Democratic Policing Before the Due Process Revolution

40 Pages Posted: 16 Jun 2018  

Sarah Seo

University of Iowa College of Law

Date Written: April 2018

Abstract

In 1952, Jerome Hall gave a series of lectures on “Police and Law in a Democratic Society.” Applying the methodologies of intellectual and cultural histories, this Essay traces how Hall’s concept of democratic policing shifted from self-rule, to the rule of law, and finally to due process as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or constrained entirely by law. That is, Hall modified his ideas of democracy to accommodate the police, rather than the other way around, with the police having to change in accordance with democratic principles. By placing the lectures within the context of the Cold War, the Essay argues that due process was not just a legal norm, but also a cultural value that rationalized discretionary policing at a time when it smacked of totalitarianism and, at the same time, served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury understandings, necessarily revises prevailing interpretations of due process as a restraint on police discretion, thus bringing new light to the Warren Court’s due process revolution.

Keywords: Criminal Procedure, Democratic Theory, Legal History

Suggested Citation

Seo, Sarah, Democratic Policing Before the Due Process Revolution (April 2018). Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3188144

Sarah Seo (Contact Author)

University of Iowa College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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