2017/01/04

Are state 'police powers' constitutional?

To any of the Framers the answer would have been thought to be obviously yes. The U.S. Constitution delegated to Congress a list of "enumerated" powers that were to be considered nearly exhaustive, except for a few "implied" powers that were intended only to be incidental to the express powers of the enumeration. All other proper powers of government were to be left to the states or to local governments, or left to the People. The Tenth Amendment makes that explicit:
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.

But then we also have the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And the Fourteenth:
... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Police power is the authority of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.

The police power is based on the English common law, which is largely expressed in maxims of law, usually in Latin.1 In the 18th and much of the 19th century, that maxim was sic utere tuo ut alienum non laedas, (you should use what is yours so as not to harm what is others'). Under this maxim, legitimate legislation was only to remedy or prevent immediate concrete harm to specified interests of persons. Sometime around 1900, the maxim changed to the principle of salus populi est suprema lex , (the good of the public is the supreme law). Under this maxim states had broad discretion to legislate as they chose so long as they could justify it as tending to promote general public safety, health, welfare, or morality in the long term.2


The Texas Constitution http://www.constitution.legis.state.tx.us/ , like most other state constitutions, does not contain a single sweeping delegation of the police power, but defines various departments and delegates powers for each. Most of the police power statutes appear in the Penal Code and in sections on things like traffic and land use planning (zoning).


The delegation of police power is not explicit for most states, but is found in doctrine, the "custom, policy, and practice" (CPP) of legislation. It is usually discussed in terms of police powers in appeals court opinions, and those opinions form a body of entrenched precedent, or stare decisis, that it would be difficult to overcome unless they were struck down by state or federal appeals courts or constitutional amendments.3

The Fourteenth Amendment was to overturn two main U.S. Supreme Court precedents, Barron v. Baltimore, and Dred Scott v. Sanford. Barron sued Baltimore for a Fifth Amendment taking of his property, and lost on the holding that the Fifth Amendment did not apply to the states. Dred Scott sued for his freedom as a citizen, and lost on the holding that the court only had jurisdiction for cases between a state and a citizen of a different state, and further that a Black could never be a citizen.

The amendment was also to extend the jurisdiction of federal courts to cases between a state and a citizen of that state for violation of the "privileges or immunities" in the Bill of Rights, and for violation of his right of due process. The term of art "immunities" was intended to be synonymous with natural or social rights, and "privileges" with positive rights granted by government, such as to vote or hold public office.

The Fourteenth Amendment was also somewhat carelessly written in not declaring the privileges or immunities to be those of resident persons, rather than citizens. The rights of the Bill of Rights attach to persons, including foreign visitors, not just to citizens, although enforcement of such immunities may be difficult for persons who are not present, or resident, under the jurisdiction of U.S. law. Using the term resident persons would cover most cases.

The Fourteenth Amendment then tries to clarify by declaring that all U.S. citizens who reside in a state (for some unspecified period of time) are citizens of that state. That still leaves a gap for U.S. citizens who have not resided in the state long enough, and it still tries to attach rights to citizens rather than to citizens.

The application of the Fourteenth hit a snag in the Slaughterhouse Cases when the Court chose to decide the cases not on the basis of the Privileges or Immunities Clause, but on the basis of the Due Process Clause. They did not "write the Privileges or Immunities Clause out of the Amendment" as some commentators have claimed, but it did establish a precedent that has been followed ever since.

Soon thereafter the Court decided not to incorporate the federal requirement for grand jury indictment in Hurtado v. California, and has failed to incorporate several other federal rights, most involving due process and juries, in subsequent cases.

Some state police power statutes have been held to be unconstitutional, usually those in which the causal connection between a act and the injury it might cause is too remote or uncertain. Such a statute is said to be unreasonably oppressive or meddlesome, or to fail a rational basis test.

One question has been whether the privileges or immunities of the Fourteenth Amendment include the enumerated rights of the Ninth Amendment. Since all the rights in the first eight amendments are included in the Ninth, and the application of the First Amendment, which is only a restriction on Congress, to the states is really an invocation of the right from the Ninth, then the answer should be yes.

In Roe v. Wade the Fifth Circuit held that the statute banning providing abortion services was unconstitutional on grounds that it abridged the Ninth Amendment right to privacy, that is, to be left alone. But the U.S. Supreme Court, when it heard the case on appeal, presented the spectacle of nine justices making contorted arguments in an effort to get the same result without invoking the Ninth. Justice William O. Douglas, in his concurring opinion in the companion case Doe V. Bolton, stated more emphatically, "The Ninth Amendment obviously does not create federally enforceable rights."

Not just obviously, but obviously wrong.

See http://constitutionalism.blogspot.com/2016/05/immunitates.html for a more comprehensive list, where I call them immunitates (Latin, pron. ee-mun-ee-tah-tez) because they are restrictions on delegated powers

It is the thesis of this article that a state basing its coercive legislation on something as broad and nebulous as either of the maxims of law that are the basis of the police power is to fail to meet the requirement for having a republican form of government, which should include having a written constitution of government delegating powers with a certain specificity, not as specific as particular statutes, but more specific than those maxims, similar to the delegations of power in the U.S. Constitution. Groups of statutes could have a delegation of power that would cover then all, but not permit much beyond them. For that there would need to be a constitutional amendment.

Although the Framers did not define what they meant by "republican form of government" the best evidence of it is provided by the early state constitutions, which we can presume were included in that term.4 We cam discern several common attributes:

1. All had written constitutions of government.
2. All recognized rights retained by the inhabitants of the state.
3. All divided powers into three main branches: legislative, executive, and judicial.
4. All had legislative branches consisting of representatives of the people.

But few had enumerated powers of the legislative branch, although they could be extracted, listed, and numbered. Most of those powers were structural or procedural in nature.

The closest we see to the common law maxims are cautions that legislators not act contrary to the good of the people. However, coercive powers, that is, those with criminal penalties, were not enumerated.

The reason for this is that the states originally proceeded on the common law system, prosecuting crimes defined not in statutes, but in court precedents. Even the U.S. Congress seemed to proceed on that basis, until in the case of U.S. v. Hudson, 11 US 327 (1812). the Court found, correctly, that U.S. courts did not have jurisdiction over common law crimes, except contempt of court. The opinion was rather brief, perhaps because of the war, so it did not get into the real reason for its finding, that in the common law a crime was not defined until the jury rendered its verdict, and the judge pronounced the sentence. That was after the crime had occurred, so it was essentially all ex post facto, which was prohibited to both the Union and the states. This meant that crimes had to be codified in statutes that were in effect at the time and place the crime occurred.

It is not evident from the record that most lawyers and judges in the 19th century clearly understood this conflict. However, it seems to have dimly emerged, and we see the actions that might be penalized being codified into statutes. However, that was done gradually, without anyone thinking that those statures should be bundled together into categories and authorized by explicit delegated powers to enact them. If anyone were to question the authority for them, the answer would be common law custom, policy, and practice. This was the sic utere doctrine.

As the 19th century unfolded, more and more legislatures were asked to enact legislation with longer term consequences, for things like public education, roadways, bridges, dams, canals, public health, public safety, and public works. This led inevitably to penalties fro things that might be victimless in the short term, but that encouraged sin and corruption that would tend to corrupt the innocent and virtuous, the remote victims of the spread of a kind of cultural disease. It was also the era of the Great Awakening, with its focus on suppressing sin as though it were an enemy infiltration. That called for anti-immorality legislation that would tend to protect the innocent from the corrupt.

The spirit of this age is captured in the musical, The Music Man,5 in which the con artist sells the townsfolk on donating money for band instruments to provide the children a healthy pastime that will keep them away from sin (even while planning to run away with the money).

By comparison to the U.S. Constitution, the delegations of power to Congress also arose out of the common law tradition. Each such delegation was expected to yield a group of statutes that would implement it. The powers delegated were both short-term and long-term, so fall under both of the maxims of law.

But rather than cleaning up their constitutions, state legislatures just eased into the salus populi  doctrine without thought, until the U.S Supreme Court began striking down some of their statutes.

1. Latin Maxims of Law http://constitution.org/bouv/bouvier_m.htm#maxim

2.Glenn H. Reynolds, David B. Kopel, The Evolving Police Power: Some Observations for a New Century, Hastings constitutional law quarterly http://www.davekopel.org/CJ/LawRev/EvolvingPolicePower.htm

3. Randy E. Barnett, The Proper Scope of the Police Power, 79 Notre Dame Law Review, p. 429 (2004).http://scholarship.law.georgetown.edu/facpub/508

4. Early State Constitutions http://constitution.org/cons/early_state_cons.htm

5. Seth Mcfarlane singing "Ya got trouble" from the musical. https://www.youtube.com/watch?v=mfoTmiWsfD0


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