Homeland Security and a National Police Force
(Response to an earlier Vox Populi)
Saturday, November 30, 2002
by Henri-Paul Bolineau
Mr. Stremsky- in his response to your latest response to him [Reference Vox Populi 29 November 2002 - Ed.]- notes that his "National Police Force would make it easier for the President of the United States of America to enforce the federal laws of our country passed by Congress that the United States Supreme Court does not rule unconstitutional" and that this "National Police Force would only be able to enforce federal laws". I guess I'm still at a loss to understand your constitutional problem with having such a National Police Force.
In your own quotation from Justice Story in your rebuttal to Mr. Stremsky, there is the following:
"But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defense, ought not the former, upon the soundest principles of interpretation, to be adopted?"
OK... so why can't someone come to the conclusion that your construction of the 10th Amendment in connection with Article I, Section 8, clause 18 [the "Necessary and Proper clause"- Ed.] (which would prevent the establishment of a National Police Force) defeats "insur[ing] domestic Tranquility", while Mr. Stremsky's view of these same provisions (thereby arguing that a National Police Force would be permissible) promotes "insur[ing] domestic Tranquility"? Wouldn't Justice Story, therefore, agree that Mr. Stremsky's view- rather than your own- "ought..., upon the soundest principles of interpretation, to be adopted?"
Mr. Berg-Andersson responds:
Answer: No... Justice Story would not agree that Mr. Stremsky's view- rather than mine- is the one based "upon the soundest principles of interpretation". Read the very first part of what Justice Story wrote as Mr. Bolineau has himself quoted it: But suppose the terms of a given power admit of two constructions... [underlining, of course, mine: REB-A]; the flaw in Mr. Stremsky's view is that "insur[ing] domestic Tranquility" (or, for that matter, any other statement of purpose in the Preamble) is not at all a power of the Federal government- for the reasons I well outlined in my 29 November response to Mr. Stremsky himself!
Once again, the Preamble to the U.S. Constitution is merely just that- a preamble: a statement of the purposes for, an outline of principles behind, that document. I used the analogy of the Declaration of Independence in my most recent response to Mr. Stremsky because that document is also a statement of purpose and outline of principle which is intended to justify and explain the need for American Independence from the British Empire and, consequently, the reasons behind our own National Sovereignty.
I am one of those who strongly believes (and I believe I have also stated such belief in earlier Commentaries of mine and/or my responses to various and sundry 'vox Populi' on this very website!) that the Declaration should be referred to when one is trying to understand the Constitution as a whole or any of its individual provisions. How could I then deny that the Preamble to that document itself should not be viewed in the same light, as well as referred to for the same reason? But I am also most fully aware that the Preamble does not at all confer powers upon the Federal government, just as the Declaration's "self-evident" "truths" do nothing to actually protect the Civil Rights and Liberties of the People; in either case, these writings are well-consulted guides as to why we have the type of government we have in this country-- however, only the text within the body of the U.S. Constitution actually sets out the powers of Congress (and, by extension, those of the entirety of the Federal government) and the rights and liberties of the People to be protected by the government created by that document.
To use the Declaration of Independence as an illustration of the case presented by the Preamble to the Constitution: the Declaration emphatically declares that "all men" (we today would include the other gender by saying "all persons") are "endowed by their Creator with certain unalienable Rights, etc." but the Declaration also goes on to note that "to secure these rights, Governments are insituted among Men [again, today we would say "People" or "the People": REB-A], deriving their just powers from the consent of the governed"-- meaning that even those who wrote the Declaration well understood that there had to be an enforcement mechanism in the form of a government that had the power to protect those rights!
But all this government would be empowered to do in such a case- were their "just powers" to truly be "derived from the consent of the governed"- would be such protection of Civil Rights and Liberties. What the Declaration is basically arguing is that there is a marked difference between the protection of a right or liberty and the granting of that right or liberty: this is one of the things that makes the Declaration so important to- and unique in- all of Human History, not just American History, for it was a major slap in the face of a theory of governance, still prevalent in much of the world- not just in Britain- back in 1776, in which the Crown was the fountainhead of Justice and, therefore, the king alone had the power to grant rights and privileges precisely because he alone had the power to protect those same rights and privileges (a theory of governance that still prevails in, say, Sa'udi Arabia or, for that matter, the political philosophy of Al-Qa'eda). The Declaration, thus, was truly the last, yet most effective, blow against the leftovers of Feudalism- in which the People were the ultimate vassals to, and servants of, the king; in contradistinction, the Declaration opined so strongly that government protected the People and their liberties not because it had power over them but, rather, because government was ideally the servant of the People!
Liberty is, to define it as simply as possible, "Ordered Freedom"- a Freedom in which, ideally, one should be free to do whatever one wishes to do so long as one's actions do not adversely, directly and tangibly impact upon someone else or their Liberty. I am sure that I have written something in my Commentaries and responses to 'vox Populi' on this website over the last three years that have offended some reader of same in some form or fashion (though, hopefully, not too serious an offense was made by me!)-- offending someone is an impact that is adverse and direct, but such an impact is not tangible (that is, someone having been offended by something I might write does not reduce that person's property values or prevent him/her from going about their daily business, etc.). I have Freedom of Speech to responsibly state my views on the issues of the day or the politicolegal system (and- in addition- I have Freedom of the Press, because I also happen to have the opportunity to have these views of mine posted on a website potentially viewable anywhere on the face of the globe via the Internet): these Freedoms were not granted to me by my government- Federal, State or local; they are, however, nonetheless protected by those governments- even though these Freedoms are mine solely because I happen to exist as a free Human Being (something the government had nothing at all to do with!)
What I have just stated is only the ideal, however- putting it into practice takes much hard and constant work on the part of the citizenry: in my 11 October 2002 Commentary titled 'BE IT EVER SO HUMBLE...', I quoted from F.H. Giddings' Democracy and Empire where he wrote: "As a statement of alleged political fact, ['governments... deriving their just powers from the consent of the governed'] has singularly little content of truth. In human history governments have not often derived any powers, just or unjust, from any conscious, rational consent of the governed. Consent is more than mere submission; it implies that the consenting person, with full apprehension of the facts, has agreed to a certain conclusion of policy, through an act of his individual reason. Governments have always been dependent for their stability on the non-resistance of the governed, but non-resistance may be a product of a thousand mental and moral factors other than consent." In addition, the Declaration itself provides no national frame of government for protecting those "unalienable Rights" with which all persons are, so it says, "endowed by their Creator" (this was because, on 4 July 1776, those declared "free and independent States" each had their own governments- most operating [or soon to operate] under newly penned written State Constitutions; all, however, exercising those very powers which the later Constitution would "reserve" to them under terms of that document's 10th Amendment... obviously, at the time the Declaration of Independence was adopted, it was the States alone that were the guarantor and protector of Rights and Liberties of their respective citizenry... the Articles of Confederation were then still nearly a year away and the imperfections of that document would not be corrected by the "more perfect Union" of the Constitution for more than a decade beyond that). Clearly, the Declaration itself does not at all protect or preserve the Rights of which it so strongly speaks.
Likewise, the Preamble to the Constitution does not at all confer the power to actually apply or enforce the purposes of which the Preamble alone speaks. To argue otherwise would mean that Congress, or the President, could then do whatever either- or both- pretty much wanted to (because to apply the Necessary and Proper clause of Article I, Section 8, clause 18 to the broad purposes outlined in the Preamble- thereby constructing an argument, as Mr. Stremsky apparently has, that anything "necessary" and "proper" [and a citizen's "improper" might well be the politician's "proper"!] to effect the purposes of the Constitution is, by definition, constitutional- makes the other 17 clauses of Article I, Section 8 absolutely unnecessary [why even bother to state that Congress has specific power, for example, "[t]o raise and support Armies..." (clause 12) or "[t]o provide and maintain a Navy..." (clause 13) if, in fact, all Congress had to do was to say that they had the inherent power to create an Army and a Navy under the provision of the Preamble that "We the People of the United States" "ordain and establish this Constitution for the United States of America" to, among a relative handful of other things, "provide for the common defense"?... but read- in my previous response to Mr. Bolineau- what Justice Story wrote just before what Mr. Bolineau himself quoted from that Justice above: For example, the Preamble declares one object to be, 'to provide for the common defense' . No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defense. Plainly put, Justice Story would agree with me that "to provide for the common defense"- or, for that matter, any other purpose as stated in the Preamble- does not confer power on Congress or the President to do whatever they bloody well please!])
I am, of course, not at all suggesting that, therefore, the Federal government lacks- or should lack- the necessary tools it would need to enforce Federal laws (after all, my own support of the new Department of Homeland Security- even with the flaws I myself pointed out on 26 November- is based on my own perceived need for better coordination and use of such tools than would be available without such a DoHS). For instance, the Border Patrol- now to be the Bureau of Border Security in the new Department of Homeland Security- was specifically set up as a police-type agency to enforce Federal laws securing our borders (but its doing so can be derived- either expressly or impliedly- from powers specifically granted to Congress in Article I, Section 8); likewise, the Secret Service- also now to be part of the new DoHS- was, before it took on its duties of protecting high-ranking Federal officers and their families, first set up to enforce Federal laws intended to maintain the integrity of the Nation's money supply from such things as counterfeiting (which, again, can be discerned from among the powers granted to Congress in Article I, Section 8).
But the Federal government has never set up a National Police Force with general nationwide police powers (on, I suppose- if I correctly understand what Mr. Stremsky proposes, the model of a State Police agency with full statewide law enforcement powers [though even such State Police- which, theoretically, could constitutionally do so- are usually restricted in when and how they can supersede the local police]) precisely because it can't! General police powers are left to the States by virtue of the 10th Amendment (as I have already opined and argued on this website for the last few days) and, while the Feds can create police-type agencies with specific enforcement duties within the purposes of particular Federal laws (say, the new Federal screeners at airports under the Transportation Security Administration, also to be moved into the new DoHS)- much along the lines of State Highway Patrols without full statewide law enforcement powers have the power to enforce traffic regulations, Congress cannot constitutionally create a National Police Force with general law enforcement powers because the Police Power is, indeed- as the first Justice Harlan wrote nearly a century ago in Jacobson v. Massachusetts, "a power which the State did not surrender when becoming a member of the Union under the Constitution".
Thus, my primary objection to Mr. Stremsky's proposal for a National Police Force (putting aside the fact that it is unnecessary) still stands- that such would be of dubious constitutionality.