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March 13, 2012


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David Bernstein

The full quote from Rappaport suggests that your criticism may be misguided: "But is Richard correct that the right way to analyze constitutional provisions is to assume that they incorporate a background police power? I am skeptical for a couple of reasons. 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." It strikes me that Rappaport isn't necessarily saying that he doubts that a notion of police powers existed at this time, but rather that he doubts that the notion of a "police power", the way it was used in later constitutional law, as an inherent trump over claims of constitutional right, was yet in existence. I can't pinpoint the sources offhand, but I certainly recall reading legitimate works of history that argued that the concept of inherent state police powers, inherited by the states from Parliament and an inherent part of state sovereignty and exempt from standard constitutional limitation, didn't become firmly establishing until several decades into the 19th century.

Saul Cornell

David's point is an interesting one, particularly given his use of the term "trumps." There is an interesting body of scholarship on rights and judicial review in the Founding era. I suspect most scholars would not claim that courts routinely viewed rights as "trumps" at this moment. Pennsylvania disarmed people who refused to take an oath to the state and closed the theater because it was amoral. Neither the right to bear arms nor freedom of speech trumped the state’s power to regulate conduct.

David Bernstein

True, but things get further confused because Rappaport is talking about First Amendment rights, and the First Amendment specifically says that Congress shall pass "no law" infringing on the freedom of speech. So let's say we have a situation in which Congress is passing legislation for the federal territories, which means Congress is the sovereign, which means it has the equivalent of police powers. If it was acknowledged that the legislation did indeed impinge on the freedom of speech, would it have been an accepted response that the legislation was nevertheless valid because the legislation in question was "police" legislation? Complicating things even further, let's say Congress was acting within its enumerated power to, for example, run the post office. And let's say in 1791 post office regs. ban anti-slavery publications from going interstate, thus infringing on the freedom of speech. In 1791, could Congress have justified such regs. by claiming they were proper "police" regulation to prevent slave revolts and other violence?

Bill Novak

Hi David and Saul,
I can't resist jumping in. David, I don't really understand why you move so quickly into the world of historical hypotheticals and thought experiments in your response to Saul, especially since one of Saul's main points is the degree to which many of these supposedly historical claims remain fundamentally ahistorical. So, three historical questions: 1) In your opinion, was there or was there not such a thing as a federal police police power before the Civil War? 2) How many times was the Bill of Rights actually used by the Supreme Court to strike down any act of Congress before the Civil War? 3) Did the Bill of Rights actually have anything at all to say about the extent of state police powers before the Civil War? I think the easy answers to those three actual historical questions might bear more weight on Saul's position than the historical counterfactuals that we all can imagine and speculate on ad nauseam.

David Bernstein

Bill, in answer to your questions: (1) do you mean a federal police power when the federal government is acting as sovereign as in federal territories, or a general federal police power? (2) I think this is the wrong question, because the world wasn't so Supreme Court-centric then. It would be more fruitful to look at the extent to which First Amendment arguments (or freedom of speech arguments more generally, regardless if they explicitly referenced the Bill of Rights) were invoked against things like the Alien and Sedition Acts, suppression of abolitionist literature by the USPO, and so forth; and (c) According to the Supreme Court, no. But a recent paper (I haven't reviewed the relevant cases) suggested that many state courts ignored Barron v. Baltimore (again, the world wasn't U.S.supreme court-centric), and did in fact hold that the Bill of Rights applied to the states.

But if you're broader point is that it's problematic to talk about the relationship between the First Amendment and the police power the way Epstein does, that's true as a historical matter, but it's also true that Justice Scalia, et al., when engaging in originalist inquiries regarding application of Bill of Rights to the states, have looked to the meaning of the Bill of Rights circa 1791, rather than the meaning of the underlying concepts, including the scope of the police power circa 1868. So I'm not an originalist, but if I were one, the cases Epstein was referencing should be determined according to original meaning in 1868, which would avoid the questions you were asking.

Meanwhile, my only point was simply that Rappaport could have recognized that there was such a thing as "police" regulations in 1789, while also pointing out that the more specific concept of the "police power" that put limits on the scope of constitutional rights developed later.

Saul Cornell

There is a lot of confusion built into the way these issues have been framed by the first two blog posts. The Epstein/Rappaport posts slide from recent case law to discussions about the historical roots of the police power. Although the phrase “police power” was not used in the Founding era I think the regulation of internal police was understood to be a power of the states and this power was quite robust. I must confess I also found Rappaport’s originalist turn odd. David is correct that there is something quite odd about this sentence: “But is Richard correct that the right way to analyze constitutional provisions is to assume that they incorporate a background police power?” This would have to be a question about incorporation of understandings in place in the era of the 14th Amendment, not the Founding era. Also, the issue would not be incorporation of the police power, but the impact of incorporation on the state’s police powers. As far as David’s counter-factual thought experiment is concerned, it is interesting, but I agree with Bill that counter-factuals may not tell us anything useful about the actual history in this case. The dynamics of the slavery debate in 1791 were too different to pose these questions in a genuinely historical manner.

Larry Rosenthal

Professor Rappaport's scholarship argues for an "original methods" originalism with framing-era practice given substantial weight as evidence of original meaning because it represents objective evidence of the likely intent of the framers. Starting from that premise, Professor Novak's work suggests that the orginal meaning of the original Constitution's provisions regarding regulagtory power (such as the Commerce Clause), the provisions of the Bill of Rights that are sometimes thought to limit that power, and the Fourteenth Amendment contemplated a good deal of government regulation, whether under the rubric of "police power" (a concept not much in evidence in 1791, but familiar by 1868) or otherwise. As Professor Novak has powerfully demonstrated, regulation of commercial activities was ubiquitous in the eighteenth and nineteenth centuries, and accordingly, if Professor Rappapport is correct that framing-era practice is powerful evidence of original meanin, such regulation should be upheld, at least on Rappaport-style originalist grounds. Even when it comes to speech, framing-era practice suggests that there was ample regulatory power, since the First Amendment was widely understood throughout the nineteenth century to incorporate a "bad tendency" test for regulating speech, compelling only recognition of a defense of truth. Again, if framing-era practice is indeed an "original method" of constitutional interpretation, then an enormous amount of regulation, both of speech and economic activity, should be regarded as constitutional.

Thus, I quite agree with Professor Cornell that Professor Rappaport's expression of doubt about the propriety of a robust regulatory power seems quite inconsistent with Professor Rappaport's own brand of originalism.

Larry Rosenthal
Chapman University School of Law

Michael Rappaport

I have responded to Professor Cornell's post at

Here let me just respond to Larry Rosenthal, who makes two errors here.
First, original methods originalism says that we should look to the methods that the enactors would have used to interpret the Constitution. It is not directly about considering framing era practices in other respects. Of course, if it turns out that the best way of understanding the original meaning is to look at framing era practices, then of course we should look at them.

Second, Larry seems to believe my post was about denying the government power to regulate. Not true. (Perhaps he was misled by Professor Cornell's misleading post.) So I do not commit the inconsistency he accuses me of. My point about Richard Epstein was a technical one about how we should analyze these matters, not about the results.

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