Thomas Jefferson and James Madison recognized the price for safety can include loss of personal freedom, expansion of presidential power, loss of local control of police and violation of the principle of subsidiarity, writes Judge Andrew Napolitano.
File Photo: Virginia National Guard Airmen near the U.S. Capitol, Jan. 13, 2021, in Washington, D.C. (U.S. Air National Guard/ Staff Sgt. Bryan Myhr/Flickr)
President Donald Trump argued this month that as a result of the federal enhancement of police work in Washington, D.C., the city went in four days from being the most dangerous in America to being the safest. He cited no evidence but relied apparently on his own observations and anecdotal references from friends. He opined that everyone wants him to keep their cities and towns safe.
Trump couldn’t resist taking credit for an increase in the number of arrests. These included such crimes as vagrancy, running away from federal agents, and striking the bulletproof vest of a federal agent with a sandwich. It remains to be seen if arrests for quality-of-life crimes or non-crimes (vagrancy laws are unconstitutional, and running from federal agents is not a crime unless they have a lawful purpose to pursue you) can be translated into convictions and palpable safety.
Thomas Jefferson and James Madison understood that everyone wants to be safe, but they recognized that some prices are too high to pay for safety. Those prices include the loss of personal liberty, an expansion of already bloated presidential powers, the loss of local control of police and the violation of the constitutional principle of subsidiarity.
“Trump couldn’t resist taking credit for an increase in the number of arrests. These included such crimes as vagrancy, running away from federal agents, and striking the bulletproof vest of a federal agent with a sandwich.”
Here is the backstory.
During the colonial period of American history, there were no police. Towns and cities had jailers who mainly carried out orders from judges, which included jailing the guilty and occasionally executing them. Written laws were few. The common law followed the natural law. When enforcement was needed, a militia was assembled by a sheriff. The members of the militias were farmers and tradesmen.
The king’s policies were enforced by his colonial governors and their troops and by British agents who could arrest anyone, as they all carried general warrants. General warrants were issued by a secret court in London, and they authorized the bearer to search wherever he wished and seize whatever and whomever he found.
One of Jefferson’s bitterest complaints in the Declaration of Independence was the king’s repeated violations of the doctrine of subsidiarity. Subsidiarity was crafted by the Romans, gained popularity after it was codified by St. Thomas Aquinas and generally adopted in the West.
Subsidiarity teaches that when the government seeks to accomplish a task — be it the prosecution of a jaywalker or waging war against another country — because it is using force and assets given to it by the governed (no government produces wealth, thus everything government possesses it has taken), government must use the least force and fewest assets necessary, and this can only be done efficiently by the government closest to the problem at hand.
Madison understood this when he crafted the Constitution. In it, he delineated precisely the powers of the new central government. Public safety — as desirable as that may be — is not among them. He also sought to compel subsidiarity. Thus, by omitting health, safety, welfare and morality as areas of governance delegated to the federal government, he reserved those areas to the states. And he crafted the 10th Amendment to codify those reservations.
Madison was also cognizant of what his friend had written in the Declaration — namely that the king had arrested colonists in America and transported them to London for trial. Hence the provisions in the Constitution mandating that federal criminal trials take place in the judicial district in which the crime is alleged to have occurred.
Now back to public safety and the American presidency.
I have often argued that the F.B.I. and the Department of Homeland Security are unconstitutional. They are not articulated or even hinted at in the Constitution, and their tasks — public safety — are reserved to the states. Until the presidencies of Woodrow Wilson and Franklin Delano Roosevelt, the feds never cared to be involved in crime fighting. These were state concerns, and their needs were vastly different throughout the country.
Then Wilson crafted the precursor to the F.B.I. and persuaded Congress that since we now had a federal police force, they needed federal crimes to enforce. This was magnified greatly under F.D.R. — and all living Americans have grown up with the concept of the F.B.I. as enforcers of federal law.
After it slept on 9/11, the George W. Bush administration, unhappy with one federal police department, created another — 10 times the size of the F.B.I. — and called it D.H.S. These are the folks who wear black shirts and masks when they arrest, often without arrest warrants.
” … the F.B.I. and the Department of Homeland Security are unconstitutional.”
When President Trump decided to federalize the D.C. Metro Police Department for the 32 days permitted by the 1973 home rule statute, he attempted to supplant its lawful police chief with a federal bureaucrat, which a federal court stopped. Now, he is apparently trying to find ways to take over the police departments of New York City, Chicago and Los Angeles. Can he legally do so? In a word: NO.
In two landmark cases from the mid-1990s, U.S. v. Lopez and Printz v. U.S., the Supreme Court reaffirmed the sovereignty of the states and their primacy in matters of public safety. The Court made it clear that the feds cannot tell the states how to keep their streets safe or commandeer their assets or supplant them in matters of public safety. This is Madison’s subsidiarity principle brought up to date.
While the District of Columbia is actually owned by Congress, which gave the president his 32-day window to commandeer D.C. police to assist federal functions, since public safety is not a federal function, Trump’s efforts to clean up the streets and arrest the folks he says are thugs and brawlers are without a constitutional basis.
Human freedom comes about by limiting government, not expanding it. And freedom prospers when established processes are followed. If the government can do as it wishes in the name of public safety, who will protect us from the government?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
*”Praise be to Nero’s Neptune. The Titanic sails at dawn. Everybody’s shouting “Which side are you on?”
….. “We” are @ “200 Days of “ Trump-Vance, Inc., setting precedence & the Hors’ d’War have fallen in line! “First, we take D.C., w/Albuquerque, NM, willfully, “on board!” For example, “Democrats caught in a contradiction over National Guard deployment in New Mexico. The Democratic governor has mobilized the troops as her party criticizes Trump’s decision to send the force to Washington.” 5.20.25 @ hXXps://english.elpais.com/usa/2025-08-20/democrats-caught-in-a-contradiction-over-national-guard-deployment-in-new-mexico.html#
..p.s. the City of Albuquerque, has dropped the “Sanctuary” in “A Sanctuary City.” ABQ is nka “An Immigrant Friendly” City. Hence, I.C.E., hasn’t stopped “sweeping up” immigrants, the National Guardsmen wear polos & khakis, patrol the University of NM campus; &, “have been listening to police communications, monitoring traffic cameras, and helping secure crime scene perimeters.” Channeling Donald J. Trump & Binyamin Netanyahu, “Democratic Governor Michelle Lujan Grisham approved the request, from the local police; &, a week ago, just as the National Guard arrived in Washington, she signed a “Declaration of A State of Emergency” for the northern part of the state, allowing her to mobilize more troops there if necessary.” 8.20.25
Ultimate power for a state to react t0o threat, by invasion, is specifically preserved at Art. I, Sec. 1, cl 3, to declare
War, activate the state’s National Guard, initiate Martial law and suspend federal jurisdiction[?], and arouse public local support– and tend to motivate offenders to leave. If exercised, it would eliminate smears of tyranny of a President.
How many divisions has the Constitution got?
Excellent well thought out and articulated exposition by someone once seen as a Trump backer but who, like more and more concerned citizens, now realize that while the Clinton-Obama-Biden Democrats were horrible, so is the Trump GOP, both of which are owned by AIPAC and the billionaire class. The exposition is based on an accurate analysis of constitutional and common law and bears careful and thoughtful consideration regardless of your political loyalties or ideologies.
It’s not a trade-0ff. The more “security” (and lost of civil rights) we have, the less safe we are. If we want people to be safe, then provide for everyone’s needs.