In his book Rise of the Warrior Cop, Radley Balko makes a unique argument that the short, 32-word Third Amendment should inform our understanding of the framers’ opposition to a professional, standing police force.
The Third Amendment, with some procedural exceptions, is the one that prohibits the quartering of troops in private homes.
It’s not what Balko says, but how he says it, that is most telling.
Audiences from Libertarian to Liberal
Balko formerly wrote at the libertarian Cato Institute, where he was senior editor of Reason Magazine. He now writes for the progressive Huffington Post.
By writing to the larger progressive audience and media, he has received recognition beyond the small and self-congratulatory libertarian blogs, including accolades from some members of the ACLU.
However, progressives may want to be careful embracing his work.
First, he neglects to mention the 27-word Second Amendment, the pesky one about our right to keep and bear arms, and the one his new progressive audience loves to hate. Balko’s selective omission of any direct discussion of the Second Amendment says a lot about the audience he’s trying to influence.
He does mention, however, that both Julius Hobson, a mildly influential African-American DC politician in the 1970s, and Rep. Bertram Podell (D-NY) both said they would use firearms to fight back against police raids at their homes, something that no liberal politician would dare say today. Though his omission of the Second Amendment may be a tactically sound decision to avoid rejection by his new, progressive audience, it leaves a strategic gap in his analysis.
A Standing Army
Second, he surmises that “the Founders and their contemporaries would probably have seen even the early-nineteenth-century police forces as a standing army, and a particularly odious one at that.”
Why? Because of the Founders’ memories of how the British tried to enforce general warrants with soldiers, the modern incarnation of which is no-knock warrants. These actions violate the Castle Doctrine, especially because (in his perception) the nation’s police now look and train like a standing army. For Balko, today’s police violate not only the spirit of the amendment but also its intent.
If the Founders opposed state police powers, then certainly he could ferret more from their writings to bolster his position.
He doesn’t, and that’s unfortunate.
At least some of the Founders saw police powers as an inherent state responsibility.
Alexander Hamilton, the Founders’ most unabashed federalist, wrote in Federalist No. 15 that “Government implies the power of making laws. It is essential to the idea of a law that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience.”
In Federalist No. 16 he writes, “[I]f opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments.”
Balko may be on to something with the Third Amendment.
Unfortunately, his material isn’t that persuasive. Markus Dirk Dubber’s The Police Power (New York: Columbia University Press, 2005) is a legal scholar’s view of a similar issue, albeit one that Balko does not mention. A man in Nevada certainly thinks the police have violated the Third Amendment and has taken legal action in response.
Maybe someday, with more research and case law, assertions like Balko’s may find some legal purchase.
