It took four years between the Treaty of Paris ending the Revolutionary War in 1783 and the composition and signing of the U.S. Constitution in 1787. The Preamble reflected the regional and sectarian differences and interests that existed at that time within the three regions comprising the newly established states. New England and the South were more conservative than the Middle Colonies but differed on the issue of slavery. The Middle Colonies represented a more diverse sectarian mix, including Roman Catholics, which were despised by the Puritan elements in New England—the Congregationalist and Presbyterians. In an effort to appease the various elites comprising the new aristocracy; the preamble reads:
We the People [free white males] of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.1
With designs for expansion from the onset, the United States looked west, north, and south, gaining territory throughout the nineteenth century through purchase, treaties, and wars; exacerbating both the Indian and slave dilemmas. The third president, Thomas Jefferson (1801–1809), doubled the size of the United States with the Louisiana Purchase in 1802 (ratified by the U.S. Senate in 1803); the fourth president, James Madison (1809–1817), attempted to gain the Canadian Maritimes from Great Britain with the War of 1812; Florida was forcefully acquired from Spain under the administration of the fifth president, James Monroe (1817–1825); the infamous Indian Removal policy was enacted and implemented under the term of the seventh president, Andrew Jackson (1829–1837). The Mexican War (1846–1848) occurred under the stewardship of the eleventh U.S. president, James Polk (1845–1849); the Gadsden Purchase (1853) was obtained from Mexico under threat-of-war during the reign of Franklin Pierce, fourteenth U.S. president; the War-between-the States (U.S. Civil War, 1861–1865) occurred during Abraham Lincoln’s administration (sixteenth U.S. president); the long Indian War era (1862–1892) also began during Lincoln’s administration. Alaska was purchased from Russia in 1867 during the administration of Andrew Johnson (1865–1869), who became the seventeenth president following Lincoln’s assassination in 1865; the Indian Wars intensified under Ulysses S. Grant’s administration (eighteenth U.S. president, 1869–1877); and the United States acquired Puerto Rico, the Philippine Islands, Guam, Mariana, Carolina, and Marshall Islands from Spain during the Spanish-American War (1898–1899) during the administration of William McKinley (twenty-fifth U.S. president, 1897–1901). It became readily clear that more non-WASP, “lesser” peoples were needed to explore the newly acquired territories, at their own peril, so that the WASP elite could exploit the untouched riches these lands held. Clearly, these immigrants would be bait for discontented Indian tribes whose lands were being exploited.
John Isbister, in his research on immigration waves in the United States, noted that the first wave occurred during the colonial era through the early years of the republic (1607–1820s). Most of the first wave was English, followed by Scots-Irish, Dutch, German, Swedes, French, and African slaves. While the African slave trade was officially outlawed in 1807, a lucrative, illicit trade continued until the conclusion of the Civil War in 1865. The second wave of immigrants began in the 1840s and extended to the 1870s. During this time, some 15 million immigrants entered the United States—this time the majority being of other than British origin, mainly from Ireland and Germany, while the United States inherited hundreds of thousands of Mexicans following the acquisitions of new lands in the Southwest gained from both the Mexican War and the Gadsden Purchase. A significant number of Chinese, mainly males, also entered the United States at this time to work the gold fields of California and later to work on the intercontinental railroad. French Canadians also began their migration during the second wave to work in the textile industry in New England. The third, and largest, wave of immigrants, according to Isbister, accounted for some 25 million people entering the United States between 1880 and 1930, when the borders were closed during the Great Depression. This wave included substantial numbers from Southern and Eastern Europe, Poles, Italians, Russians, Greeks, Austro-Hungarians, who were either Roman or Orthodox Catholic or Jewish.2
It became clear the new republic did not view all men as being equal, not even white men. One of the first actions of the United States was to define what constitutes being an American Indian. This was a necessary step in order to provide whites an upper hand in dealing with indigenous peoples as new territories were being settled. The United States chose to restrict the legal status of both African slaves and American Indians to that of “lesser humans,” hence not worthy of the broader constitutional guarantee granted “free white males.” In its effort to determine the rules for representation to the House, the first census (1790) counted black slaves as three-fifths of a person, as specified in Section 2, Article I of the Constitution, giving white Southern plantation owners a disproportionate weight in their state’s representation in Congress. Indigenous peoples, on the other hand, were not counted at all. This is not surprising given that of the first eighteen U.S. presidents (Washington to Grant), all but three were slaveholders. The exceptions were the Adams (second and sixth presidents), who were stanch elitist New England Puritans, and Abraham Lincoln, whose White House was the last to be staffed by black slaves. Regarding the social status of the twenty-five presidents from Washington to William McKinley at the turn of the twentieth century, fourteen held military rank prior to their presidency: Washington, Monroe, Jackson, Harrison, Taylor, Pierce, Lincoln, A. Johnson, Grant, Hayes, Garfield, Arthur, Harrison, and McKinley. Only Zachary Taylor and Ulysses S. Grant were commissioned as Regular Army (West Point Military Academy was created in 1802 under President Jefferson); the rest, including Washington, were commissioned as part of state militias. Further distinctions are made for George Washington, who rose to commanding general of the Continental army, and Chester Arthur, who served as Quartermaster General of New York troops during the Civil War.3
While an influx of immigrants was needed to occupy newly acquired lands, often at the peril of the settlers invading Indian Territory, laws were often enacted in order to both control their numbers as well as their degree of participation in the political, economic, and social elements of American society. This process, in a nutshell, is evident in immigration legislation. The first immigration law was the Naturalization Law passed in 1790, requiring that an individual needed to be both free (not indentured) and white to be eligible for U.S. citizenship—a stipulation that remained on the books until the Immigration and Nationality Act of 1952. Later, allowing the naturalization and citizenship for freedmen (former black slaves), the 1870 Naturalization Act excluded Chinese from citizenship, despite their role in exploiting mineral riches and working on the construction of the transcontinental railroad for wealthy whites. Chinese could not appear as witnesses in court, vote, or become naturalized citizens. Their children had to attend segregated schools, and they were assessed a special foreign tax. In 1882, Congress passed the Chinese Exclusion Act, barring most Chinese immigrants now that the dangerous work with mining and the railroad was completed. This act was the first law that specifically banned immigration by race or nationality. The Geary Act of 1892 required Chinese aliens to carry a residence certification with them at all times upon penalty of deportation. The 1917 Immigration Act, also known as the Asiatic Barred Zone Act, restricted Asians from any country not owned by the United States adjacent to the continent of Asia (limiting immigration to the Philippines). This act also played into the growing eugenics movement of the time, forbidding the entry of those with mental and/or physical handicaps and requiring an English literacy test.4 The Immigration Act of 1917 reinforced elements of the 1914 Harrison Narcotics Tax Act, setting the stage for targeting Asians and Hispanics, as well as American blacks, for criminalizing cultural lifestyle that departed from that of the Anglo white status quo. This was the foundation for the eventual racial-biases of the U.S. War on Drugs, a phenomenon that extends into the twenty-first century.
A similar process occurred with Mexican migrants. Needed as farm laborers during the Second World War, a deal was forged with Mexico for seasonal laborers, a program known as the Bracero Accord. Instituted in 1942, this program allowed Mexican laborers to legally enter the United States as migrant farm workers, a program that was in place until 1964, when those workers, seasonal or not, earned illegal status, even as millions continued to enter the United States for jobs shunned by most Americans. On the other hand, Mexican families and subsequent generations absorbed into U.S. society by virtue of their residency at the time of the Louisiana Purchase, the Treaty of Guadalupe-Hidalgo, annexation of Texas, or the Gadsden Purchase were subjected to the same conditions forced upon freed blacks and their families following emancipation—that of enforced segregation along with unequal treatment under the law, a fate that both groups endured until the civil rights laws of the mid-1960s. American Indians gained federal citizenship in 1924 but continued to suffer tremendous hardships and abuse on reservations into the late twentieth century.
The fifty-years following the U.S. Civil War was a complicated and violent era, one requiring a strong police presence in order to control the onslaught of white settlers eager to occupy lands once comprising Indian Country. Social control was also required at the local level with an increased influx of immigrants, notably Irish Catholics fleeing starvation from the potato famine of the 1840s, and the emergence of large metropolitan areas like New York City. Clearly race and strata differential played a crucial role at both the federal and state levels, often providing contravening regional differences denoted by race-driven policies. The challenge was to balance federal versus local (state) control over an expanding United States. Toward this end, a two-tier system was developed: a federal and a local (state/territory) system of executive administration, legislative bodies, and courts. Law enforcement, whether by militia, the military, or police agencies, emerged to address these challenges.
The Genesis of Law and Order in the United States
The Founding Fathers drafted a versatile Constitution, one based on separate governmental bodies with checks and balances; a system that has weathered both history and challenges—although serious questions concerning the Electoral College have arisen given the results of the 2016 presidential elections, when, for the second time within the twenty-first century, the candidate who won the popular vote did not win the Electoral College or the presidency. Clearly the strength of the Constitution is the separation of powers outlined in the first four Articles, with Article I providing the basis for a fluid representative government—one based on demographics and fluidity by forcing elections every two years. The Senate, however, can be seen as a carry-over from the British House of Lords, whereby each state would have two senators serving for six-year terms. Initially, these senators were chosen by their respective state legislatures, ostensibly from the aristocratic elites. This system did not change until 1913, with passage of the Seventeenth Amendment calling for the direct election of U.S. Senators. Article II created the executive branch with the president and vice president, each with a four-year term of office. In 1951, following F. D. Roosevelt’s unprecedented four terms, the Twenty-Second Amendment limited the executive officers to two terms. Article III, in turn, created the third independent branch of the federal government—the judicial branch, vested in a Supreme Court and inferior appellate and district courts where jurists are appointed by the president and confirmed by the U.S. Senate. Article IV set the stage for the dual-system of government and justice in the United States by recognizing the sovereignty of states in making laws and establishing order within their boundaries, independent of federal intrusion other than in situations that involved national security or interstate issues. This system placed Indian matters within the federal jurisdiction while allowing the slave issue to be resolved by the states.
Article III of the U.S. Constitution was implemented with the Judiciary Act of 1789, creating the U.S. Supreme Court with a chief justice, John Jay, and five associate justices. It also created the office of the attorney general of the United States with Edmund Randolph’s appointment. This same act created the U.S. district court system with each of the original thirteen states constituting a federal district. Three circuit courts were also created, one each for the eastern, middle, and southern states. Here, the Supreme Court justices resided in addition to their high court duties. This process ended with the creation of the U.S. Circuit Court of Appeals in 1891. The district courts also had a head prosecutor, the district attorney. Much of the federal legal system dealt with international relations, including interaction with Indian tribes, which initially held the status of independent nations that were dealt with via treaties.5 States had their own court systems with the legislative bodies often referred to as the “General Court.”
Army, Militias, National Guard, and Marines
Federal law enforcement can be traced to the origin of the Continental army on June 14, 1775, which became the Legion of the United States in 1791 and finally the Regular Army in 1796. Article II, Section 2, of the U.S. Constitution notes that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual Service of the United States.”6 The U.S. Marine Corps, the military that was used to police the Americas under the Monroe Doctrine throughout the nineteenth century, credits its colonial heritage to November 10, 1775, as part of the U.S. Navy. The U.S. Coast Guard, from its beginning in 1789 as the Revenue Cutter Service, has long operated as both a civilian and military federal law enforcement agency. Today, it is part of the Department of Homeland Security. During the Revolutionary War (1775–1783), the de facto head of the army was George Washington, who held the rank of lieutenant general (three stars) and the title of commander in chief of the Continental army. Following independence, the senior army officer usually held the rank of major general (two stars) and the title of senior officer of the U.S. Army. The first with the title of senior officer was Henry Knox (1783–1784), who replaced Washington. But as the U.S. Army pared down from its Revolutionary strength, some officers of lesser rank headed the military: Brevet Major General John Doughty (1784); Brevet Brigadier General Josiah Harmar (1784–1791); Major General Arthur St. Clair (1791–1792); Major General Anthony Wayne (1792–1796; died in office); and Brigadier General James Wilkinson (1796–1798/1800–1812. George Washington continued to hold the rank of lieutenant general in the event he would be needed if another serious crisis occurred during his lifetime. Alexander Hamilton held the rank of major general while serving as the inspector general of the army (1799–1800). James Wilkinson was promoted to major general during his second term as senior officer of the U.S. Army at the beginning of the War of 1812. The title for the head of the army changed again in 1821, following the War of 1812, when it became apparent that a more substantial army was needed for the various insurrections and ongoing Indian conflicts as the United States continued its expansion and settlements throughout the nineteenth century.
Those holding the title of commanding general of the U.S. Army included Major Generals Jacob Brown (1821–1828), and Alexander Macomb (1828–1841). During the Mexican American War, Winfield Scott was the first since George Washington to hold the rank of lieutenant general (brevet; e.g., temporary). Scott led American forces during the Mexican American War and headed the U.S. military through Indian Removal in the late 1830s, serving over twenty years in this capacity until his retirement at the onset of the Civil War in 1861. He was the oldest serving commanding general, retiring from this position at age seventy-five. Like Washington and Eisenhower, he also ran for president, challenging Franklin Pierce in 1853. Scott was replaced by Major General George McClellan during the Civil War (1861–1862), who was subsequently removed by President Lincoln for incompetency, while his successor, Major General Halleck (1862–1864) was not much of an improvement. Union success came when President Lincoln chose Major General Ulysses S. Grant to head the Grand Army of the Republic, giving him the rank of lieutenant general and then making him the first four-star general in the army (1866–1869), a rank he held until the resigned to become the eighteenth president in 1869.
Grants’s two favorite Civil War generals, William Tecumseh Sherman (1869–1883), and Philip Sheridan (1883–1888; died in office), followed Grant with the rank of four-star generals, leading the army during the long Indian Wars (1862–1892). Lieutenant General John Schofield (1888–1895) took over as commanding general of the U.S. Army during the Indian Wars, while Lieutenant General Nelson Miles (1895–1903), another noted Civil War and Indian War fighter, was the last to hold the title of commanding general. Following Miles’s tenure, in 1903 the head of the U.S. Army was now titled chief of staff of the army. The United States did not have a permanent (non-brevet) four-star general until 1866 when this status was awarded to U. S. Grant. The Confederate army, on the other hand, conferred four-star rank to Robert E. Lee during the Civil War. And while President Grant made Sherman and then Sheridan four-star generals during the Indian Wars, this rank did not become permanent until 1919 when it was given to John (Black Jack) Pershing. The Second World War not only saw the proliferation of four-star generals and admirals, but the emergence of five-star generals and admirals. Even then, only nine men held this rank; four admirals and five generals (including Douglas MacArthur and Dwight Eisenhower). The five-star rank ended with the death of Omar Bradley in 1981. George Washington was added to the list posthumously on July 4, 1976. Indeed, General John (Black Jack) Pershing, leader of U.S. forces during World War I, was later named “General of the U.S. Armies”—the highest military rank in the United States (a status shared only with George Washington). This rank warrants four gold stars, outranking the silver five stars, created during World War II and ended with the death of Omar Bradley in 1981. Today, the head of the Joint Chiefs of Staff and the heads of the four military branches (army, navy, air force, marines), as well as the head of NATO forces, hold four-star rank, as do many of their subordinates.7
The National Guard is an outgrowth of the colonial militia, tracing its origin to the creation of the Massachusetts Bay Colony militia regiment created in December 1648. The U.S. Constitution, in Section 8, Article I, formalized the continuation of state militias, including the provision for their federalization. The U.S. Congress formulized the state militias with the Militia Act of 1792 that recognized the president’s authority to activate the militia for federal use in times of national interest, such as times of wars and insurrections. The first use of this was during the War of 1812. The militias were federalized again in 1862 during the Civil War and even expanded to include free blacks and emancipated slaves within militia ranks. The post–Civil War Reconstruction era fostered another modification under Title 18 of the U.S. Code (section 1385) with the Posse Comitatus Act of 1878. The intention of this act was to restrict the role of the occupying Union army in the former Confederate states, especially in those areas deemed more appropriate under state’s rights, including domestic law enforcement. This restricted use of federal, or federalized (National Guard/militias), military allowed for the emergence of the Jim Crow laws and forced segregation in the South, a process that was not adequately addressed until the Civil Rights Act of the mid-1960s.
The Militia Act of 1903 made the armed state and territorial militias the primary organized reserve forces within the military. This act also changed the name of these militias to that of the Army National Guard. In 1916, as war raged in Europe and Mexico, the National Defense Act of 1916 merged the National Guard and the Army Reserve along with Regular Army into a composite, Army of the United States, allowing for quick mobility without the cost of maintaining a large permanent military force. This new organizational structure prepared the National Guard for action during the Mexican Revolution (1910–1920), notably the Punitive Expedition against Mexican General Pancho Villa, hence preparing the armed forces for their entry into the First World War (1917–1918). The National Guard made up 40 percent of U.S. combat divisions during this war.
The proven success of the National Guard during the First World War as a ready reserve force led to the establishment of a federal chief of the National Guard under the 1920 amendment to the National Defense Act. The National Guard provided nineteen army divisions during World War II and over 140,000 guardsmen mobilized during the Korean conflict (1950–1953). The creation of a separate Air Force in 1947 led to the creation of the Air National Guard as a reserve unit of the Air Force. The navy and the marines do not have National Guard or militia affiliates. While 95 percent of National Guard funding is federal, the Guard remains basically a state militia under the direction of the governor. All fifty states have a National Guard component where the governor appoints an adjutant general (at either the rank of brigade or major general) with the state governor acting as the commander in chief unless the Guard is federalized. The National Guard is more political than the regular armed forces in that the state governor appoints the state’s adjutant general along with general rank. Here, the governor can appoint someone whose regular or reserve rank is merely that of a lieutenant colonel (0–5) jumping at least two, often three, field grades.
Nonetheless, the president is the Guard’s commander in chief. At the state level, governors can activate their Guard units for domestic emergencies, including riots, disasters, and rescue operations. The federally appointed chief of the National Guard Bureau now holds four-star rank. The 1987 Montgomery Amendment to the National Defense Authorization Act states that governors cannot withhold consent to the federalization of the state’s Guard units for duty, including that outside the United States. Some states, like New Mexico, kept their state militia as a component of the Army National Guard. It is called the New Mexico State Guard (NMSG) and acts as a military reserve force under the direction of the state adjutant general. Formal military training, such as ROTC (Reserve Officers Training Corps) or some form of officers training is not required for appointments to the NMSG. It operates much like the early militia forces during the colonial and early republic eras when status determined one’s military rank. While the NMSG functions as a reserve unit to the National Guard, it is also mandated to assist communities and law enforcement when required.8
The U.S. Marine Corps, Monroe Doctrine Police, like the U.S. Army, traces its origins to 1775 and Revolutionary War. Marines fought alongside General Washington’s Continental forces at the Battle of Princeton. They were disbanded following the end of the war in 1783, only to be reauthorized by the U.S. Congress in 1798. The first foreign action of the marine corps occurred in 1805 against Barbary pirates in the Port of Tripoli. Marines also saw action onboard ships during the War of 1812 as well as being a component of General Jackson’s army in the battle of New Orleans in 1815. They served in the Seminole War of 1836 and in the war with Mexico (1846–1847) and police actions in Panama (1852–1854) and the Fiji Islands (1855–1858). They were involved in the capture of John Brown at Harpers Ferry in October 1858 and participated in the U.S. Civil War on the side of the Union. The police action of the marine corps during the remainder of the nineteenth century included action in the Spanish American War (Cuba 1898) and the Philippine insurrection (1899). These police actions intensified during the twentieth century within the Americas as part of enforcement of the Monroe Doctrine; activities described later in the book.9
The U.S. military also has its own law enforcement component (MPs or Military Police) whose jurisdictional fiat is not the Constitution but rather the Uniform Code of Military Justice (UCMJ). Here, offenses outlined in the UCJM, committed by service personnel on or off government military facilities, can result in a criminal conviction such as an Article 15 (misdemeanor) or a court-martial (felony). These are federal offenses and are subject to any and all restrictions associated with a federal conviction. There are three types of court-martial—summary, special, and general, with only the latter able to recommend a death sentence. In 1948, the U.S. military was integrated, and this mix was reflected in the creation of joint military police forces, while integrated police in the United States did not become effective in many parts of American, specifically the South, until the turbulent 1960s and the passage of Civil Rights law in 1964 and 1968. Even then President Eisenhower federalized the National Guard in the late 1950s to provide protection for blacks integrating into former all-white Southern public schools. Interestingly, the main force of opposition and violence toward blacks at this time was the local law enforcement agencies. Today, this concept of training the National Guard to act in a law enforcement capacity is seen in Iraq and Afghanistan, as well as along the U.S.-Mexico border in the ongoing War on Terrorism.
Following the Second World War and the establishment of permanent international military consortiums such as NATO, the United States had to provide its own police forces in order to maintain law and order among its troops deployed both at home and abroad. These forces have been instrumental in maintaining security in the former Yugoslavia and in Northern Ireland with mixed results. However, these interventions are considered to be temporary solutions until local autonomy can be established with protection for all community members. The exception is the establishment of permanent and/or semipermanent military police forces. Toward this end, a number of military police forces emerged designed to police military personnel both in bases and in surrounding communities, doing so under the authority of a provost marshal. The army has the Military Police Corps, while the U.S. Air Force has its security police and the navy, marine corps, and the coast guard are served by the shore patrol. The shore patrol was initially designed as an ad hoc law enforcement force, deployed when ships docked at domestic and foreign ports. Due to this unique circumstance, law and order, including the operation of a brig, is the responsibility of each separate command.
The largest of these military police forces is the U.S. Army’s Military Police Corps that provides the main law enforcement entity for the Department of Defense and manages prisoners of war and other confinement facilities during times of conflict, including the current War on Terrorism being conducted in Iraq and Afghanistan. When other military elements are also deployed (marines, air force), the military police corps hold primary jurisdiction, including that of federalized National Guard service personnel serving as “military police.” Nonetheless, joint military police forces emerged in communities where there is a large, mixed military presence such as Hawaii and Okinawa. These combined military law enforcement include service personnel from all the participating services.
In Hawaii and Okinawa (the largest U.S. military force in Japan), this includes army, air force, navy, and the marines. Hawaiian Armed Forces (HAFP) operates in a multiethnic environment, compounded by both permanent and transitory military personnel. Sensitivity to various cultural orientations, including military subcultures, is a crucial part of HAFP training since its inception in 1948. Hawaii has one of the most diverse mixes of cultures in the United States with representation from many of the Southeast Asian nations, as well as from Polynesia. Add to this mix the integrated U.S. military forces from all branches and the multiethnic, multicultural mix becomes more complex. Until statehood in 1959, territorial laws and customs provided security to the various ethnic enclaves in Hawaii. The main central police force often was HAFP. In this sense, HASP trained its forces to become aware of the various subcultures operating within their jurisdiction, including the various military subcultures—navy, marines, army, air force, and coast guard. Clearly, HAFP was one of the first to practice community policing in the United States.
The Ryukyu Armed Force (RAFP), on the other hand, began with the U.S. military occupation of Okinawa as an effort to better police the large military contingency on the island. The RAFP was the main police force on Okinawa during the U.S. administration from 1945–1972, when the islands were returned to Japan. Okinawa was administered by a U.S. Army lieutenant general who held the title of governor general during these twenty-seven years of occupation. The complexities at this time included indigenous islanders who were fighting for a separate nation much like in Vietnam. In order to keep the peace, the main island of Okinawa was partitioned into zones A, B, and C. U.S. service personnel were restricted to the zones surrounding the military bases and the corresponding liberty (bar) zones. Here, the RAFP held sway. Local police operated in the local districts serving only the indigenous Ryukyuan population. Even then, the RAFP held original jurisdiction and could enter any segment of the partitioned island. Toward this end, the joint military police had to be cognizant of local cultures and customs—a lesson shared with the HAFP. The RAFP continued to police the numerous military bases following the return of Okinawa to Japan while the Japanese civilian police took over local community policing. The Japanese now holds original jurisdiction over criminal offenses committed by both locals and U.S. personnel off base. This is similar to the conditions now existing in Iraq. Military personnel and private contractors, including private security police, are no longer exempt from arrests and adjudication by local authorities.
U.S. civilians can be subjected to martial law, a situation whereby certain constitutional rights are suspended during a defined period of crisis, a process borrowed from British common law known as the writ of habeas corpus (due process of law; e.g., Bill of Rights). The Constitution states: “The Privilege of Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.”10 Early in the republic, President Jefferson urged Congress to enact a suspension of the Bill of Rights (habeas corpus) in order to keep jailed members of the Burr conspiracy from being released. Congress declined his request. Later, during the Civil War, President Lincoln initiated the suspension of the writ of habeas corpus for Confederate sympathizers. The Union army carried out Lincoln’s suspension over the objection of the chief justice of the U.S. Supreme Court. Congress defused the situation by ratifying President Lincoln’s order. Following the Civil War, the Congress sided with President Grant in his suspension of the writ in his efforts to curtail the Ku Klux Klan during the Reconstruction era. But this action was nullified by passage of the Posse Comitatus Act, also known as the Knott Amendment to the 1807 Insurrection Act. The 1878 Posse Comitatus Act prohibited the use of federal troops (army, later U.S. Air Force) in policing domestic policies. This act does not pertain to the National Guard units (army or air force) when activated at the state level, but martial law would override these restrictions.
Ostensibly, the Posse Comitatus Act did much to set the stage for both racial and class divisions within post–Civil War America. Here, the privileges of whites continued following the Civil War, with political actions challenging the advances put forth by the Thirteenth, Fourteenth, and Fifteenth Amendments. These efforts to undermine federal authority and responsibility under Reconstruction began immediately with President Lincoln’s vice president and successor, Andrew Johnson (1865–1869). Johnson was impeached by the U.S. Senate, but not removed from office, for violating the Constitution by removing Secretary of War Edwin M. Stanton from office, thereby obstructing the implementation of the Reconstruction Act. A Southern Democrat, born in North Carolina and representing Tennessee as both governor and, later, senator, his prejudice against blacks was well known. He served out the remainder of Lincoln’s second term, following the president’s assassination, and later returned to the U.S. Senate (senators were appointed by their state delegations until passage of the Seventeenth Amendment in 1913, which called for direct election by the voters).
Even then, de facto support for Jim Crow was actually an agreement between Republicans, who wanted to stay in office following Grant’s administration, and Southern Democrats. Murphy, Fleming, and Barber note that Jim Crow discrimination emerged during the disputed Hayes-Tilden presidential compromise of 1877 that allowed the Republicans to retain the White House in exchange for ending Reconstruction in the South. This was done by transferring federal civil protection for the newly freed blacks to state authority, which would be run by whites. Thus, while efforts to undermine the rights of blacks were often associated with the dismal presidency of Andrew Johnson, the deal for Jim Crow discrimination was actually secured during the administration of President Rutherford B. Hayes (1877–1881), leading to confirmation in the 1896 the U.S. Supreme Court in Plessy v. Ferguson (163 U.S. 537, 1896). Here, the separate but equal Jim Crow laws in the South were upheld by the U.S. Supreme Court when it stated that racial segregation did not violate the Fourteenth Amendment’s equal protection clause. The Jim Crow debacle was later reversed through the school integration rulings in Brown v. Board of Education (347 U.S. 483, 1954) and later with passage of the U.S. Civil Rights Acts of 1964.11
The problems associated with Jim Crow laws were further exacerbated under President Woodrow Wilson, whose presidency did more to legitimize segregation, including banning blacks from attending Princeton when he was the school’s president. Wilson viewed blacks in condescending and paternalistic terms. His view of African Americans did not vary considerably from that of his opponents in the presidential election of 1912—Theodore Roosevelt (1904–1908) and William Howard Taft (1908–1912). The main difference was that Wilson formally instituted segregation at the federal level, transcending the mostly parochial practices of the Southern states. Once elected, Wilson appointed five conservative Southerners to crucial cabinet posts—treasury, agriculture, attorney general, secretary of the navy, and postmaster general. Clearly, these appointees were willing agents of white supremacists, notably the National Democratic Fair Play Association. Collectively, their actions resulted in the segregation of federal workers along with the removal of any blacks in supervisory positions over whites. Wilson’s racist sentiments were expressed on February 18, 1915, when he held a private viewing for his cabinet members and their families of the inflammatory film, The Birth of a Nation, an anti-black film produced by two of his friends from Johns Hopkins University, Thomas Dixon and D. W. Griffith. The film celebrated the Ku Klux Klan as the saviors of Aryan culture over what the film depicted as inferior blacks.12
The conspiracy between Republicans and Democrats to maintain Jim Crow discrimination in the South continued through Wilson’s presidency and through that of Franklin D. Roosevelt’s administrations. André Schiffrin explained the evolution of the white Southern redneck in his book, Dr. Seuss & Co. Go to War:
Because of the stranglehold of Southern Democrats in the Senate, legislation abolishing the poll tax, or even lynching, was blocked by the threat, and reality, of the filibuster. Roosevelt, for the most part, went along with this Southern veto, depending as he did on the electoral votes of the Southern Democrats, who were kept in power by a tiny fraction of the voters because of the very racist laws they were able to maintain. The poll tax, which Seuss and PM [New York City political tabloid] opposed continuously, completely distorted the American political scene. Not only were black voters in the South completely excluded, but so were a large number of the poorer whites. When the tax was finally abolished in Florida in the 1940s, Democrats calculated that 70 percent of white voters had also been excluded. . . . Others in Congress who actually represented the vast majority of Americans were thus stymied by a small number of racists, who, benefitted from seniority as well as the threat of the filibuster.13
During World War II, President Roosevelt suspended the writ for Japanese Americans living on the West Coast, an action that resulted in their internment in concentration camps. The most recent example of federal suspension of the writ of habeas corpus followed the terrorist attacks on the United States on September 11, 2001. Here, President George W. Bush issued an executive order stating that suspected “terrorists” would be tried in special military tribunals.14
Private security policing is another feature of social control in America. Private security agencies often carry the weight of public law enforcement agencies while usually operating outside the legal mandate regulating public police forces. They tend to operate under the radar of official regulatory oversight and often are seen as using extralegal authority to serve private interests. In the United States, private security played an important role as a special police force for industrial giants, notably railroad and mining companies, that needed strike breakers. The oldest surviving agency is Pinkerton Inc.—the agency that J. Edgar Hoover credited as the model for the Federal Bureau of Investigation (FBI). The Pinkerton National Detective Agency was an outgrowth of the North-Western Police Agency, established in 1850. The agency was established by Scottish immigrant Allan Pinkerton and his partner, Edward Rucker. It was a private detective agency that catered to businesses that needed extralegal control over their employees. In February 1855, they offered their services to six midwestern railroads and established their headquarters in Chicago. The North-Western Police (Pinkerton) agency gained national attention when it was credited with thwarting an assassination attempt on President-elect Abraham Lincoln. With this publicity, they changed their name to the Pinkerton National Detective Agency. During the nineteenth century, they also provided private militias to companies to control strikes.
In 1871, the newly established U.S. Department of Justice (DOJ) outsourced their investigative mandate to detect and prosecute federal law violations to the Pinkerton Agency. They are also credited with initiating undercover police work by infiltrating the Molly Maguires and other mine unions. They also created violence through spies and agent provocateurs. However, the bloodshed fueled by Pinkerton agents as strike breakers at the Andrew Carnegie Homestead Mill in 1892 led to laws in twenty-six states banning the use of private security agents during labor disputes. Nevertheless, Pinkerton agents continued to serve as de facto federal agents until the U.S. attorney general authorized the creation of a federal corps of Special Agents in July 1908. In 1909, the attorney general put these special agents within the new agency—the Bureau of Investigation—later called the Federal Bureau of Investigation (FBI).
Another private security agency with links to the federal government was the Burns Detective Agency, headed by William “Billy” J. Burns, which began in 1910. Billy Burns’s International Detective Agency was created as an alternative to the Pinkerton Agency. Burns and his agents also served the DOJ when President Harding’s attorney general, Harry Daugherty, hired his childhood friend, Billy, to head up the Bureau of Investigation. Burns and Daugherty were later caught up in the Teapot Dome Scandal, leading to jury tampering convictions for Burns. The Teapot Dome trials came during the Coolidge administration, forcing Attorney General Harlan Fiske Stone to clean up the Bureau of Investigation—leading to the appointment of J. Edgar Hoover as the director of the revamped agency—now known as the FBI. J. Edgar Hoover served from May 10, 1924, until his death in 1972 at age seventy-seven. Both the Pinkerton and Burns agencies were acquired by the Swedish security company—Securitas AB—forming the largest security company in the world. Securitas, founded in 1934, went international in 1989 when it merged with security agencies in Norway, Denmark, Portugal, and Hungry. It went public in 1991 expanding throughout most of Europe, including Great Britain.15
Civilian Law Enforcement
The oldest civilian federal law enforcement agency is the U.S. Marshals Office. George Washington appointed the first thirteen U.S. marshals on September 24, 1779, one for each of the states, making them the first “officers of the court” with the responsibility of carrying out the death sentence imposed by the federal courts. The marshals were also responsible for taking the census in their jurisdiction (state) every ten years for the annual tally. The federal marshal and his deputies were the major civilian police force during America’s westward expansion, and they served as the forerunner to the U.S. Secret Service (created in 1865) when they were used to pursue counterfeiters. They were also used to pursue Whiskey Rebels, illegal moonshiners who dodged federal taxes, often working in conjunction with federalized state militias. In 1870, both the U.S. Marshals and U.S. Attorneys came under the newly created U.S. DOJ. Under the DOJ, marshals now assisted the Internal Revenue agents in enforcing whiskey tax laws. In 1880, marshals took over the responsibility of custody of federal prisoners, and in 1890, these duties were extended to the protection of federal judges. Together with the army, the marshals represented law and order in territories until they obtained statehood. U.S. Marshals were also deployed along the U.S.-Mexico border during the 1910–1917 Mexican Revolution. Each state and territory has a designated “U.S. Marshal” appointed by the president and confirmed by the Senate. He or she is head of the office and its deputy force, an established federal law enforcement force with career-based permanent personnel. Marshals continue to play a significant role in federal law enforcement, working with other federal agencies while serving as officers of the judiciary.
Perhaps best known worldwide today, the FBI is but one of many federal law enforcement agencies that have emerged over the past century, each with their own special jurisdictional authority established by Congress. While all four major branches of the military (army, navy, air force, marines) have their own law enforcement agencies under the Department of Defense, the coast guard acts as a law enforcement agent under the newly created Department of Homeland Security, following the September 11, 2001, terrorist attacks, along with numerous other law enforcement agencies, including Customs and Border Protection; Office of Border Patrol; U.S. Secret Service; and the Transportation Security Administration. Other federal agencies with law enforcement authority include: Department of Agriculture; Department of Commerce; Department of Education; Department of Energy; Department of Health and Human Services; Department of the Interior, with the Bureau of Indian Police, Bureau of Land Management, and U.S. Park Rangers; DOJ, which includes the U.S. Marshals Service; the FBI; the Bureau of Prisons; Bureau of Alcohol, Tobacco, Firearms, and Explosives; U.S. Drug Enforcement Administration and Office of Inspector General; Department of State; Department of Labor; Department of the Treasury; and the Department of Veteran Affairs.
The separate state system held primarily to the British common laws that prevailed in the thirteen colonies. This system was composed of county sheriffs and justices of the peace. The county became America’s equivalent of the shire while the shire-reeve became the sheriff, the only constitutional law enforcement officer in the United States. The high sheriffs, in most of the counties (3,080), are elected by the voters in their jurisdiction and therefore are exempt from any state or federal legislative restrictions that may pertain to other law enforcement agencies. Louisiana is organized into parishes instead of counties while Alaska has boroughs. Some states also have municipal sheriffs while New York City’s sheriff is an appointed position covering all five boroughs (Kings, Queens, Richmond, Bronx, and New York). Sixty-two of Colorado’s counties elect their sheriff while the sheriff is an appointed position for the larger city-county entities, Denver and Broomfield. The sheriff and his deputies were considered to be “officers of the court,” a system that continued after independence, making the county sheriff a constitutional law enforcement officer. This system, along with state militias, continued following independence. Originally, before the advent of state police, the high sheriff, along with the county attorney, represented the top state law enforcement officers. The sheriff and county commissioner still hold considerable power and authority in states with strong county government, mainly in the southern and western states. In the northeast, the sheriff’s office serves mainly as officers of the court. The Los Angeles County Sheriff’s Department is the largest in the United States. Forty-eight of the fifty states have sheriffs. There are 3,143 counties or county equivalents in the United States. Accordingly, the National Sheriffs’ Association states that there are over 3,000 sheriff’s offices in the country. An interesting historical footnote, Grover Cleveland, the twenty-second and twenty-fourth U.S. president, was previously elected sheriff of Erie County, New York.
State police forces trace their history to the Texas Rangers, created in 1835. While Texas was an independent republic, it lays claim to the title of the first state police department, given that is what they reverted to when Texas became a slave state in 1845. In 1865, Massachusetts created “state constables,” which had statewide policing authority. Obviously, their mandate predated the automobile. Initially, they were used to enforce the Massachusetts’s prohibition blue laws in Boston.
The foundations of the current state police agencies began with the advent of the interstate road system, a model based on military need that began following WWI with General John (Black Jack) Pershing’s map for better military mobility. The 1922 plan was known as “the Pershing Map.” Pennsylvania’s state police, established in 1905, was created for statewide motor vehicle and other intercounty law enforcement. State police departments soon became the norm following the First World War and the advent of automobile travel and statewide roads. Later, General Eisenhower, impressed by the German Autobahn system developed by the Nazis, greatly expanded the post–WWI 200,000-mile highway system while U.S. president Eisenhower felt that the United States needed an uninterrupted, multilane, interstate highway system designed for the rapid mobilization of National Guard and regular army and marine corps units in times of crisis as the Cold War heated up following the Korean conflict. Hence, the 1956 Federal Aid Highway Act forged a stronger relationship between state police and the federal government—which had original jurisdiction over the new interstate highway system connecting all corners of the United States without local interference.
This new relationship between the state’s top law enforcement officer, the attorney general, and the military generals actually provided the civilian police general (attorney general) original jurisdiction within the state, save for locally restricted jurisdictions such as county sheriffs and large municipal police agencies. The state police became the de facto law enforcement for the attorney general’s office, a role that expanded well beyond policing the highway system (highway patrol). Most states now place major crimes under the attorney general’s office and the state police. Consequently, the head of the state police holds a rank subservient to the attorney general (usually colonel) and is usually appointed by the governor with the agency having statewide jurisdiction, hence representing the highest level of law enforcement at the state level. Moreover, the attorney general’s rank is usually seen as being comparable to that of the highest-ranking member of the state National Guard (brigadier or major general).
Municipal police also have British origins. England traces the origin of municipal police to 1829 when London established its system under the influence of Sir Robert Peel, hence British police being known as Bobbies. The term cop in the United States probably comes from the British “Constable on Patrol.” Cities in the United States soon followed the British model for municipal police departments, adding another layer to the constable and sheriff system. Following the British model, municipal police adopted a military rank structure. Municipal police usually divide their jurisdictions into precincts with a ranking officer holding the rank of captain. Politics and political corruption has long been a problem within municipal police forces, as is evident in the nation’s largest force—the New York Police Department. Established in 1845 as the Municipal Police, it soon became so corrupt that the state legislature in Albany forcefully took control of law enforcement in New York City in 1857, calling it the Metropolitan Police, modeled after London’s Metropolitan Police Service. In fact, the emergence of municipal law enforcement agencies was to better address the riots and civil unrest that plagued America in the decades leading up to, and during, the Civil War. It was this era of riots and civil unrest that spawned independent urban police forces. Large municipal police forces coexist along with the sheriff’s department, especially where the city and county share the same geographical area (such as Denver, Los Angeles, and the like) or exists within several counties (Houston).