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March 19, 2012

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David Bernstein

As I pointed out previously, and is even clearer now, Rappaport is saying that the police power as we no it as a legal doctrine in the context of constitutional law (the original context of his post about Epstein) didn't exist at the Founding, not that states weren't thought to have the authority to enact "police" regulations. Nothing you've written contradicts the point, which means you are arguing past Rappaport, not against him. Otoh, if you could find a state constitutional law case or other constitutional source fromthat period in which someone states that an assertion of constitutional right fails or should fail because the law in question was within the "police power", then you would have counter-evidence.

Saul Cornell

David's comment is very helpful, but I would flip the argument on its head. We have ample evidence of a robust police power from the Founding era. (This was certainly a legal doctrine. Tucker's gloss on Blackstone makes that quite clear.) What we don't have much of evidence of is a robust view of rights as trumps in the Founding era. Bill Treanor and Bill Nelson's work in this area suggests that this notion was relatively weak in the Founding period. Rappaport may have it backwards, the police power was well established, but a modern conception of rights was still inchoate.

Ben Barros

I posted this on Mike's most recent post, and will also post it here:

Speaking of research, I have a fairly comprehensive treatment of the origins of the police power in this article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=742712

See pages 473-498. It even talks about Epstein. This was my first article, and so has some flaws, but I think that this part holds up pretty well. There is an important difference, I think, between the existence of the police power and the constitutional concept of the police power. As Novak and others show, a fairly comprehensive regulatory power was recognized in early America. The term "police power" has its origins in Marshall court federalism cases. Shaw's use of the term in Alger is important because it links the broad conception of state power reflected in these federalism cases with the traditional state regulatory power.

saul cornell

Ben,

Thanks for the thoughtful post and pointer to your article. I agree that the term "police power" was not a locution one finds in Founding era legal discourse. It is also clear that the Founding generation did not approach any question of rights, including the tension between rights and state regulatory power over internal police, in the same way as modern courts. So the question is are we having a semantic debate or a debate over law. Put in another way can we speak of a "police power" as a legal construct before the 19th century? Would we call Blackstone's discussion of government power to regulate in matters of internal police an inchoate treatment of the police power? I am curious what David and Ben think?

Ben Barros

Saul,

I think it depends on what we mean when we ask "can we speak of a 'police power' as a legal construct before the 19th century." There seems to have been a fairly robust power to regulate in early America. And the word "police" was widely used to refer to civil society and to government power. As an example of the later, consider the remarks of Mr. Sherman of Connecticut in the Constitutional debates. Sherman proposed giving the federal government the authority "to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the government of the individual states in any matters of internal police which respect the government of such states only, and wherein the general welfare of the united States is not concerned." (See my Police Power article noted above, p. 476 n.23). This use of "police" is consistent with other examples from the era that seem to refer to the residuary sovereignty that the states retained after granting limited powers to the federal government. So I think it is fair to say that at the time of the founding, there (a) were exercises of regulatory power that we would now call exercises of the police power and (b) were uses of “police” to refer to government power.

I think, though, that “police power” as an American constitutional law concept came later. As I noted above, the term “police power” was introduced by the Marshall court in federalism cases like Brown v. Maryland and Mayor of New York v. Miln. It was more fully developed in similar Marshall and Taney court cases like Prigg v. Pennsyvania and the License and Passenger cases. In these cases, “police power” was not used in a solely regulatory sense, although examples of regulatory power were frequently featured in the discussion. Justice Taney’s language in the License Cases is a good example: “But what are the police powers of the state? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same powers; that is to say, the power to govern men and things within the limits of its dominion.” So for Taney, “police power” was a synonym for state sovereignty.

Alger was important because it linked this very broad concept of a “police power” with the traditional exercises of regulatory authority by the states. In the late 19th century, “police power” was generally used in the discussion of constitutional limits on regulatory power, and so the term tended to take on a more regulatory meaning. Constitutional limits on regulatory power were controversial before Alger, and have been controversial ever since. One strategy to limit government regulation was to argue that the police power had subject matter limitations. This strategy is generally unsuccessful today, and the states are understood to have a plenary police power. Another was to argue that the police power did not have subject matter limitations, but that is subject to specific constitutional limitations, such as the takings clause. This strategy still has some traction in contemporary regulatory takings jurisprudence, and in other contexts such as First Amendment cases.

So to me, the legal construct of the “police power” has evolved over time. There is a good argument that the core elements of our contemporary understanding of this power were present in the founding era. As is often the case, though, the precise answer to our question might vary based on what, exactly, we are asking.

Ben

Ben Barros

I forgot to address your question about Blackstone. I think that this is consistent with both the early American usage of "police" and the founding era understanding of a sovereign power to regulate. Whether this is an inchoate discussion of what we mean by the police power depends on exactly what we mean by "police power". But generally speaking I think the answer is "yes".

David Bernstein

My understanding basically tracks Ben's with the caveat that my own research focuses on a later era.

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