IN PORTLAND, OREGON, citizens were snatched by the un-ID’d, stuffed into unmarked vehicles, and whisked away. It was an act of impunity.
“Swarms of officers” embody the objection made in the Declaration, as if in the employ of King George III. But modern day royal agents also mock the oath to uphold the Constitution—and they ignore the Bill of Rights.
James Madison reminds us that “a right implies a remedy.” (The Federalist Papers, No. 43) Title 18, Section 242 of the United States Code provides a way to make it so.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States...shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
In Harlow v. Fitzgerald, the Supreme Court set the standard for qualified immunity. “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” That sounds innocuous. But it protects unqualified “peace officers” by allowing them to do wrong—and trample on someone’s rights—without consequences, about things they ‘know.’”
The Fourth Amendment is “clearly established.” It stands in contrast to the writs of assistance—general search warrants—which allowed the agents of King George III to do as they pleased. But the Fourth Amendment defines the role of a police officer in a republic, not a monarchy. “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.” Yet police make false arrests and conduct illegal searches, a flagrant violation of its provisions. Breonna Taylor was a recent victim and, unfortunately, she will not be the last.
The Fifth Amendment is “clearly established.” It states, among other things, that “No person shall be…deprived of life, liberty, or property, without due process of law….” But police officers act as judge, jury, and executioner when there is no threat whatsoever—another flagrant violation. Breonna Taylor was a recent victim and, unfortunately, she will not be the last.
In some respects, the Fourth and Fifth Amendments have been made mere parchment barriers. Thus, the reservations of particular rights or privileges amount to nothing.
In Terry v. Ohio, Chief Justice Earl Warren delivered the opinion of the Court.
“Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere.”
Justice William O. Douglas dissented and appealed to the high court of history.
“…(P)olice officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. The term ‘probable cause’ rings a bell of certainty that is not sounded by such phrases as ‘reasonable suspicion.’… To give the police greater power than a magistrate is to take a long step down the totalitarian path…. Yet if the individual is no longer sovereign, if the police can pick him up whenever they do not like the cut of his ‘jib,’ if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”
Meanwhile, police unions aid and abet members who trample on someone’s rights.
“Stephen Rushin, the Loyola Chicago law professor, has gone to great lengths to correlate stronger police union contracts with upticks in officer misconduct. Through an examination of 834 contracts across two studies, Rushin highlighted how unions have orchestrated a system of non-accountability spanning the nation. He determined that contracts stymie oversight with policies that ‘limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations,’ one paper says.”
To limit a review or an investigation of a police officer’s deeds is to make meaningless the words of the oath. For, as James Madison said in a speech on the floor of the first House of Representatives, “I believe no principle is more clearly laid down in the Constitution than that of responsibility.” Yet qualified immunity and police union contracts render rights an illusion without hope of a remedy and they negate responsibility. Thus, such violations of the social contract raise a question: How does one square the circle? According to Article VI, Clause 2, “This Constitution…shall be the supreme law of the land…, any thing in the Constitution or laws of any State to the contrary notwithstanding.” And in Alexander Hamilton’s words, those intolerable side-effects are the result of a failure “to declare all acts contrary to the manifest tenor of the Constitution void.” (The Federalist Papers, No. 78)
William Blackstone, who is referenced in The Federalist Papers, cited the old adage—“Where there is a right, there is a remedy”—in his Commentaries on the Laws of England and, therefore, qualified immunity is at best a questionable notion, if not a preposterous precedent under Anglo-American jurisprudence. Thus, a reexamination and a return to basic principles is in order.
“…(T)he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. …(T)hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter….” (Alexander Hamilton, The Federalist Papers, No. 78)
Why are Harlow v. Fitzgerald and Terry v. Ohio in opposition to those observations? Hamilton noted an important difference between a monarchy and a republic—and the danger posed to the latter when the distinction is disregarded.
“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince…. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations, ‘WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.’”
Now, in retrospect, his prescience can be appreciated.
“I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? …(I)t would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” (The Federalist Papers, No. 84; emphasis his)
The ratification debates illuminated one inadequacy of the Articles as if carved in sharp relief. But it was not a trick of light and shadow that provided contrast to the Convention’s work.
“A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation….” (Alexander Hamilton, The Federalist Papers, No. 22; emphasis added)
Creation of a judiciary is more than cosmetic, for the removal of a defect is not enough. The risks are real. Nerve damage is possible.
“…(L)iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation….” (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added)
Imagination is an unnecessary ingredient to a scenario when history provides illumination. For there is no mystery as to how a nominal and apparent separation comes to pass and creates a political discontinuity, a misalignment of means and ends where a minority rules the majority.
“…(T)here is one basic check on a runaway Court: presidential elections,” as Professor Bruce Ackerman pointed out in noting the significance of Bush v. Gore. “The Supreme Court cannot be permitted to arrange for its own succession. To allow (Bush the Younger) to serve as the Court’s agent is a fundamental violation of the separation of powers…. The right-wing bloc on the Court should not be permitted to extend its control for a decade or more simply because it has put George W. Bush into the White House.” (Emphasis added) But despite a fundamental violation of the separation of powers, Bush the Younger appointed John Roberts and Samuel Alito; and thus, the Court packed itself.
The union with the other branches has been disguised by a nominal and apparent separation made possible by the misrepresentation and misuse of a misunderstood institution in 2000—and, again, in 2016—that exacerbated the situation. As a result, two more Justices were put on the bench, with a third on deck, undermining the “one basic check on a runaway Court: presidential elections.” Yet even if the Electoral College is used to perform its proper functions—popular choice and national security—more must be done to not just restore the legitimacy of the Court but to raise its stature.
Hamilton addressed three basic requirements of the least dangerous branch.
First, the importance of reason.
“The judiciary…may truly be said to have neither FORCE nor WILL, but merely judgment….”
Second, awareness of its role.
“But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution….”
Third, the exercise of restraint.
“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them….” (The Federalist Papers, No. 78)
The defect which crowned the Articles has been corrected: there is a judiciary power. However, the courts will be unable to expound and define the true meaning and operation of the laws as long as they are unaware or ignore why they came to be under Article III. To “establish justice,” as stated in the Preamble, it is necessary to move beyond the contemporary focus on a court of law. Otherwise there is no way to protect the political rights and the general liberty of the people.
In the commentaries on the Constitution, Hamilton consistently refers to “the courts of justice” whose power extends “to all cases in law and equity, arising under the Constitution and the laws of the United States. (The Federalist Papers, No. 80 regarding Article III, Section 2, Clause 1; emphasis his)
“There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction…. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate.” (The Federalist Papers, No. 80; emphasis his)
Writs of assistance were one of the grievances listed in the country’s birth certificate. And despite independence, the Revolution cannot be considered successful if the same continues unabated. To paraphrase, Juliet, “What’s in a name? That which we call a skunk/By any other name would smell as foul.” Indeed, it completes the tyrant’s trifecta. The Fourth Amendment, the Fifth Amendment, and the Preamble amount to nothing when “probable cause” and “due process of law” and “the blessings of liberty” are made neutered phrases.
History has provided enough experience to inform our contemporary conduct. These are the essential elements that must be weighed—the institution, the individual, ideology, interaction, image, impact, and intersection.
A nomination must pay respect to Hamilton’s basic requirements of the least dangerous branch—the importance of reason, awareness of its role, and the exercise of restraint. “To produce uniformity in those determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.” (Alexander Hamilton, The Federalist Papers, No. 22) Thus, the current composition of the institution needs to be carefully considered: Is the Court meeting those requirements? And if not, what is necessary to do so? After all, the Court is a collegial body that exists to “establish justice.” It is not a lifetime Cabinet with a Prime Minister in a robe, and, therefore, an individual who seeks truth—and is not a predictable vote—is invaluable. For ideology is a leading cause of blindness. But as an artist looks at a subject or object from various angles, so must the Court look at cases from different points of view.
Interaction will affect the image of the institution and its ingredients. An individual has to avoid a conflict of interest or even the appearance of impropriety while the institution, to be respected, must remember that Hamilton consistently referred to “courts of justice”—not a court of law that can be technically right and totally wrong. The impact on American jurisprudence and American lives will be significant. Therefore a favorable rating from the American Bar Association alone will no longer do. The American Historical Association must be involved as well. Furthermore, majority, concurring, and dissenting opinions are insufficient. The Court must also submit a societal impact statement.
The intersection or union with the other branches undermines the constitutional design and endangers the freedom the separation of powers was meant to defend. Instead, it perpetuates a political discontinuity, a misalignment of means and ends where a minority rules the majority. And that will continue to be the case until the Electoral College is used to perform its proper functions—popular choice and national security. The National Popular Vote will make it so.
THE DECLARATION begins with ideals—“all men are created equal”; “life, liberty, and the pursuit of happiness”; “the consent of the governed”—and ends with reality: “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 are accustomed. But when a long a train 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 new guards for their future security.” And then there was a list of grievances, one of which was the despised writs of assistance: “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.”
THE CONSTITUTION replaced the Articles of Confederation. The new charter was supposed to nudge the high ideals of the Revolution closer to reality—“in order to form a more perfect Union.” It set up a framework for debate about how to proceed. And when Benjamin Franklin and James McHenry left on the final day of the Federal Convention, they were approached by Mrs. Powel of Philadelphia.
“Well, Doctor, what have we got—a republic or a monarchy?”
“A republic,” Franklin replied, “if you can keep it.”
THE BILL OF RIGHTS was adopted after the Constitution was ratified, and what once was inherent became specified. The Fourth Amendment is a rebuke to writs of assistance and defines the job of police officers. The Fifth Amendment outlines boundaries to be respected—no denial of “life, liberty, and property, without due process of law.” The Ninth Amendment—“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—addressed Hamilton’s concerns about providing “a colorable pretext…to men disposed to usurp, a plausible pretense for claiming that power.” (The Federalist Papers, No. 84)
Modern day royal agents act in defiance of the Declaration. And if new guards are not provided for our future security, then the Republic is at risk.
Modern day royal agents disrespect the Constitution. Every failure to report misconduct bears witness to the same. If the thin blue line matters more than the oath, police officers cannot support and defend the supreme law of the land “against all enemies, foreign and domestic” when they become the latter.
Modern day royal agents disregard the Bill of Rights. The Fourth Amendment and the Fifth Amendment have been waived for their benefit. With no roll of the dice, they possess a get out of jail free card while disrespecting someone’s rights. It is as if they have sworn to protect and serve themselves.
William Blackstone cited the old adage—“Where there is a right, there is a remedy”—in his Commentaries on the Laws of England and, therefore, qualified immunity is at best a questionable notion, if not a preposterous precedent under Anglo-American jurisprudence. Thus, a return to basic principles serves as a guide that will “insure domestic tranquility.”
The patchwork approach has failed. Recurring problems do not happen in just one State or region. They are national, and that is where they need to be addressed. After all, the Fourth Amendment, which defines a police officer’s job, applies across the country.
Recruitment must change. Direct admittance to a police academy is too easy. But if candidates are required to go to boot camp with Rangers and/or Special Forces drill sergeants, they will undergo background checks. Furthermore, current officers who move to another jurisdiction would be subject to the same. Thus, the weeding can begin.
Too many police officers act as if they are royal agents and that they are always right. The idea that such people have weapons designed for the Armed Forces is frightening. So, it is time to put them in touch with reality, to learn—not through a lecture—but through training, that they are not soldiers. They would not touch a weapon but be armed with knowledge. They would be required to know the Fourth Amendment by heart—and why we have one. They need to be in a situation where the drill sergeants may be so-called “minorities”; and they must follow their orders. And while they cannot be DOR—DROPPED ON REQUEST, they can be kicked out. The intention is to dispose of those who have unsuitable dispositions. A little humility is in order, and, therefore, they will be called—constantly—“possible trainees.”
Before arrival at the academy, those who survived boot camp, with a favorable recommendation, will have learned that police officers often precipitate the event by their inability to speak pleasantly to people and listen to them. Instead, they will do the following: First, ask questions; do not assume. Second, keep smart aleck remarks to one’s self. Third, check when asked to do so. Finally, stop making stuff up.
Boot camp is a memorable experience, and the time has come to make it an unforgettable one for those who think they are the King's royal agents. “Peace officers” must learn that they can be questioned.
(c)2020 Marvin D. Jones. All rights reserved.
18 USC 242
Harlow v. Fitzgerald
The Fifth Amendment—judge, jury, and executioner
Terry v. Ohio
Modern day American writs of assistance
Modern day American writs of assistance
Modern day American writs of assistance
A clear abuse of power
A clear abuse of power
Finally, a clear abuse of power that a police union does not support
The Fourth Amendment—the bikini arrest
The Fourth Amendment—the Krispy Kreme donut arrest
A flagrant violation of the First Amendment and blatant violation of the Fourth Amendment
Same Town, Same Week, Same Police Force, Different Reactions | Deadline | MSNBC
Police Misconduct in White Working-Class America
Police by John Oliver
Glenn Kirschner's police reform
An appropriate response?
Why fundamental change is needed
Why fundamental change is needed
Why fundamental change is needed—blatant violation of the Fourth Amendment
Why fundamental change is needed—the Breonna Taylor case
Why fundamental change is needed
Why fundamental change is needed
Why fundamental change is needed—how the oath is made meaningless
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