without a Warrant, 75 U. Pa. L. Rev. 485, 488-89 (1927) , but slowly became recognized as a pronouncement of an “automobile exception” to the warrant requirement. See United States v. Ross, 456 U.S. 798, 822 (1982).

Two decades after Carroll, Justice Robert H. Jackson tried in earnest to force the genie back into the bottle by narrowing the automobile exception to cases of serious crimes, but a 7-2 majority outnumbered him. See Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting). Since Brinegar, the “automobile exception” has been a fixture of Fourth Amendment jurisprudence, and has greatly expanded. The automobile exception now accounts for the broadest umbrella of warrant exceptions. See, e.g., California v. Acevedo, 500 U.S. 565 (1991) (allowing warrantless search of containers in automobiles even without probable cause to search the vehicle as a whole). Indeed, the automobile exception has expanded so far that it has made a mockery of Fourth Amendment doctrine. As Justice Scalia pointed out in his Acevedo concurrence, an anomaly now exists protecting a briefcase carried on the sidewalk from warrantless search but allowing the same briefcase to be searched without warrant if taken into a car. Acevedo at 581 (Scalia, J., concurring).

[392] Police surveillance of American roadways has brought the bar of justice far closer to most Americans than ever before. Few accounts of the sheer scale of traffic stops are available, but anecdotal evidence suggests traffic encounters with police number in the hundreds of millions annually. In North Carolina alone, more than 1.2 million traffic infractions were recorded in a single year. See FRIEDMAN, supra note 58, at 279. Of actual traffic stops, no reliable estimate can be made.

[393] See SKOLNICK & FYFE, supra note 63, at 99.

[394] In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court actually considered, but stopped short of, allowing cops to randomly stop any traveler without any particularized reason — with one justice (Rehnquist) arguing that cops may do so. Prouse, 440 U.S. at 664 (Rehnquist, J., dissenting).

[395] See Flanders v. Herbert, 1 Smith (N.H.) 205 (1808) (finding constable who stopped a driver and horse team pursuant to an invalid writ of attachment liable for trespass). Private tort principles rather than state licensing programs governed highway travel at the time of the Framers. See Kennard v. Burton, 25 Me. 39 (1845).

[396] See David Rudovsky, The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 247 (David Kairys, ed. 1982).

[397] Id.

[398] Prior to the imposition of the exclusionary rule in Mapp v. Ohio, 367 U.S. 643 (1961), the Cincinnati police force rarely applied for search warrants. In 1958, the police obtained three warrants. In 1959 the police obtained none. See Bradley C. Canon, Is the Exclusionary Rule in Failing Health?: Some New Data and a Plea Against a Precipitous Conclusion, 62 KENTUCKY L. J. 681, 709 (1974). Similarly, the use of search warrants by the New York City Police Department prior to Mapp was negligible, but afterward, over 5000 warrants were issued. See Wasserstrom, supra note 70, at 297 n. 203.

[399] Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting) (expressing belief that many unlawful searches are never revealed because no evidence is recovered).

[400] See Weeks v. United States, 232 U.S. 383 (1914).

[401] 367 U.S. 643 (1961).

[402] 384 U.S. 436 (1966).

[403] See AMAR, supra note 287, at 21 (claiming “[s]upporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial”).

[404] See BURTON S. KATZ, JUSTICE OVERRULED: UNMASKING THE CRIMINAL JUSTICE SYSTEM 43 (1997) (saying in two consecutive sentences that “[t]he exclusionary rule has failed in its only goal” but that “[t]he cost… is almost unbelievably high”).

[405] See, e.g., id. at 43 (saying Mapp was the “culmination of an activist judicial trend”).

[406] Fred E. Inbau, Public Safety v. Individual Civil Liberties: The Prosecutor’s Stand, 53 J. CRIM. L., CRIMINOLOGY & P. S. 85 (1962), reprinted in 89 J. CRIM. L. & CRIMINOLOGY 1413, 1413 (1999) (emphasis added).

[407] Miranda v. State of Arizona, 384 U.S. 436, 516 (1966) (Harlan, J., dissenting) (saying “the Court is taking a real risk with society’s welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.”).

[408] Id. at 542 (White, J., dissenting).

[409] See J. Richard Johnston, Plea Bargaining in Exchange for Testimony: Has Singleton Really Resolved the Issues?, CRIMINAL JUSTICE, Fall 1999, at 32 (quoting from Ed Cray’s biography of Earl Warren, Chief Justice).

[410] See id.

[411] David Rudovsky, The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 246 (David Kairys, ed. 1982).

[412] Six years prior to the Mapp decision, the influential California Supreme Court justice Roger Traynor concluded that exclusion was necessary to level the playing field between state and citizen. “It is morally incongruous,” wrote Traynor, “for the state to flout constitutional rights and at the same time demand that its citizens observe the law.” People v. Cahan, 282 P.2d 905, 911 (Cal. 1955).

[413] See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 392 (1971).

[414] See Illinois v. Krull, 480 U.S. 340, 362 (1987) (O’Connor, J., dissenting) (saying the exclusionary rule is much more soundly based in history than is popularly thought).

[415] 232 U.S. 383 (1914).

[416] See, e.g., Katz, supra note 214, at 43 (saying there was no exclusionary rule for 123 years and “[t]here is a good reason for that.”).

[417] 116 U.S. 616 (1886).

[418] See AMAR, supra note 287, at 146 (explaining that the Supreme Court reported very few criminal cases of any kind until the end of the 1800’s).


[420] See Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).

[421] See id.

[422] See U.S. CONST. amend. V (providing no person “shall be compelled in any criminal case to be a witness against himself).

[423] See Miranda v. Arizona, 384 U.S. 436 (1966).

[424] See SKOLNICK & FYFE, supra note 63, at 61.

[425] See Dickerson v. United States, 530 U.S. 428 (2000).

[426] Id. at 435 n. l.

[427] See id. at 435.

[428] Id. at 434 (Scalia, J., dissenting).

[429] C.f. Hayes v. Missouri, 120 U.S. 68, 70 (1887) (recognizing that impartiality in criminal cases requires that “[b]etween [the accused] and the state the scales are to be evenly held”); Unites States v. Singleton, 165 F.3d 1297, 1314 (10th Cir. 1999) (Kelly, J., dissenting) (speaking of “the policy of ensuring a level playing field between the government and defendant in a criminal case”).

[430] See BOOZHIE, supra note 10, at 238.

[431] See id.

[432] G. Gordon Liddy points out in his 1980 autobiography Will that when the courts began requiring that the FBI provide defense attorneys with FBI reports on defendants, the FBI circumvented such orders by recording investigation notes on unofficial attachments which were never provided to the defense. See G. GORDON LIDDY, WILL 354 (1980).

[433] See, e.g., id. at 216 (reporting 1996 St. Louis case in which police released arrest record of dead person whom police had killed to damage his reputation); id. at 238 (reporting 1998 New York case in which police released rap sheet of their victim but withheld identity of involved officers); id. at 240 (reporting case in which police revealed dead suspect was on parole and used his case to call for abolishing parole).

[434] Perhaps the most extreme example of lopsided investigative resources occurred in the Oklahoma City bombing case in 1995. Defense attorneys complained that “the resources of every federal, state, and local agency in the United States” were at the government’s disposal — including a 24-hour FBI command center with 400 telephones to coordinate evidence-gathering for the prosecution. See Petition For Writ of Mandamus of Petitioner-Defendant, Timothy James McVeigh at 13, McVeigh v. Matsch (No. 96-CR-68-M) (10th Cir. Mar. 25, 1997). In contrast, the defense complained that “without subpoena power, without the right to take depositions, and without access to national intelligence information, the McVeigh defense can go no further.” Id. at 4.

[435] See Brady v. Maryland, 373 U.S. 83 (1963) (finding that suppression of evidence favorable to defense violates due process). Prosecutors are required by the Brady doctrine to reveal exculpatory evidence in their possession or in the possession of the investigating agency. See United States v. Zuno-Arce, 44 F3d 1420 (9th Cir. 1995). Only one federal court of appeals has held that prosecutors are imputed to hold knowledge of information “readily available” to them and require such knowledge to be transferred to the defense. See Williams v. Whitley, 940 F2d 132 (5th Cir. 1991). However, nothing in the law mandates that police look for exculpatory evidence.

[436] See, e.g., STOLEN LIVES, supra note 123, at 248 (reporting 1997 New York City case in which officers closed off scene of shooting by police for a half an hour after the shooting). Upon being allowed to enter the shooting scene, observers noticed that police had moved large kitchen table to the side of room to make police claim that victim (who had apparently been on other side of the table from officers) had lunged at them more plausible. See id.

[437] See BOOZHIE, supra note 10, at 238.

[438] Brewer v. Williams, 430 U.S. 387, 417 (1977) ( Burger, J., dissenting).

[439] BOOZHIE, supra note 10, at 238.

[440] See PAUL MARCUS, THE ENTRAPMENT DEFENSE 3 (2d ed. 1995).

[441] See id. at 3-4.

[442] See Blaikie v. Linton, 18 Scot. Law Rep. 583 (1880).

[443] See Regina v. Bickley, 2 Crim. App. R. 53, 73 J.P.R. 239 (C.A. 1909).

[444] Brannan v. Peek, 2 All E.R. 572, 574 (Q.B. 1947).

[445] Id.

[446] 223 F. 412 (9th Cir. 1915).

[447] Rivera v. State, 846 P.2d 1, 11 (Wyo. 1993).

[448] SKOLNICK & FYFE, supra note 63, at 102 (quoting Paul Chevigny).

[449] See id. See also STOLEN LIVES, supra note 123, at 302. Kevin McCoullough, who was suing the City of Chattanooga for unjust imprisonment, was shot dead by police at his workplace after he allegedly threw or ran at police with a metal object. McCoullough had predicted his own murder by police in statements to co-workers. See id.

[450] See id. (citing President’s Commission on Law Enforcement and Administration of Justice study).

[451] See FRIEDMAN, supra note 58, at 154 (citations omitted).


[453] See HERBERT MITGANG, DANGEROUS DOSSIERS (1988). The FBI kept a 207-page file on cartoonist Bill Mauldin, a 153-page file on book publisher Alfred A. Knopf, and a 23-page file on Lincoln biographer Carl Sandburg, for example. See id. at 249, 195, and 81.

[454] The Fraternal Order of Police (FOP), the largest police organization in the United States, has over 270,000 members and has been named one of the most powerful lobbying groups in Washington. See National Fraternal Order of Police, Press Release, Sept. 17, 1997.

[455] An example of the police lobby’s power is its ability to scuttle asset forfeiture reform. The International Association of Chiefs of Police (IACP) managed to keep congressional leaders from attaching forfeiture reform to budget legislation in 1999. See IACP, End of Session Report for the 1st Session of 106th Congress: FY 2000 Funding Issues, Jan. 17, 2000. See also Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 281 n.40 (1994). Police unions in many jurisdictions successfully thwart efforts to establish civilian review boards. See id. at 282.

[456] See Richard Willing, High Court Restricts Police Power to Frisk, USA TODAY, Mar. 29, 2000, 4A.

Nation #1 – What is a Nation?

Let’s Get Real! – Nation #1

What is a Nation?

Gary Hunt
June 7, 2009

 Though I usually shy away from Wikipedia as a source, I will, in this instance, begin with their definition: “A nation is a body of people who share a real or imagined common history, culture, language or ethnic origin, who typically inhabit a particular country or territory.”

 Next, we will quote Black’s Law Dictionary, 5th Edition, “A people, or aggregation of men, existing in the form of an organized jural society, usually inhabiting a distinct portion of the earth, speaking the same language, using the same customs, possessing historic continuity, and distinguished from other like groups by their racial origin and characteristics, and, generally, but not necessarily, living under the same government and sovereignty”. [Montoya v. U.S., 180 U.S. 261, 21 S.Ct. 358]

Therefore, it is probably safe to say that a Nation is a people with a common heritage and a common culture.

In the past, there were nation-states. Though they may have had nearby nation-states, which contained people with a common heritage and a common culture, only location tended to separate them, and each was its own distinct nation-state.

When Europeans first began settling the new world, there was, in the area known as New England, a group of native people who were known as the Five Nations (later, as the Six Nations). They became such after the Great Peace. Each nation had very similar cultures and heritages as the other nations, however, the distinctions were sufficient to separate them as nations. Each Nation, then, was composed of was various tribes and sub-tribes. Many of the Founders recognized the sophistication of the Six Nations, and, there is reason to believe that some of the concepts that were learned from the Indians were incorporated into the though process during the Constitutional Convention.

That Constitutional Convention was the beginning of what was to become a great nation. It had all of the elements of a nation, and it was that commonality which allowed the design of the form of government to evolve into the United States of America. It also recognized the part played by and obligation to preserve, intact, the Indian population. First, it provided that the Indians would not be taxed (Article I, Sec. 2, clause 3), then it gave Congress the power to regulate commerce with the various Indian tribes (Article I, Sec. 8, clause 3), and, finally, made treaties the supreme law of the land (Article III, Sec. 2).

So, in 1787, a new nation was created. It was based upon a common heritage and a common culture, with the exception of the Indians. They were, however, accounted for and given a place to exist within the new nation (subsequent violations of treaties notwithstanding).

 Continued at:

Nation #2 – What is not a Nation?

Let’s Get Real! – Nation #2

What is not a Nation?

Gary Hunt
June 9, 2009

From Babylon to Jerusalem (at the time of the Crusade), and, through the history of the world, countries have aspired to be nations. When they had not the commonality of heritage and culture, they invariably failed.

 Some will argue that the Romans made a great nation that comprised major portions of Europe and Africa, because they allowed the local populations to continue to exist, with their languages and cultures. They were, however, subservient to the Romans, and were only allowed to exist so long as the paid tribute to Rome. They were second-class citizens, to say the least.

 England, the Great Britannia, subjugated many nations, allowing the locals to live as they had, but required submission to the authority of the Crown. The extent of subjugation even included colonies comprised of once British subjects (especially Australia and America).

 It seems as if history has taught us that a nation has to have the common elements. Those who have tried integration have been short lived. Those who have avoided the integration have survived much longer.

 One aspect of integration is that it leaves a potential source of disruption. As culture and heritage are divergent, there is the potential for disagreement, if not conflict, which will, forever, remain a festering sore within the nation.

 It was with this understanding that the American Colonization Society was established in 1816. By 1820, a stipend, along with transportation to and land in Liberia, were provided to freed slaves and born free Negroes.

 Time has removed the option of continued colonization of Liberia, and time has provided a means for US citizenship for Negroes, and later, for Asians and other previously excluded races. So, today, we (the United States) are a nation outside of the proper definition, and the problems that are inherent with a country composed of many cultures and many heritages continue to plague as and sow seeds of discontent.

 We are a country, though we are not a nation.

 Continued at: