The Constitution Demands Police Accountability

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.

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.