The Founding Fathers and the Militarization of the Police

No matter what the grand jury in Ferguson, Missouri decides, the debate over the militarization of the police has been the subject of debate since 1787.

As the shooting and resulting unrest in Ferguson made very clear, local police are equipped with more gear, machinery, and firearms than ever before. Under a federal program providing military surplus to local law enforcement, small town police officers now have armed vehicles, M-16s, and grenade launchers.

The equipment is intended to help police deal with terrorism and other serious threats. However, critics argue that law enforcement is beginning to look a lot like a standing army, which the founder fathers expressly sought to prevent. 

At the Constitutional Convention in 1787, James Madison, a proponent of a strong, centralized government, spoke out against maintaining a permanent army. “A standing military force, with an overgrown Executive will not long be safe companions to liberty,” he argued. “The means of defense against foreign danger, have been always the instruments of tyranny at home…”

Samuel Adams agreed, writing several years earlier that a professional army was, “always dangerous to the Liberties of the People.” He added, “Soldiers were likely to consider themselves separate from the populace, to become more attached to their officers than their government, and to be conditioned to obey commands unthinkingly.”

Of course, the founding fathers beliefs must be taken in perspective. Even prior to the Revolutionary War, the colonists had begun to resent the British Army, viewing them as corrupt enforcers rather than noble protectors. The Quartering Act, which mandated that the colonists provide lodging for the military in their own homes, did not help ease tensions. The tipping point was the Boston Massacre, in which British regulars fired into a crowd of civilians, killing five.

When they drafted the U.S. Bill of Rights, the founding fathers included the Third Amendment, which states, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” In the early days of our country, Congress also passed the “Posse Comitatus Act,” which bans the use of military forces as law enforcement on U.S. soil. The federal law, which was passed in 1878, is still in force today, although Congress lessened the restrictions in the wake of 9/11.

Today, the founding fathers would certainly not be opposed to protecting the homeland, but they might be concerned that the lines have blurred between a soldier and police officer. While the police in Ferguson are not the redcoats of the 1700s, Madison and his peers would also likely question why law enforcement has abandoned community policing in exchange for military tactics.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

  The Founding Fathers and the Militarization of the Police