OPINION:
President Trump argued last week that as a result of the federal enhancement of police work in the District of Columbia, the city has gone, in four days, from the most dangerous in America to the safest. He cited no evidence but relied, apparently, on his own observations and anecdotal references from friends. He opined that everyone wants him to keep their cities and towns safe.
Mr. Trump couldn’t resist taking credit for an increase in the number of arrests. These included crimes such as vagrancy, running away from federal agents and striking the bulletproof vest of a federal agent with a sandwich. It remains to be seen whether arrests for quality-of-life crimes or non-crimes (vagrancy laws are unconstitutional, and running from federal agents is not a crime unless they have a lawful purpose to pursue you) can be translated into convictions and palpable safety.
Thomas Jefferson and James Madison understood that everyone wanted to be safe, but they recognized that some prices were too high to pay for safety. Those prices include the loss of personal liberty, an expansion of already bloated presidential powers, the loss of local control of police and the violation of the constitutional principle of subsidiarity.
Here is the backstory.
During the Colonial period of American history, there were no police. Towns and cities had jailers who mainly carried out orders from judges, which included jailing the guilty and occasionally executing them. Written laws were few. The common law followed the natural law. When enforcement was needed, a militia was assembled by a sheriff. The members of the militias were farmers and tradesmen.
The king’s policies were enforced by his Colonial governors, their troops and British agents who could arrest anyone, as they all carried general warrants. These were issued by a secret court in London, and they authorized the bearer to search wherever he wished and seize whatever and whomever he found.
One of Jefferson’s bitterest complaints in the Declaration of Independence was the king’s repeated violations of the doctrine of subsidiarity. Subsidiarity was crafted by the Romans, gained popularity after it was codified by St. Thomas Aquinas and generally adopted in the West.
Subsidiarity teaches that when the government seeks to accomplish a task — be it the prosecution of a jaywalker or the waging of war against another country — because it is using force and assets given to it by the governed, the government must use the least force and fewest assets necessary. (No government produces wealth; thus, everything the government possesses it has taken.) This use of force can be done efficiently only by the government closest to the problem at hand.
Madison understood this when he crafted the Constitution. In it, he delineated precisely the powers of the new central government. Public safety, as desirable as that may be, is not among them. He also sought to compel subsidiarity. Thus, by omitting health, safety, welfare and morality as areas delegated to the federal government, he reserved those areas to the states. He also crafted the 10th Amendment to codify those reservations.
Madison was also cognizant of what his friend had written in the Declaration of Independence, namely that the king had arrested Colonists in America and transported them to London for trial. Hence the provisions in the Constitution mandating that federal criminal trials take place in the judicial district in which the crime is alleged to have occurred.
Now, back to public safety and the American presidency.
I have often argued that the FBI and the Department of Homeland Security are unconstitutional. They are not articulated or even hinted at in the Constitution, and their tasks (public safety) are reserved for the states. Up until the presidencies of Woodrow Wilson and Franklin D. Roosevelt, the feds never cared to be involved in crime fighting. These were state concerns, and their needs were vastly different throughout the country.
Then Wilson crafted the precursor to the FBI and convinced Congress that since we now had a federal police force, it needed federal crimes to enforce. This was magnified greatly under FDR, and all living Americans have grown up with the concept of the FBI as enforcers of federal law.
After it slept on 9/11, the George W. Bush administration, unhappy with one federal police department, created another 10 times the size of the FBI and called it the Department of Homeland Security. These are the folks who wear black shirts and masks when they arrest, often without arrest warrants.
When Mr. Trump decided to federalize the Metropolitan Police Department for the 32 days permitted by the 1973 Home Rule statute, he attempted to supplant its lawful police chief with a federal bureaucrat, which a federal court stopped. Now, he is apparently trying to find ways to take over the police departments of New York City, Chicago and Los Angeles. Can he legally do so? In a word: No.
In two landmark cases from the mid-1990s, U.S. v. Lopez and Printz v. U.S., the Supreme Court reaffirmed the sovereignty of the states and their primacy in matters of public safety. The court made clear that the feds cannot tell the states how to keep their streets safe, commandeer their assets or supplant them in matters of public safety. This is Madison’s subsidiarity principle brought up to date.
Although the District is actually owned by Congress, which gave the president his 32-day window to commandeer the police department to assist federal functions, since public safety is not a federal function, Mr. Trump’s efforts to clean up the streets and arrest the folks he says are thugs and brawlers are without a constitutional basis.
Human freedom comes about by limiting government, not expanding it, and freedom prospers when established processes are followed. If the government can do as it wishes in the name of public safety, who will protect us from the government?
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Please read our comment policy before commenting.