Are cops 'frienemies' of the Constitution?
The person’s fundamental desire — and Constitutional right — to be left alone must be balanced against an officer’s responsibility — and mission— to interdict crime
Justice Brandeis made a famous dissent in the 1928 case Omstead v. United States in which he stated, “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”
The Fundamental Right to be Left Alone
I am an armed government agent. The specter of the Revolutionaries’ hated Redcoats walks with me. I am the very image against which the Bill of Rights was argued. I walk the streets a living and visible threat to freedom. I solemnly swore to protect and defend the Constitution of the United States, but the reality of my work seems quite the opposite.
Life? Liberty? The pursuit of happiness? I have the power to immediately bring an end to any or all of those to each person I pass. Of course I am in a noble profession. I help, I save, I uphold the law. But look at me! I have a gun, pepper spray, handcuffs, and a baton — hardly equipment one might imagine of a person whom the statute labels a “peace” officer.
The police officer holds the power to restrain, and criminals have the power to bring fear and disorder to our world. Resting on the shoulders of every officer is the responsibility to balance that power to stop, question, search, and detain a person with people’s fundamental desire — and Constitutional right — to be left alone to conduct their lives. Therefore, one theory of policing would hold that officers should tread as lightly as possible with discretion favoring self-restraint. The other says that since the courts and legislatures allow encroachments on liberty we should push those to the limits for the greater good of finding criminal activity.
In other words, the great question of freedom is whether our ability to discover criminal activity at the risk of liberty is the greater good over our ability to give citizens the greatest latitude in going about their day without our intrusion therefore inevitably allowing evil to go undiscovered.
The True Guardians of Liberty
Although the citizen in the glare of a police officer’s spotlight might well consider that we are their greatest threat to liberty, I would argue that this title belongs more accurately with our elected leaders. Our limits as police officers are defined by them. What they demand is what we do and what they allow is what we do. When we get orders to write more tickets, knowing full well that it is revenue driven rather than public safety driven, our Constitution suffers. When more and more personal responsibility laws are passed and pressed onto the shoulders of law enforcement — yes, I know that lives are saved by helmets, seat belts, and no-smoking regulations — freedom suffers. When our armed government agents begin to be seen less as crime fighters and more as nannies and tax collectors, our credibility suffers.
Those of us carrying the badge must be vigilant of our own understanding of the element of freedom Justice Brandies recognized. But for the larger goal of the kinds of freedoms that were sought by our founders the answer is not for the police to shirk their lawful responsibilities, nor is it on the courts to arbitrarily nitpick at our honest efforts at interdicting crime. It is in the power of the people to hold their legislators accountable and stop allowing the law to replace our God-given common sense as America’s moral absolute.