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.