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Laura Edwards: The Constitution demands police accountability

Summary: The close connection between police powers and the people figured prominently in our nation's founding. The Articles of Confederation, the U.S. Constitution and Revolutionary-era state constitutions gave states broad policing authority to promote public health, safety and welfare. Legally, many states then rooted those powers in "the people."

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We think of the police as uniformed officers, who exercise authority over us. But "the police" is actually a legal concept, with deep roots in Anglo American and European law. It refers to a broad grant of governing authority, covering virtually any issue involving public health, safety and welfare. Police powers are, in theory, about the government protecting people.

Uniformed officers exercise police powers. But that hasn't always been the case, and this matters because police powers actually belong to the people. When people are protesting against the police today, they are tapping into a legacy that is at the core of our constitutional order: Our uniformed police forces are responsible to the people, and the people can hold them accountable. In fact, our police forces are only as good as the people who give them authority.

The close connection between police powers and the people figured prominently in our nation's founding. The Articles of Confederation, the U.S. Constitution and Revolutionary-era state constitutions gave states broad policing authority to promote public health, safety and welfare. Legally, many states then rooted those powers in "the people."

Who were "the people"? Today, we might suspect that references to "the people" really meant just white men with property, since so many powers were reserved for these select few back then. That would be a mistake.

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The legal concept of the police actually expressed the long-standing expectation that governing officials should respond to all the people they governed. Local courts in colonial North America, for instance, dealt with a range of complaints from a variety of people, not because officials were less biased than today, but because of expectations about police powers: It was their job to address abuses of power to maintain order and retain legitimacy.

In theory, then, "the police" โ€” as a legal concept โ€” gave even those on society's margins a say in how they were governed. At the time of the revolution, professional police forces, as we know them today, did not exist. There were militias, which consisted of men in local communities. But they mobilized only in times of crisis. There were also slave patrols, which required white men to participate in the maintenance of slavery. Those groups exercised police powers โ€” in the case of slave patrols, at the behest of those in power. But they were not "the police." That term covered the welfare of all people, and could be mobilized even by those on society's margins.

None of this was about democratic participation or equality. Elite white men had more say in defining the welfare of the people. But other people could and did use police powers to check those in power. More than that, they actively used those powers to shape laws and how they were applied.

In fact, when police powers were violated, violence could erupt. Unpopular officials were tarred and feathered, run out of town on a rail or "serenaded" by angry mobs at their homes. North Carolina farmers revolted against corrupt local officials as part of the Regulator Movement in the 1760s. When petitions didn't work and officials refused to address their complaints, they took up arms.

A similar sense of outrage explained the American Revolution itself. North American colonists felt shut out of decisions made in London that directly affected their lives. They first petitioned and protested. When those attempts were ignored or rejected, they declared independence.

People's access to the government's policing authority was then written into the nation's constitutions. The vote held governing officials accountable. So did the right to petition, which gave people without the vote a voice in matters relating to the internal police: public health, safety and welfare. Congress and state legislatures had formal mechanisms for acting on petitions and turning them into policies.

Many state constitutions went further and explicitly based authority over the police in the people. Some state constitutions were quite radical in this respect. Pennsylvania's Revolutionary-era constitution, for instance, gave "the people ... the sole, exclusive and inherent right of governing and regulating the internal police." Other states, including Maryland, North Carolina and Vermont, had similar language. The wording suggested a place for people in the actual practice of governance, not just a theoretical connection as we might expect.

By policing, they meant authority over the basic issues in people's lives: the care of orphans, older people and the poor; the resolution of conflicts within families and communities; matters involving public health, such as the location of slaughterhouses; basic issues of economic regulation, such as the days and hours that stores could open; and the redress of injustices that threatened the social order.

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And so, ordinary people brought their problems, their complaints and their hopes for the future to their governments, and insisted that officials deal with them.

Much of that work was done at the local level in courts. These local courts did not just deal with crime. They also dealt with routine public business involving all the matters relating to the police, in that broad sense. Some matters there were the stuff of ordinary life: a noisy neighbor in a crowded city tenement, a stray cow that ate up a kitchen garden (again), a smelly latrine. Others involved individual experiences with structural inequality. Women brought complaints of domestic violence, sexual assault and other forms of harassment. African Americans โ€” both free and enslaved โ€” complained about physical violence and property damage and even demanded redress for offenses committed by public officials.

Other people went further, petitioning state and federal governments for broader change: to end slavery and extend rights to free African Americans, for instance.

Many of these people, regardless of race or gender, were poor: The lack of resources made it more difficult to navigate life's problems, then as now. All these people participated in policing because they expected responses and accountability. Officials listened to their complaints because the police โ€” as a legal concept โ€” forced them to. The complaints themselves demonstrate just how deep inequality was. But the connection between police powers and the people promised avenues for redress.

It was hard work. Those on the margins struggled to make their voices heard. Slavery remained in place, and women did not have the right to vote. But a woman could demand that local government discipline her abusive husband. An enslaved person could demand the restoration of property โ€” chickens, cows or household linens โ€” that they had worked to accumulate.

Those victories might seem small, but they created a form of justice in an unjust world. More substantial requests โ€” the end of slavery, the right to vote โ€” did not fare as well, although they did lay the groundwork for later change.

Over the course of the 19th century, however, political leaders revised state constitutions to tone down or eliminate this expansive and participatory notion of the police. In fact, the institution of professional police forces were part of efforts to take police powers out of people's hands. This made it even more difficult for people โ€” particularly those who experienced inequality โ€” to get government to respond to them. It also made it harder for them to hold the new police forces accountable.

But, in theory, our governing officials and those police forces were โ€” and still are โ€” accountable to the people. That's why this original constitutional understanding of policing is so critical. The demands of people protesting today have strong legal and historical backing. We live in a constitutional order where police power belongs to the people, and it's time to fulfill this constitutional guarantee.

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Laura Edwards is the Peabody Family professor of history at Duke University.

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