The Trump administration wants to stop the gun violence in Chicago. To do that, federal officials announced on Friday that they are sending 20 agents from the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), along with U.S. prosecutors, to serve in a new crime-fighting task force with city and state police there.
“This new strike force will significantly help our police officers stem the flow of illegal guns and create a culture of accountability for the small subset of individuals and gangs who disproportionately drive violence in our city,” Chicago Police Department Superintendent Eddie Johnson said on June 30.
President Donald Trump was much more blunt on Twitter, exclaiming “Crime and killings in Chicago have reached such epidemic proportions that I am sending in Federal help.”
This “help,” as Trump calls it, should not be unreservedly welcome. “Sending the feds in” smacks of federal police or a domestic military, and that chafes against the very protections the Founding Fathers deployed in the Constitution from the country’s beginning. And they had good reason.
Few propositions about American history are clearer than that the framers of our Constitution wanted to preclude the creation of a national law-enforcement authority in any way resembling the “thorough” dictatorship of the Earl of Stafford, or Oliver Cromwell’s “New Model Army” in England, or the national police of Louis XVI’s minister Fouche in France. T.B. Macaulay once wrote of the parliamentary creation of Cromwell’s army that “while the Houses were exercising their authority thus, it suddenly passed out of their hands. It had been obtained by calling into existence a power which could not be controlled. In the summer of 1647, about 12 months after the last fortress of the Cavaliers had submitted to the Parliament, the Parliament was compelled to submit to its own soldiers.”
Thus, Article I, Section 8 of the Constitution restricts army appropriations to two years, Section 14 empowers Congress to make rules for the governing of the military, Section 15 empowers Congress to call out the militia only for three specified purposes, and Clause 16 authorizes Congress to discipline the militia, “reserving to the states respectively the Appointment of the Officers and the Authority of training.” At the Philadelphia convention, Roger Sherman of Connecticut explained: “If the Executive can model the army, he may set up an absolute government.” Washington’s farewell address urged citizens to “avoid the necessity of those overgrown military establishments which, under any form of government, are inauspicious to liberty and which are to be regarded as peculiarly inauspicious to republican liberty.”
Madison said in Federalist No. 46: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition.” The ratifying convention debates indicate that the power to regulate individuals was intended to replace the power to coerce states. For example, Oliver Ellsworth in Connecticut declared: “I am for coercion by law—that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies but that of an armed force. [This] would involve the good and the bad, the innocent and guilty, in the same calamity.”
In his opinion in Printz v. U.S. (1997), Justice Antonin Scalia referred to Federalist No. 20, in which the United Netherlands were held up as a terrible example—”a sovereignty over sovereigns … as counter distinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the conduct and ends of civil polity”—and to Federalist No. 27, which said that “using the states as the instruments of federal governance was both ineffectual and provocative of federal-state conflict.”
In New York, Hamilton declared that Congress could not “alter or abrogate civil and criminal institutions or penetrate the recesses of domestic life and control in all respects the private conduct of individuals.” Madison gave similar assurances in Virginia and described state police jurisdiction as ordinary and federal jurisdiction as exceptional in Federalist No. 45. In Cohens v. Virginia, Chief Justice Marshall declared in 1821 that Congress had “no general right to punish murder committed within any of the states” and further stated that it was “clear that Congress cannot punish felonies generally.”
Both liberals and conservatives today disregard these teachings in several ways.
First, there is vastly expanded federal drug jurisdiction, generating more than 10,000 Drug Enforcement Agency arrests a year and up to 100,000 detentions by Homeland Security border agencies, in addition to state and local arrests inspired by federal prohibitions that have gone as high as 1.5 million a year. In 2012, there were 96,260 new federal prosecutions, which up until Prohibition were measured in the hundreds each year. There are now about 100,000 federal law-enforcement personnel, as against one million state and local personnel. Although the Supreme Court in the Lopez case limited federal jurisdiction over drug offenses committed near schools, it later upheld, in the 6–3 Gonzales v. Raich decision, the application of an all-encompassing drug regulatory scheme as a regulation of interstate commerce.
Contrast this with the history of Prohibition. The commerce power was once deemed inadequate to support the national prohibition of alcoholic beverages, recourse being had to the war power and then to constitutional amendment. The constitutional amendment extended only to “manufacture, sale or transport” of alcohol; a provision extending it to “use or purchase” was rejected in the Senate 62–4. It was necessary for Prohibition agents to witness a sale; people drinking at a bar or a visible inventory was insufficient.
This gave rise to questionable searches, wiretapping, and entrapment, and to legal doctrines circumscribing them. But even the Volstead Act was confined in ways contemporary federal drug legislation is not. There was an exemption for medicinal alcohol, which kept distillers in business. There was an exemption for near-beer of not more than 0.5 percent alcohol, which kept brewers in business. Wine growers sold dried fruit, easily used in home fermentation; producers of cider were accorded an exemption for home use; and provision was made for production of industrial alcohol. Enforcement was reposed in the Treasury rather than Justice Department; Prohibition agents were underpaid and appointed on a patronage basis.
The 18th Amendment provided for concurrent enforcement and was never thought to require the states to enforce the law. Maryland, under Gov. Albert Ritchie, refused to enact an enforcement statute; five or six other states, including New York under Al Smith, repealed their enforcement statutes in the mid-1920s.
An effort by President Calvin Coolidge in 1926 to appoint by executive order “any state county or municipal officer … as a prohibition officer of the Treasury Department” caused a national uproar. Sen. Albert Beveridge of Indiana, best remembered as a biographer of John Marshall, declared that the order would “radically and fundamentally change our form of government and change it at once. … If this military and bureaucratic exposition of constitutional law is sound, then the planners and builders of American institutions wrought in vain.” Sen. Joseph Robinson, the minority leader, attacked the order as “a colossal blunder … the most far-reaching disregard of what we have come to know as State rights that has occurred during the present century.” Sen. Walter George of Georgia declared that “it can destroy the officer of the opposite sovereign … it will not be accepted by the common sense of the American people.” The president backed off and no appointments were ever made.
Second, an ill-advised 1992 law, flouting the constitutional design of non-coercion of subordinate governments, allows federal injunctions and consent decrees against state policing agencies. (The most recent such decree, in Baltimore, precludes that city from making arrests for nonviolent offenses that have a “disparate impact” on any “Demographic Category,” which in practice limits the ability of police to focus on high-crime neighborhoods.) And aside from the constitutional issue, there are unappreciated limits on such injunctions and decrees, such as that they are frequently changed after being signed (or even entered) for political reasons.
The years between 1890 and 1932, which saw controversy over labor injunctions issued by federal courts, are instructive here. The federal military was deployed to support employers in controversies frequently involving loss of life, including the suppression of the Pullman Strike in 1894. Agitation against the labor injunction gave rise to the Clayton Act of 1913, which included a provision aimed at the “John Doe” injunctions that had been used to fine union members in the Danbury Hatters case. The Norris-La Guardia Act in 1930 limited labor injunctions to cases of proven violence; labor clashes in the Great Depression thus involved state and local police and national guardsmen rather than federal troops.
Without the Norris-La Guardia Act, the United States would have entered World War II with an army sullied by domestic bloodshed; the only episode of this kind during the 1930s was the still-remembered “Battle of Anacostia Flats” involving the eviction of veterans’ bonus demonstrators, in which bloodshed actually was minimal. This experience counts heavily against a regime of federal plenary police power or the ability to direct state and local officers.
Third, the federal government increasingly threatens to withhold federal funds to influence state and local law enforcement. During the Obama administration, state colleges were told they would lose funds if they did not agree to deprive persons accused of sexual assault of basic due process rights such as confrontation and cross-examination in suspension or expulsion proceedings. The Trump administration, for its part, has made vague threats of fund withholding against “sanctuary cities” that decline to assist in the apprehension of illegal immigrants. A judge in California has quite properly invoked the Rehnquist court’s anti-commandeering cases to question these efforts.
Fourth, the federal government has made unprincipled use of both traditional and recently enacted “civil rights” legislation. Such legislation was conceived as a backstop against willful non-enforcement of laws by state and local authorities. Instead, it has often been treated as a preferred mode of prosecution. It has been applied in jurisdictions like Puerto Rico, Massachusetts, and New York to seek capital punishment in states that do not allow it. In the Boston Marathon and Oklahoma City bombing cases, and in recent cases involving a police shooting and the South Carolina church massacre, it has been invoked in spite of the fact that the relevant arrests had been made by state authorities committed to vigorous prosecution.
Both the Roosevelt court in Screws v. United States (1945) and the Warren Court in United States v. Guest (1965) stated that federal criminal civil-rights laws would be unconstitutionally sweeping and vague unless circumscribed by a requirement that the defendant have a specific intent to deprive a victim of a federal constitutional right. Justices Frankfurter, Jackson, and Roberts added that even as limited, the statute has dangers: “a ‘policy of strict self-limitation’ is not accompanied by assurance of permanent tenure and immortality of those who make it the policy. Evil men are rarely given power; they take it over from better men to whom it had been entrusted. There can be no doubt that this shapeless and all-embracing statute can serve as a dangerous instrument of political intimidation and coercion in the hands of those so inclined.”
Both admirers and critics of the Trump administration should heed this admonition.
George W. Liebmann, a Baltimore lawyer and volunteer executive director of the Calvert Institute for Policy Research, is the author of various books on public policy and history, including Solving Problems Without Large Government: Devolution, Fairness, and Equality (Praeger, 1999), reprinted as Neighborhood Futures (Transaction Books, 2003).