--- From: "George, Paul" <PCGeorge@private> To: "'Declan McCullagh'" <declan@private> Subject: RE: [Politech] Are cops constitutional? -- a law review article w onders Date: Mon, 5 Jan 2004 16:01:25 -0500 Hi Declan, This response is perhaps a mite late, but use it if you feel it is still of interest. I am no fan of the current level of police powers, to say the least, nor the history of goon squads operating under corporate or municipal authority. My cut on the article was that there was a bit of cherry picking on the evidence, though his central thesis that a public police force was not customary at the time of the founders is correct. However, that does not make establishing such a thing improper, abused or not, particularly at the local or state level. I also ran the article past my father, B. James George, who is a fairly respected constitutional law professor. My father's excerpted comments: ....The resources on which he relies primarily in support of his thesis are "libertarian" and not mainstream. Professor Akhil Amar is a well-known and -respected source, but Root cites his work to repudiate it. The principal (or worst) flaw in Root's analysis, I think, is that he ignores the fact that under the federal constitutional system the states have plenary authority to create governmental organs and enact substantive and procedural legislation and regulations as they see the need, as long as they do not infringe upon individual rights created or recognized under the federal constitution. The developments Root is exercised about affecting the creation of local and state police organs and the allocation of arrest and related authority to them have fallen within the legitimate exercise of state legislative authority, and I doubt that the "Founders" would have questioned that exercise. The Supreme Court precedents he makes reference to are focused on the issue of whether state authority and its exercise have violated individual rights under the Fourth Amendment and other relevant federal constitutional provisions. Most of the Court's more recent holdings have served functionally to legitimate police investigatory practices, but that does not seem to be important to Root. ...The Supreme Court in interpreting the Eleventh Amendment during the past six or seven years, by a 5-4 majority, has gone back to "original Founder intent" in denying Congress the authority to subject state-level entities to the reach of federal legislation (unless Congress makes suitably detailed findings as to the necessity of such regulatory legislation), but I can't see them invalidating the now-traditional state criminal law and procedural legislation that Root so objects to (even if Bush gets another term and appoints 5 Clarence Thomas clones to the Court). Paul George -----Original Message----- From: Declan McCullagh [mailto:declan@private] Sent: Thursday, December 04, 2003 2:54 PM To: politech@private Subject: [Politech] Are cops constitutional? -- a law review article wonders [This is an interesting article that's worth reading. Info on the author is here: http://www.prisoncrisis.com/founder.html --Declan] --- http://www.constitution.org/lrev/roots/cops.htm Seton Hall Constitutional L.J. 2001, 685 ARE COPS CONSTITUTIONAL? Roger Roots* ABSTRACT Police work is often lionized by jurists and scholars who claim to employ "textualist" and "originalist" methods of constitutional interpretation. Yet professional police were unknown to the United States in 1789, and first appeared in America almost a half-century after the Constitution's ratification. The Framers contemplated law enforcement as the duty of mostly private citizens, along with a few constables and sheriffs who could be called upon when necessary. This article marshals extensive historical and legal evidence to show that modern policing is in many ways inconsistent with the original intent of America's founding documents. The author argues that the growth of modern policing has substantially empowered the state in a way the Framers would regard as abhorrent to their foremost principles. --- _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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