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P, Police Power.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 09 May 2021

Police Power.

For two centuries, judges and scholars alike have repeatedly affirmed that the (p. 741) concept of the “police power” resists a clear definition. Indeed, it seems that the leading characteristic of the police power is that its definition changes with shifting social economic realities and with changing political conceptions of the legitimate reach of governmental authority. “An attempt to define its reach or trace its outer limits is fruitless,” Justice William O. *Douglas asserted in *Berman v. Parker (1954), “for each case must turn on its own facts. … The definition is essentially the product of legislative determinations” (p. 32).

Early History.

In the eighteenth century, Anglo-American jurists treated police power as being virtually the entire authority, civil and criminal, exercised by government in the domestic affairs of the polity. On the few occasions when precise definitions were attempted, they tended to be either open-ended and vague; or else they were cast in homiletic terms that were of modest usefulness in forming principles of adjudication. For example, William Blackstone’s Commentaries described the police power as “the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners: and to be decent, industrious, and inoffensive in their respective stations.” Other jurists commonly equated exercise of the police power with the entire scope of “municipal law.”

Several of the first American state charters of rights and constitutions, adopted amidst the Revolutionary crisis, explicitly mentioned the police power (see state constitutions and individual rights). Thus, the 1776 declarations of rights in Pennsylvania, Vermont, and Delaware asserted that the people had “the sole, exclusive, and inherent right of governing and regulating the internal police” of the state. The Maryland declaration of 1776 similarly stated that “all government of right originates from the people, is founded in compact only, and [is] instituted solely for the good of the whole. … The people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof”—language also found in North Carolina’s declaration.

These statements clearly were intended to proclaim the legitimacy of the transfer of sovereignty—from the king in Parliament, now repudiated, to the newly erected state governments. Given the explicit underlying theory in the American constitutions that all power is derived from the people—and given that these charters were revolutionary documents, intended not only to provide for orderly transfer of authority but also to justify the renunciation of former loyalty to Great Britain—the references to the police power were regarded as positive, comprehensive grants of authority from the people to the new governments.

This is not to say, however, that there was a shared sense in Revolutionary America that the new authority of the state governments was to be plenary and unrestrained. On the contrary, the constitutional assertions of the police power were juxtaposed with specific provisions in the charters and constitutions that were designed to constrain and limit state governmental operations. Scores of specific limitations were spelled out in the bills of rights or other provisions of the new constitutions—the provisions that defined the great liberties (speech, press, religion) and dealt with due process in the traditional categories (jury *trial, *habeas corpus, security of property against uncompensated *takings). Such provisions gave to *state courts explicit guidance for purposes of judicial review of legislation or administrative acts. Typically, the state judges in their constitutional cases applied both these provisions and also the principles of *natural law with respect to basic rights.

It became one of the most challenging and politically sensitive tasks of the state appellate courts in the nation’s early period, however, to develop specific working doctrines that limited legislative power and executive authority. This process was slow because state judges were reticent to assert the power of judicial review in light of the eighteenth-century heritage of legislative supremacy, now given new claims to legitimacy by its populistic reformulation in the new republics. To substitute judicial judgment for the legislature’s was, in effect, to frustrate the will of the sovereign—that is, of the people. Indeed, it was not until the 1850s that a well-developed set of standards for review of police regulations began to emerge in the state courts.

The Supreme Court and Emerging Police Power Doctrines.

Meanwhile, it became necessary for the Supreme Court to develop a body of law bearing on the police powers of American government. This process had three distinctive elements.

First, the Court had to decide whether the national *Bill of Rights applied to the states. The Court managed for four decades to avoid confronting this issue directly, mainly because it relied upon other provisions of the Constitution, especially the *Contract Clause, to invalidate state legislation that trenched on private *vested rights. Finally, however, in the decision of *Barron v. Baltimore (1833), despite the prevailing nationalist bent of the Marshall Court’s decisions, the justices ruled that the national Bill of Rights was not (p. 742) applicable to the states. This interpretation stood until the adoption of the *Fourteenth Amendment.

The second great doctrinal question was more complex and became the linchpin of the Court’s entire jurisprudence on principles of *federalism until 1861. The issue was: to what extent was the state police power, or *state sovereignty, curbed by specific provisions of the federal Constitution limiting state action? The Court needed to develop a set of standards by which the Commerce Clause, the Contract Clause, the Supremacy Clause, and the guarantee of republican government in the states could be applied to determining the constitutionality of state legislation and common-law rules (see commerce power; guarantee clause). The Court’s changing definitions of interstate commerce, of the obligation of contract, and of the reach of the Supremacy Clause all served to define the boundaries between state authority and national power.

The position of the Court on these issues changed, over time, with shifting majorities. The Court’s basic orientation, however, was consistent: it was to concern itself with drawing the boundary line rather than bothering much with the doctrinal content of the police power. Thus, in *Gibbons v. Ogden (1824), Chief Justice John *Marshall 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 government” (p. 202). Chief Justice Roger B. *Taney in *Charles River Bridge v. Warren Bridge (1837) and in a series of Commerce Clause cases tended to speak even more broadly of the states’ police power. Thus, in the *License Cases (1847), he defined it as “nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions” (p. 582).

In several taxation and *eminent domain decisions, without specifically distinguishing these powers from the police power, the Court also ruled on the question of inalienability of state sovereign powers. Beyond that, however, the antebellum Court left the major issues of definition, including the issue of basic constitutional limitations, to the state courts.

Over time, a third important constitutional issue emerged before the Supreme Court. It concerned the proper reach of the national government’s own police power. The phrase “police power” does not appear in the Constitution. Yet the Constitution not only vests in the Congress the specific enumerated powers of section 8 but also refers in the Preamble to the basic purposes of the Union, “to … promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Over the course of its history, the Court has handled this third question with strong attention to interpretation of the Commerce Clause—by inquiring how far the federal regulatory power can reach, as being justified by the power to regulate interstate commerce. But the Court has also been much concerned, of course, with interpreting the Bill of Rights limitations on the procedures of the national government. In more recent times, the Court’s interpretation of limits on the operations of a federal police power has depended critically upon its interpretation of Fourteenth Amendment requirements of *due process and *equal protection.

State Courts and Police Power.

In the antebellum state courts, judges gave more attention than did the Supreme Court to developing a legal view of the police power as being more than the residual of state powers that remained beyond the reach of federal preemption or judicial censorship. The leadership was taken by the Massachusetts High Court under Chief Justice Lemuel Shaw, whose opinion in Commonwealth v. Alger (1851) became the lodestone of police power adjudication in subsequent years. Although Shaw conceded that it was “not easy to mark its boundaries, or prescribe limits to its exercise” (p. 85), the police power must be subject to some clear constraints if the principles of “well-ordered civil society” and the rights of private property were to be given due protection. Shaw isolated several complementary standards for judging the legitimacy of economic and social regulations. First, there was the foundation in common-law rules of property use, especially the rule sic utere tu ut alienum non laedas (“use your own property so as not to injure that of another”). Second, the Alger opinion reasserted “rights of the public” as a positive consideration, fully as legitimate an interest as private rights in any calculus of constitutionality. And third, when regulatory legislation went beyond what common-law nuisance doctrines would have validated, the legislature must have authority to act upon what they deemed “necessary and expedient”—but the regulations must also be “reasonable,” and it was the function of the judicial branch to determine whether the reasonableness standard had been met (see also public use doctrine).

Other state courts offered standards by which state police powers should be judged. For the Vermont Supreme Court in Thorpe v. Rutland and Burlington Railroad Co. (1855), it was “the general comfort, health, and prosperity of the State”—a capacious definition indeed (p. 150). A judge of the Michigan Supreme Court, however, provided a narrower definition: a regulation could only be justified under the police power if it was “clearly necessary to the safety, comfort and well being of society” (People v. Jackson and Michigan Plank Road, 1861, p. 307). Other courts and legal scholars took (p. 743) positions along the spectrum of opinion between these two views.

The Conservative Era.

Adoption of the Fourteenth Amendment gave an entirely new context to police power cases before the Supreme Court. At first, the Court resisted efforts to invoke the due process provision of the amendment as a source for substantive review of the content of state regulatory legislation. In the *Slaughterhouse Cases (1873) and *Munn v. Illinois (1877), the Court’s majority upheld far-reaching state laws that affected the operations of important private economic interests.

Even Justice Stephen J. *Field, exemplar of the rising conservative jurisprudence, maintained in Barbier v. Connolly (1885) that neither the Fourteenth Amendment nor any other provision of the Constitution “was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and to add to its wealth and prosperity” (p. 31).

For Field—and, by the late 1880s, for the Court’s majority—this statement of the powers of state legislatures was meant to be a statement of limits, rather than a charter of plenary discretion. Thus, what Field termed “the ordinary avocations of life” (businesses and occupations outside the protected sphere of those “affected with a public interest”) should be immune from the reach of the state police power; and the power should not be upheld when used to establish monopolies, or to restrict “freedom to pursue an occupation.”

In the period from the 1880s to the *New Deal, the Court increasingly assumed the role of judicial censor of the state legislatures’ uses of the police power in important aspects of social and economic regulation. It did so by developing a set of doctrines that upheld vested private rights against the state’s regulatory authority—that is, by going beyond scrutiny of the procedural aspects of due process to apply a standard of constitutionality based on the justices’ scrutiny of legislative purpose and their assessment of the nature of private interests affected.

“Affectation with a public interest,” which the Court first embraced in Munn v. Illinois, was one of these key doctrines. It was designed to differentiate “ordinary” businesses (not regulable at all as to prices they might charge, or as to availability of services to the general public) from businesses of a more public character (hence regulable in all aspects). Applied on a case-by-case basis, the “affectation” doctrine produced inconsistent results, but clearly it had a dampening effect on states’ authority to bring business firms under regulatory regimes.

The Court also expanded the traditional doctrine of “reasonableness,” far beyond what Shaw’s opinion in Commonwealth v. Alger had invoked (see rule of reason). Thus in *Mugler v. Kansas (1887), the Court declared, first, that a regulation must be “for an end which is in fact public”; and, second, that the means adopted for its enforcement must be reasonably adapted to the accomplishment of that end. … If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution”. (p. 661).

In this doctrinal development, the Court’s move toward a censorial role was encouraged by the views of such respected treatise writers as Thomas *Cooley and Christopher G. Tiedeman, who urged that a robust theory of “constitutional limitations” was needed in the face of modern political demands for expansion of the regulatory state.

The most radical departure from earlier jurisprudence of the police power, however, was the acceptance by the Court of the “liberty of contract” doctrine as yet another limitation upon the states’ police power (see contract, freedom of). This came to full flower in the decision of *Lochner v. New York (1905), in which a divided Court overturned a statute restricting hours of work in bakeries. The Lochner majority acknowledged in the abstract the state’s authority to protect health, safety, and morality through legislation that abridged personal and property rights, but it concluded that the challenged statute in fact failed to address any of these valid ends. The statute thus was deemed “an illegal interference” with the rights of workers and their employers to contract freely with one another in the marketplace—rights protected under the Due Process Clause of the Fourteenth Amendment.

Meanwhile the Court developed important distinctions between the states’ police power (now increasingly defined solely in terms of the power to regulate economic and social relationships) and the powers of taxation and eminent domain (see state taxation). Even the conservative Court of the 1880s–1930s period was generally more supportive of expansive state taxing and eminent domain power than it was of the police power.

One of the continuing themes in the jurisprudence of the police power, in both state and national courts, has been the concern with *inverse condemnation—that is to say, with the question of when a “regulation” is of such character as to constitute, in fact and in law, a “taking.” This issue, regularly advanced by parties suffering loss from (p. 744) the imposition of regulations on their interests, is a vital one because takings, under terms of the *Fifth Amendment—decided by the Supreme Court in 1897 to be incorporated by the Fourteenth, and so applicable to *state action—require that the imposed losses of property be for a public use and that compensation be paid (see regulatory taking). The Court’s first effort at systematic line-drawing came in *Pennsylvania Coal Co. v. Mahon (1922), when it found unconstitutional a Pennsylvania statute that harmed the property claims of mining companies in the interest of saving urban structures from being undermined by mining digs. “While property may be regulated to a certain extent,” Justice Oliver Wendell *Holmes wrote for the majority, “if regulation goes too far it will be recognized as a taking”—that is, as an *inverse condemnation (p. 415). The Court has struggled ever since to produce a definition of what “too far” means, and adjudication in this area until the late 1980s uniformly upheld the discretion of the state legislature and such administrative authorities as *zoning boards.

This is not to say that all regulatory legislation affecting important social or economic interests was overturned. In fact, the Court made a mixed record on this score. Thus, its decision in *Muller v. Oregon (1908) upheld a state law establishing maximum hours for women workers; and other decisions validated tenement-inspection statutes and other laws affecting public health and safety. State laws establishing minimum wages, however, were uniformly rejected by the Court.

Contrary to the oft-repeated assertion that the Lochner doctrine uniformly prevailed, the Court thus pursued a varying and unpredictable course. Indicative of this development was the opinion for a unanimous Court by Justice Holmes in Noble State Bank v. Haskell (1911), upholding the state of Oklahoma’s authority to compel banks to contribute to a state depositors’ insurance fund; the case was decided only five years after Holmes filed a powerful and angry dissent in Lochner. “With regard to the police power as elsewhere in the law,” Holmes declared in Noble Bank, “lines are pricked out by the gradual approach and contact of decisions on the opposing sides” (p. 112). The hazards of the subjective element in the process by which the justices “pricked out” those lines, case by case, became a highly prominent feature of the Court’s history in the era of conservative ascendancy, to the early 1930s.

Federal Police Power Doctrine.

The post-Civil War Court also undertook to develop a doctrine of the federal police power. As in earlier years, it remained based heavily on the Court’s evolving view of congressional authority to regulate interstate commerce. The pivotal decision was *Champion v. Ames (1903), in which the Court in a 5-to-4 decision upheld an act of Congress regulating lottery traffic. The Court viewed such traffic as an element of commerce that Congress clearly regarded as immoral. Chief Justice Melville W. *Fuller, writing for the minority, condemned the decision because it served to “defeat the operation of the Tenth Amendment” and improperly permitted Congress to invade the domain of the state’s sovereign police powers (p. 365).

In subsequent years, the Court had a mixed record in regard to the regulatory powers of Congress (see administrative state). Many important measures of the late nineteenth century and Progressive Era were in fact upheld, among them those providing for regulation of interstate railroad rates and operating practices, oversight of food and drug processing, inspection of meat packing, and tighter regulation of banking (see progressivism). But other acts of Congress were struck down on the reasoning of Fuller’s minority opinion in Ames: that in light of the Commerce Clause and the *Tenth Amendment, certain areas of economic and social life lay beyond the legitimate reach of Congress and were within the exclusive domain of the state police power. Perhaps the most dramatic instances of the Court’s rejection of congressional authority under the police power were in decisions overturning statutes seeking to outlaw *labor practices and to curb the use of child labor.

The states’ police power, however, was itself also being severely curbed by the Supreme Court’s conservative majority at that time, as the Court applied “liberty of contract” and other limiting doctrines. The result, therefore, was judicial creation of important enclaves of policy in which regulation at neither the state nor federal level could pass judicial muster.

The Modern Era.

The *New Deal constitutional “revolution” in the 1930s brought with it a nearly complete overturning of the Court’s prevailing doctrines on the police power. Two important props of the conservative position on state police authority were knocked down in 1934. The first came down in *Nebbia v. New York, in which the Court abandoned the “affection with a public interest” doctrine that had so long distinguished between “ordinary” businesses that were not regulable and the more public businesses that were. Now the Court left economic enterprises of every type open to regulations that were procedurally constitutional. The second 1934 decision was in *Home Building and Loan Association v. Blaisdell, in which Chief Justice Charles Evans *Hughes, writing for the majority, declared that the police power must be viewed as justifying action in extreme economic emergencies. Because this decision affected the terms of existing (p. 745) mortgage contracts, it represented a dramatic repudiation of long-established Contract Clause and due process limitations.

The doctrinal legacy of Lochner and the earlier wage-and-hour cases were also set definitively to rest when, in *West Coast Hotel v. Parrish (1937), the Court by a 5-to-4 vote upheld a state minimum wage law for women. In Olsen v. Nebraska (1941), the Court declared that it was not concerned “with the wisdom, need or appropriateness of the legislation”; it was for legislatures to decide upon these matters of policy (p. 246). This posture was reaffirmed in Berman v. Parker (1954), when, as noted earlier, the Court stated in very broad terms that legislative bodies must enjoy a wide latitude to define public needs; and that the authority to act followed where need was found to exist.

Similarly, the Commerce Clause and Tenth Amendment barriers to congressional regulatory measures fell in a series of cases after 1935. Thus in American Power & Light Co. v. Securities and Exchange Commission (1946), the Court declared that congressional authority to regulate must be “as broad as the economic needs of the nation” (p. 141). Throughout most of the post-World War II era, the Court has continued to uphold nearly plenary congressional authority to control economic institutions and behavior: and state legislatures and administrative agencies have been given wide latitude with respect to regulation of property rights. In *Nollan v. California Coastal Commission (1987) and other recent decisions, however, the Court has partially reversed direction as to state powers; it has revived protection for vested interests in property by requiring that the state show a clear “nexus” between the regulation and a reasonable legislative purpose. In effect, the Court has thus broadened the grounds on which plaintiffs can successfully claim that land-use regulations constitute inverse condemnation, requiring the state to pay compensation for any economic losses incurred by private owners.

The police power issues before the Court do not, of course, relate exclusively to economic interests and their regulation. For personal and group claims to the constitutional protection of life and liberty, to equal protection guarantees, and to due process have also been at the core of modern-day challenges to the police power of the states. This fact is reflected in the complexities of recent controversies concerning the criminal justice system, the right to *privacy, *abortion rights, racial *desegregation and *affirmative action, and state legislation seeking to control the liberties specified in the federal Bill of Rights such as freedom of *speech and press or church-state separation. Hence, there remains today a wide range of vitally important questions as to the constitutional boundaries of governmental action under the police power.

See also due process, substantive; judicial review; property rights.

Ernst Freund, The Police Power: Public Policy and Constitutional Rights (1940). W. A. Hastings, “The Development of the Law as Illustrated by the Decisions Relating to the Police Power of the State,” Proceedings of the American Philosophical Society 39 (1900): 359–554. Clyde Jacobs, Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon (1954). Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origin and Development, 7th ed. (1991). Harry N. Scheiber, “Public Rights and the Rule of Law in American Legal History,” California Law Review 72 (1984): 217–251. William E. Swindler, Court and Constitution in the 20th Century, vol. 1, The Old Legality, 1889–1932 (1969); vol. 2, The New Legality, 1932–1968 (1970). Melvin Urofsky, “Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era,” Yearbook of the Supreme Court Historical Society (1983), pp. 53–72.

Harry N. Scheiber