Greater Federal Control Over Law Enforcement Impairs Liberty and Efficiency
Thur, Jun 18, 2020
From The Washington Times
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Greater federal control over local law enforcement intrudes on liberty and is inefficient
By George W. Liebmann
In a nation with 40 million blacks and nearly a million police, there will always be abuses of power that can be fastened on. But identity politics, as the Willie Horton affair and the ascendancy of Donald Trump should remind us, is a game that any number can play.
As Judge Learned Hand observed in 1930, “[in] recent years we have deliberately systematized the production of epidemics in ideas. much as a pathologist experiments with a colony of white mice … a community used to being played on in this way, especially one so large and so homogeneous as we have become,is not a favorable soil for liberty.”
Greater federal controls over local law enforcement are not self-evidently in the interest of blacks. who are better represented in our cities than at the federal level.
The Democratic House leadership seeks a “Justice in Policing Act.” This includes informational provisions consistent with John Stuart Mill’s principle: “the greatest dissemination of power consistent with efficiency, but the greatest possible centralization of information and dissemination of it … The mischief begins when, instead of calling forth the activity and powers of individuals and bodies, it substitutes its own activities for theirs.”
There clearly is need for improved training, and reduced immunity from individual lawsuits and discipline.
Unfortunately the bill does not stop there. [It] sweepingly expands federal criminal jurisdiction. No longer is specific intent to deny constitutional rights required; merely “reckless disregard,”; uncertainty as to unlawfulness is no defense. These provisions are almost certainly unconstitutional. Misleadingly labelled ‘anti-lynching’ provisions would enact a ‘conspiracy’ law which makes the late not lamented Smith Act seem modest.
Instead of repealing the Clinton law authorizing fruitless ‘consent decrees,’ it allows investigations without the facade of local requests and injunctions against ‘racial profiling,’ defined as any practice having a ‘disparate impact’ Policing, one of the ways that rising groups are socialized, almost invariably has such an impact.
The threat of facile indictments and injunctions puts a million local police under effective federal command, defying a central theme of American liberty.
At the Constitutional Convention of 1787, Roger Sherman explained: “If the Executive can model the army, he may set up an absolute government.” Madison said in Federalist No. 46: “Besides the advantage of being armed … the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition.”
The power to regulate individuals was intended to replace the power to coerce states. Oliver Ellsworth declared: “I am for coercion by law — that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity”
Hamilton’s Federalist No. 27 said that “using the states as the instruments of federal governance was both ineffectual and provocative of federal-state conflict.” James Madison described state police jurisdiction as ordinary and federal jurisdiction as exceptional in Federalist No. 45. In Cohens v. Virginia, Chief Justice Marshall stated that Congress had “no general right to punish murder committed within any of the states” and that it was “clear that Congress cannot punish felonies generally.”
In United States v. Hudson , the Supreme Court declined to recognize federal common law crimes since the ensuing body of law would be “much more extended” and “in its nature very indefinite.”
The Norris-La Guardia Act in 1930 limited labor injunctions to cases of proven violence; labor clashes in the depression thus involved state and local police and national guardsmen rather than federal troops. Both the Roosevelt court in Screws v. United States and the Warren Court in United States v. Guest stated that the federal criminal civil rights laws would be unconstitutionally vague absent a requirement that the defendant have a specific intent to deprive a victim of a federal constitutional right. Justices Jackson, Frankfurter and Roberts cautioned “Evil men are rarely given power; they take it over from better men to whom it had been entrusted.”.
In Printz v. United States in 1997, the Supreme Court declared: “The federal government may neither issue directives requiring the States to address particular problems nor command the state’s officers, or those of a political subdivision, to administer or enforce a federal regulatory program.”
Extravagant claims for federal criminal jurisdiction should concern the business community. The criminologist Hermann Mannheim warned: “it is only … through a legal system … which deliberately uses the political weapon of criminal prosecution to shape the economic system according to its ideology that old traditions of strength can be comparatively quickly destroyed.”
Acquiescence will not stave off demands for “defunding the police.” But Sen. Bernie Sanders has bravely said that police need more rather than less funds. Republicans in Congress should take two other leaves from Mr. Sanders’ playbook if ’black lives matter’ and gang killings are to be reduced: replacement of the drug war by civil administrative controls, through reclassification of drugs without legislation, and creation of a Civilian Conservation Corps to afford employment opportunities other than the military and drug gangs. These address causes, not symptoms. If Democratic congressmen embrace these proposals, they will deserve their kente cloths.
George W. Liebmann, a Baltimore lawyer, is the author of numerous works on law and history, most recently America’s Political Inventors (Bloomsbury, 2019)
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Posted in: Criminal Justice, Drugs, Efficiency in Government, Judiciary and Legal Issues, Urban Affairs