The Perils of a Standing Army

When the Founding Fathers wrote the Constitution, they did so with the memory of the oppression of the British Army fresh in their minds. It may have been the policies of King George III that inflamed their passions, but it was the troops of the Crown that made those policies reality. With the knowledge that a standing army was the primary tool of repression of any government, they took steps to prevent such an occurrence here.

The Constitution names the President the Commander in Chief of the Army and Navy.  But the power to raise armies and maintain navies* is granted to the Congress. Coupled with the power of the purse in the House of Representatives, this was a check on any standing army with visions of control of the people. To further make this point, Congress was constrained in that no appropriations of funds could be for more than two years for any army. From the ratification of the Constitution through the end of World War II, these restrictions helped ensure that our Army was quite small, forming mostly a core of competent professionals around which a citizen army of the militia could be built. And even since the end of World War II, our Army, while quite expensive, is still, as a percentage of the population, quite small.

The 2nd Amendment, of course, was also a check on standing armies that might seek to usurp the liberties of free men. Likewise, the 3rd Amendment served as as further check. The passage of the Posse Comitatus Act of 1878 was again a check upon the use of the Army as a tool of repression.

But while our forefathers went to great lengths to protect us from the tyranny of a domestic army as a tool of repression, have we allowed our municipal armies to become the de facto standing armies they guarded against?

When the Constitution was ratified, there was simply no such thing as a municipal police force. Law enforcement, a power of the separate states, was the role of the county sheriff (an elected official) and if needed, the local militia.  It wasn’t until well into the 1800s that the idea of a city police force was even raised.  Not until 1828 would Philadelphia establish our first police department.  While police departments for large cities were rapidly established, rural areas still, for another century, depended solely on the sheriff and his deputies. The establishment of a municipal department in virtually every city, town, hamlet and burg is a fairly recent development. And note, every county still has its sheriff’s department. While some counties in some states may restrict the sheriff primarily to running the county jail, most have their own patrol forces.

While there is no obvious constitutional restriction on states, counties and municipalities forming police departments, there sure are a lot of them.

Wikianswers tells us:

There are as of 2006, 683,396 full time state, city, university and college, metropolitan and non-metropolitan county, and other law enforcement officers in the United States. There are approx. 120,000 full time law enforcement personnel working for the federal government adding up to a total number of 800,000 law enforcement personnel in the U.S.

That’s bigger than the US Army, by a fair amount. And every single policeman is there solely for domestic use.  Theoretically, our 4th, 5th, and 6th Amendment rights protect us from the depredations of any police force. But anyone who has had even the most cursory interaction with law enforcement will know that the deck is stacked in favor of the power of the state (that is, the police) and not the accused.

It’s not so much that people in power, such as police chiefs, sit around plotting ways to usurp power from the people. Like the road to Hell, the path to tyranny is paved with good intentions. Frustrated by incidents of crime, police departments come up with “common sense” solutions such as this:

“[Police are] going to be in SWAT gear and have AR-15s around their neck,” [Police Chief Todd] Stovall said. “If you’re out walking, we’re going to stop you, ask why you’re out walking, check for your ID.”

Stovall said while some people may be offended by the actions of his department, they should not be.

“We’re going to do it to everybody,” he said. “Criminals don’t like being talked to.”

[Paragold Arkansas Mayor Mike] Gaskill backed Stovall’s proposed actions during Thursday’s town hall.

“They may not be doing anything but walking their dog,” he said. “But they’re going to have to prove it.”

[ … ]

The bolding is mine.

The citizens of America are a free people. Absent probable cause, no officer of any kind has any right to demand anyone identify themselves, nor justify what it is they are doing. The whole point of America is the ability to go about ones business.

Mayor Gaskill and Chief Stovall may well be frustrated by crime in Paragold, AR. But that doesn’t mean the Constitution suddenly can be waived.

If crime is truly an issue in Paragold, perhaps they should follow in the footsteps of a city with a very low crime rate. Say…. Kennesaw, Georgia.

Update: There appears to be some citizens that aren’t thrilled with the department’s plans. But while I was reading the article, this bit popped out to me:

Stovall explained Dec. 14 that while he had not consulted an attorney regarding the patrols, the department was within its right to implement the controversial stop-and-ID policy based on crime statistics and citizen complaints about rising crime in their neighborhoods.

First, rights aren’t based on statistics nor complaints. Those rights cannot be waived by one group of citizens for any other. They are inalienable. Secondly, the police force HAS NO RIGHTS. It has the authority granted to it by the citizens. That authority is conditional on the continued consent of the citizenry.  But again, no group of citizens may grant the authority of any agent of government to usurp the rights of other citizens.

*Naval forces were seen as less likely to be agents of domestic repression, hence the ability to maintain a navy.

10 thoughts on “The Perils of a Standing Army”

  1. Superb analysis, Brad, Mix into your cogent comments the (intentional) blurring of the lines between Title 10 and Law Enforcement, and there is the recipe for the suppression of the rights of Americans. All it takes is political leadership that believes in the supremacy of the State, and the idea of collective responsibility/guilt, and the blessings of Liberty go no further.

    1. I’m not as worried about the political leadership that believes in the superiority of the state so much as I am their many enthusiastic supporters among the citizenry.

  2. The problem is that this ship has sailed. The Supreme Court found, in Hibbel v. Nevada, that the police can stop and demand ID even on a private road. Terry stops are one thing, but in that case, SCOTUS really lowered the bar in upholding the stop (As I recall in Hibble, the guy was sitting in car, parked legally smoking a cigarette. I forget exactly what the justification was.)

    Are stop and frisk programs effective? Some say no, that it just is bad racial profiling. On the other hand, aggressive use of these tactics helped bring down crime in NYC. Oakland, CA, is considering implementing this type of program as crime has gotten really out of control.

    But sending out guys in SWAT gear seems deliberately hostile. It seems like the money would be better spent going back to foot patrols, but then that raises the whole set of other questions.

    1. Hiibel was a 5th Amendment case. The officer had a fair bit of probable cause to approach. The question was, did Mr. Hiibel have to identify himself to police? But under the circumstances of that case, a vehicle matching a suspect description, the officer accosting him doesn’t seem to far afield to me.

      But randomly accosting citizens about their business, with no probable cause that the citizen has committed, is committing, or will imminently commit a crime is an entirely different kettle of fish.

    2. As to the SWAT gear, I think it’s bad policy, and will generate hostility between the police and the citizens. On the surface, I don’t see a Constitutional problem, unless one argues that virtually any interaction with officers so attired is by definition custodial because the citizen was intimidated. Good luck with that.

  3. Brad, the citizenry will be fertile ground for the political leadership to establish expanded precedent for gummint power. More on that later today.

  4. The job is to Protect and Serve, not to Intimidate and Harass. This is not good law enforcement. When you start alienating the citizens, you stop being effective. In the center of my badge is the Great Seal of the State of Wisconsin. It’s there to remind me that i derive my authority from the consent of the People. If I start to treat the People as if they are guilty until proven innocent, I have forfieted any claim to my authority to enforce the law. The job is hard enough as it is, without making it any harder through stupid actions on the part of a Chief and Mayor who only want to lionize themselves as ” tough on crime”. I hope they get sued for thier back teeth. I am a Deputy Sheriff, not Geheime Staatspolitzi.

    1. South Park’s police cruisers have one the side “To Patronize and Annoy”.

      Which always makes me laugh.

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