State Police Power

Author:Harry N. Scheiber

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The POLICE POWER of the STATES is one of the most important concepts in American constitutional history; yet, like PRIVACY or FREEDOM OF CONTRACT, its historic significance

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derives from usage and application, not from the language of the Constitution itself. Nowhere in the Constitution does the term appear.

In his Commentaries on the Laws of England (1769) WILLIAM BLACKSTONE provided a definition of public police as "the due regulation and domestic order of the kingdom, whereby the inhabitants of the State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." Some of the early American treatises quoted this definition, but in fact it serves badly as a guide to constitutional doctrine and governmental realities in the United States in the 1790s or the early nineteenth century. Nor was the Supreme Court much more effective in providing guidance as to the substance and limits of the police power. Chief Justice JOHN MARSHALL verged perilously near outright tautology in GIBBONS V. ODGEN (1824), when he referred to the police power of the states as "that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general [national] government," and as the "acknowledged power of a State to regulate its police, its domestic trade, and to govern its own citizens." Left entirely open, of course, was the matter of what indeed had not been "surrendered" in the way of state powers as well as the matter of what was "acknowledged" as a legitimate part of residual state SOVEREIGNTY in light of the Constitution. The Court itself, clearly, would acknowledge positive powers and define the terms of "surrender." As late as 1847, in his opinion in the LICENSE CASES, Chief Justice ROGER B. TANEY was referring to the state police power in terms that hardly improved upon Marshall's, so far as specificity was concerned, but that at least had a more positive (if not to say sweeping) rhetorical thrust: that power was, Taney declared, "nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions." Not until the post-CIVIL WAR years, when FOURTEENTH AMENDMENT litigation paraded state regulatory laws before the Supreme Court for review, did the Court begin to grapple more tellingly with the problem of definition. Even in contemporary times, however, fitting the police power into the constellation of constitutional ideas has remained one of the Court's most perplexing concerns. There was as much critical acumen as despair in Justice WILLIAM O. DOUGLAS'S plaint, in Berman v. Parker (1954), that "an attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts." In the last analysis, Douglas contended, "the definition is essentially the product of legislative determinations.?"

The Marshall and Taney approach to definition of the police power was sufficient, in a sense, because it sought only to place some sort of label on the powers that remained with the states once the Court had determined the legitimate reach of the CONTRACT CLAUSE and of the COMMERCE CLAUSE; the police power was what the states had left when such determinations had been made. From the standpoint of state lawmakers, however, the approach of the two great Chief Justices was not at all sufficient. First, it did not make even the most basic conceptual distinctions among the fundamental types of governmental power; and so defining the police power as coextensive with sovereignty meant that police subsumed the powers of taxation and EMINENT DOMAIN. Second, the Marshall-Taney approach did not come to grips with power and its legitimate reach in a positive sense. What were the sources of state authority in its exercise of sovereign power? On what basis could a state court, for example, weigh the legitimacy of a regulatory law (even if clearly not beyond the bounds set by federal contract clause and commerce clause rules) against state constitutional limitations such as those prohibiting TAKINGS without JUST COMPENSATION ?

It fell to one of the nation's greatest state judges, Chief Justice LEMUEL SHAW of Massachusetts, to produce a doctrinal exposition on the police power that would establish the framework for subsequent adjudication and debate. Shaw's formulation was set forth in Commonwealth v. Alger (1851), in which the Massachusetts high court upheld as a proper exercise of "the police power" (so explicitly called) a statute that forbade construction of any wharf in specified areas of Boston harbor. Shaw's great achievement was twofold. He broke out of the cul de sac to which Marshall and Taney had driven, addressing the legitimacy of the police power in terms liberated from boundaries set by commerce and contract clause doctrine; and he offered a jurisprudential foundation for positive governmental action.

Shaw conceded at the outset that the police power challenged head-on any efforts to tame it and bring it within bounds. Yet, while it was "not easy to mark its boundaries, or prescribe limits to its exercise," the police power must be acknowledged as superior in some reasoned way to private rights and claims. It was so, Shaw contended, as "a settled principle, growing out of the nature of well-ordered civil society." And so he turned to the task of giving substance to what the Supreme Court had lately termed "the police power belonging to the states, in virtue of their general sovereignty" (Justice JOSEPH STORY in PRIGG V. PENNSYLVANIA, 1842). One of the foundations of that power was the COMMON LAW rule sic utere tuo ut alienum non laedas (use your own property in such manner as not to injure that of another). Historically, the rule had been invoked to justify private nuisance and PUBLIC NUISANCE actions alike; in either way, however, it had been used in essentially defensive modes. Shaw linked the sic utere concept

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with a positive obligation of government to impose a system of reasonable restraints on private property uses. "Rights of property," he contended, are properly subject "to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient." As Leonard W. Levy, the biographer of Shaw, has shown, Shaw thus advanced doctrine well beyond the old common law framework; although Shaw held out the possibility of judicial overturning of laws that were not "reasonable" and violated private VESTED RIGHTS, he stressed the propriety of the legislature's acting when necessary and expedient to impose restraints for the public good.

But Shaw also undertook to define a related, yet in some measure conceptually distinct, foundation for the police power: the concept of "rights of the public." Thus Shaw insisted on the "expediency and necessity of defining and securing the rights of the public," and elsewhere on "the acknowledged public right." Even acts not necessarily punishable by common law might properly be declared illegal by regulatory legislation, Shaw wrote, "for the sake of having a definitive, known and authoritative rule which all can understand and obey." Thus, from the Shaw court in 1851, American police power doctrine emerged in its essentials. As in an earlier decision in 1837 (Commonwealth v. Blackington), Shaw asserted the legislature's power to act for the public good to be "the general rule," whereas restraint of the legislature should be the "specific exception."

The next step in elaboration of police power doctrine was the specification of positive purposes, more detailed than the public good or "rights of the public" broadly stated, for which the power would justify regulatory legislation. Early efforts at specification along these lines, before Shaw reformulated the whole issue, had tended simply to codify the common law categories of behavior and property uses constituting nuisance. (Such, for example, is what one finds in Chancellor JAMES KENT'S Commentaries.) Here again, the arsenal of the common law held an instrument potentially powerful?the principle salus populi suprema lex (the welfare of the people is the supreme law), which in the seventeenth and eighteenth centuries in England had often been invoked to assert the plenary powers of Parliament restricted only by accumulated constitutional liberties. In an influential Vermont decision, handed down three years after Shaw's great effort, Chief Justice Isaac Redfield declared that "the general comfort, health, and prosperity of the State" warranted state regulatory powers on the same basis of power as "re-sides in the British parliament, except where they are restrained by written constitutions" (Thorpe v. Rutland Railroad, 1855).

In some other state courts, judges proved reluctant to endorse wholly such broad definitions...

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