Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 40 original podcasts with new episodes released every day.
Police Power And Intimidation
When you study Constitutional Law you come across the term “police power” early on. It is a term that refers, in neutral terms, to the coercive potential of the State to control the life, liberty and property of any human being. The neutrality of that term is important; it exists, it is real, but when operating within Constitutional boundaries it is seen as a net good and necessary to the operation of a society characterized as having “ordered liberty“.
“When operating within Constitutional boundaries” is the key phrase. “Constitutional boundaries” has two attributes — the legal and the vernacular. In the legal sense, any State conduct a Court (up to the United States Supreme Court) will countenance falls within “Constitutional boundaries”. In the vernacular sense, it is our internal, culturally informed sense of the correct relationship between the State exercising police power and the individual whom the State seeks to deprive of life, liberty or property, that determines our own beliefs regarding “Constitutional boundaries.” Thus it is that people raised in different places and different times have a variance in their internal assessments of the proper exercise of police power.
To the State these individual variances do not matter, but they are of concern to the State. It constantly seeks to conform the public to a common understanding of authorized police power. It wants the public to know and appreciate the power it exercises. It picks high profile targets when it seeks to announce a new direction in the use of police power. News accounts highlight tax cases as Tax Day approaches. Incumbent law enforcement officials want drug busts publicized as election day nears. And so it goes.
When the targeted activity of law enforcement is something that our internal assessment of ordered liberty supports, we hardly notice the publication. If anything, we are comforted by the news. It is the miscreants to whom the publication is most pointed. “We are coming for you” is the message. “Stop your unlawful behavior” is the warning.
During the years that Earl Warren was Chief Justice of the Supreme Court a number of cases were decided that profoundly limited the prior uses of police power. At the time average Americans were frequently aghast that criminals had rights (ignoring that they were not legally criminals until after a jury said so). For about a decade The FBI was a very popular television show. Richard Nixon successfully ran a presidential campaign under a “law and order” banner. But America was changing.
The strength of the Reverend Martin Luther King’s campaign against Jim Crow laws, was that it highlighted an abuse of police power — the deprivation of life, liberty, property and other Constitutional rights in certain jurisdictions based on immutable characteristics of skin color. The nation, over time, came to broadly embrace an understanding that police power could be, and was, abused. Ironically, it then started using police power in the opposite direction not understanding that it was the use of police power and not simply the object of that police power that was the problem.
Today we see police power exercised in ways that we no longer recognize — to restrict self-defense even as convicted criminal re-offenders are let go to prey upon us; to punish thought and speech; to restrict expression of views that two decades ago would be seen as completely banal; to suppress efforts to ensure voting integrity; to provide for illegal aliens at the cost to legal aliens and citizens; to operate through private companies to obscure the use of police power (not just the matters in the Twitter files and Missouri vs Biden, but now CBS seizing Catherine Herridge’s reporting notes); to have the Courts establish as “legal” that which our vernacular sense of “ordered liberty” cannot accept.
If anything I have said above resonates with you, but you think the cases against President Trump are valid and proper exercises of police power, or are otherwise content to let the process continue on to a conclusion at some distant future, I ask you to reconsider. Like the publicized tax cases, drug busts, January 6 arrests and prosecutions, the cases against President Trump are not strictly about him, his businesses, and his family. It is about the use and abuse of police power and the message it is intended to send to all of us individually.
Comply. Submit. You are at risk if you say disfavored things or engage in disfavored conduct. They tested our reaction in the lawsuits against the Colorado baker. They tested our reaction during Covid. They tested our reaction to the Antifa riots. They tested our reaction to the 2020 election. They tested our reactions to the demonstrations at conservative Justices’ homes. They tested our reactions to mutilation of children. They tested our reactions erasing women. They are testing our reaction to the prosecutions of President Trump and the favoring of illegal aliens over citizens and legal residents of America.
It is intimidation by the use of police power. I support law enforcement and the judiciary, but I am questioning whether we have any longer a system that assures that police power is legally limited by the Constitution that we, vernacularly, used to know and cherish.
Published in Law
Good explanation. I wish Presidential candidate Donald Trump saw it that way, too.
He does.
In that case, I wish he would use his powers of persuasion to convince some of his ardent followers of it.
Examples needed of who you are referring to and specifics that make them contrary to ordered liberty.
As far as I can tell, most of those President Trump needed to persuade were in his Administration and undermining his work.
I think he will do better this time.
https://x.com/vdhanson/status/1760721646397345902?s=46&t=Zzu3ctix2S9HxVqmlKi-uA
Thank you for the information that you are discussing.
If the FBI and CIA had not been weaponized against American citizens, starting in the 1960’s, we would not have seen the repressive measures now being taken against ordinary citizens.
Once there was no prosecution for any of the FBI agents who went and tapped Martin Luther King Jr’s phone, and also bugged his hotel rooms, then the policy of surveilling normal citizens and their political leaders became acceptable to many Americans. If that had not been the case, maybe we wouldn’t be here now.
Of course, I imagine the excuse that was used firmly stressed the possibility that King was a Commie. This excuse allowed for what went on.
That “Commies are under your bed” rhetoric was stirred up all through the 1950’s. So by the 1960’s, the political engine of alphabet agencies was primed to go after dissidents.
These dissidents included veterans of the Vietnam war who had served as grunts and realized once they did that how the war was from 1966 on, simply a money maker for top politicians and the MIC folks.
Now we have had fifteen years of the political minds of Americans being primed to believe that the crazy evil dissidents are the parents who want library books burned. (When in reality, these parents see no reason at all why porn fiction is necessary for inclusion in our nation’s school libraries.)
Ditto the idea that “sustainability” and carbon neutral policies, none of which rely on any science, are now engrained in the minds of all those younger people who have attended grammar school, HS, or college since 2008 or so. Those who oppose those policies are viewed as being hell bent on wanting to destroy our planet.
This sets us up for a holomodor, already in progress, as people can no longer afford food, utilities and housing costs. (Utilities and food are now so expensive that people can afford to pay for only two out of three from their income. The one trillion dollars in debt to credit cards offered them by banks shows us how so far, some people have managed to afford all three – they are going into major amounts of debt postponing the inevitable.)
https://x.com/thomashawk/status/1760510091017764984?s=46&t=Zzu3ctix2S9HxVqmlKi-uA
I don’t think what was done was legal without a warrant and at some point, I don’t recall exactly when, the Communist Party became a legal entity and that is why Brennan never suffered from having been a Communist Party member. But we have been on the wrong track for a long time.
Patriot Act made it so easy.
Excellent essay, thanks—both the educational and the persuasive parts.
Great post. Clearly the activities of the state are meant to encourage the others….
I apologize if this is not the place to ask this question, but people keep saying that Trump has essentially instructed Republican legislators about what to do–for instance, on the border legislation. I think he’s entitled to present his view (against the legislation), but do the legislators feel obligated to follow his direction? Or are they trying to get on his good side in case he’s elected? How are people so sure they are following Trump’s orders and not their own conscience?
I very much doubt than anything President Trump says to a Republican politician is an “order”. He has a bully pulpit as a campaigning politician with substantial polling support, but he has no authority over federal or state office holders. The reports are intended (as I interpret them) to suggest that Trump wants no solution found for the border to keep it as a boiling topic for the election. But this is wrong. Any legislation would ratify existing violations of law. Biden could simply re-implement Trump EOs to get back to earlier levels of border security. These claims of Trump “orders” are simply manipulations by opposition actors.
https://x.com/scottpresler/status/1760742927855132880?s=46&t=Zzu3ctix2S9HxVqmlKi-uA
I found this man’s reply to the above discussion very revealing:
James McDaniel @JamesMcDaniel Understand that if you keep doing this, they will likely circulate your photo among their comrades so that you are immediately recognized & blocked, with regular attempts to damage your gear or assault you. And the police will do nothing to prevent that or arrest them if they do.####–
My comment: The above image is what the dogs in the following tale looked like:
I had a married couple, under the influence of AntiFa, follow me in their vehicle, swing the camera out of the passenger side of the car, to video tape me whenever I was out walking my dog. This went on for months.
Why was I to be punished like this? I had taken in a pair of dogs after they had spent six hours at the foot of my driveway, on a day when the temp was 104 degrees out.
Shooing them away didn’t work.
I took them in due to the heat.I fed and watered them. At night when it was cool enough, I went around door to door trying to find the owner.
People were quite familiar with this duo of canines, but no one knew who owned them. Of course she was the one person whose home sits on a significant set back off the road.
Her dogs were returned to her when the next morning, I drove around with the dogs and heard her calling two dogs’ names. She was mad that I had taken them as they both needed medication. But she wasn’t mad at herself for having two fancy hand braided leather collars on her dogs, without ID tags.
Because I guess why waste money on ID’s?
Anyway she told her sob story to this mentally ill young couple and they told anyone who would listen that I “stole” dogs!! For 3 months after that, I was subjected to that couple’s videography efforts.
The cops said as long as I was out in public, they had the right to shove a video camera 2 feet from my face! They also advised me that I not ever shove the camera out of my way, as that would be considered an attempt to damage expensive property! (With perhaps me facing arrest for hassling them.)
No good deed goes unpunished, eh?
The treatment of Alexei Navalny by Trump and among some people here is not encouraging. Before you object that it takes place in another country, I would like to bring up an example from the days when people in this country really did care about ordered liberty.
I’ve had cause to look in newspaper archives for news about the Black Hawk war of 1832. There weren’t very many newspapers in western Indiana back then, but there were a few. In frontier towns where local militias were being called up to fight Black Hawk I’ve found hardly any news about their own war, but there was news about Poland, which had just been defeated in a revolt against Russia, and there was news about other nationalist freedom movements in Europe. I presume that’s what sold newspapers, because people cared a lot about how democratic republican movements to break free of imperialist oppression and establish rule of law were faring elsewhere. They apparently saw it as part of their own efforts at ordered liberty. Were the leaders of those European revolts angels of pure goodness? No, they most definitely were not. But theirs was a struggle that had much in common with ours, and they were treated brutally by their imperialist overlords.
And we’ve seen recently that it is part of our struggle. China can’t operate a regime of censorship without sucking American social media companies into it, and therefore setting up the infrastructure, attitudes, and vocabulary that excuse censorship here. Google and Facebook have not been able to operate without getting involved in censorship on behalf of Russia. Loss of freedom abroad always finds a way to diminish our own freedom within our own borders.
Back in the 1830s The United States were in no position to give anything but moral support. Some will say that we are in no position to do so now, either. But back then, people were at least on the side of the good guys. Nowadays you can hardly find anyone who makes an isolationist argument without also trashing the people who seek ordered liberty and without repeating as their own the words of the lawless oppressors.
I’m not going to trust my freedom to such people here. I am far from convinced that Trump and many of his most fervent followers seek to re-establish rule of law and ordered liberty against the onslaughts of Joe Biden and Democrats in general. We have a uniparty, indeed.
The OP was good, though. Maybe there is still some hope.
The treatment of Navaly by Trump?
What are you talking about?
The reality is never Trumpers won’t respond. They are for the lawfare against Trump.
I think that you are incorrect in your explanation of the meaning of the term “police power” as used in Constitutional Law, at least if you mean federal Constitutional Law.
In my experience and legal education, “police power” refers to the broad and essentially unlimited powers inherent in government. The case law discusses the “police power” that was reserved by the States. The term is used in contrast to the limited and enumerated powers delegated to the federal government.
So, the states have extremely broad “police power,” while the federal government is limited to its enumerated powers. The enumerated powers can be very broad in some areas, such as the “commerce” power, and include powers under the “necessary and proper” clause.
For the first century or more under our Constitution, it was not understood to limit the powers of the states, except in a few specific areas such as the prohibition on titles of nobility or ex post facto laws or impairing the obligation of contract. The application of the restrictions of the Bill of Rights to the states was a mid-20th Century phenomenon.
The States have their own constitutions, which may limit state power in a variety of ways. Many states — maybe all — have a variety of protections similar to those in the federal Bill of Rights.
However, I don’t think that there’s a general principle of “police power” that is used in state constitutional jurisprudence, as the states are generally not governments of limited and enumerated powers. I haven’t studied all of the state constitutions, so I suppose that it’s possible that there are exceptions to this.
It’s interesting, because the OP makes a strongly libertarian argument that many people seem to believe to have been the historical understanding in our country. This is incorrect. Rather, these libertarian notions are quite radical ideas that primarily arose in the middle of the 20th Century.
I should add something about “economic substantive due process,” a doctrine that emerged in constitutional law around the turn of the 20th Century. The seminal case was Lochner, in 1905.
This doctrine interpreted the “liberty” component of the due process clause of the 14th Amendment to apply to economic liberty. The clause says that no state shall deprive any person of life, liberty, or property without due process of law. It was not part of the original Constitution, but was one of the three post-Civil War amendments.
Lochner involved a maximum hours law in New York, limiting bakers to work days of 10 hours and work weeks of 60 hours. SCOTUS invalidated the law under the 14th Amendment liberty clause, a theory that came to be known as economic substantive due process.
From the outset, it made little sense. “Due process” is, well, process. It’s not about substantive limits on government power. Justice Scalia was very persuasive about the incoherence of the idea of using “due process” to place substantive limits on government. If the issue is procedural — for example, the need for a jury trial before conviction of a criminal offense — then this is fine. That’s process.
The history is interesting. There was a period called the “Lochner era” in which the federal courts struck down a wide variety of state laws as violating economic substantive due process. This ended with a 1937 case called West Coast Hotel v. Parrish, the so-called “switch in time that saved nine” during FDR’s Presidency. (It’s called this because FDR had threatened to pack the court to get a majority that would side with him on this issue.) This was the nail in the coffin of economic substantive due process.
But fear not! The imposition of libertarian economic ideas through a Constitutional provision, with dubious justification, was thwarted, but it inspired the radical Leftists! This gave rise to “substantive due process,” generally starting with the Griswold case in 1965, and then Roe v. Wade in 1973.
Griswold invalidated a state law prohibiting contraception and, of course, Roe invalidated state laws prohibiting abortion (with details about timing that shifted until Roe was finally overturned).
Personally, I find these doctrines to be examples of a common theme. Many people seem to think that whatever policies they don’t like are prohibited by the Constitution. That’s not how Constitutions are supposed to work.
Different time and totally different circumstances. I have no clue what your reference to Trump’s treatment of Navalny is about.
In case you haven’t picked up on it yet, our American constitutional republic is under threat today by a political party that thinks we should be an absolute democracy. They almost had in the bag until Trump defeated Clinton in 2016. For 2024 they are pulling out all the stops. If I were going to spend time like you are advocating I think it would be on behalf of Julian Assange. The ‘Five Eyes’ got him, too, just like they got Trump in the Russia Hoax.
You might want to spend a little time educating yourself about the Real Navalny.
If he had made statements which he routinely had been making in Russia over here in our nation during any time period after 1945, he would be considered a Class A Racist.
Glenn Greenwald has tried to get people to understand what a dastardly piece of work the man was.
https://www.youtube.com/watch?v=f1Vvgo7SKf0
But in any case, the Lefties in Hollywood agree with you, so there’s that.
####
Well, Trump is Trump.
Any means necessary. Ok with supports of the Regime. That includes NR
1832. Perhaps people in Indiana and Illinois still felt some connection to their European roots.
The words Trump said about Navalny, as well as the words he didn’t say.
Not many people from Poland in Indiana and Illinois in those days. In the old local history books, anyone who wasn’t of English or Irish heritage was worthy of note. Here in southwest Michigan, even a German of recent enough arrival to have a German accent was worthy of note.
One thing the people did remember, though, was those from Europe who helped us in our own Revolution. Thus you have a Kosciusko County in Indiana with Warsaw as the county seat. Kosciusko fought in our Revolution and then went back home to Poland to fight in one of the uprisings against Russia that happened about every generation or so.
The county in Indiana was settled later, around the time of the 1831 revolt.
There was another revolt in 1863. I just recently learned that one of my great-grandmothers was born in Warsaw, Poland, shortly after that one was put down, probably before all of the rebels who went into hiding were rounded up and executed. That was a surprise to me, because most of that family came from a German village in Poland that was a couple hours drive downstream (on modern roads). A friend who does a lot of genealogy research found that out for me. I never knew my great-grandmother, as she died 5 years before I was born, but my father spent a lot of time in her house when he was growing up. I did know a much younger half-brother who had emigrated to the U.S., though. I stayed at his house during my brief, 2-3 day career as a migrant field worker. And I recently learned from his son (whom I’ve never met in person) that there was a middle brother who died in a Nazi concentration camp during WWII. When the Nazis came to the Vistula River he complained about the confiscation of his farm. He objected, asking why they wanted his farm, as he was German. How that led to the concentration camp, we don’t know.
Tough to preserve a constitutional framework for limited government and constrained police power once we decide that the government should run the economy, decide what we say and teach, provide material guarantees and protect us from the icky uncomfortable necessity of having to think about things just because rude people are allowed to disagree with the narrative.
When it is OK for the police to unload into your home by accident, we are not safe.
I may have been very unfair to Donald Trump in this thread. And to his fans? The jury is still out. Details to follow after getting some more renovation work done this afternoon.