Since its founding in 1908, the bureau has rarely let either the statute book or the Constitution impede its public service. The FBI was born in deceit. Congress had prohibited Theodore Roosevelt’s administration from creating a separate agency of federal investigators for fear that the new hirees would trample the Constitution. Rep. George Waldo, a New York Republican, warned that it would be a “great blow to freedom if there should arise in this country any such great central secret service bureau as there is in Russia.” But Attorney General Charles Bonaparte—a direct descendant of the French dictator—created the bureau by his own edict, shuffling funds from the Justice Department’s expense account to bankroll the new operation.
The FBI was not created to fill a hole in law enforcement needs. On the contrary, it was created to usurp and displace a highly-efficient and effective private police force that already existed: the Pinkerton National Detective Agency.
Writing in Private Investigation and Security Science: A Scientific Approach, Frank Machovec notes that “The FBI, founded in 1908, was modeled from Pinkerton’s organization and methods,” while Marie Gottschalk writes in The Prison and the Gallows that “In its early years, the FBI modeled itself after the Pinkertons and other private police agencies.”
In fact, government-run police organizations had long been shown to be inefficient and prone to corruption, which is why the private sector turned to private security instead. Gottschalk continues:
The unreliability of metropolitan police, with their strong local and partisan ties, prompted major businesses and industrialists to establish the Pinkertons and other private police forces. The Pinkertons ultimately functioned as a de factonational detective and policing service until the 1920s, when the FBI finally came into its own.
By the early twentieth century, the Pinkertons and other private investigative organizations had established themselves as reliable and effective. It’s why the Pinkertons repeatedly show up in popular culture as the highly-efficient and dangerous enemies of beloved Old-West outlaws like Butch Cassidy.
As early as 1857, politicians were already noting the public’s favorable perceptions of private police over public police, with Chicago mayor John Wentworth noting:
Our police system has been gradually falling into disrepute; and it is a lamentable fact that, whilst our citizens are heavily taxed to support a large police force, a highly respectable private police is doing a lucrative business. Our citizens have ceased to look to the public police for protection, for the detection of culprits or the recovery of stolen property.
The federal government, however, wanted a similar force that it could directly control, and thus turned to a federal police force instead. The desire to present the new agency as like the Pinkertons can be seen in the decision to call FBI investigators “agents” just as many private sector investigators were addressed (as opposed to “deputy” or “officer”).
The Pinkertons were primarily interested in property crime with actual victims (i.e., train robbing). The FBI, however, could be used to go after political enemies, protesters, supposed draft dodgers and others who ran afoul of government regulations created to benefit the government itself. Over time, the FBI would crowd out the Pinkertons as a national police force (although, unfortunately, government organizations were known to contract with the Pinkertons).
This was all to the good according to many critics of the Pinkertons who wanted a government-controlled national police force that could be used against the private sector, rather than be controlled by it.
Indeed, the rise of the FBI is very much the product of left-wing and labor unionist movements to curb the power of the Pinkertons in favor of the FBI and similar agencies.
A recent example of this line of thought can be found in Elizabeth Joh’s 2006 article “The Forgotten Threat: Private Policing and the State.”
As explained by Joh, the left was highly critical of the Pinkertons in the late nineteenth and early twentieth centuries for their role in combating striking workers and for being employed by private organizations. While federal police forces such as the FBI would work only in the “public interest” it was assumed, organizations like the the Pinkertons functioned at the morally base level of seeking “profit.”
The Pinkerton’s however, never functioned with the sort of firepower, manpower, and legal immunity enjoyed by federal agencies today. Indeed, in some cases, the Pinkertons surrendered to their “victims” as in the case of the Homestead Riot of 1892 where, according to Joh, “[o]utnumbered, the Pinkerton guards surrendered, and were beaten by an angry mob.”
Three workers were killed in the melee, making the Homestead Riot a peaceful affair by FBI standards. Under the leadership of the FBI, federal agents killed 17 times as many people at Waco, including children. However, unlike Waco, which produced no sanctions or sustained public reactions against the FBI, the Homestead Riot became the high tide for anti-Pinkerton scrutiny and a flashpoint for action against private security agencies. For example, following an investigation of private security agencies at the time, the US Senate’s investigatory committee declared that private security is illegitimate and that “use of private armed men is an assumption [that is, usurpation] of the State’s authority by private citizens.” Indeed, the Senate committee declared, the use of private arms to secure private property will lead to “anarchy.”
But note that the FBI did not come into existence until 132 years after the country declared its independence. This was because the founders never envisioned a federal role for law enforcement. It is not one of the “enumerated” duties of the federal government listed in the constitution.
There were reasons for that. Our founders were skeptical of a large federal government and, indeed, not even the “federalist” faction argued for a federal law enforcement role. The Constitution’s authors all assumed that most of the country’s governing would be carried out by state and local governments; the Federal government was created simply to take care of things that states were not well suited to do, such as maintaining a military, minting currency, and negotiating trade treaties. Indeed, for most of America’s first century, the highest law enforcement officer was the county sheriff.
Except for treason, the idea of federal crimes was not even mentioned in the Constitution. Our founders had a healthy fear of America turning into a tyrannical government such as those which existed all over the world at the time. They wanted to maximize freedom; hence the Bill of Rights. They assumed the creation of a federalized police force would make it far easier for the federal government to abuse the rights of its citizens. This is why neither the Constitution, the ratification debates, nor the Federalist papers ever mention anything about a federal law enforcement role. Nada. Nothing. Indeed, in Federalist No. 45, James Madison specifically singles out “internal order” as an “unenumerated power” that must “remain in the state governments.”
In the last few decades, Congress has created over 3,000 federal crimes, thereby undermining the authority of local law enforcement and ultimately making the federal government more powerful and more prone to corruption and tyranny. As the late Washington Times columnist Sam Francis wrote, “Over the last 30 years or so, the creeping federal incursion into law enforcement has yielded some 140 agencies at the federal level that have such a role… but everyone knows the federal engulfment of law enforcement has failed miserably to control crime and make the country safe. That’s because, by its very nature, effective law enforcement is local.”
And there’s no doubt that national police forces in other countries have been used to transition a country to a dictatorship. Historian William L. Shirer wrote in his famous history of Nazi Germany, The Rise and Fall of the Third Rich, “On June 16, 1936, for the first time in German history, a unified police as established for the whole of the Reich — previously the police had been organized separately by each of the states …the Third Reich, as is inevitable in the development of all totalitarian dictatorships, had become a police state.”
But the FBI has never seemed concerned about its growing powers. Indeed, in the aftermath of WWII, the FBI was so impressed with Hitler’s police state, they secretly hired hundreds of Nazis as spies and informants. As Rutherford Institute president and conservative civil rights lawyer John Whitehead writes, the FBI “then carried out a massive cover-up campaign to ensure that their true identities and ties to Hitler’s holocaust machine would remain unknown. Moreover, anyone who dared to blow the whistle on the FBI’s illicit Nazi ties found himself spied upon, intimidated, harassed and labeled a threat to national security.”
But long before the rise of Hitler, America’s founders understood that the more locally controlled law enforcement is, the more accountable they are, whereas, a federal police force tends to be abused by a central government and is largely unaccountable to local and state governments. Indeed, it is unsettling to review the long list of incidents in which the FBI abused the rights of Americans and was clearly used by one political faction or another to carry out police state-like tactics.