Close readers of the Faculty Lounge may recall seeing a post by me about Saul Cornell's recent article in the Yale Journal of Law and the Humanities on originalism. Now we have a guest post by Saul Cornell, the Paul and Diane Guenther Chair in American History at Fordham University.
In a recent post at Library of Law and Liberty Mike Rappaport writes:
First, it is not clear that the police power concept was in existence as a concept in 1789. They certainly limited rights by these types of considerations, but it is not at all clear that they had a understanding of those considerations as a singular police power. More work needs to be done on when this concept emerged, but my sense is that it emerged in the first half of the 19th century. Thus, the police power may make good sense as a matter of political theory, but not of originalist constitutional law, at least for the initial Constitution and Bill of Rights enacted in 1789-1791. (The 14th Amendment may or may not be another matter.)
Rappaport is dead wrong about the history and his claim ought to raise a red flag about the entire “original methods” variant of originalism. Rappaport believes that we need some work on this topic. In fact, we have such a work, William Novak’s book, The People’s Welfare. The first chapter of this important study deals with the origins of the police power and looks at a number of Founding era sources.
Although the phrase “police power” was not all that common in the Founding era, the concept was frequently invoked. The 1776 Pennsylvania Constitution affirms "III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same." St George Tucker's chair at William and Mary was in law and police. Tucker’s Blackstone has a number of references discussing the regulation of “internal police.” The following passage from a Revolutionary era essay by Hamilton also invokes this concept.
Our Legislatures are confined to ourselves, and cannot interfere with Great Britain. We are best acquainted with our own circumstances, and therefore best qualified to make suitable regulations. It is of no force to object that no particular colony has power to enact general laws for all the colonies. There is no need of such general laws. Let every colony attend to its own internal police, and all will be well. How have we managed heretofore? The Parliament has made no general laws for our good, and yet our affairs have been conducted much to our ease and satisfaction.
Hamilton also used the term in Federalist No. 17 when he wrote: “The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition.”
If Rappaport is truly interested in the original methods of the Founding era it is strange that he missed one of the central concepts of 18th century law. Jack Balkin’s analysis of this version of originalism seems apt. “McGinnis and Rappaport are not always very clear about what these original interpretive methods are.”
I think Balkin’s critique of original methods originalism is on the mark. Indeed, if applied in a rigorous manner original methods originalism would have to start as an exercise in intellectual history. Given that few originalists seem aware of the basic methods of intellectual history, and don’t always seem fully versed in Founding era interpretive practices, original methods originalism seems more ideology than methodology at this point.