I see the problem very, very clearly.
It's a problem of anachronism.
Everyone is thinking of today, and there are certain features of today that did not exist in 1787.
Here is one: professional police forces. There weren't any police forces in 1787.
And here is the second: sovereign immunity. There was sovereign immunity in 1787, of course, but it only applied to the sovereign. The STATE could not be sued by somebody, unless the state agreed to it.
But here's the real rub: it was not until the 20th Century that OFFICERS of the state became "the state" for the purposes of sovereign immunity.
So, let's see how this plays out today, our frame of reference, and how it played out then.
Today, there are large paramilitary organizations, state and federal, that monitor and investigate every act of life. There are traffic police, there are riot cops and SWAT teams, there is an FBI, a Secret Service, a CIA. And there is a large standing military to backstop all of that. The government inspects, watches, monitors life, and often jostles against individuals while investigating crimes. Indeed, today there are INVESTIGATORS, who full time, professionally, track criminals and seek to gather information to arrest them.
Not one of those things, not even a large standing army, existed in 1787. There were no police, no secret service, no investigators, no intelligence operatives. Nothing and no one watched anybody. The state couldn't have afforded it if it wanted to, and it didn't want to. There were sherriffs, elected officials, and they sometimes deputized people (meaning: bestowed on them certain powers, including the power to arrest under force). And that was the entirety of law enforcement, other than customs agents. The only sort of "police" as such were the folks who tried to enforce customs duties. And we should remember that in the era before the income tax or even very widespread property or sales taxes, the primary source of revenue for American government was import duties and tarriffs. So, customs officers were the ONE sort of established police force, and they were, effectively, the IRS of old. But there was no paper or anything else.
These are two different worlds.
Our world cannot imagine living without police forces.
But to the men of 1787, the New York City Police Force would BE a "standing army", which they loathed. Remember that there was no distinction in that age between the top-end military weapons (other than cumbersome cannon) and a regular gun that anybody might have. A "Standing Army" was a bunch of guys standing around with guns, paid for by the sovereign. TODAY, all of these different armed forces are professionalized and specialized, but back THEN, all of todays POLICE FORCES would have been considered "Standing Armies", and were utterly anathema to the whole mindset of the people.
So, that's the first anachronism that shows the passage of time. POLICE FORCES ARE STANDING ARMIES. If one wishes to return to the ORIGINAL MEANING of the Founders, one would have to abolish all federal, state and local law enforcement agencies. NOT JUST the Army, but also the NYPD and the LAPD and the state police, and let all law enforcement be done by an elected sherriff who deputizes his buddies. THAT was colonial law enforcement.
A police force IS an army, circa 1787.
In 2005, we cannot possible live without police forces. We are not rural and spread out. There are 300 millions of us. The population of any given large American city exceeds the population of the entire original 13 states. The population of New York City exceeds the population of the British Empire in 1776. The population of the United States exceeds the population of all of Europe in the Napoleonic wars. Small rural communities don't need police. Megalopoli do.
So, now that we've stripped away one huge difference between then and today, we need to hone in on the second: sovereign immunity.
Today, when the police arrest you, or when the government, from the postal agent to the tax collector, interferes with you, even if he is wrong you cannot sue him personally. You can sue the government. Sure, if the cop commits some sort of gross crime and is ruled, by the government, to have not been in the line of duty, then he can be sued. But if he was in the line of duty, he is protected by government immunity. Today, you can sue the government, but you CANNOT sue individual civil servants.
Note, then, that if today a prosecutor or policeman abuses his power, you can go after the state, but you cannot go after him.
Back then, the opposite was the case. The government was sovereign. The sovereign was immune from lawsuit. So, if a sherriff or customs agent burnt down your house negligently during a search, you had absolutely no recourse against the government that paid him. None. The government was immune to lawsuits, except insofar as the law suffered the government to be sued.
On the other hand, the individual officers of government were NOT "the government". They were individuals, who acted in their individual capacities, under a writ of authority from the government. Which meant that if the sherriff burnt down your house, you had no recourse against the government, but he had no special protection whatsoever, at all, as an agent of the government, against his acts. You sued HIM.
Today, you cannot sue the cop who stops you for slander if he says something nasty to you that someone overhears. He is protected by sovereign immunity. You can sue the city for some sort of rights violation, maybe, or pain and suffering, or slander, whatever.
Back then, the government was immune from suit for absolutely ANY act of its agents. But the agent was just a private citizen, as eligible for being sued as anybody else.
It is often said that the cops NEED to have sovereign immunity, because otherwise they would be hindered from zealously pursuing their duties because of fear of lawsuit. That is not mere speculation. That was the original condition of America. If some public official came into your house without a warrant, you sued him directly. If he lost, you took his personal property through the courts. Obviously that would have a VERY chilling effect on law enforcement.
1787 was a different world from today.