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Constitutional Guardians - Balancing Order and Liberty in Law Enforcement
Understanding the duties of legislators, executives, administrators, citizens, and police officers in establishing the role of law enforcement as a constitutional guardianship in a free society.
In free societies, police officers are more than just mere law enforcement. Their oaths of service are commitments of fidelity to established constitutions that protect natural rights and civil liberties, which makes them constitutional guardians. It is their duty to balance the concerns of order and liberty, and the exercise of their office moves beyond the mere prevention, discovery, and punishment of crime and becomes a necessary office to establish and protect the sphere of ordered liberty without which true freedom cannot exist.
With this understanding, it becomes the duty of legislators, executives, administrators, citizens, and police officers themselves to be mindful in maintaining a proper balance in consideration of both order and liberty lest constitutional guardians who serve and protect fail in this crucial function and devolve into calloused sentinels engendering a sense of danger and resentment.
Police officers in free societies typically take an oath of office¹ that not only encompasses their law enforcement responsibilities but establishes a sworn duty to uphold either the provisions of a written constitution or fundamental ideals about natural rights. This establishes a paradigm shift in how police officers should be viewed and how they should function.
Instead of a narrow function of simply enforcing law or keeping the peace, police officers in free societies become constitutional guardians who uphold the rights of the people and help establish the sphere of ordered liberty² under which citizens can exercise their freedoms. Constitutional guardians are not armed agents of a Hobbesian state enforcing a social contract where citizens surrender their rights in exchange for security and protection, nor are they ugly but necessary thugs who enact the arbitrary laws and policies of a leviathan state.
Rather, constitutional guardians defend a Lockean social contract where citizens organize together to maximize their liberty under a constitutional framework that protects citizens against both private and public arbitrary attacks against personal freedom.³ By standing as a thin blue line between order and chaos,⁴ the constitutional guardian makes society safe for the exercise of actualized liberty.
Maintaining the role of a police officer as a constitutional guardian is a complicated and multifaceted challenge. Living up to the oath means that protecting liberties is a core function of a police officer in a free society, a “profession” that is “indispensable to the successful maintenance of liberty.”⁵ The essence of the oath suggests that fulfilling the duties of a police officer in a free society takes on deeper considerations in determining how to balance the concerns of liberty and order. Additionally, the role of constitutional guardian means wrestling with the eminently difficult balance between officer safety and security and the duty to ensure citizens feel a sense of protection and service from the police rather than a sense of danger and resentment.⁶
The Duty of Legislators, Executives, and Administrators
The exercise of police powers in a free society begins with the passage of laws by local, state, and federal legislatures. It then falls to executives and administrators at these various levels of government to interpret and execute the laws. To engender the role of police as constitutional guardians, it is of paramount importance that a free society engenders a culture that understands that every act of legislation and governance comes with an enforcement of law, which is fundamentally a threat of government violence and/or a cessation of rights for certain behavior.
No law has any true efficacy without armed state agents who enact the consequences for violating the law.⁷ The police patrol our streets enforcing traffic law, and even the simplest of traffic violations are met by an interaction with an armed agent of the state. Any report to the authorities of even simple misdemeanors is responded to by armed agents of the state. No citizen appears before a judge, faces trial, or has their guilt for a crime considered by a jury without armed agents of the state observing and establishing the order of the proceedings. By the very nature of what a society asks its police officers to do, they are continually placed in situations where they must be prepared to respond violently to criminal activity in the course of their duties.
In a society, then, that places equal importance on order and liberty, it becomes a preeminent duty of those who create the laws, execute the laws, and administer the laws to ensure that police are not unduly burdened with excessive and ill-considered laws nor placed into positions where their joint duty towards both order and liberty becomes impossible to navigate. A political culture that fails to appreciate the need to balance order and liberty and that fails in its duty to craft laws that establish and maintain ordered liberty cannot expect its police officers to properly fulfill the role of constitutional guardians. At the end of the day, police powers in a representative government are executed according to the will of the people as established through their representatives. If police officers fail in their duty as constitutional guardians, the first place to look is at the system of laws they are given by the people's representatives to enforce.
This reality does not negate the duty of police officers to establish and maintain a culture of constitutional guardianship in their agencies, to navigate even the most difficult circumstances with an eye towards both liberty and order, nor to be prepared to hold to their oaths and push-back against unlawful and arbitrary orders that go against their preeminent duty to their constitution. But, the complicated tapestry of constitutional guardianship cannot be woven with the sparks of arbitrary governance flying in the face of the weavers and falling upon the fabric. Irresponsible governance invites the conflagration of constitutional principles in the policing of society.
The Duty of Citizens
How police powers are exercised in a free society largely depend upon the expectations that citizens place upon police agencies and on the when, where, and why citizens invite agents of the state into their lives in combination with how they expect the police to act on their behest.⁸ For these circumstances to be conducive to a police role of constitutional guardianship, citizens must be 1) educated in how law enforcement works, 2) educated on the fundamentals of free society and the duties of law enforcement in such a society, and 3) committed to a culture that recognizes the importance of balancing order and liberty.
As with the points of the previous section, citizens must understand that every time they introduce law enforcement into a situation, they are inserting an armed agent of the state and inviting the threat of government violence and the cessation of rights into that situation. Such a plea for government intervention should not be undertaken for light and transient causes.
Too often, police are compelled to respond to situations where they are asked, in essence, to be advocates for citizens against other citizens in matters that involve no criminal activity or in situations of such light delinquency that matters could have easily been rectified through simple, respectful, and functional private interaction. Too often, police spend their time arguing with citizens about why they can’t violate the rights of others simply on their hearsay. Too often, police are forced by their duty to respond to scenes at the request of citizens where they are inserted into situations that are escalated by their presence and forced to use force (government violence) to control the scene or are compelled by the fine points of law to suspend rights through detention and arrest in cases that would have resolved themselves peacefully absent the escalation invited by a police presence.
Too many citizens decry the uses of police force and deride police officers and yet treat the police power of the state as a personal attack dog to sic on their fellow citizens instead of cultivating and exercising civic virtue and civil behavior that would allow them to navigate disagreeable social interaction between private parties without inviting an armed agent of the state into these interactions.
Once again, the duties of the citizen do not negate the duties of police officers in free societies. But, just as even the most well-laid constitutional system cannot function nor can it endure absent a constitutional culture that matches its provisions and values, the exercise of the police power cannot be done in a way that’s conducive to constitutional guardianship if the citizens demand its exercise in ways that make order and liberty antithetical rather than complementary.
The Duty of Constitutional Guardians
The final ingredient for constitutional guardianship, of course, is a commitment to the principles of ordered liberty from police officers themselves. Even with appropriate laws, ethical execution of those laws, and ethical administration of police agencies, and even with citizens who expect constitutional guardianship and the comportment of citizens who do not needlessly invite armed government agents into light and frivolous situations, the police must ultimately have a desire and an established culture that values the balance of order and liberty for officers to behave as constitutional guardians.
Such culture involves 1) attracting officer candidates with appropriate personalities and healthy civic commitment to the values of a free society, 2) establishing both preliminary and continuing training that focuses on the ethics of police powers that goes beyond simply the prevention, discovery, and punishment of crime, and 3) engendering a culture of commitment to ordered liberty that both creates a bond of brotherly commitment to each other but also establishes mores, values, and expectations that when violated are viewed as betrayals of the brotherhood (the thin blue line that stands between order and chaos is violated by officers who betray their oaths and fail in their duty as constitutional guardians because their arbitrary and unethical actions invite distrust and views of police power as illegitimate, circumstances that engender chaos rather than protects society from it).
The emphasis of a police officer’s duty in a free society must derive from their oath of office. In a free society, there are no “sides” regarding the interaction between citizens and police. The duty of police is to protect and serve, a selfless act of placing one’s self in harm’s way to provide security and liberty to free citizens. Citizens should feel protected and not merely policed. Citizens should feel that the police are their servants, not busybodies and snoops with guns. Police officers should be integral parts of their community and have positive interactions with citizens, not just negative interactions pursuant to the exercise of police power (call it the Mayberry principle).
For the purposes of officer safety, officers should maintain situational awareness and active threat analysis but without assuming a defensive, agitated, or aggressive demeanor as the baseline posture. A balanced approach recognizes that “the safety of police officers is...a fundamental concern” but also affirms that “reverence for all human life and safeguarding the guarantees of the Constitution and laws of the United States are also important values in policing.” ⁹ Regardless of citizen views of the police, it is the duty of police officers as the professionals to seek solutions and establish new standard operating procedures and tactics that seek to re-establish trust and legitimacy,¹⁰ even when assaults on this trust and legitimacy are unjustified or needlessly hostile.
Officer safety must always be a serious concern in policing, but it must be sought in the context that wearing a uniform and engaging in the duties of a police officer invites heightened dangers. Constitutional guardians step forward understanding that their role is to place themselves in harm's way to establish and protect both order and liberty. This aspect of constitutional guardianship, of course, should never be construed to suggest that officers should needlessly expose themselves to unacceptable risks of life and limb, nor that laws and regulations should flippantly address the risks that officers face or heighten these risks to unreasonable and irresponsible levels. But in crafting tactics and techniques and in establishing police culture, it must be assured that citizens are afforded the accommodations and treatment due to a free people, and that officer safety should not be used to justify tactics, techniques, or views that treat free citizens with automatic distrust and hostility.
Constitutional guardians view their oath of office as a creed, as a personal and shared commitment to both order and liberty in a free society. They must understand the trust and responsibility being placed in them as armed agents of the state, as trusted government actors enabled to apply violence in pursuance to the enforcement of law and to suspend rights in response to criminal activity. As with other considerations, the duties of constitutional guardians do not negate the civic responsibilities of citizens and their representatives to craft laws and establish cultural expectations for the exercise of police powers that are conducive to the balance of order and liberty. But the everyday police officer is where the rubber hits the road when it comes to exercising the police power ethically and constitutionally. The circumstances of constitutional guardianship can all align correctly, but it falls to police officers to choose to properly exercise that calling.
In this essay, I have discussed an understanding of policing in a free society that considers the balance of order and liberty and goes beyond prevention, discovery, and punishment of crime. For even the most well-established constitutional structure to function, the constitutional culture of a nation must reflect it, and the armed agents of the state must resonate that culture. Through a proper commitment to oaths of office made to constitutions that protect natural rights, civil liberties, and fundamental human rights, police officers become constitutional guardians.
Many different aspects combine to engender the circumstances for constitutional guardianship. Those who pass, execute, and administer the laws must enable rather than inhibit a police officer’s ability to engage in their duties in a way that balances the concerns of order and liberty. Police power must be understood to be violence and cessation of rights exercised in the enforcement of law, and its exercise must be established through law with humility and a full consideration that every law, at the end of the day, requires an armed agent of the state to enforce it. Citizens must also understand these principles and not treat the use of police power flippantly or with little regard for the realities of its exercise. All citizens in a free society should learn and understand what the police power is and that it will ultimately be exercised based on their expectations. And, ultimately, it falls to police officers themselves to be committed to their oaths of office and their roles as constitutional guardians.
Thankfully, the majority of those who step forward to serve selflessly in an increasingly thankless and dangerous field of work live up to their role as constitutional guardians. But the perception among citizens throughout various free societies, especially in the United States, is trending away from viewing officers as servants and constitutional guardians.¹¹ It falls to all of those who are interested in maintaining the critical balance of liberty and order, which is conducive to the perpetual existence of both in a free society, to engage in all the ways prescribed in this essay to cultivate and preserve the necessary ingredients for faithful constitutional guardianship.
¹For the United States Federal Oath, see Legal Information Institute, 5 U.S. Code § 3331. For an example of a local U.S. oath, see City of Round Rock, Officer Oath of Office. For the United Kingdom constable oath, see Queen’s Printer of Acts of Parliament, Police Reform Act 2002.
²The phrase “ordered liberty” was coined by SCT Justice Cardozo, see Palko v. Connecticut (p. 10). Henry Abraham offers a definition of ordered liberty as “A loosely used term, diversely applied in scholarly literature and judicial opinions...suggest[ing] that fundamental constitutional rights are not absolute but are determined by a balancing of the public (societal) welfare against individual (personal) rights.” See Abraham, Henry, and Barbara Perry. Freedom and the Court: Civil Rights and Liberties in the United States.
³For a treatment on the different views on social contract theory as presented by Hobbes and Locke, see Pollock, Frederick. “Hobbes and Locke: The Social Contract in English Political Philosophy” (p. 109).
⁴The Thin Blue Line is a controversial phrase and flag with different meanings and connotations as it is used by various groups. In this essay, I’ve chosen to use the term in the context it was introduced to me within the law enforcement community: as a symbol of commitment to constitutional and American values within the framework of policing as a service to the community in keeping with the oath of office. However, this is unfortunately not the only way the phrase and flag are being used by various groups, and there are many instances where violent and dissident far-right groups have appropriated them. For an article that addresses the controversy and surveys different views on the phrase and flag, see Redman, Henry. “The Thin Blue Line Flag: Symbol of Police Pride or Violent Insurrection?”.
⁶The effort to strike this balance has become a major concern in law enforcement. See International Association of Chiefs of Police and COPS Office Use of Force Symposium. “EMERGING USE OF FORCE ISSUES Balancing Public and Officer Safety.”
⁷“State violence has always presented a challenge...because it is by definition legitimate violence: unlike criminal violence, it is understood as the necessary instrument for preserving and enforcing the law.” See Oksala, Johanna. Foucault, Politics, and Violence (pp. 103-116).
⁸ “...the conception of the policeman's role is of major importance in terms of defining the nature of the police-citizen interaction.” See Johnson, Thomas A. “Police-Citizen Encounters and the Importance of Role Conceptualization for Police Community Relations.”
¹¹The Bureau of Justice Statistics in 2001 engaged in what at the time was “the most systematic and comprehensive study to assess the prevalence of police misconduct in the general police” and found “less than 1% (0.96%) of those who had contact with police believed that the police used, or threatened to use, excessive force” and that “10% of those who had been stopped by police reported that the police had not behaved properly.” At the same time, “...a Gallup Poll taken after the Rodney King incident reported that 68% of the respondents believed that incidents like the King case happen ‘very frequently’ or ‘somewhat frequently’ in police departments across the country.” see Son, In Soo, and Dennis M. Rome. “The Prevalence and Visibility of Police Misconduct: A Survey of Citizens and Police Officers.” (pp. 181-182)