by Henri-Paul Bolineau

I've just read Mr. Berg-Andersson's response to Mr. Stremsky's comments on his 26 November Commentary about Homeland Security and I find myself wondering just what might be wrong with the United States having the National Police Force that Mr. Stremsky proposes. In my native Canada, we have the Royal Canadian Mounted Police which at times is kind of the Canadian equivalent of the FBI but which can also function as a police force throughout all of Canada.

Certainly Canada is a federation like the United States (and has the same tensions between the national government and its provinces as is seen between the U.S. and its states), is democratic like the United States and also has the same concerns about individual rights that America has. I can't see why having a National Police Force in the U.S. would be any more a threat to the rights of Americans than the R.C.M.P. is to the rights of Canadians. You also say that there is nothing in the U.S. Constitution that prohibits a state from taking over from all its local police forces, yet you did not totally explain what prevents the United States as a whole from doing the exact same thing to its states- that is, that which Canada has been able to do relative to its provinces?

And as for individual rights themselves: isn't there something to the argument that, in exchange for at least some security against terrorists, at least some individual rights might have to be- however temporarily- given up, or at least diminished, for the greater good?

Henri-Paul Bolineau,

Mr. Berg-Andersson responds:

The principal reason that the Royal Canadian Mounted Police can function as a national police force while such a national police force here in America would be of dubious constitutionality is due to an essential difference in theories of Federalism between the United States and Canada. As I am sure Mr. Bolineau already knows, the Constitution of Canada, while "repatriated" (that is, made wholly Canadian with no more reference to acts of the Parliament of the United Kingdom of Great Britain and Northern Ireland insofar as that Constitution's amendment is concerned) by the Canada Act of 29 March 1982 [1982, chap. 11 (UK) ]- which, among other things, added the Canadian Charter of Rights and Liberties to this Constitution, still has at its core the British North America Act of 29 March 1867 [30-31 Victoria, chapter 3 ]. In Section 91 of the British North America Act, it states that the Parliament of Canada has the power to make Laws for the Peace, Order and good Government of Canada in relation to all Matters not coming within the Class of Subjects by this Act assigned exclusively to the legislatures of the Provinces [such matters left to the Provinces being enumerated in Section 92 of the Act of 1867- REB-A].

Perhaps no better description of the ramifications of the portion of Section 91 just quoted (from an American perspective, at least) was made than that found in Woodrow Wilson's 1898 work The State, where the then-future American President writes that "[i]n the division of powers which [the provisions of the British North America Act] make between the government of the Dominion and the governments of the several provinces, they differ very radically in character from the provisions of our own federal constitution. Our constitution grants certain specified powers to the general government and reserves the rest to the states: the British North America Act, on the contrary, grants certain specified powers to the provinces and reserves all others to the government of the Dominion." Clearly, Section 91's broad grant of legislative power to the Parliament of Canada where the provinces are not specifically permitted to act is a far far different thing from the "Reserved Powers clause" that is the 10th Amendment to the U.S. Constitution [please see my response of 28 November to Mr. Stremsky for the text of this Amendment].

James (Viscount) Bryce, in his 1921 set titled Modern Democracies, went so far as to opine that "[t]he legislative authority of the Dominion government... includes a power of disallowing acts of the Provincial Legislature", though Lord Bryce also noted that "[t]his particular power is, however, seldom used and practically only when such a Legislature is deemed to have exceeded the functions assigned to it by the [British North America Act (again, Section 92- REB-A)] or to have violated any fundamental principles of law and justice". The strengthening of the hand of the Supreme Court of Canada (not only through the Canada Act of 1982, but also through the British Privy Council giving up its power of highest court of appeal relative to Canada between 1935 and 1949) has most certainly shifted the burden of keeping the provinces in line with the federal purpose from Parliament to the Canadian Judiciary- yet this still cannot alter the basic fact that, unlike in the United States, "Reserved Powers" in Canada are in the hands of the Confederation in counterposition to its Provinces.

Furthermore, where Section 91 goes on to state that the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated, one of the matters so "hereinafter enumerated" as left to the Canadian Confederation, instead of its Provinces, is [t]he Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including Procedure in Criminal Matters- that is, Criminal Law and Procedure is one and the same throughout Canada: the definition and punishment for, say, Burglary is the same in British Columbia as it is in Newfoundland because criminal statutes are the exclusive province (no pun intended) of the Canadian federal government. Therefore, that same federal government can authorize (as it did back in 1920 re: the Royal Canadian Mounted Police) a national police force without constitutional difficulty.

The same, however, cannot be said of the United States of America. Under the 10th Amendment to the U.S. Constitution, the Police Power (as pointed out in my 28 November response to Mr. Stremsky, the most basic of the Reserved Powers left to the States by that Amendment) is exercised by the several States of the American Union largely in the form of separate and quite different criminal laws and penal codes in each of the 50 States: in the USofA, the definition and punishment for the same Burglary differs from State to State- and, while there are also crimes defined by Federal statute (so long as these crimes involve matters within the purview of powers specifically granted to Congress), this does not change the fact that most criminal prosecutions in this country involve violations of State law and that most criminal trials in America are heard in State courts the interpretation of which re: how such laws interplay with a given State's Constitution might well differ from that of a court hearing a similar case in another State. It is a knotty constitutional issue as old as the Republic, if not older still: even without a 10th Amendment, this issue would, nevertheless, still exist. Justice Stone may well have penned the words I myself quoted in my response to Mr. Stremsky- that the 10th Amendment merely means "that all is retained which has not been surrendered"- as a means of more or less diminishing that Amendment's value as a shield for State's Rights but his words cut both ways: that is, where something can't be surrendered, it must- by definition- be retained.

In the 1798 case of United States v. Worrall [2 Dallas 384], the defendant was accused of attempting to bribe a federal official in Philadelphia (then still functioning as the temporary National Capital): problem was, there was not yet a federal statute making Bribery a crime-- so the indictment against Mr. Worrall was brought under common law (Bribery being a crime at common law). U.S. Supreme Court Associate Justice Samuel Chase, riding as Circuit Justice in the Middle Circuit, was hearing the case along with District Judge Peters of the District of Pennsylvania and came to the conclusion that the criminal indictment against Worrall could not be sustained because the Federal courts could only take cognizance of criminal acts specifically defined and made punishable by act of Congress. Justice Chase, in his resultant opinion, stated the problem as follows:

In this country, every man sustains a two-fold political capacity; one in relation to the state, and another in relation to the United States. In relation to the state, he is subject to various municipal [simply the legal "term of art" of the time for what we would today call the Police Power- the word "municipal" here meaning not a governmental muncipality per se but, rather, used in its original, broader sense implied by the Latin words munia + capere ("duties taken [up]"): REB-A] regulations, founded upon the state Constitution and policy, which do not affect him in his relation to the United States; for the Constitution of the Union is the source of all the jurisdiction of the national government, so that the departments of the government can never assume any power that is not expressly granted by that instrument, nor exercise a power in any other manner than is there prescribed. After noting that Article I, Section 8 of the U.S. Constitution implies a power granted to Congress to create, define and punish crimes and offenses, whenever they shall deem it necessary and proper by law to do so for effectuating the objects of the government [thus, Congress had the power to have made bribery of a federal official a crime by statute but, for whatever reason, had chosen not to do so at the time the Worrall case was being tried], Justice Chase went on to explain the background of the problem of trying to apply common law to a criminal case brought in Federal court in the absence of a congressional statute specifically spelling out a particular crime at the Federal level:

If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England; and yet it is impossible to trace when or how the system was adopted or introduced. With respect to the individual states, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the settlers as by the judges and lawyers of England, that they brought hither, as a birthright and inheritance, so much of the common law as was applicable to their local situation and change of circumstances. But each colony judged for itself what parts of the common law were applicable to its new condition, and in various modes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts and rejected others. Hence he who shall travel through the different states will soon discover that the whole of the common law of England has been nowhere introduced, that some states have rejected what others have adopted, and that there is, in short, a great and essential diversity in the subjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one state is not the common law of another, but the common law of England is the law of each state, so far as each state has adopted it...

Now, the United States did not bring [the common law] with them from England, the [federal] Constitution does not create it, and no act of Congress has assumed it. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England, or modified, as it exists in some of the states; and of the various modifications which are we to select, the system of Georgia or New Hampshire, of Pennsylvania or Connecticut?

In other words, each State inherited its own variant of Common Law as a colony and, over the course of time, altered it by statute or a decision by a court in a case brought before it to the point whereby the Common Law in one State of the Union was rather unlike that in another State (keeping in mind that Justice Chase was writing well within 200 years of the first permanent English settlement at Jamestown and the landing of the Pilgrims aboard the Mayflower... how much more has the law from State to State diverged [and we now have to take into account that nearly 3/4 of the current 50 States were never colonies of the British Empire but, nevertheless and with notably few exceptions, were "colonies" in the form of U.S. Territories prior to Statehood- inheriting a variant (or a combination of variants) of Common Law which they each could then alter on their own]- even given such things as Uniform Acts re: a given field of law adopted by the majority of States- in the little over 200 years since Justice Chase was so opining?) Hence, the need for a concept of Reserved Powers left to the States even absent any reference to the 10th Amendment itself: again, the phrase "that all is retained which has not been surrendered" can well be viewed in a very different light than that apparently intended by Justice Stone!

Either way (with reference to the 10th Amendment or no), and given the differences between States in their definitions and punishments of crimes (or even over whether something should even be a crime!), the theory of Federalism that obtains in the United States simply does not allow for the type of national police force the RCMP is in Canada (and which, or so it seems, Mr. Stremsky was proposing in his 28 November response to my 26 November Commentary).

I want to here also address your comment that "in exchange for at least some security against terrorists, at least some individual rights might have to be- however temporarily- given up, or at least diminished, for the greater good". I had more than a few e-mails sent to me here at TheGreenPapers.com in the first few months immediately following 11 September 2001 in which was commonly expressed something along the lines of "I'm willing to give up some of my rights and liberties for greater security from terrorist attack": I even had friends and acquaintances of mine- people I know personally- making the same, or similar, statements to me around that same time.

While anyone can- should they wish to (and, hopefully, such would be done of the person's own volition and not with that proverbial [or even actual!] "gun to the head")- waive their own Civil Rights and Liberties, the plain truth is that- in the end- no one can waive my Civil Rights and Liberties except me! To quote from my 17 November 'Open Letter to Al-Qa'eda': "my morals and my ethics, my religious beliefs and spiritual values are MINE, baby!!!-- they belong to ME, not to a Religion (whether yours or anyone else's) or to a State (whatever its constitutional form and political philosophy) because, again, they are not YOURS (nor anyone else's) with which to tinker!"... likewise my Civil Rights and Liberties. Once more I say (again quoting my words of 17 November): "Freedom should never be taken for granted precisely because if one does take it for granted, some damn fool out there will get the crazy idea that he or she granted it and stupidly try to then take it away! But, of course, one cannot take away that which one did not give in the first place!!"

Let's go back to the language used by Justice Chase himself in his opinion in United States vs. Worrall quoted above, where he noted that Congress had power to create, define and punish crimes and offenses, whenever they shall deem it necessary and proper by law to do so for effectuating the objects of the government. Justice Chase borrowed the language in this sentence from Article I, Section 8, clause 18 of the U.S. Constitution, which reads as follows:

[The Congress shall have Power* * *] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [that is, those stated elsewhere within Article I, Section 8: REB-A], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [This being known as the "Necessary and Proper clause" of the American Constitution: REB-A]

Funny word there: "necessary"-- for necessity is relative. With less than 2 minutes to go in a game of American Football and the team with the ball a touchdown behind and facing 3d Down and 6 yards to go, we might well hear the commentator on television or the radio say, as the players break from the huddle: "In order to keep this drive going, it will be necessary to make this key third down conversion"--- but is this use of the term "necessary" at all in same sense, or even at the same level, as when that very word is used in connection with the necessity to have access to something to eat when one is hungry? So the first question to be answered when contemplating a particular approach to Homeland Security (whether creating a national police force or deciding whether Civil Rights and Liberties should be thrown overboard) is whether, indeed, the given approach is actually "necessary"- keeping in mind that one person's necessity might well be another person's "unnecessary".

But beyond this is the appearance of the word "proper" in conjunction with the word "necessary" in the constitutional provision which we conveniently denote with these two words. Something may appear to be necessary but, nevertheless, not be proper; conversely, something proper may not be at all necessary: only if something is both necessary and proper to "effectuating the objects of government" does it then pass constitutional muster.

Is voluntarily diminishing one's own individual Civil Rights and Liberties- where not outright giving them up (putting aside the notion that that which is given up to authority is not likely to be so readily returned)- at all necessary in order to fight Terrorism? I don't rightly think so (even absent the argument that doing so also serves to give the terrorists their victory)... but, even if it is necessary, I hardly think it proper. And it is even less proper where the government- even with the support of the majority- forces one to do so!

All is retained which has not been surrendered... but one cannot forget that unecessary surrender is its own slippery slope.