Homeland Security and a National Police Force
(one more time... with feeling!)
Sunday, December 1, 2002
by Kenneth Scot Stremsky
I am glad I have acted as a foil for you.
I hope you will comment on why you think a National Police Force is a bad idea. I see it mainly as a protection agency for airports, nuclear power plants, water supplies, dams, subways, and sports stadiums. They would also help with the border patrol and checking of cargo from ships, planes, and trains.
Since the Iranian hostage crisis, the national security threat I have been most worried about is coordinated biological attacks with different biological agents on subways, in airports, and in sports stadiums. The National Police Force would be well trained to deal with the aftermath of such attacks.
I believe the Preamble of the Constitution deals with Congress and not the President of the United States of America. It says what I believe the priorities of Congress should be. We have the Social Security Administration and Medicare to promote "domestic Tranquility" and "promote the general Welfare." The Social Security Administration and Medicare are not mentioned in the Constitution. Article One, Section Eight does mention common Defense and general Welfare. What they mean is not mentioned.
We do interpret Amendment Ten of the United States Constitution differently.
Enforcement of laws is a police power and your arguments for why you think Congress does not have the constitutional ability to create a National Police Force do not make any sense to me. What is the purpose in having laws if they cannot be enforced?
Congress does have the power to create a National Police Force. Congress does not have the power to eliminate state and local police forces.
Article Six of the Constitution says
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding."
Once the Constitution was adopted, federal law superseded existing state laws and customs.
Mr. Berg-Andersson responds (one more time... with feeling! [;-)]):
I am becoming afraid the eyes of all those who read all this verbiage on 'The Green Papers' will begin to glaze over (assuming that this hasn't occurred already!) if Mr. Stremsky and I continue to go over the topic of our differences over his proposal for a National Police Force again and again... so, once more (and only once more!), I will state my case against his proposal on constitutional grounds; then I will take up his challenge in order to state why I think a National Police Force would be a bad idea on grounds other than the constitutional ones (though that a National Police Force would be unconstitutional for the reasons I will once more attempt to make clear below is already good enough reason for me to consider it a bad idea!)...
I have no illusions that I will at all ever convince Mr. Stremsky re: my opposition to a National Police Force: after all, he has proposed it, thinks it's a good idea and, thus, wants one to be created- come hell or high water (or, for that matter, the Constitution!)... as a result, this response of mine will have to be the end of the "debate" between Mr. Stremsky and myself on this particular matter (keep in mind also my two responses to 'vox Populi' from Mr. Bolineau [References: Vox Populi 29 November 2002 and Vox Populi 30 November 2002] in the midst of this "debate") and he (along with, I presume, Mr. Bolineau) and I will hereafter just have to agree to disagree on the necessity, desirability and constitutionality of a National Police Force for the United States of America such as he proposes and no longer beat this proverbial "dead horse"...
but I am not above giving a statement of my position one more try!
Mr. Stremsky writes (and since he does so immediately after quoting the so-called 'Supremacy clause' that is the essence of Article VI, clause 2 of the U.S. Constitution, I have to assume this statement- which also apparently forms the basis of his questioning my interpretation of the 10th Amendment- is the reason behind what he says when he writes): "Once the Constitution was adopted, federal law superseded existing state laws and customs."... this statement of Mr. Stremsky's is incorrect.
State laws and customs were not superseded by the adoption of the Constitution (if that had actually been the case, the Constitution would never have been ratified in the first place because the Antifederalists of the time- who were fearful of a central government encroaching on State powers of governance- would then much more easily have prevailed in the debates over ratification of the document), nor have State laws and customs per se been superseded by the will and wishes of the Federal government at any time since!
Let me give you a hypothetical, yet concrete, example to illustrate my point: let's say that the legislature in Mr. Stremsky's State- New Hampshire- passes a "one strike you're out" law which states that anyone who is convicted of a crime of violence in that State (even if the violence is relatively minor, comparatively speaking) shall be automatically sentenced to life in prison with absolutely no parole. Let us further say that my State- New Jersey- has similar legislation introduced in its legislature but that it does not pass in either house in Trenton. Now, let's also say that a Party or a large wing of a Party which supports "one strike you're out" legislation- and, in fact, makes it the core of the Party or faction's crime control/prevention policy during an election campaign- takes control of both houses of the Congress of the United States:
Mr. Stremsky would have to argue that, if this newly-elected Congress then passes a law saying that every State in the Union must have "one strike you're out" on its statute books (regardless of the will of the legislature of my State in this hypothetical argument as reflective of the wishes of the People of my State as expressed in the elections for my State's legislature), such action by Congress would be- indeed, must be by definition- constitutional (and if Mr. Stremsky doesn't, in fact, think what I have stated so far in this hypothetical argument would be constitutional, then he doesn't believe his own arguments- stated in all his more recent 'vox Populi'- about the 10th Amendment, the Preamble in relation to Article I, Section 8 or, now, the Supremacy clause that is Article VI, clause 2). Why?--
Because Mr. Stremsky believes a.) that "[o]nce the Constitution was adopted, federal law superseded existing state laws and customs" (and, if this be so, then New Jersey's refusal to adopt "one strike you're out" in this hypothetical argument can be superseded by simple act of Congress) and b.) that the phrases "establish Justice" and "insure domestic Tranquility" in the Preamble give Congress substantive power-- he himself writes "It [meaning: the Preamble] says what I believe the priorities of Congress should be" (and, if this be so, then- where Congress believes that having every State in the Union with "one strike you're out" on the books is the best way to so "establish Justice" and "insure domestic Tranquility"- the laws of a State which does not have these on the books should go right out the window)...
except for one important fact and that is this: the Constitution itself does not say what Mr. Stremsky says it says in this regard! It does not say that the Federal government supersedes State laws and customs... instead, in that document's own 10th Amendment, it states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People" [underlining mine: REB-A] This, I will say once more, is what is known as the Reserved Powers clause of the Constitution and, as a result of this clause, New Jersey doesn't have to adopt "one strike you're out" legislation if it doesn't want to- even if Congress would so strongly like it to do so.
It is all quite simple, really-- but I will let U.S. Supreme Court Chief Justice John Marshall's words from his opinion in the case of Barron v. Baltimore [7 Peters 243 (1833)] so much better explain the historical background much better than I possibly can:
[I]t is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every Convention by which the Constitution was adopted, Amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general [meaning, Federal: REB-A] government- not against those of the local [meaning, State: REB-A] governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, Amendments were proposed by the required majority in Congress, and adopted by the States.
The amendments referred to by Chief Justice Marshall are those we Americans have come to call the "Bill of Rights", the first 10 Amendments to the Constitution (including, rather obviously, the 10th Amendment itself)- and, as Marshall himself points out, these amendments were adopted not because "We the People" of the time feared the power of State governments (with which they were already quite comfortable) but, rather, because they feared abuse of power by the then-new Federal government. Therefore, any interpretation of the Bill of Rights must- if Logic is to be correctly applied- be made in light of the fact that any of its provisions must primarily be seen as restrictive of the powers of the Federal government: to see it any other way renders the Bill of Rights meaningless!
So, how are we then to interpret the 10th Amendment? Mr. Stremsky stated- in his 29 November 'vox Populi'- that "Amendment Ten of the United States Constitution allows States and Localities to have their own police forces, health departments, and regulatory agencies because the Constitution does not prohibit them from having them". The problem is that this is not what that Amendment says. Instead it says that the States "reserve" their "power" to do what the Constitution does not prohibit them from doing! In other words, States do not have their own police forces because the Constitution "allows" it: no!-- the States "reserve" their inherent "power" to have police forces!! Mr. Stremsky's position on the 10th Amendment, in effect, argues that the Reserved Powers clause means that no Powers are, in fact, so Reserved!... this is totally illogical, where it is not also rather ludicrous!!
It's like when one tells a friend that they will likely go to a particular movie together this coming Saturday but one "reserves the right" to change one's mind before then. The friend isn't "allowing" one to change one's mind before Saturday- one already has the inherent right to change one's mind, regardless of the friend's position on the matter! Yes, it is true that the friend can then say "well, if you don't want to go to the movie I want to see, then we won't go to a movie at all"-- but the key here is re: who has claimed the ultimate decision-making power re: finalizing plans for Saturday-- it is obviously the one who actually "reserves the right"!
But there is a further, historical issue that puts pay to Mr. Stremsky's interpretation of the 10th Amendment and that is this: The Preamble which he quotes- along with the Supremacy clause [Article VI, clause 2] which he also quotes- as justifying his position that a National Police Force is constitutional despite Police Powers being reserved to the States (which, as I've said, he doesn't seem to accept anyway- since he is arguing that Police Powers are allowed to the States, even though "allowance" is not at all in the language of the Amendment) are all part of the original Constitution... however, the 10th Amendment- being, after all, an amendment- amended (that is, altered) that original Constitution!
Let's say, if only for sake of the argument, that Mr. Stremsky is actually correct: that, despite all the Supreme Court decisions that back up the first Justice Harlan's contention- in the case of Jacobson v. Massachusetts- that "Although [the] Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments", Justice Harlan is wrong and that the Preamble to the Constitution was, indeed, intended to confer substantive powers upon Congress. What, then, would be the raison d'etre for the 10th Amendment- along with the other 9 Amendments making up the Bill of Rights- being adopted in the first place?
The reason would then be- as Chief Justice Marshall said- because these Amendments- which "demanded security against the apprehended encroachments of the general government" and "to guard against the abuse of power"- "were recommended", "were proposed by the required majority in Congress, and adopted by the States". Why? "[T]o quiet fears thus extensively entertained"! In other words, the 10th Amendment was one of those adopted specifically to quell apprehensions that, without them, the Federal government's power was far too broad!!
Thus, if Mr. Stremsky is, in fact, right (and more than 200 years of Supreme Court decisions on the matter say that he is not [I've already pointed out in previous responses to 'vox Populi' over this past week what some of these opinions are, so I will not do so again here]) in his contention that Congress inherently has power to, say, "insure domestic Tranquility" and "provide for the common defense" because these words are found in the Preamble, the Amendments that make up the Bill of Rights- including the 10th- then must be seen as restrictive of this interpretation of Mr. Stremsky's. That is, the 10th Amendment must then be construed to mean 'Despite the wording of the Preamble, nothing therein can alter the fact that- among others- the Police Power is reserved to the States' because the 10th Amendment came after the Preamble in time. Any other interpretation would mean that an amended section of the Constitution is, in fact, not at all amended! How can the Preamble to the Constitution supersede an amendment thereof that did not even exist at the time the Constitution of which that Preamble is a part was itself drafted? The same argument would also hold for Mr. Stremsky's use of the Supremacy clause. In relation to Article VI, clause 2 of the original Constitution, the 10th Amendment means 'Despite the Constitution being the Supreme Law of the Land, this cannot alter the fact that- among others- the Police Power is reserved to the States'.
Either way- 1. the Preamble does not at all confer substantive powers upon Congress (which is the current status of the Preamble in American Constitutional Law and has been for some two centuries) or 2. the Preamble does confer substantive powers upon Congress but these powers are reined in by, in this case, the later 10th Amendment- the Preamble cannot be relied on as the source of a general police power accruing to the Federal government over that of the States. Likewise, the Supremacy clause that is Article VI, clause 2 is also reined in by, again in this case, the later 10th Amendment and, therefore, the Constitution being "the supreme Law of the Land" does not change one wit the concept that the Police Power is one of the Reserved Powers thereby reserved to the States.
So we are now back to the questions asked of Mr. Stremsky in my response to his 29 November 'vox Populi', since only Article I, Section 8 can (for the reasons I just spent several paragraphs explaining) provide a power conferred upon Congress under which a National Police Force can be created:
But upon what specific grant of power to Congress does Mr. Stremsky's National Police Force rely? What "necessary and proper"- or, to use Chief Justice Marshall's words, "legitimate" and "appropriate"- application of the powers conferred upon Congress by Article I, Section 8 alone (since no powers are, as already indicted in this response, conferred upon Congress by the Preamble itself) would then be the constitutional basis of such a National Police Force, keeping in mind that the States have not surrendered their Police Power to the Federal government via the Constitution and- to once more quote Justice Harlan Fiske Stone in United States v. Darby- "that all is retained which has not been surrendered"??
The closest thing I see as a response by Mr. Stremsky to my inquiry above is the following sentence from his 'vox Populi' to which I am now responding, where he writes: "Article One, Section Eight does mention common Defense and general Welfare. What they mean is not mentioned."
The mention of "common defense" and "general welfare" in clause 1 of Article I, Section 8 is only within the scope of the Power to Tax and to Spend that is the essence of that particular clause: it is not a blanket grant of power to provide for the common defense and general welfare per se. Read it carefully: The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States. i.e., 'in order to pay the debts and provide for the common defense and the general welfare of the United States, Congress shall have power to lay and collect taxes...': the second part of the clause gives the reason for the exercise of the power granted in the first part and is, in addition, a limiting provision: why can Congress lay and collect taxes, etc.? so as to pay the country's debts and provide for the common defense and general welfare (otherwise, Congress could constitutionally lay and collect taxes for, say, sending the children of Members of Congress to Harvard!) So, yes, Article I, Section 8 very clearly says what "common defense" and "general welfare" mean-- insofar (and only insofar) as this particular clause of that section is concerned!
But where in Article I, Section 8 is anything approaching a grant of general Police Powers (akin to that reserved to the States via the 10th Amendment) to Congress or any other Federal Department? I see a power "to provide for the punishment of counterfeiting the securities and current coin of the United States" but that is a specific enforcement authority (carried out by a Secret Service soon to be included in the new DoHS, by the way), not a general Police Power. I see a power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations" and "to make rules for the government and regulation of the land and naval forces" but, in neither case, does this give Congress a general Police Power per se.
About the closest thing I can find in Article I, Section 8 to a general Police Power is where Congress is granted power "to exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States"- meaning, of course, the District of Columbia-- but this does not grant a general Police Power over the States and certainly does not grant general Police Power nationwide! There is also "like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings" but the key words in this clause are purchased by the consent of the legislature of the state in which the same shall be-- there is, thus, no general Police Power even in Federal facilities without State permission!
Ah! But there is always that handy-dandy "Necessary and Proper clause" in clause 18 of Article I, Section 8! Mr. Stremsky himself quoted it in his 29 November 'vox Populi': "The Congress shall have Power ***
to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
But, again I ask, which of the "foregoing Powers" (that is, those specifically listed in Article I, Section 8) is being "carr[ied] into Execution" by the creation of a National Police Force? Again, I ask: where is there a grant of general Police Power in the Constitution to the Federal government that would allow a National Police Force to so exercise a power reserved to the States through the 10th Amendment?!
Now, as to why I think a National Police Force is a bad idea-- absent my constitutional objections, already stated in several responses to 'vox Populi', including what I have additionally written above:
A National Police Force is a bad idea because it is totally unnecessary. Mr. Stremsky writes: "I see it mainly as a protection agency for airports, nuclear power plants, water supplies, dams, subways, and sports stadiums. They would also help with the border patrol and checking of cargo from ships, planes, and trains." Except that we already have Federal enforcement machinery for all of this!
If the Border Patrol (soon to be the Bureau of Border Security in the new DoHS) needs extra help, hire more Border Patrol officers and add better technology! Of what avail would a new National Police Force be in this case? If help is needed by those checking cargo from ships, planes and trains, then hire more personnel and the up-to-date machines to assist them for the Customs Service (also now to be in the new DoHS), the Transportation Security Administration (likewise) and the Coast Guard (ditto). Again, why would a National Police Force be necessary here?! You want more protection for airports, nuclear power plants, water supplies, dams, subways, and sports stadiums? We already have State and local law enforcement agencies which already have necessary Police Power, with no constitutional difficulties whatsoever; we already have the police and security personnel of agencies charged with running airports, nuclear plants, water supplies, dams, subways and sports stadiums: if the numbers of such personnel is inadequate, hire more people; if the machinery used by these entitites is inadequate or outmoded, purchase better equipment. I don't see how a National Police Force solves the problems presented or makes the situation any better.
If extra protection for all this infrastructure is needed, we have each State's National Guard- which, if a multi-State/regional deployment is needed to provide extra protection, can be "federalized" upon order of the President of the United States (after all, wasn't I the one most vociferously declaiming- in my 26 November Commentary that sparked all this discussion- that the deployment and movement of such federalized National Guard units utilized for homeland security purposes should be under the control of the Department of Homeland Security rather than the Department of Defense?) If coordination between all the various Federal agencies involved in homeland security as well as between these and those agencies on the State and local level is needed-- well-- I thought that this is why we have now created the new DoHS in the first place!
Mr. Stremsky writes: "Since the Iranian hostage crisis, the national security threat I have been most worried about is coordinated biological attacks with different biological agents on subways, in airports, and in sports stadiums. The National Police Force would be well trained to deal with the aftermath of such attacks". Except that we already have agencies and administrations, police forces and security services at the Federal, State and local level who are so well trained-- and, if the training should be inadequate, then train them more efficiently. Once more I ask, why do we need a National Police Force to accomplish this? Mr. Stremsky asks: "What is the purpose in having laws [it is clear from the context that he means Federal laws: REB-A] if they cannot be enforced?" Except that Federal laws are being enforced- every day, twenty four hours a day... just not by a National Police Force but, instead, by other already existing enforcement authorities at the Federal level!
A National Police Force can only be necessary if the intention is to enforce general Police Power at the Federal level, nationwide; there is no other reason for such an entity! But the Federal government does not have such general Police Power under the U.S. Constitution, for the reasons I have already outlined in quite a bit of verbiage typed over the last several days and posted here in the 'vox Populi' section of 'The Green Papers'. So such a National Police Force is, again, not "Proper" and, in addition, it is not "Necessary" (to use the language of the Constitution's Article I, Section 8, clause 18)-- hence, a bad idea.