Mr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon.
Sovereignty may be defined as the ultimate justification for the application of coercive force by the organized state to individuals residing within the territorial perimeters of that political unit or linked to it by virtue of birth, allegiance, contract or custom.’
The state’s commands divide into three major categories of power: taxation, eminent domain, and police.²
Taxation connotes the power of government to extract coerced or involuntary contributions of income or property from residents or subjects for the support of the state and its undertakings.
Eminent domain marks the attribute or power of a sovereign state to appropriate private property to particular uses against the owners’ consent in order to promote public welfare (usually after application of procedural "due process" and the payment of "just" compensation, at least in the United States).4
Because the ordinary citizen encounters these two types of normative rules on a regular basis, individuals generally possess at least a vague comprehension of the exercise of government force in these arenas. Few, if any, persons escape entirely from the net of direct taxation flung like a blanket over the nation; April 15 serves as an annual reminder of this extensive power, as does the periodic withholding which siphons off portions of current income. While somewhat less widely used, the power of eminent domain touches most neighborhoods and inhabitants, at least indirectly, as urban renewal, land use restriction, and right-of-way displacements work their gentle magic on the countryside.
Dissimilarly, the police power lurks pervasively in the background, quite as real and more intense than its companion powers, but less well recognized by the persons affected by its scope. Nevertheless, the saturating nature and incredible fundamental depth and sway of the police power render it the most dangerous (if least well known) of governmental powers. Indeed, it forms the theoretical base for all regulatory retrictions on personal liberty. This essay proposes to isolate and analyze the concept of police power, hopefully pointing the way to a limitation upon the scope of state edicts.
Police Power Defined
Unlike many essential postulates difficult to articulate but relatively easy to define by example, police power poses quite the converse problem: it may be defined with relative ease and general agreement; only the application remains difficult by virtue of the open-textured nature of the tenet. Without applying the appellation "police power," Chief Justice Roger Taney spoke of that aspect of sovereignty in Charles River Bridge v. Warren Bridge, when he upheld the power of the state of Massachusetts to erect a competing bridge across the Charles River to the detriment of a pre-existing charter:
… But the object and end of all government is to promote the happiness and prosperity of the community by which it is established; and it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created….5
In the following decade, the same jurist defined police powers in the Licensee Cases:6
… But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominion. And whether a state passes a quarantine law, as a law to punish offenses, as to establish courts of justice, or requiring certain instruments to be recorded, as to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates….
From these roots, the common definition of police power has evolved to the power to govern,7 the power inherent in every sovereignty to control men and things under which authority the state may, within constitutional limitations, prohibit all things hurtful to the comfort, safety, and welfare of society and prescribe regulations to promote the public health, morals, safety, and order, and to add to the general public convenience, prosperity and welfare.8
The Meaning and Sweep of Police Power
‘Police power, a most elastic term,9 inheres in the concept of sovereignty¹º independent of the existence of any doctrine of emergency." Sovereignty provides the ultimate justification for the general exercise of governmental coercion, while the police power represents the specific concept verifying and validating application of that force to myriad special instances. The revenue power of taxation and the land control power of eminent domain serve as the scalpels of sovereignty, slicing away bits of human liberty in the name of public necessity; police power is sovereignty’s sledgehammer, pummeling the subjects into an orderly, if restricted, pattern of conduct.
A common myth prevails to the effect that, in the United States of America, at least, the citizenry enjoys a limited government. In theory, the United States Constitution does limit the powers of the national government in certain specific particulars. In practice, the Federal government possesses an inherent police power rendering such an implied limitation quite unreal.12
Doubtless the Framers of the Federal Constitution intended to limit such police powers by means of the largely forgotten Ninth Amendment:
Rights Retained by People. The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.13
Two centuries of judicial review and legislative encroachment have transmuted the Ninth Amendment into a virtual nullity.14
In this stance, the eminent jurist, Joseph Story, can accurately report that all property and all vested individual rights are subject to such police regulations as the legislature (government in the law-making sense) may establish with a view to protect the community.15 Professor Willis illustrates both the sweep of the power and its inherent restrictions:
… The police power is the legal capacity of sovereignty, as one of its governmental agents, to delimit the personal liberty of persons by means which bear a substantial relation to the end to be accomplished for the protection of the social interests which reasonably need protection…16
… There are two main requirements for a proper exercise of the police power: (1) there must be a social interest to be protected which is more important than the social interest in personal liberty, and (2) there must be, as a means for the accomplishment of this end, something which bears a substantial relation thereto.17
The Location of Police Powers in a Federal System
The term "police power," referring to an inherent and largely disguised body of authority, does not appear in the United States Constitution nor in most state charters:
… Although the basis of the police power lies in the Constitution which regards the public welfare, safety, and health of the citizens of the state, and although it may be given to the people of the state by the constitution, the power exists without any reservation in the Constitution, being founded on the duty of the state to protect its citizens and provide for the safety and good order of society.18
It seems likely, however, that the reserved powers mentioned in the Tenth Amendment to the United States Constitution refer, if not by name at least in substance, to state police powers:
Powers reserved to states or people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.19
Reservation "to the People" has faded from view; residual powers now inhere in the state under the guise of police power. Thus, the concept of limited government under the American Constitutional system proves largely illusory. History from 1789 tells a continuing tale of a national government once strictly limited, so limited in fact that many believed the Bill of Rights to be unnecessary, grasping additional powers under the guise first of the interstate commerce clause²º and the necessary and proper clauses²¹ and later under the general welfare clause.22 Few would contest the fact that the powers usurped under the concept of "general welfare" or "necessary and proper" pretexts partake of a Federal police power.²³ Indeed, the language both of the Constitution and of the individual legislation or decision justifying each particular infringement upon personal liberty, coincides with the general test of police powers: those sovereign powers designed to promote public order, health, safety, morals and the general welfare of society. The draftsmen of the Federal Constitution made relatively few mistakes, considering the general imprecision of language and the inborn human surge for power, but the three clauses mentioned stand out as grievous errors, permitting easy sanction for increased restraint and reduced liberty.
State Police Powers
Concurrently with the growth of the Federal police power, the individual states enjoyed their own reserve of police powers fashioned to inhibit human freedom and creativity. While the Federal police power lay largely dormant during the first century of the Constitution,24 one cannot surmise that the police power concept drowsed: the individual states flexed their authority in myriad ways, through licensing acts, internal improvements and regulatory laws.
From the outset, the two competing governmental structures collided in sporadic conflict. Normally, state licensing, franchise, and regulatory laws conflicted with Federal application of the interstate commerce clause.²5
During the post-Civil War and post-World War eras of substantive due process concepts, constitutional restrictions inhibited the exercise of the police power by the states but in no way eradicated or infringed upon the concept itself." With the advent of increased social and economic legislation following the Great Depression of 1929, both state and Federal use of police powers have vastly increased with a concomitant loss of individual liberty.
Police Powers: Model and Reality
The imaginary model of limited government in the American Federal system deviates from reality. The deflection from truth occurs primarily as a result of the concept of police power.
The model envisions a Federal government possessing only those powers inherent in sovereign nations. Each state government is assumed to act in a like limited capacity, the limitations flowing both from the National and the particular state constitutions. All powers not specifically delegated to the state or the Federal government dwell in the individual acting human being. Man is free to do anything not prohibited by state or Federal law, and neither state nor Federal law encroaches upon voluntary action, except in the specific areas reserved in writing to the government in the fundamental charters.
Contrast reality. The government of the United States exercises all powers specifically granted to it by the Constitution and all powers implied from that document. It also exercises a National police power — the "right" to provide for order, health, safety, morals and welfare — inherent in sovereignty.²7 The National government, in theory, cannot contravene the individual rights protected by the Constitution but, when dealing with police powers, one must recall that where the interest of the public runs counter to that of the individual, the latter must give way unless the law can be deemed "arbitrary, capricious, or unreasonable."28 (Obviously, the phrase "public interest" constitutes a mere euphemism for the personal interests of the dominant person or group; governments, societies, communities, and other non-personal organizations do not possess "interests.") ²9
At the same time, the individual states appear as the Federal government in microcosm with one important distinction: while the Federal government purports, however fallaciously, to be a government of limited powers, the states do not, for they contain the elastic police powers, the great reserve powers of each state." In legal theory, the states possess all of the ordinary legislative powers exercised by the British Parliament at the time of the American Revolution except as restricted by state and Federal constitutions.³¹
A Suggested Analysis of Police Power
To harmonize with the fundamental creed of maximum individual liberty and limited powers of government, any analysis of police power should restrict that doctrine to the use of community force to settle disputes which the participants cannot resolve in a voluntary manner and to prevent, deter and punish the use of force and fraud. Such a doctrine accords with the proper use of law," the sound definition of sovereignty³³ and the fundamental postulate of Justice.³4
Under the existing tenets of police power, the states may enact laws which are impolitic, harsh or aggressive without contravening the Constitution.³5 Police powers comprehend reasonable prevention (prior restraint) as well and punishment." To the contrary, the state should govern under general principles of justice, leaving free action to individual men; in short, the law should tolerate no external restraints (beyond those suggested in the preceding paragraph) upon creative human action, much less countenance harsh and oppressive legislation. Man should remain free to develop his creative abilities through free action sans prior restraints; the certainty of punitive reaction adequately deters the initiation of force and fraud, with less loss of liberty than prior restraint.
Prior restraint involves its own species of danger, the danger of internal oppression. In final analysis, regulations impose the subjective value judgments of one individual or group upon other individuals or groups who may possess widely differing subjective values. One who exerts prior restraint may misapprehend the existence of danger or misconstrue the efficacious means of averting whatever risk exists; the individual human actor can better assess both hazard and means of avoidance since the lawmaker is cut from the same bolt and possesses no omnicompetence. Prior restraint encourages men holding power, for good reasons or ill, to oppress their neighbors. Limitations and diffusion of power tend to stimulate freedom.
American courts have discerned the basis for police powers in the doctrine of "public necessity"³7 and have termed it an essential element in all orderly government.³8 In fact, the Supreme Court of the United States once declared that the principle of police power corresponds to the individual’s right of self-preservation.³9
Measured by these three tests, the doctrine of police power suggested here satisfies the standard. It is necessary, if men are to live together in society, that aggressors be deterred from initiating force against peaceable inhabitants. Laws which prohibit the initiation of force and fraud and which punish transgressions are publicly necessary in this regard. Orderly living does require a control repository of community force to quell external invasion and internal strife and to settle disputes which appear voluntarily insoluble. Self-preservation of the residents depends upon protection from irrational and sinister men.
On the other hand, when extended to the breadth and depth currently fashionable, police powers as defined prove too much. A single necessity exists: that man be permitted to dwell in harmony, as free as possible to conduct his life without the introduction of force or fraud. Any imagined "public" necessity beyond this point assumes, without rational foundation, that the whole is greater than the sum of its parts, that the state exists beyond the meshing of its individual citizens.
Again, orderly government only requires impediments to initiation of aggression and deceit and the administration of justice; no one can really contend that a bridge across turgid waters can only derive from public funds. "Public necessity" and "orderly processes of government" conjure up visions of voluntary ineptitude to solve human problems.
It is not my task to explain how freedom will work in a given situation; I only know that liberty will produce a result more nearly in accord with the desires of the myriad human beings affected by, and interested in, the problem and its resolution. The "public necessity" argument implicitly decries one method of problem-solving —the freedom way — and, thereby, engages in circular reasoning where the premise becomes the conclusion.
Moreover, no government and no state possesses any "rights," including the right to self-preservation. Only individuals possess rights; any belief that a state owns rights involves a much too organic view of government. The state exists not to perpetuate itself in power but to secure the inalienable rights of individuals residing in that territory to life, liberty and property."
Once a government fails in this task, it becomes useless. At any time, the citizens in a territorial unit may correct or alter the form of government in order to better accomplish the purposes of justice. Any "right" of state self-preservation would collide with the individual’s rights to continued free existence and to change or replace an existing state. Not just governments may change; no warrant exists to preclude residents of a given territory from establishing a new state.
Again, the current concept of police power envisions the use of government force to improve the social and economic conditions of the community at large, to bring about the greatest good for the greatest number of people.4¹- The state possesses only destructive not creative, force and energy. It can only improve social and economic conditions by alleviating aggressive restraints upon creative human action. It can assure the condition for improvement —freedom for all mankind — but it cannot cause improvement.
Furthermore, the state lacks potency to determine, much less effect, "the greatest good for the greatest number." This Benthamite utilitarian dictum, so resonant in sound, can be peeled to expose a fallacious core. Good may only be determined by each individual for himself; it is a subjective value judgment, one which cannot be made by Congress or a committee.4² Only the individual human being, living his life from internal directions, can determine his "greatest good"; only the free actions of all persons can determine the "greatest good for the greatest number." Any hedonistic calculus presupposing a legislator competent to make this determination in an objective manner betrays the breeding ground for incipient dictatorship.
The police power today exists in a broad spectrum. A legal encyclopedia accurately expresses the ambit:
… It has been said that the scope of the power is as broad as the public welfare or interest thereof, that it is one of the least limitable of the powers of government, and that the police power is the broadest in scope of any field of governmental activity. With‑ in the realm of police power the legislature may act in any manner not forbidden by the Constitution expressly or by necessary implication. It extends to all matters which concern the regulation and control of the internal affairs of the state, and almost the whole of the great body of municipal law which establishes and enforces the duties of citizens to each other is embraced within and known as the police power. A state in suppressing what it regards as a public evil may adopt any reasonable measures which it may deem necessary, and the reasonableness of a police regulation is not necessarily what is best, but what is fairly appropriate under attendant circumstances… 48
Adherence to this philosophy leads to ultimate sanction for any kind of restraint. The statist may argue that the rule of reasonableness limits arbitrary exercise of authority. But who determines what is reasonable? The state, through its legislative or judicial apparatus — hardly comforting to the endangered citizen losing his liberty particularly in light of the judicial rule that presumes every exercise of police power to be constitutionally valid."
It remains to review in cursory fashion the objects to which the police power is often directed: public safety, health, order, morals, and welfare. No purpose would be served to produce a lengthy litany of those choking laws ratified in the name of police power at some time or another; suffice it to say, the Supreme Court of the United States has found it "inadvisable" to set limits upon police powers, preferring a flexible norm and a case-by-case analysis,’" recognizing that each and every such regulation speaks as a prohibition upon human choice." Nevertheless, in each category lurks the very real danger of the use of police powers to curb creative endeavor beyond the proper scope of state authority.
Thus, in the name of public safety, states have enacted statutes prohibiting "dangerous" businesses and structures, not cognizant of the fact that voluntary action may assume risks concurrent with the values possessed.
In the name of public health, legislators fluoridate community water supply, in spite of evidence of detrimental effect upon human health and the ready availability of fluoride from other sources for private administration.
In the name of public order, the state may circumscribe or wholly proscribe gambling, drunkenness or public meetings; in fact, such repressions affect the free flow of ideas and action whether or not the majority agrees with the value of the action.
In the name of public morals, the government penalizes indecency, adultery, prostitution and "immorality," matters much better left to the decision of adult participants.
In the name of public welfare, the state plunders some and gives to others, a most devastating kind of immorality undeserving of the name of charity.
In each instance where the state exceeds its proper perimeters of preventing force and fraud and providing common justice, the application of police powers destroys human liberty and nurtures tyranny.
Richard Weaver once observed, "Ideas have consequences." The idea of police powers produces the consequence of slavery. These broad powers act as the state’s sledgehammer, crimping free action and chilling personal creative endeavor.
1 See Foley, Ridgway K., Jr., "A Defense of Sovereignty: The Territorial Imperative" (unpublished manuscript).
² Willis, Hugh Evander, Constitutional Law of the United States (The Principia Press, Bloomington, Indiana 1936) 224.
³ See Attorney General v. City of Eau Claire, 37 Wis 400, 438; Linnell v. State Dept. of Finance, 21 Cal Rptr 785, 788, 203 Cal App 2d 465 (1962) for other realistic definitions.
4 For similar definitions, see Jeff ress v. Town of Greenville, 154 NC 490, 70 SE 919, 921 (1911), Consumer’s Gas Trust Co. v. Harless, 131 Ind 446, 450, 29 NE 1062 (1892); Briegel v. Briegel, 307 Pa 93, 160 A 581, 584 (1931).
5 11 Pet. 420, 12 U.S. 496, 507 (1837).
6 Thurlow v. The Commonwealth of Massachusetts, etc. 5 How. 504, 583, 16 U.S. 513, 525 (1846).
7 Gray v. Reclamation District No. 1500, 174 Cal 622, 163 P 1024, 1032 (1917).
8 See State v. Cromwell, 72 ND 565,
9 NW2d 914, 191 (1943); 16 CJS 889, Constitutional Law § 174; State of Washington v. MamLock, 58 Wash 631, 109
P 47 (1910).
9 State v. Wisconsin Telephone Co. 169 Wis 198, 172 NW 225, 226 (1919)
¹º Allen B. Dumont Laboratories v. Carroll, 184 F2d 153, 156 (3rd Cir 1950).
¹¹ In re North New Jersey Title Ins. Co., 120 NJ 148, 184 A 420 (1936).
1² Professor Willis refers to the lack of a Federal police power as a "common heresy," Willis, Note 2, op cit p. 226.
1³ U.S. Constitution, Amendment IX.
14 See Foley, Ridgway K., Jr., "Under The Ninth Amendment, What Rights Are Reserved To The People ?" (unpublished manuscript).
15 II Story (Joseph), Commentaries on the Constitution of the United States (5th ed, Bigelow, Little Brown & Company, Boston 1891) 700-701, § 1954.
16 Willis, Note 2, op cit p. 716.
17 Ibid, p. 728.
18 16 CJS 893-894, Constitutional Law §175a.
¹9 U.S. Constitution, Amendment X.
²0 U.S. Constitution, Art. I, § 8 cl. 3.
²¹ U.S. Constitution, Art. I, § 8 cl. 18.
²² U.S. Constitution, Art. I, § 8 cl. 1.
²³ The history and the inherent error in the misuse of each of these clauses, viewed against the drapery of individual freedom, deserves separate treatment apart from this essay.
²4 The writer has attempted to dispel the quaint notion of laissez-faire in the nineteenth century by illustrating the number of laws, enacted by state, and federal governments, which encroached upon personal freedom. See Foley, Ridgway K., Jr., "Individual Liberty and The Rule of Law", 21 Freeman (No. 6) 357, 373 (June 1971). See also, Hurst, James William, Law and the Conditions of Freedom in the 19th Century United States (U. of Wis. Press 1956) and Handler, Oscar and Mary, The Dimensions of Liberty (Harv. U. Press 1961).
²5 See Corwin, Edward S.. The Constitution and What It Means Today (Chase and Ducat rev ed, Princeton University Press 1973) 56-57.
26 Compare, Willis, note 2, op. cit. p. 728.
²7 16 CJS 906, Constitutional Law, § 177.
²8 Egan v. City of Miami, 178 So. 132 ( Fla. 1938).
²9 See Foley, Ridgway K., Jr., "Affected with a Public Interest" (unpublished manuscript).
³0 In Re Opinion of the Justices Alabama State Federation of Labor v. McAdory 18 So.2d 810 ( Ala. 1944), 22 So.2d 521 ( Ala. 1945).
³¹ Burdick, Charles K., The Law of the American Constitution (G. P. Putnam’s Sons, New York 1922) 559.
³7 Lone Star Gas Co. v. City of Fort Worth, Tex, 15 F. Supp. 171, 176 (N.D. Tex. 1936), rev’d. other grounds 93 F.2d 584 (5th Cir. 1937), cert denied 304 U.S. 562, 58 S. Ct. 943, 82 L.Ed. 1529 (1938), reh. den., 304 U.S. 589, 58 S. Ct. 1844, 82 L. Ed. 1549 (1938); Jamouneau v. Harner 16 N.J. 500, 109 A.2d 640, 647 (1954).
³8 American Trust Co. v. McCollister, 136 Or. 338, 347, 299 P. 319 (1931); Alexander Co. v. City of Owatonna, 272 Minn. 312, 24 N.W.2d 244, 250 (1946).
39 Panhandle Eastern Pipeline Co. v. State Highway Comm, 294 U.S. 613, 55 S. Ct. 563, 567, 79 L. Ed. 1090 (1935).
40 Declaration of Independence of the United States of America.
41 People v. Sell, 310 Mich. 305, 17 N.W.2d 193, 196 (1945),
4² See Foley, Ridgway K., Jr., "The Concept of Value in Ethics and Economics" 25 Freeman (No. 2) 115 (February 1975),
4³ 16 CJS 898-899, Constitutional Law § 175 b.
44 Goldblatt v. Hempstead, 369 U.S. 590, 82 S. Ct. 987, 99,1, 8 L. Ed.2d 130 (1962).
45 Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 102, 99 L. Ed. 27 (1954); Christian v. LaForge, 194 Or. 450, 460, 242 P.2d 797 (1952). A flexible rule amounts to no rule at all — "justice" measured by the subjective values of those currently in power, or, in legal parlance, "by the length of the chancellor’s foot."
46 Goldblatt v. Hempstead, supra, Note 44, op. cit. 82 S. Ct. at 989.