Does the Constitution support creating a federal police force? The Constitution doesn’t give the federal government authority over ordinary crime. Constitutionally and historically, crime fighting has been left to state and local governments exclusively.
Article 1 Section 8 tells us that federal law was created to bring order to the otherwise chaotic existence of the states under the Articles of Confederation.
Congress is tasked with the following crime-fighting duties:
- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
- To establish Post Offices and post Roads;
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions
Since the U.S. dollar is federal currency, it is a federal crime to counterfeit that money; a citizen who does so faces federal charges in a federal court. The same goes for crimes involving the postal service and any felony on the high seas or internationally. Further, should a dramatic insurrection occur, Congress can call upon the local state militias to repel it.
However, aside from touching briefly on treason, nowhere in the Constitution is any federal power given to deal with any other crime. Crimes, the laws created to prevent them, and its punishment are left to the individual states to handle.
Alexander Hamilton confirmed this when he said, ‘‘There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light — I mean the ordinary administration of criminal and civil justice.’’
According to Dr. David B. Kopel, a constitutional scholar and author of almost 20 books:
“The policy implications of federalizing crime should not even be a subject for discussion since the Constitution does not authorize Congress to involve itself in crime fighting. The Constitution specifically authorizes only a few categories of criminal laws, all of which involve uniquely federal concerns.
“The first is based on the congressional power’ To provide for the Punishment of counterfeiting the Securities and current Coin of the United States. ‘The second involves the power‘ To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.’ Although currency, the high seas, and treason are clearly areas of federal concern, it is notable that the authors of the Constitution felt it was necessary to specifically authorize federal jurisdiction over them.
“Since Congress is given constitutional authority over certain other specific subjects (such as bankruptcies and post offices),it is reasonable for Congress to enact criminal legislation related to those subjects (such as bankruptcy fraud or attacks on postal employees).”
In recent years, however, members of Congress have taken it upon themselves to “eradicate crime,” take on “the drug war,” and the like — passing laws like the Juvenile Crime Control Act, the Church Arson Prevention Act, and the Sex Crimes Against Children Prevention Act.
“Every few months a heinous crime committed against a racial minority, or against a gay man or lesbian, spawns demands for a federal ‘hate crime’ law. Those calls ignore the fact that homicide and other violent crimes are already illegal under state law, and are prosecuted vigorously. The energy spent on obsessing about the symbolism of enacting a redundant federal law would be better spent on improving state criminal justice systems, to the benefit of all victims of violent crimes.” (Kopel)
What is the result of federal crime fighting laws? A federal police force (police state).
When Congress passes a law, they must create, fund, and equip a federal agency to execute the law created. When that law is a crime-fighting law, they must create a federal police force to uphold and enforce that law.
“According to the Bureau of Justice Statistics, in 2008 the largest employers of federally employed officers were U.S. Customs and Border Protection, Federal Bureau of Prisons, the FBI, and U.S. Immigration and Customs Enforcement, each with over 15,000 full-time law enforcement. Federal officers’ duties include police response and patrol, criminal investigation and enforcement, inspections, security and protection, court operations, and corrections.” ~ discoverpolicing.com
The courts have justified this overreach of power by stretching and re-interpreting the commerce clause.
“Unfortunately, the federal courts have refused to stop such blatant injustices and have ruled that as long as there is one legal element in the federal offense that is not part of the state offense (for example, that the federal crime somehow‘ ‘affects’ interstate commerce), the second prosecution will be allowed. That legal standard eviscerates the Fifth Amendment’s double jeopardy clause.” (Kopel)
When we demand a fix for crimes, violence, drug use, etc., we give the federal government what it wants: power. And nothing aids government’s potential for abuse of power like the “necessary evil” of a militarized federal police force.
There are serious consequences from this unconstitutional behavior.
The founders intended for the state and local governments to provide the police force and crime prevention in the country. Giving this power to the federal government was considered far too dangerous. Giving the federal government the power to police the country means giving the federal government the power to tyrannize the country.
When the federal government assumes the power to police the country, we end up with redundant laws that threaten liberty by creating double jeopardy situations for American citizens.
“In some cases, persons who served time in state prison on drug charges have been retried under federal law and sent to federal prison for a lengthy mandatory sentence. In other cases, persons acquitted in state courts have been re-prosecuted in federal court.” (Kopel)
In other words, the Fifth Amendment is frequently and egregiously violated because of this federal overreach.
THE MILITARIZATION OF THE POLICE FORCE
Historically, the states had a rather limited police force such as a local sheriff or mayor. The federal government has systematically worked to militarize federal, state and local law enforcement over the past 50 years. Could it be that complaints about the power and abuse of the police today is based on the fact that the federal government has taken unconstitutional steps to create a powerful police force in all levels of government?
The issue is not the officers; the issue is the violation of the U.S. Constitution creating a massive federal (and now state and local) police force that has the potential to be used for oppression.
LOCAL POLICE, LOCAL GOVERNMENT
Local police departments spend local tax dollars and are directly accountable to local voters, but the federal government is not accountable to the local voters like local politicians are.
“In contrast, federal law enforcement spends from a vast pool of ‘other people’s money’ and is subject, at most, to very indirect democratic control. Thus, it should come as no surprise that federal crime dollars are spent on programs like Drug Abuse Resistance Education and the McGruff Crime Dog, which have been abject failures.” (Kopel)
There is no one-size fits all; federal laws don’t always work as intended because of the unique circumstances in each state.
A militarized federal police force is very dangerous to liberty, and it undermines the effectiveness of the state and local governments.
Does the Constitution support creating a federal police force? NO!
This article is used by permission and has been edited for publication on this site.
Christin McMasters is a South Carolinian now residing in North Carolina and has a Ph.D. in political science. She is a budding blogger and political science instructor, and her passion is politics.
Using her keyboard as her weapon of choice, Christin imparts some of her excitement, passion and knowledge about American government on her website, TheLibertyBelleNC.com.