Police Power of the State
The term ‘‘police power’’ is usually defined as a broad power to legislate for the health, safety, order, and morals of the public and includes civil and criminal powers. State constitutions generally delegate such powers, leaving it to the discretion of the state legislature to exercise its judgment on how best to do that, restrained only by political pressures from voters. Since such legislation normally requires only a simple majority to adopt, this has often led to legislation that operates to the disadvantage of individuals and minorities. Such abuse was part of the motivation for the Fourteenth Amendment, which was intended to extend the jurisdiction of federal courts to cases between a citizen and his state that involved a federally protected right and delegated to Congress the power to legislate civil and criminal remedies for such abuses of rights.
Prior to the twentieth century, general police powers were usually held to be confined to the states and, for the federal government, to its nonstate territories and enclaves created under U.S. Const. Art. I Sec. 8 Cl. 17. Starting with New York v. Miln (1837) the Supreme Court developed the notion of state police powers that exempted states from the reach of the commerce clause. Thus, under the police powers doctrine, antebellum states were able to regulate the sale of liquor and the influx of poor immigrants. The slave states asserted their police power to prohibit free blacks—even those who were citizens of other states or foreign nations—from entering their jurisdiction. Similarly, the northern states asserted their police powers to emancipate the slaves of visiting masters to pass personal liberty laws to protect their black residents from being kidnapped or seized as fugitive slaves. However, for about the last 100 years, Congress has increasingly been asserting the power to legislate police powers on state territory, usually on the alleged authority of the commerce clause and the necessary and proper clause, the interpretation of which has been extended to include almost anything. This has led to the adoption of criminal legislation that would previously have been deemed unconstitutional.
Many of the cases before the federal courts that invoke the Fourteenth Amendment against a state are complaints about the exercise by the state of its claimed police powers. Most of these cases, following a line of precedents that emphasize the equal protection and due process clauses of the Fourteenth Amendment and ignore or deprecate the privileges and immunities clause and the Ninth Amendment, have resulted in overturning or restricting the application of many state statutes and practices. They have also brought the doctrine of ‘‘rational basis’’ as a test for whether the statute or practice is reasonable, pursuant to a legitimate public interest, and not an undue burden on the exercise of a protected public right. Thus, state police powers are coming to be seen as not plenary.
This has, however, provoked many persons to complain that such federal court decisions infringe on the reserved powers of the states and threaten the federal system of divided power between state and central governments. The argument is that, even if the states infringe a right, it is better that the federal courts not intervene and, by not intervening, compel dissatisfied parties to use the political process to enact reforms at the state or local level. They express fears that it is unhealthy for people to become too dependent on the federal courts for redress. This has led to many recent decisions of the U.S. Supreme Court to defer to states or decline to intervene, even when it would seem logical it should, on constitutional grounds, making a prudential rather than a constitutional determination that it is unwise to intervene when the political processes to remedy the complaint at the state level are available.
One of the effects of ever broader exercise of such police powers by states has been to depart in significant ways from the standards established for criminal prosecutions in the common law tradition. This tradition prescribed that to convict someone of a crime, the state had to prove guilt beyond a reasonable doubt, to a jury of twelve, which had to render a unanimous verdict on five elements:
mens rea, or criminal intent actus reus, or actual commitment of the act
concurrence of mens rea and actus reus in location and time
harm done to some actual victim causation of the harm by the act
These elements are for offenses that are mala in se, or inherently bad, but state police powers have been invoked to adopt legislation to make some things mala prohibita, or bad because they are prohibited, and to relax the requirements for all of the elements listed previously. Behaviors that cause no demonstrable injury to individuals have been made subject to criminal or civil penalties because they offend a prevailing view of what is moral or in good taste, present a nuisance, reduce property values, or appear to pose a risk of future public injury based on a theory of risk that may not be scientifically valid. While people in the founding era were certainly familiar with laws that imposed civil penalties not for past acts but to prevent possible future injury, they were generally adverse to imposing criminal penalties for preventive purposes. This was discussed by Charles de Montesquieu in his treatise, Spirit of Laws, under the topic of ‘‘sumptuary laws,’’ which he held to be bad public policy and likely counterproductive, even if well-intended.
The ‘‘police powers’’ are the broad powers of regulation. As stated in Lawton v. Steele, 152 133 (1894):
The extent and limits of what is known as the ‘‘police power’’ have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance.
The police powers are a power of the state (and its local county and municipal manifestations.) In U.S. v. Knight Co., 156 U.S. 11, the Court declared:
It cannot be denied that the power of the state to protect the lives, health and property of its citizens and to preserve good order and the public morals, the power to govern men and things within the limits of its dominion, is a power originally and always belonging to the state, not surrendered to the general [federal] Government, nor directly restrained by the Constitution of the United States, and essentially exclusive.
The potential for conflict between the police powers and fundamental rights is an ongoing area for controversy. This appears in the case of Reynolds v. United States (98 U.S. 145, 1878). Reynolds was a Mormon man who claimed that he had a religious duty to commit polygamy, even though this was outlawed by a federal statute. The Supreme Court ruled against Reynolds and, in the opinion of the Court, Chief Justice Waite stated,
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
In the case of Gitlow v. New York, 268 U.S. 562 (1925), Benjamin Gitlow, the appellant and a member of an American communist organization, was indicted and convicted of ‘‘criminal anarchy.’’ This case arose as part of the ‘‘red scare,’’ an intense fear of Communism spreading to the United States during the 1920s and 1930s, motivated in large part by opposition to labor unions. Gitlow held that the statute ran contrary to the due process clause of the Fourteenth Amendment. In the opinion of the Court, Justice Stanford held that though the First Amendment protects the freedom of speech and press as fundamental rights and liberties, these rights are not absolute and can be abridged in the interest of preserving the government or cultural identity of the United States. The main effect of the decision, however, was to incorporate the First Amendment under the Fourteenth Amendment.
In the case of Stanley v. Georgia, 394 U.S. 561 (1969), the Supreme Court reversed a lower court conviction for knowing ‘‘possession of obscene material.’’ Justice Marshall delivered the Court’s opinion, which stated that the First Amendment ‘‘prohibits making the private possession of obscene material a crime.’’ Justice Marshall went on to state that the mere fact that the materials were considered ‘‘obscene’’ was not enough of a justification to invade the personal rights of citizens that possess them. In this decision, the justice makes the bold claim that the state is not interested in what is morally right (a concept that would later be expounded in Lawrence v. Texas, U.S. 123 S.Ct. 2472, 2003) by stating that:
Yet in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment.
In the Court’s opinion in Lawrence v. Texas (2003), Justice Kennedy made the point that ‘‘freedom extends beyond spatial bounds,’’ and that ‘‘liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.’’ Justice Kennedy’s opinion makes it clear that the people of the United States should be free to choose and pursue their preferred way of life. This decision also made it clear that mere appeals to morality were not enough to restrict a person’s liberties, and that the only clear outer boundary to personal liberties would be the harming of a nonconsenting party. This was of particular importance because homosexuality is widely held to be immoral and is a controversial topic among many Americans, particularly those of strongly conservative religious convictions.
We need a doctrine to identify those powers that the people of the states may, if they choose, delegate to their state governments by means of their state constitutions without violating the Constitution of the United States. The most obvious power of states that follows from the original meaning of the privileges or immunities clause is the power to prohibit any violations by some citizens of the liberties or rights of other citizens. In addition to the power of prohibiting wrongful conduct, the power of states may also properly include the power of regulating rightful behavior.
In 1868, the same year in which the Fourteenth Amendment was enacted, the first edition of Thomas M. Cooley’s A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the United States of the American Union was published. Cooley sought to address the question of ‘‘conflict between national and State authority’’ as well as the question of ‘‘whether the State exceeds its just powers in dealing with the property and restraining the actions of individuals.’’ The answers to these questions turned on the content of the police power, which he defined in light of previous judicial opinions as follows:
The police of a State, in a comprehensive sense, embraces its system of internal regulation, by which it is sought not only to preserve the public order and to prevent offences against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.
After Cooley, the leading nineteenth-century theorist of the police power was Christopher Tiedeman. In his 1886 Treatise on the Limitations of Police Power in the United States, he repeatedly relied on the power to prevent rights violations to identify reasonable and therefore constitutional exercises of the police power. To explain the police power and its limits he began with the concept of natural rights:
The private rights of the individual, apart from a few statutory rights, which when compared with the whole body of private rights are insignificant in number, do not rest upon the mandate of municipal law as a source. They belong to man in a state of nature; they are natural rights, rights recognized and existing in the law of reason.
Tiedeman contended that legislation prohibiting gambling ‘‘would be open to serious constitutional objections. Gambling or betting of any kind is a vice and not a trespass, and inasmuch as the parties are willing victims of the evil effects, there is nothing that calls for public regulation.’’ According to this view, ‘‘ [n]o law can make vice a crime, unless it becomes by its consequence a trespass upon the rights of the public.’’ For Tiedeman, the protection of rights is the measure of proper police power regulations.
Tiedeman discusses at some length why temperance laws were not only bad policy, but also beyond the state’s police power. ‘‘[N]o trade can be subjected to police regulation of any kind,’’ he wrote, ‘‘unless its prosecution involves some harm or injury to the public or to third persons, and in any case the regulation cannot extend beyond the evil which is to be restrained.’’ Moreover, ‘‘no trade can be prohibited altogether, unless the evil is inherent in the character of the trade, so that the trade, however conducted, and whatever may be the character of the person engaged in it, must necessarily produce injury upon the public or upon individual third persons.’’ The implication of this argument is that it is beyond the police power to license occupations, for that is tantamount to prohibiting the occupation unless it is permitted.
After a lengthy examination of the effects of the use and sale of alcohol, Tiedeman concluded that prohibition was not constitutionally justified under these principles of the police power. ‘‘[T]he liquor trade can not ... be prohibited entirely, unless its prosecution is essentially and necessarily injurious to the public. Even the prohibition of saloons, that is, where intoxicating liquor is sold and served, to be drunk on the premises, cannot be justified on these grounds.’’ Although the courts of his day rejected this view, Tiedeman contended that it was ‘‘the duty of a constitutional jurist to press his views of constitutional law upon the attention of the legal world, even though they place him in opposition to the current of authority.’’
How can a proper regulation of rightful activity be distinguished from an improper abridgment of the private rights of the people? As with the federal laws, the key is whether state laws are a pretext for purposes other than the prevention of future or rectification of past rights violations. Charles Bufford, in ‘‘The Scope and Meaning of Police Power,’’ said, ‘‘[A] regulation in the exercise of the police power must not be unreasonably or unnecessarily burdensome, and must have some appreciable tendency towards accomplishing a result within the scope of police power.’’ One sign that a law is pretextual is when it benefits a particular group rather than the general public.
Glenn Reynolds and David Kopel summarize the contrast between the position of Tiedeman with that of another legal scholar, Ernst Freund, as follows: ‘‘[T]he traditional view, espoused by Tiedeman, was that state power could legitimately be employed to protect individuals from direct harm; the newer view, represented by Freund, was that the state could regulate even to permit harms that might not occur, or that might not have been considered a harm at all by the common law.’’ Reynolds and Kopel note, however, that even Freund, ‘‘the expositor of the broad police power theory that dominated legal thought in the twentieth century, emphasized that judicial review was still essential.’’ As Freund put the matter:
Effective judicial limitations on the police power would be impossible, if the legislature were the sole judge of the necessity of the measures it enacted.... [T]he maintenance of private rights under the requirements of the public welfare is a question of proportionateness of measures entirely. Liberty and property yield to the police power, but not to the point of destruction.... The question of reasonableness usually resolves itself into this: is the regulation carried to the point where it becomes a prohibition, destruction, or confiscation?
This position would therefore seem to argue against court deference to legislative findings, including the deference of federal courts to the findings of state courts or legislatures. The state may regulate, as opposed to prohibit, a rightful exercise of liberty, but such a regulation would have to be shown to be necessary to the protection of the rights of others. A bare assertion that the conduct in question is immoral is inadequate.
References and Further Reading
- Barnett, Randy, The Proper Scope of the Police Power, Notre Dame Law Review, 79 (August 21, 2003). https://ssrn.com/abstract¼437201.
- Becraft, Lowell, Jr., Limits of Congressional Powers, https://www.constitution.org/becraft/limits1.htm.
- Bufford, Charles, The Scope and Meaning of Police Power, California Law Review 4 (1916): 269–272.
- Cooley, Thomas M. A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Powers of the States of the American Union, 1868, 1883.
- de Montesquieu, Charles. The Spirit of Laws, 1748, tr. Thomas Nugent 1752.
- Finkelman, Paul. An Imperfect Union: Slavery, Federalism, and Comity. Chapel Hill: University of North Carolina Press, 1981.
- Freund, Ernst. ‘‘The Police Power.’’ Public Policy and Constitutional Rights 6 (1904).
- Hastings, W. G. ‘‘The Development of Law as Illustrated by the Decisions Relating to the Police Power of the State.’’ Proceedings of the American Philosophical Society, 39 359 (1900): 359–360.
- Morris, Thomas D. Free Men All: The Personal Liberty Laws of the North, 1780–1861. Baltimore, MD: Johns Hopkins University Press, 1974.
- Reynolds, Glenn H., and David B. Kopel, The Evolving Police Power: Some Observations for a New Century, Hastings Con. L. Q. 27 (2000): 512.
- Tiedeman, Christopher G. A Treatise on the Limitations of Police Power in the United States: Considered From Both a Civil and Criminal Standpoint, 1886.