From the beginning of our republic through the present day, the constitutions of the American states have defined the structure and strategies of governance in the relevant polities. To understand the foundational power of state regulation, the police power, we need to understand how this power emerges from the ideas and designs of the state constitutions. Allowing for the particulars of individual state constitutions, we can resort to some general lessons and principles that will help define the scope of the project of state constitutionalism in the United States and, with it, the connection between that continuing project and the police power in the American states.

So far as the creation and sustenance of these documents are concerned, state constitutions span a wide spectrum in time, from the period before the establishment of our constitutional republic in the 1780s, as the first state constitutions were adopted, continuing throughout the gradual admission of additional states to the union and through the profound constitutional changes throughout the nineteenth and twentieth centuries.¹ Constitutions were hardly static: State constitutions would be frequently amended, sometimes soon after their original adoption,² and this reform project continues to the present day.³ Despite the vast temporal expanse of this project of state constitution-making, we can still draw some useful lessons from the processes of constitution creation and reform beginning in the revolutionary era and continuing in the decades afterward.⁴

The states’ powers to govern were shaped around choices made by the framers of the first and later state constitutions. As to the specific content of these powers, the Tenth Amendment of the US Constitution reserves powers not granted to the national government to the states respectively, or to the people.⁵ Yet this amendment says nothing meaningful about what these state powers were to consist of. Therefore, the basic idea and contours of the powers reserved for the states respectively, or to the people, including the police power, became the sole province of the state constitutions. Those constitutions would come to define the nature and scope of that power, as we will explore in more depth and detail in later chapters. What we want to consider here, drawing upon the history and logic of state constitutional development, is how choices in state constitutions reflect ultimate choices about how best to govern their communities. The core question of state constitutionalism is how to use fundamental law as architecture and as materials to implement the common good and, simultaneously, how best to safeguard individual and group interests and values in the preservation of liberty and private property. In short, state constitutionalism and the state police power are concerned with common matters.

Revolutionary State Constitutionalism and Its Consequences

As the esteemed historian Gordon Wood has taught us, revolutionary-era constitutions delivered what was an essentially new approach to governance in the new republic, an approach that would resonate not only in the creation of the US Constitution, but also in the early evolution of our scheme of American constitutionalism more generally.⁶ The period of revolutionary constitutionalism marked a great advance in Americans’ conception of the purpose and function of their new government.⁷ Naturally, the most urgent task at hand was the colonists’ severing of the connection with Great Britain. The efforts to disconnect through structural-formal mechanisms began before the Declaration of Independence and the Revolutionary War. “Prior to independence,” writes Alan Tarr, “some colonies viewed the framing of constitutions as a mechanism for promoting a dissolution of ties with Great Britain.”⁸ This divorce was reflected in the hothouse of constitution-making that took place between the signing of the Declaration of Independence and the Constitutional Convention. Influential leaders worked tirelessly during this period to formulate constitutional structures and techniques.⁹

To be sure, many of these first documents were short and underdeveloped. As James Madison describes them in Federalist No. 47, state constitutions “carry strong marks of the haste, and still stronger of the inexperience, under which they were framed.”¹⁰ Whether this haste contributed to a skepticism about the status of the documents as fundamental law is difficult to assess. “In the states,” Tarr writes, “reverence for the founders of state constitutions and their handiwork was notably lacking, as the orgy of nineteenth-century constitution-making attests.”¹¹ And yet, when examining these earliest efforts at constitutional creation closely, we can see within them the emergence of a post-independence ideological framework aimed at balancing liberty and governance. As Donald Lutz writes: “Complete foundation documents in their own right, the state constitutions each produced a political system that could deal with the collective problems of their respective peoples …. The early state constitutions thus stand as the fulcrum in American constitutional history.”¹²

What “problems” were these early framers trying to solve? Two stand out: First, what structures could they create that would enable good governing, that is, governance that would promote the general welfare of these new American citizens?¹³ Second, how could they best ensure that the instruments of good governing would behave in the public’s interest and, moreover, would not interfere unnecessarily with individual liberty and with private property rights? These goals were prominent not only because liberty and property were worthy objectives in their own right, but because their colonial experience – as well as other matters connected to the forging of new institutions and assumptions about individual and collective behavior (as Madison and other framers wrote about) – had inspired a real fear of potential tyranny and expropriation.¹⁴

Looking back at this critical period in the formation of constitutions and governmental power, it is important to note that the framers could not have known what was to follow in the few years after these first revolutionary-era constitutions were created. While they were not drafting these constitutions on a blank slate, they could not have expected the deterioration of the confederation and the weakness of the structures and institutions that the framers of the initial Articles of Confederation had constructed.¹⁵ It is commonplace to observe that the framers of the US Constitution, deliberating in the heat of the Philadelphia summer, had learned powerful lessons from watching both the conduct of the states and the processes of constitution-making through which those states’ conduct had been enabled.¹⁶ However, it is rarer for historians to probe deeply into questions of how the framers of the state constitutions could have thought about the nature and scope of state legislative and executive powers, not knowing what governance powers the national government would come to have under the US Constitution and, moreover, what the processes and ideas that brought forth the historic and transformative document of 1787 would mean for the exercise of state power on the ground.

Still, there are important lessons we can draw from the dynamic of state and federal constitution-drafting. First, the drafters of the state constitutions expected that the state legislature would have the principal authority, and indeed the main burden, of governing in the interest of their respective state’s citizens.¹⁷ They knew also that the primary protector of liberty and property would be the states.¹⁸ However, it is clear from what they said and what they did that they saw the state legislature as the supreme source of legal authority under the state constitution to help implement a well-ordered society and, also, as the prime mechanism for ensuring that the rights of their free people would be protected against encroachment.

The framers of these early constitutions dwelled on – perhaps even obsessed over –the perils of overbearing executive control and the danger it posed to individual liberty, and indeed much of their rhetoric that we have recovered over more than two centuries focuses on these issues.¹⁹ “The evisceration of executive power,” historian Jack Rakove writes, “was the most conspicuous aspect of the early state constitutions.”²⁰ However, they were also faced with what was fundamentally a set of practical issues and were tasked with devising a way to carry out the functions of government to improve the lives and conditions of their state citizens. Improving social and economic conditions was imperative in these revolutionary and post-revolutionary states. The conditions for these improvements could be realized through “the beneficent hand of the state as reaching out to touch every part of the economy.”²¹

From this idea of active governance in the pursuit of the common welfare, American historians in the republican tradition have concluded that the revolutionary-era constitutions reflected a distinct theory of government, one that departed from the liberal theory that is so often associated with the forging of the US Constitution.²² State government power, Gary Gestle has recently written, “derived from a different political principle – one that held the public good in higher esteem than private right.”²³ Gordon Wood writes in a similar vein: “The sacrifice of individual interests to the greater good of the whole formed the essence of republicanism and comprehended for Americans the idealistic goal of their Revolution.”²⁴ Pennsylvania, it has been noted, made this objective explicit in its Declaration of Rights, declaring that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family or set of men, who are a part only of that community.”²⁵ In order to implement this greater good, the “state governments possessed a staggering freedom of action” and these powers “could be deployed progressively.”²⁶ The essential idea, expressed in these myriad ways by scholars and contemporary observers, was that the state constitutions reflected an active, public-spirited conception of governing, one that echoed Whiggish political theory as translated into the distinctly American context by the ambitious framers of our first state constitutions and drawing upon the emerging theories of governing.²⁷

The challenge for state constitution-makers was to create these broad powers while ensuring that the government would not devolve into a monarchy. Different states tackled these challenges in different ways, with Pennsylvania, for example, going to the extreme of not including the position of governor, New Hampshire not providing a chief executive of any kind, and the inclusion in all early constitutions of some system of separation of powers.²⁸ Framers were understandably worried about the concentration of power in the executive branch and undertook structural strategies to ameliorate these problems.

In addition to their ambient fear that broad constitutional power would create a roadmap toward a return to monarchical rule, the framers of the first constitutions worried also about the interests of their community members in preserving their prerogatives as free men, including the ability to accumulate and use private property and to enjoy the fruits of liberty, something obviously connected to their quest for independence from Great Britain.²⁹ Constitutional historiography of this period emphasizes the wide sphere of government regulation and activist governance, but this was only part of the context of this constitution-making. The rendering of broad state governance power does not mean that the framers were ambivalent or agnostic about protecting private property and individual liberty. The opposite was the case. “The safety of private property from arbitrary governmental requisition,” Kruman writes, “was part of the whig culture colonial Englishmen shared with most inhabitants of the realm.”³⁰ Likewise, individual liberty was treasured by colonial citizens, albeit a conception of liberty that was tied to the understandings of the times. The framers cared about property and liberty and, indeed, viewed the state constitutions – along with the US Constitution – as structural bulwarks against evisceration of these valuable rights. The public good and the preservation of private property and ordered liberty were not irreconcilable, at least as viewed by the eighteenth-century constitutional framers. What was required were mechanisms to assure the protection of liberty and property, while also investing in state governments the means of governing effectively.³¹ Revolutionary-era constitutional framers were therefore aligned around the need to create constitutions as effective governance mechanisms, as means of protecting against the aggrandizement of power by a would-be king and the consolidation of power by factions in and out of government, and also as mechanisms to ensure that the government could function effectively and do the various “things of the utmost importance to the happiness of their respective citizens.”³²

We can draw three conclusions from this fertile period of state constitution-making during the revolutionary era. The first conclusion is that state constitutions “became instruments of government rather than merely frameworks for government.”³³ This was reflected in how state constitutions evolved from parchments, sometimes eloquently forged by their creators, to discernible and meaningful governance instruments. Second, and relatedly, they were deeply concerned with issues of power, its nature, and its contours. They could not credibly expect that the national government would have adequate power under the Articles of Confederation to protect health, safety, and the general welfare. And so they looked inward, to their own constitutional structures and legal tools, to ensure that government would have adequate power to govern. Third, they were not content to borrow from their previous British masters the idea of a royal prerogative, however familiar this was to them, and so they worked hard to formulate an idea of governance that would be robust but not unlimited. In their drafting and the accompanying explanations of their project, they pursued twin goals: enabling the government, and especially the stage legislature, to govern effectively; and protecting individual liberty and private property. They faced the dilemma of how to construct mechanisms of power and how to restrain power once assigned, a dilemma, of course, that had become a persistent topic of consideration for political theorists over the centuries and in the lead-up to the creation of the American republic.³⁴

In reflecting on the legacy of the state constitution-makers in the revolutionary era, our leading historian of this period writes: “Not only did the formation of the new state constitutions in 1776 establish the basic structures of our political institution, their creation also brought forth the primary conceptions of America’s political and constitutional culture that have persisted to the present.”³⁵ Neither the process nor the ultimate designs of these revolutionary-era constitutions were mechanical or even particularly tentative. They expressed the founders’ instincts and preferences for governance strategies in this early, ambitious period. A full understanding of American constitutionalism cannot be accomplished without a close look at state constitution-building in the beginning years of the republic.

Subordination, Consent, and Popular Sovereignty

The quest to escape from the bootheel of the monarch and to create mechanisms to protect against a reprise in control was paramount to the framers’ goals in creating these new constitutions. “Madison’s definition of tyranny was the one standard at the time, the arbitrary use of power, that is, contrary to the community’s permanent, aggregate interest.”³⁶ Thomas Paine made this point explicit as he “condemned as an arbitrary human invention the division of mankind into kinds and subjects.”³⁷ Bloodied and battered by British domination, the framers thought of strategies to implement new forms of government that would be resistant, if not impervious, to capture by power-hungry individuals acting under asserted authority. As a consequence, “[t]he state constitutions of the 1770s and early 1780s also brimmed with provisions aimed at dismantling the aristocratic elements of the colonial social order.”³⁸

From this experience, the framers looked to structural mechanisms that would protect against the risk of subordination. These efforts presaged Madison’s famous statement in Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary…. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”³⁹ To be sure, Madison’s principal auxiliary precaution, the establishment of a national veto on all disfavored state legislation, failed to garner adequate support.⁴⁰ However, Madison and his allies’ (including Alexander Hamilton) forceful expressions of concern about state legislative power did succeed in fueling the effort in the Constitutional Convention to create suitable mechanisms for federal power.⁴¹ This was the point, after all, in replacing the Articles of Confederation with a new constitution, one that would have sufficient means to empower a national government to undertake useful tasks on behalf of this nascent nation and manage a group of previously sovereign states.⁴² Despite this profoundly important and novel effort at creating a constitution that would ensure a successful United States, there remained risks to private property and individual liberty. After all, the incentives to self-deal and the opportunities for factions to prospect did not disappear with the creation of the US Constitution, so long as individuals lived and worked in their respective states, and were subject to the authority of state governments. Indeed, the scale of state government made factions especially formidable and therefore threatening.

State constitutions remained essential in preserving and nurturing popular sovereignty. They created various structural mechanisms, supplemented as time passed by national structures and, later, by rights made enforceable by courts. These structures are rightly highlighted when the question is asked, “How did the framers ensure that power would be diffused and managed?” What undergirded these practical components was an idea – a novel idea that was essential to the forging of a new constitutionalism that would be compelling and sustainable. This was the idea of popular consent to government: the idea of popular sovereignty as the foundation of all constitutionally appropriate power.⁴³ Popular sovereignty was the foundational element in the emergence of a post-revolutionary constitutional ideology. At its core, the emerging constitutionalism of the post-revolutionary era was committed to popular sovereignty as the fulcrum of public authority. Here, the People rule. This was the boldest, most coherent manifestation of America’s break from Great Britain’s hegemony over the colonies and their prerogatives over the British scheme of constitutional governance. And so, for example, Delaware’s Bill of Rights proclaimed: “All Government of Right originates from the people, is founded in Compact only, and instituted solely for the Good of the Whole.”⁴⁴ Virginia: “All power is vested in, and consequently derived from, the people.”⁴⁵

The first state constitutions, and later the US Constitution, embodied the idea that the power lodged in government, at whatever level, was entirely conditional on popular consent. As Donald Lutz writes, “the state constitutions evolved and extended a step in consent theory begun in the colonial charters by blending societal consent with governmental consent. The ratification of a constitution not only established a form of government, but also affirmed the essential sociocultural base upon which the government rested.”⁴⁶ This logic was radical in important respects. Colonialists had fought hard to secure independence from Great Britain on grounds that were focused on the abuses meted out to them and, relatedly, the burdens imposed without consent or meaningful participation in the activities of government (“taxation without representation”).⁴⁷ However, it would not have been illogical for the framers to embrace existing sets of government institutions, and especially an elected legislature, but with added mechanisms designed to ensure that it would be more representative and more attuned to the will of the people. More novel was the idea that all power would derive directly from the power of the people, that the government was forged from the idea of popular sovereignty. No colonialist had direct experience with such a scheme, and thus they had to look beyond their experience – to the leading thinkers of government and constitutionalism – to assemble the logic and the strategy. It is in this principal respect that we can speak of the American revolutionaries as developing a new science of government.⁴⁸

In describing popular sovereignty and citizen consent as fundamental ideas in eighteenth- and nineteenth-century American constitutionalism, we generally emphasize the function that these ideas serve in guarding against abuse of power and attacks on well-ordered liberty. However, there is another function that popular sovereignty performs, one that is important for any comprehensive analysis of constitutionalism and public power. The framers saw popular sovereignty and consent as improving the capacity and promise of government to advance the common good. Popular sovereignty is not only about checks on oppressive, arbitrary power, but also about good governing. “Majority will and the common good were inextricably linked” by our constitutions’ framers.⁴⁹ The people’s will in creating governmental institutions to act in their name was a means of advancing the people’s welfare. Representative democracy was not just an abstraction that assured that citizens’ consent would be respected, but a new structure of governance that would fuel law-making for the public good.⁵⁰ These constitutions would ensure “not only that everyone enjoy equality before the law or have an equal voice in government, but also that everyone have an equal share in the fruits of the common enterprise.”⁵¹

The most obvious association between popular sovereignty and good governance is that the people in their manifest choices and in their delegation of responsibility to elected representatives to act in their name and on their behalf could decide ultimately whether and to what extent public officials were acting appropriately. In this sense, the structure of representative government, reflected through the prism of a strong separation of powers, enables citizens to monitor their representatives, thereby assuring that legislators are acting in the public interest and are working effectively to govern in their behalf.⁵²

The commitment to popular sovereignty as the fundamental principle undergirding state constitutionalism continued long after the founding period. As a number of state constitutions were amended in the late nineteenth and early twentieth centuries to provide for mechanisms of direct democracy, the connection between popular sovereignty, public-spirited law-making, and accountability was made ever more manifest.⁵³ Moreover, the relative ease of amendment, and even total reconstruction, was indicative of the enduring commitment to popular sovereignty as a critical component of state constitutionalism, from its origins to the present day.⁵⁴

Democracy and Representation

With popular sovereignty as the main source legitimizing public authority under the state constitutions, the framers of these documents looked to develop institutions that would implement their vision of good governing and the securing of individual liberty and private property, goals that they understood as compatible, not contradictory.⁵⁵ The new constitution had to, as Jennifer Nedelsky writes, “solve the pressing problem of legislative injustice.”⁵⁶ And later state constitutional reformers looked to sustain these mechanisms through various safeguards and incentive-compatible arrangements. The goal of protecting against subordination and ensuring fidelity to popular sovereignty and the people’s will was most clearly manifest in the commitment to an elected legislature – and to the principle that such a legislature would be supreme in the exercise of public power. As Wood writes:

The principle of legislative supremacy reflected the framers’ commitment to democracy as a guiding light around which governmental power was structured. To be sure, the framers were concerned throughout the revolutionary period and for many years afterward with cabining the excesses of democracy.⁵⁸ And so we see myriad statements of concern and even opprobrium about democracy as a means of governance.⁵⁹ Nonetheless, democracy had more than an ambient influence on how the colonists thought about their new experiment with governance and well-ordered liberty, and it likewise had an influence on some of the design mechanisms in the original constitutions. Efforts to keep the executive branch restrained in its influence over legislative choice found their origins in a commitment to democratic rather than aristocratic decision-making; so, too, did the commitment to rotation in office.

Ultimately, the framers looked to design a mixed government, with different spheres of power, a set of checks and balances, and, significantly, different kinds of electoral mechanisms in order to accomplish multiple ends and objectives in government design.⁶⁰ And yet the purpose of this mixed government was not to diminish democracy, but to temper its excesses and organize democratic processes in a way that maintained the best features and aims of a system of governance in the public interest.⁶¹

Skepticism, Structure, and Constitutional Resets

The creation of new institutions (and adaptations of old ones) to carry out the objectives of good governance and restraints on the exercise of arbitrary power did not usher in a seamless and wholly successful scheme of constitutional governance in the post-revolutionary era. Our framers were imaginative and prodigious constitutional designers, but they were neither oracles nor magicians.

Difficult matters of democracy and representation would come to the center of the stage after the founding period and at various critical junctures in the century that followed. In the Jacksonian period, reformers sought to ameliorate the Whigs’ carefully constructed architecture of legislative representation and expertise by introducing distinct checks on government power as well as structural schemes meant to limit the discretion and flexibility of legislators.⁶² Emboldened democrats brought to the table a more powerful chief executive and also more conspicuous popular control of governmental institutions, including, significantly, the courts.⁶³ Such reforms reflected emerging skepticism with the idea expressed by the eighteenth-century Rhode Islander, quoted by Gordon Wood, that “[i]t is in their legislatures … that the members of a commonwealth are united and combined together into one coherent, living body. This is the soul that gives form, life and unity to the commonwealth.”⁶⁴

During this period, the role and function of the state legislatures were under particular scrutiny. The framers’ resolute faith in the legislatures as instruments of representative democracy faced challenges in the decades following the adoption of the US Constitution and the constitutions of the various states. “As the supposedly representative legislatures drifted away from the people,” Wood writes, “men more and more spoke of the legislators’ being just other kinds of rulers, liable to the same temptations and abuses rulers through history had shown – all of which made comprehensible the intensifying desire to make the representatives more dependent on the opinion of their constituents and the increasing invocations of ‘the collective body of the people’ to set against the legislatures.”⁶⁵

The concerns with the elected legislatures – in what they did and what they did not do – grew steadily from the time of their creation through to the first decades of the next century. “[W]e now see,” wrote Ben Franklin, “that quite as much mischief, if not more, may be done, and as much arbitrary conduct acted, by a legislature.”⁶⁶ Criticisms of the early state legislatures came from many quarters. Edmund Randolph thought the constitutions too democratic. He wrote that “[o]ur chief danger arises from the democratic parts of our state constitutions …. None of the constitutions have provided sufficient checks against the democracy.”⁶⁷ Further, as Robert Williams noted in his depiction of early state constitutionalism, “Madison, Randolph, Wilson, and Morris, who were among the most influential delegates at the Constitutional Convention, saw the existing state constitutions, with Pennsylvania’s as the most extreme example, as unable to provide checks against wide-ranging assaults on liberty and property by the relatively unfettered state legislatures.”⁶⁸ “The people’s will,” writes Wood, “as expressed in their representative legislatures and so much trusted throughout the colonial period suddenly seemed capricious and arbitrary.”⁶⁹

Caretakers of these first revolutionary-era constitutions had basically three choices available to them to ensure that the state government would not abuse power and undermine the goal of popular sovereignty and citizen welfare. One was to directly impose a strict limit on the state legislative power, something that could be accomplished by restricting state powers to those explicitly granted and, following that limitation, granting precious few powers. This was, of course, the option taken with the federal government under the US Constitution. A second option was to develop a meaningful scheme of checks and balances to control legislative excess. A final option was to establish a bevy of individual rights designed to restrict official power by interposing suitable bulwarks against government overreach.⁷⁰

In key ways, options one and three relied on a judiciary that could enforce such constraints – a reliance nearly impossible to contemplate at a time when no serious consideration had yet been given to judicial review as an awesome power through which the judiciary could invalidate duly enacted legislation.⁷¹ Moreover, the very idea that legislative power would be limited by resort to external enforcement was hard to square with the principle of plenary legislative power and, perhaps even more, with the trust citizens had placed in their elected representatives to govern well on behalf of the public interest.⁷²

For the time, the most sensible strategy was the middle one, to construct and design governmental institutions that would limit power and, especially, to establish a formal separation of powers. Distributing powers, as Publius would insist at the time that the US Constitution was being debated,⁷³ would have the effect of erecting barriers that would impede any accumulation of power that might threaten liberty. The separation of powers was truly the sort of “auxiliary precautions” that the framers designed to cabin and channel governmental power away from abuse toward salutary aims. Later, there would be debate about whether and to what extent maintaining this separation of powers would require judicial intervention.⁷⁴ But the question of how involved the judiciary would be in the quest for an effective scheme of checks and balances would remain opaque in this era. It was enough to describe the separation of powers as an important mechanism for accomplishing the state constitutions’ aims of protecting against subordination, realizing popular sovereignty, and energizing government to govern on behalf of the general will and welfare.

The separation of powers was one of the brilliant and essential contributions of the framers to this new constitutional design.⁷⁵ This separation was one element in the larger matter of distribution of powers and the creation of a mixed government system. This was intended to improve the performance of government. There would be, as well, a relationship between this separation of powers and a broad authority given to the government to act. This wide compass, necessary to carry out the core purposes and functions of governance, required guardrails; and, especially before the development of individual rights as judicially enforceable checks on official action, these guardrails were furnished by the separation of powers.

Despite the faith the framers and other theorists put into these structural mechanisms of controlling and channeling power, concern about legislative power and its scope remained. It is important to remember that one of the core precepts of state constitutionalism was that state constitutions, unlike their federal brethren, were documents of limit.⁷⁶ This meant that limits would have to be forged from within the structure of governance or from rights and other rules exogenous to the plenary power that was embedded in the document.⁷⁷ Broad, indeed awesome, legislative power went hand in glove with this precept.

The most significant efforts to reset the objectives of democracy and connect these objectives to the schemes and structures of representation came during the Progressive era, a period in which reformers were successful in cabining legislative power and in creating rules and institutions to limit, and in some instances reconfigure, legislative power. These reform efforts, which began in the early nineteenth century and continued through the early twentieth, were born of a tension that persisted between the goals of democracy and the goals of representation, of the need to maintain the integrity of popular sovereignty through consent, not only metaphorical (as with the elected legislature) but actual.⁷⁸

Notwithstanding these strong reform efforts and what might appear in the hot gaze of the Jacksonian period and its aftermath to be a withering of legislative power, law-making through elected state legislatures remained resilient – even in the face of serious concern about the performance of state legislatures. Political leaders spent a remarkable amount of time tweaking and repairing legislative structures, but none of this effectively disrupted the view of legislatures as the most promising institutions for safeguarding health and safety and for promoting the people’s welfare – a view that we will see supported by the evolution of the police power in the nineteenth century, the subject of Chapter 2. To be sure, this project of legislature improvement and constitutional repair is an important part of the story, especially in our republic’s first century. Political officials, acting in a way consistent with the idea of popular sovereignty, developed creative constitutional rules to facilitate good governing and public-regarding initiatives.⁷⁹ These include requirements that legislators act for a public purpose and that they not enact special legislation.⁸⁰ Later in the century, reformers added balanced budget requirements, the line item veto, and other structural mechanisms that had both the purpose and effect of checking legislative power. Related doctrines developed by courts, such as the public rights doctrine (which was mainly embedded in social constructivist accounts of private property and its protection)⁸¹ and the public trust doctrine,⁸² were fashioned to improve legislating. But more than that, it is important to see these doctrines and initiatives as a means of promoting democracy and maintaining the conditions for democratic decision-making. In sum, the state constitutions’ framers aspired to create institutions to implement popular will and safeguard popular sovereignty: It’s not only about giving the state the power, it is about power to the people.

Liberty and Property Rights

The concern with circumscribing threats to liberty and, especially, to private property loomed large in the minds and agendas of revolutionary-era constitutional framers, and it persisted to a large degree afterward. “‘Wherever the real power in a Government lies,’ [Madison] told Jefferson, ‘there is the danger of oppression. In our Governments the real power lies in the majority of the Community, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.’”⁸³

In modern historical literature in the republican tradition, much is made of the rejection of the standard view that our American constitutionalism – here speaking of both the US Constitution and the state constitutions – unequivocally embodied classical liberal theory.⁸⁴ In embracing this historical revisionism, we risk neglecting the myriad concerns the framers had with overweening state power and inadequate safeguards of property and liberty.⁸⁵ This is even more true of nineteenth-century historiography, where the emphasis is on the progressives’ triumph over a static, mechanical view of individual rights through the embrace of active governance and a wide remit for the police power.⁸⁶ Nonetheless, when we look at the construction of state constitutions in the early republic, we see a consistent concern with protecting individual rights,⁸⁷ albeit accompanied by some deep uncertainty about the proper institutional mechanisms for undertaking this protection.⁸⁸ As new constitutions were introduced and existing constitutions substantially reformed, the concerns with assuring a suitable measure of protection for individual rights, including property and contract and also individual liberty, persisted. While no state constitution forged anything resembling a libertarian vision of sharply limited government and the preservation of sacrosanct individual dominion over real and personal property, state constitutions from the beginning were preoccupied with maintaining an adequate sphere of freedom. These concerns were both ideological and instrumental.⁸⁹ They would ensure that individuals be able to develop and utilize the instruments of commerce that would enable them and society to prosper.

With regard to internal constraints on governmental power, the framers were in a dilemma born of the fact that, as individuals whose lived experience was with British constitutionalism, they had a limited structural vocabulary available to them. They could imagine a scheme of rights, although not necessarily enforceable against validly enacted acts of the sovereign. They could imagine a system of separated and divided powers, as described by Montesquieu and other influential thinkers.⁹⁰ However, it was hard to envision limits on legislative power built into their constitutional system. Insofar as the state constitutions were always understood as documents of limit, not grant, where then would the limits come? The answer to this persistent question would remain somewhat elusive in the coming decades.

The early and later state constitutions did include various rights provisions.⁹¹ Interestingly, the state police power was included in the declarations in the Pennsylvania constitution of 1776,⁹² a choice that may seem structurally clumsy, given the intuitive distinction between a right and a power, but the framers may have done so to make crystal clear that the health, safety, and general welfare of its citizens was an elemental principle of state government and could be expressed as a right of individuals to good governance. After all, rights in this formative era of American constitutionalism commonly focused on the community, rather on the individual.⁹³

However conspicuous or inconspicuous rights were in these early constitutions, there remained as an open question whether these rights would be enforceable against governments, either through the judiciary or some other mechanism.⁹⁴ For some of the rights delineated, the prospect of external enforcement through judicial review seemed problematic, if not impossible, to contemplate, and there are good reasons to expect that revolutionary-era state citizens and public officials who acted on their behalf saw it as such. Nonetheless, writes, Tarr, “the insusceptibility of various provisions to judicial enforcement was not a flaw, because the declarations were addressed not to the state judiciary primarily but to the people’s representatives, who were to be guided by them in legislating, and even more to the liberty-loving and vigilant citizenry that was to oversee the exercise of governmental power.”⁹⁵

More robust and meaningful structural safeguards would await Americans’ experience with the constitutions and the judiciary, the latter of which would prove vital in maintaining these safeguards by nurturing what inevitably grew from them, as well as maintaining the rights that would function as side constraints on the exercise of legislative and administrative power.

If the framers were so skeptical about including a full collection of rights in their state constitutions, what explains their steadfast effort to include a Bill of Rights in the US Constitution? The juxtaposition between the national and state constitutions in this realm reflects two different approaches to implementing the principle of popular sovereignty. For the national Constitution, the limits on the federal government’s powers were sensible from the perspective of the framers (at least those framers whose views prevailed in these debates) because they knew that the residuum of the people’s powers and thus their sovereignty would come from powers reserved to the states or to the people respectively. With respect to state constitutions, popular sovereignty would be ensured through careful attention to the structure of representative democracy, that is, to the design and functioning of the legislature; and it would also be protected through a diligent design of separation of powers and also of individual rights. In short, it was the design of the overall structure of the state constitutions that would work to protect popular sovereignty.⁹⁶ Moreover, the relative ease of amendment of state constitutions, whether through legislation or plebiscites or through the extraordinary mechanism of constitutional conventions, was a key means of ensuring that popular sovereignty would be safeguarded.

As we can consider the unsteady state of judicial intervention in protecting the people against legislative abuse and excess on the one hand and against legislative weakness on the other, we should focus on the modes of reasoning the courts used to interrogate legislative power. Despite the advent of written constitutions as fulcra of governmental power, federal and state courts were much more comfortable in using the common law as the lodestar source of their decisions. The force of common law reasoning in the first several decades of the nation’s history was important in shaping our constitutional discourse, especially before we accumulated a large number of decided cases that could be described accurately as our emerging constitutional law.

The reliance on common law to scrutinize governmental power and interpret individual rights had at least two important effects in the developing constitutionalism of the republic’s early years. First, common law reasoning viewed the judge as essentially discovering the law rather than interpreting text, much less making law in any discernible way.⁹⁷ Moreover, this discovery looked backward to principles and precedents in the common law as it had developed in merry old England. “Constitutional provisions were better understood as reminders than as enactments.”⁹⁸ Looking to English law to discern the contents and limits of governmental power was a difficult, if not impossible, task, as, after all, there was no coherent notion of judicial review that would have supported an American court’s finding that legislation violated the fundamental law and should thus be struck down. Yet, even after judicial review was well established in state constitutionalism, as happened fairly early in the process and before Marbury v. Madison,⁹⁹ fidelity to a discovery model of judicial decision-making rendered problematic the courts’ constitutional decisions in cases where precedent was lacking and in which questions of power and rights were prominent.

A second feature of the common law was also pertinent to early examinations of power and rights, and that is the reliance on considerations of natural rights and natural law.¹⁰⁰ This modality of reasoning was important in shaping how courts examined structural and (especially) rights issues.¹⁰¹ Accordingly, it became part of the courts’ police power jurisprudence, at least until the Lochner era passed into oblivion.

Judicial intervention in constitutional disputes has followed some discernible patterns across the history of state constitutionalism. In his two important books on state constitutional law, Judge Jeff Sutton has described in illuminating detail the ways in which state and federal courts have used (and should use) state constitutional arguments to resolve disputes about power and rights.¹⁰² He reminds us that while judicial review emerged early in our state constitutional history, there was considerable skepticism about the practice, for “[e]arly Americans did not trust judges and preferred that their liberty and other rights rest in the hands of their peers or what was then perceived as the next-best option: legislatures.”¹⁰³ And yet matters changed over time. Ultimately, Sutton writes, “[t]he country became increasingly comfortable with empowering judges to resolve constitutional cases and with perceiving them as trustworthy agents of the people.”¹⁰⁴

A wealth of scholarship has been devoted to the question of how judicial review and, more specifically, searching scrutiny of legislative action evolved and took hold in the American political culture and in the legal system.¹⁰⁵ Moreover, this is even before we get to the even more voluminous normative scholarship on whether this has been a mainly salutary development.¹⁰⁶ There is little on offer here in this book on this larger question. But one point that is pertinent to this chapter’s analysis of state constitutionalism and what we call the good governing project is this: Judicial interventions by the state and federal courts into matters of governmental power and of rights have been shaped in important ways by the fact and the consequences of having written constitutions and, furthermore, having, at the state level, relatively prolix written constitutions. Not only do these long constitutions provide much to grapple with, both at the level of implementation institutions (including legislators, governors, agencies, municipalities, etc.) and at the level of judicial interpretation, but the structure and strategies of judicial intervention are the natural outgrowth of the fact that our government functions within the parameters of written constitutions. Despite the copious amount of modern commentary in the legal literature emphasizing the indeterminacy of text and the ideological sources of judicial decisions,¹⁰⁷ only the most hardcore cynic (or realist, if one prefers) can insist that there is no connection between the fact that we live in a system of written constitutions and the phenomenon of persistent judicial scrutiny of exercises of official power and inquiries into individual rights and their role as trumps.

Governing Steadily, and Sturdily

Foundational principles of state constitutionalism (e.g., popular sovereignty, plenary legislative power) and pragmatically valuable structural mechanisms (e.g., separation of powers, direct democracy, limits on legislative power) are all part of the project of balancing the need for an active state government – active, that is, in its pursuit of the public good – with the need to preserve and safeguard interests essential to the well-being on individuals in the wider community, including the various sticks in the bundle of property rights and individual liberty, in both its positive and negative dimensions. When we measure the success of state constitutions by looking closely at constitutional performance and failure, we should consider how effective these operational principles and structures are in negotiating this balance between common good constitutionalism and individual freedom. This is in essence the measure of what we have called the project of good governing under a state constitutional framework.

A functioning state constitution will also be resolutely attendant to the perturbations of politics, coming from within the state, and also nationally. For a constitution to function well on behalf of the people subject to it, it must be stable. As political scientist Adam Brown writes in a recent book on the relationship between constitutional length and stability:

In recent work that emerges from the insights of modern rational choice political theory, Barry R. Weingast and various co-authors have emphasized key features of constitutional design and performance that are relevant to our discussion here. First, Weingast et al. point out the reasons for having constitutional constraints on political activity. Individuals will reasonably fear that their assets will be expropriated by others and worry, therefore, about subjecting their property and liberty to majoritarian political processes.¹⁰⁹ Enter constitutions. Constitutions create governance instruments that will respond to this rational fear and will guard against unrestricted majoritarianism.¹¹⁰ Rights are perhaps the clearest and most essential type of such restraints; but so too are structural safeguards, including various checks and balances hardwired into constitutions.

Furthermore, it is important that these countermajoritarian instruments be self-enforcing, that is, not rely on politics or even principally on adjudication to assuage concerns of the populace. Constitutions create stability in governance, and, likewise, stability in public behavior.¹¹¹ It is important to avoid coups and disruptions that would happen if individuals, ever fearful, felt that they needed to act purposively to protect their interests.¹¹² Ideally, constitutions forge what Weingast et al. call a “self-enforcing equilibrium,”¹¹³ that functions as a means of social insurance to secure the durability of the governing regime and provides for a fertile arena in which commercial transactions and other forms of community intercourse can function. Other institutions (e.g., a system for contracting; an orderly scheme of property rights) are important as well. But constitutions are a necessary condition for the operation of a state that remains efficacious and stable.¹¹⁴ Without the constitution and its manifest countermajoritarian mechanisms, citizens will view politics as high stake affairs. They will fear, and not without basis, the government and also their fellow citizens. Even short of descending into a Hobbesian state of nature,¹¹⁵ they will be limited in their willingness to create the conditions and structures for a successful economy; and they will find the establishment of a system of ordered liberty highly problematic. When we look at stakes in particular, the possibility of voice and even visit are not fanciful. States can be expected to compete with one another with institutional architecture. We can expect (and even hope) that this will lead to a race to the top; at the very least, the incentives are directed toward constructing meaningfully stable and efficacious constitutional arrangements.

Key constitutional powers, along with carefully configured rights, are part of the edifice of these constitutional arrangements that aspire to facilitate good governing. This is a normative ideal, but is also explicable on the positive political theory of governmental choice. This is an old idea, going back to ancient thinking about constitutionalism and carrying through the forging of American constitutionalism and our new science of government in the eighteenth century. It is also a new idea, as we think systematically about the capacity and potential of state constitutions in safeguarding liberty, facilitating democracy, and promoting the common good through sensible regulation and, in particular, the protection of health, safety, and morals.

To say, then, that the constitution aspires for government to act steadily and sturdily is just a homely way to represent the insight that good governing is a fundamental element of the project of state constitutionalism more generally. These are aspirations. Constitutional developments in the real world well frequently disappoint. To see these constitutions as too-malleable reflections of discrete policy choices or as unstable in that they are buffeted to and fro as the winds of political change blow is to distort the project of state constitutionalism in both a positive and a normative sense. State constitutions matter precisely because they are instruments of governance (albeit incomplete), not just museum pieces that contain an ultimately thin description of governmental ambition, a charge often levied at the US Constitution and many constitutions of other countries.

State Constitutions and the Project of Good Governance

In creating the state constitutions and also in reforming them in key respects over the republic’s first two centuries, political leaders and ordinary citizens have forged three elements that are critical in understanding the nature and scope of the police power. First, they created in constitutional form an idea of governance that has persisted across political struggles, a Civil War, and a reset in the relationship among levels and institutions of government, and that is that the role and responsibility of state governments is to promote the general welfare. These new constitutions would, as Willi Paul Adams wrote, ensure that “everyone have an equal share in the fruits of the common enterprise.”¹¹⁶ Representative democracy would be in service of popular sovereignty and, further, in the aim of good governing, and, accordingly, the legislature was front and center, in power and in role.¹¹⁷ This key idea found common ground in Whigs and Federalists, in Jeffersonians and Jacksonian Democrats. And, to telegraph a discussion in a later chapter in this Part, it proved incredibly resilient in the face of a sustained efforts on the part of conservative judges to undermine it through a particular approach to individual liberty and limited government. Second, state constitutions were perhaps most impactful on patterns of American constitutionalism and political choice, most generally in their experimentation with myriad mechanisms of governance structures, both with respect to enabling and limiting public power. By contrast to the US Constitution, where the basic template for government power was set in the terms of the original document (which is not to say that there has not been profound evolution in the actual performance of institutions in exercising this power over 235 years), state constitutions have given us imaginative, albeit occasionally chaotic, mechanisms of governance.¹¹⁸ We will see as this book proceeds the ways in which these mechanisms have affected the structure and the functions of the police power. But we can say generally that these mechanisms of design have affected state and local governance in many fascinating ways. Third and finally, the actual functioning of governmental actors, wherever they are located, has been a consequence of how the state constitution has framed and shaped governmental power and conduct.¹¹⁹ Government decision-making can undermine constitutional objectives, as we see when we take a close look at government performance in operation. However, it can also be true in a different context that bad governing derives from poor decisions made in the forging and framing of a state constitution. Garbage in, garbage out.

In any event, good governing as a goal is not a free-floating, politics-less concept. It is teleological, and the relevant governmental purposes that emerge from our constitutional objectives give us the best measure of success or failure. Discerning these objectives is a project of state government, acting in the name and interest of “we the people” of our respective states. And this is the project of national constitutionalism as well. The government here is not limited to courts, but includes all relevant branches and institutions working collaboratively, and through processes that we view as broadly democratic.¹²⁰ As these choices are being made, first in constitutional design and next in implementation, we can and should measure our policies, and the procedures that yield such policies, by reference to these summative objectives. We can then speak coherently of the quality of constitutions and constitutional arrangements; likewise, we can assess constitutional failure. The criteria are forged in the processes of state constitutional development. What it means to say that governing is good or bad is that such governing serves or disserves state constitutional objectives. The police power, as we will explore in more detail, has a general purpose and that is the promotion of good governing consistent with the objectives of state constitutionalism.

A good portion of the analysis of state constitutionalism in this chapter has focused on historical episodes and the political-historical context of choices made in the forging and reforming of state constitutions. Viewed from 10,000 feet, we should see these stories as part of a fundamental governance project. State constitutions grow out of ideas of how public officials should best govern on behalf of we the people; and, as well, ideas of how best to maintain our freedoms and liberties in the face of circumstances in which authority might be invoked, and maybe to our detriment. As an ideal, state constitutions are designed to facilitate good governing. The police power, in its evolution from the beginning to its present, is an instantiation of this basic idea, as we examine in the remainder of this book.

The basic insight from the previous chapter is that the nature and scope of the police power is revealed by a coherent account of state constitutionalism, with attention to both the constitutions’ ideologies and their practices. To judge whether and to what extent the police power “works” as an instrument of public policy, we must assess its performance in light of what the constitution expects of public authorities acting under this power. Such an assessment includes a deep dive into how courts have thought about the police power when they have considered conflicts raised by individuals objecting to the government’s use of the police power.

As we will see in this and subsequent chapters, the police power is made up of an admixture of legal constructs, toggling between judicial interpretations and legislative and administrative practice.¹ Yet at its core is constitutional authority and direction, each drawn from state constitutions’ designs and objectives. Insofar as the connection between the police power and state constitutionalism has long been neglected among scholars, a full chapter devoted to that subject was important to set the table. For the remainder of this book, we focus on the development and evolution of the police power and to its potential as a strategy to improve governance in the contemporary United States. This chapter examines the police power from the early republic to the end of Reconstruction.

There are four intersecting ideas that emerge from a close look at the police power over the course of our republic’s history, especially in this critical first era. First, the police power reflects a deliberate and fairly consistent commitment to an ambitious approach to governance, one that focuses on the capacity and obligation of public officials to protect and promote the general welfare of the states’ citizens.² This view is broadly congruent with leading scholarship on the police power, going back to writers of the late nineteenth century including Justice Thoms Cooley, Christopher Tiedemann, and Ernst Freund, each authors of major treatises on the police power, and up to the present, with the seminal historical work of William Novak and Harry Scheiber. It is also congruent, albeit in a more indirect sense, with a wealth of contemporary scholarship on democracy and American constitutionalism.³ This scholarship emphasizes the deeply and broadly democratic character of constitutionalism in America, distinguishing this in key ways from the familiar logic of constitutions as fundamentally countermajoritarian, and, a fortiori, anti-democratic governance instruments. As we explore the awesome scope of the police power as a fulcrum of American governance, we should orient this conversation around influential depictions of state governance and constitutional development over the expanse of, at first, two centuries. Although this book is not a work of legal history, the historical context is important to understanding what the police power has become and how it has evolved. Second, the police power was originally understood and continues to be understood as a power that is in some constructive tension with the protection of individual rights. These protections form important cornerstones of American constitutionalism and risk being neglected in scholarship that emphasizes the plasticity of these and other negative rights and steady expansion of the government’s regulatory powers.⁴ We will see, in our focus in this chapter on the republic’s first century and in the next chapter covering the critical half century between Reconstruction’s end and the end of World War II, the major ways in which the police power developed alongside the evolution and shifting terrain of private property and liberty rights. In contrast to the libertarian idea of property rights as rigid constraints on the power of government to govern, legislatures and courts came to see property rights in a broader social context, one that viewed rights as subject to public exigencies and social imperatives and as critical to the fundamental goal of promoting the people’s welfare.

The centrality of property and contract rights to our well-ordered liberty in our American constitutional scheme did not wither away as the imperatives of active governance grew. While the balance shifted in important ways toward broad governmental authority, tensions between the public interest and the prerogatives of individual property owners persisted. Third, although it would be accurate to say about the police power at the end of Reconstruction that it is an essential attribute of the regulatory authority of state governments under state constitutions and an element of popular sovereignty in our American constitutional tradition, this power was never intended to be limitless. Nor truly can it be, if it is to be consistent with our best constitutional understandings. A comprehensive account, therefore, of the police power must account for and explain the reasons for and the character of these limits. Fourth and finally, the police power has proved incredibly adaptive to changing conditions and also to the need to create new implementation mechanisms for regulation, such as administrative agencies and municipal governments. The evolution of the power from a means by which the legislature could assert its plenary authority to govern to a more institutionally dynamic method of governance is a neglected, but important, part of the police power story.

As we discussed in Chapter 2, there is necessarily a strong connection between the police power and American state constitutionalism. This power exists not as some free-floating attribute of governance or as a mechanism deriving its character and contents from the common law, but instead as a power embodied in the state constitutions. Moreover, insofar as it is a power reserved by the states through the US Constitution’s Tenth Amendment, it is part of our American constitutional scheme more generally. With that in mind, we first will situate our discussion within the debate over how and why it matters that the police power is an embedded constitutional power. What specific consequences follow from the fact that the source of the police power is and has always been the constitution, frequently explicit in the document’s test, but always central in its overall context and ideology?

The Police Power and Constitutional Meaning

The framers of the first state constitutions in the eighteenth and early nineteenth centuries were engaged in two struggles simultaneously, the outcomes of which would define the governance structure of the new nation for the critical first decades. One struggle was how to create effective frameworks of government through these constitutions – this in order to get the people’s work properly done. We can characterize this is a struggle, rather than merely an effort, because these framers were developing essentially new ideas about governance, public power, and individual rights as they crafted these documents, all against the backdrop of a persistent fear that they might substitute one tyranny for another. The other struggle was how best to define the sustain the relationship between the national and state governments. A theme prominent in both of these struggles was how to ensure that all spheres of government had power adequate to fulfill the functions of government, to promote the general welfare and secure the blessings of liberty. Likewise, the framers resolved to maintain sufficient protection of individual liberty and property.⁵ That this strong commitment was inchoate was not because these values were not prized. Rather, these founders were acting within the conditions and circumstances of their times. They developed strategies before the emergence of a more robust understanding of constitutional rights and the role of the courts in safeguarding these rights and well before the incorporation of the Bill of Rights to the states and before the establishment of rights distinctly held by citizens of the states through the transformative impact of the Fourteenth Amendment of the US Constitution a century after the republic’s creation.⁶ Moreover, they did so in a time when they had invested great faith in the state legislature as an instrument of democracy and as a protector of certain vested interests.

Essential to the resolution of these questions of authority and its limits was the predicate question of who would be able to wield power in the name of We the People and, in addition, who would govern the governors? “The overriding issue Americans confronted before and after the independence,” writes G. Edward White, “was the nature and location of sovereignty in government.”⁷ The framers’ answer, as we discussed in the previous chapter, was popular sovereignty, that is, rule by the people and thus the derivation of all governmental power from the people in its choice to assemble constitutions and the appropriate institutions of government to carry out the people’s will.⁸ Although the framers were not without their doubts and fears about the muscular exercise of public authority by state and local governments,⁹ they ultimately cast their lot with a vision of government in this new republic that embraced strong state power.¹⁰ To put it another way, the framers understood that one of the consequences of reserving power to the states was that the states would possess a broad range of powers. This was not a bug, but a positive feature of the developing American constitutionalism.

The very best example of the framers’ commitment to capacious state power was the police power itself. This was the instantiation of the idea that state constitutions were documents of limit, not grant, and that state governments would manage their fair share of duties under our overall scheme of governance.¹¹ Moreover, the police power, like all other elements of the constitution, sprung from the fundamental function and obligation of the government to protect and promote the public welfare. While the framers were certainly preoccupied with fashioning sufficient checks and balances to limit power, we should see these efforts as ultimately derivative of the effort to create structures of governance that would implement our common good and in the name of the people who consented to this approach to good governing.¹² Government would protect our health, safety, and welfare, and would implement policies to advance the public welfare.

What do we make of the fact that this power was labelled a “police” power rather than, say, a “regulatory” or a “governance” power? Policing was a concept with an ancient lineage, tracking the activities of social control in the Roman and medieval periods. A number of scholars have noted that the concept of the police power comes into English law through the idea of the patria potestas, with the King’s solemn duty to manage the affairs of the household at its core.¹³ In his Commentaries on the Laws of England, Blackstone described the function of the public police as “the due regulation and domestic order of the kingdom, whereby the inhabitants of the State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations.”¹⁴ While this rendering shared much in common with the conception of government obligation articulated by other rough contemporaries, including Vattel¹⁵ and Adam Smith,¹⁶ we can trace this large description of the constitutional power to ensure “domestic order” and the mechanisms necessary to enable a population to flourish all the way back to Aristotle.¹⁷ The police power was the power to govern well and for the common good.

The revolutionary-era thinkers were surely attentive to these themes and could readily imagine that state governments under state constitutions would have as their critical goal protecting the public welfare as an obligation to look after the “household.” However, what they thought of as the household is more associated with the idea of the common good and general welfare as defined by constitutional understandings and objectives of the times, not by monarchs acting through the royal prerogative. Policing may have been associated with powerful mechanisms of control, as it was understood by Blackstone and, if one wants to look deep into the etymology of all this, in the notion of policizia or parens patriae,¹⁸ but this understanding was not buttressed by constitutional theory in the early American republic. That the colonists did not expect to be managed and subject to ubiquitous social control was obvious from seeing the lengths to which they went to secure limits on government power and general executive power in particular. To be sure, American constitutional choices were not made in a vacuum and certainly the framers learned much from Blackstone with regard to situating a broad governance power in constitutional frameworks.¹⁹ However, they pushed back hard against the idea that underlay the king’s prerogative and the benevolent goal of safeguarding the household. Instead, they wanted bold, broad power tethered to constitutional guardrails.²⁰ Therefore, paying inordinate attention to Blackstone and related conceptions of the police as a social control mechanism risks confusing the issue of what British constitutionalists expected from the king and what new Americans demanded of those who were exercising power in the people’s name. In the end, Blackstone’s formulation “serves badly as a guide to constitutional doctrine and governmental realities in the United States in the 1790s or the early nineteenth century.”²¹

If organizing our thinking of the police power around antediluvian notions of household management and social control is misleading as a framing of what the founding fathers aspired to achieve in creating this power, what then do we see as these central aspirations and, further, why ought we to care?

Let us start with the big objective: The framers of the revolutionary constitutions and the leaders who would follow in their steps in constructing new constitutions and in reforming the original documents were committed to energetic governance that would realize important public objectives, including the expansion of the economy and widening opportunities for prosperity for their citizens.²² They also were concerned to reduce harms to citizens, harms that were ubiquitous in an era in which health and safety were at risk from various threats.²³ These goals necessitated ambitious public powers, including a broad police power. At the same time, the framers worried, for reasons we described in Chapter 1 in our larger discussion of constitutional objectives, about the threat by ambitious governments to our individual liberty and private property.

To best understand the solutions at which they arrived, we need to see both parts of the equation: the part that emphasizes, with the revolutionary spirit of state constitution-making, that the authority of state governments would be enormously capacious, this in order to implement key needs and wants of the citizenry of this new nation, but also the part that is concerned with ensuring that elected representatives would not simply reinforce the efforts of the British monarch by using the police power as essentially a king’s prerogative.

The issues cut even deeper than concerns with government capaciousness. They were likewise concerned with rapaciousness. The framers’ vision of energetic regulatory governance was in tension from the beginning with the objective of protecting liberty and private property, protections necessary to a well-ordered society. In highlighting the ubiquitous commitment of early and later constitution makers to advancing the public welfare through regulations that would supercharge the economy and address myriad social problems, we should not ignore the tensions that emerged from our strong commitment to protecting liberty and property. Our American public law, constitutional law and administrative law included, insists that the government act with regard to our cherished liberty and property rights in a way that is neither arbitrary nor unreasonable. We have always had limits on the exercise of governmental power; and these limits are built on a dual edifice, the first borne of an informed skepticism about the incentives and temptations of lawmakers, reflected cogently in Madison’s views on factions in Federalist No. 10,²⁴ and the second born of a view that a principal function of the government to which we consent as a people is to protect our liberty and property.²⁵ It is in the tension between activist government and safeguarding of our liberties, between what would come to be called public rights and our classic and evolving private rights that we can learn much about the development of the police power.

To understand how the framers understood the balance between broad authority to protect the common good and the need to check the government and to protect citizen liberties, we should look at what they viewed as the principal threat. From one important perspective, the principal concern was the anemic quality of the central government under the Articles of Confederation and its inability to control “the centrifugal tendency of the States.”²⁶ They needed to construct a system that would address the myriad threats to this fledgling nation; and so the preoccupation with creating a suitably strong federal government, one whose powers could evolve to meet emerging conditions, made very good sense given the immediate relevant history.²⁷ They were concerned as well with the various needs of its citizens to prosper and they knew that an active government was essential to meet these current and future needs.²⁸ Such governance would be critical to securing “the blessings of liberty” and to “promote the general welfare,” themes at the heart of the framers’ description of, and hopes for, these new constitutions, and also very much on the mind of the various thinkers whose views would play such a central role in the framers’ approach to the subject.

The framers’ commitment to individual liberty in the US Constitution is revealed in expressions and in structural choices, and yet the large claim that the document and its framing history underwrote a liberty-forward vision of American constitutionalism has come under strong criticism as the so-called republican tradition of constitutional historiography has taken strong root over the last four decades.²⁹ However strong were the framers’ commitments to a liberal idea of governance in the US Constitution, the overall structure and ideology of the state constitutions reflected a studied concern with enabling government to exercise wide authority to protect citizen welfare and secure the common good. So far as the states were concerned, “[the police power] underwrote an American theory of governance that was collectivist and majoritarian rather than liberal.”³⁰ From this, we might conclude that “the states were the original architects of Progressivism, not the federal government, and they drew their justification at least in part from a reinvigorated conception of the states’ police power.”³¹ However, this dichotomy between the progressive state governments and the libertarian national government proves too much. At the center of our revolutionary constitutional tradition, forged in a struggle against monarchical governance, is the safeguarding of individual liberty and property, while enabling effective governance in the name of We the People. The states may have been the original engines of progressivism, but what progressivism meant in the post-framing period was surely different than what it would come to mean seven decades later, as society and the market economy evolved, the meaning of citizenship was redefined after a bloody war, and we the people enacted transformative constitutional amendments. Ultimately, it would become untenable to maintain, both as a practical and theoretical matter, two competing ideologies of regulatory governance, one aiming at liberty and the other at equality and social welfare. Rather, American constitutionalism has long aspired to mechanisms that reconciled the demands of social welfare governance and individual liberties, of energetic regulation and private property.

Still, the state constitutions had from the beginning of the republic purposes different than the US Constitution, and the framers thus choose constitutional structures that would allocate principal responsibility and prerogative to different levels of government, one illustration of which was the establishment of the police power as a state, and not a federal, power. This was the central genius of American constitutional federalism.³² The overarching objective, as we should remember, was to facilitate the abilities of both levels of government to pursue what were ultimately common objectives, that of promoting the general welfare and securing the blessings of liberty to ourselves and to our posterity. The Constitution’s preamble declares that this is the fundamental objective of the federal Constitution. But this same surpassing elegance of the overarching goals of governance are contained in state constitutions as well.

Meaning, Purpose, and Strategy

The ascription of a coherent constitutional vision to the framers of the state and federal constitutions risks falling into the trap of supposing that there is one true story here, a story revealed in the creation of, and advocacy for, the US Constitution and the various state constitutions adopted at roughly the same time. This framing of these events might support an originalist argument that we should interpret the police power in accordance with the will of the framers to accomplish these two objectives.³³ Such a view, to put it in the right contemporary jargon, is in alignment with the original public meaning of the police power.³⁴ And yet the original public meaning of the police power remains elusive – or, at the very least, incorrigible, as a basis for interpreting it fruitfully in matters of dispute.

As to the matter of original public meaning, we cannot say beyond extracting some important themes from the statements and actions of the founding fathers about the shape and scope of regulatory governance what exactly they would have wanted from the police power as it was applied in circumstances that would emerge as the needs of states and the nation evolved in various directions. The history here matters, and much more than a little, even if the framers’ intentions and the original public meaning of a phrase so capacious and complex as “the police power” matters less.³⁵

We can nonetheless extrapolate from their expressions and their actual tactics, including the structural decisions they made in these constitutional texts, what they aimed for as a matter of strategy. The meaning of this power can be understood by considering the larger context of political strategy and choice in a constitutional republic. Makers of state constitutions created institutions and spheres of power in order to accomplish deliberate goals. As we discussed in the previous chapter, these goals include creating structures to cabin executive influence (which revolutionary constitutionalists equated with the royal prerogative) and, later, to limit the risks of legislative excess. They include mechanisms to facilitate energetic and public welfare-enhancing governance. Further, citizens were also concerned to reduce the likelihood that government would turn away from the general welfare and toward opportunistic methods of expropriation. Hardwiring individual rights into these constitutions, as the framers did with the Bill of Rights in the US Constitution, assisted in reducing these risks and in creating this self-enforcing equilibrium.

Mobilizing their state and local governments to protect the general welfare meant establishing a clear set of powers, powers that were not dependent upon the federal government’s choices under the US Constitution. The framers could not forecast the future, of course, but they could well imagine the challenges faced at the time the constitutions were forged and also the need for flexibility and discretion in light of what they surely could see would be changing circumstances and conditions. The quest was for an equilibrium that would ensure stability while accounting for adaptation.

The framers were also concerned about maintaining schemes that would ensure that private property would be adequately protected. A police power without limit would represent a continuing threat to individual liberty and prosperity and would therefore be deeply problematic; it would trigger fear and would sap the new nation of the consent it needed from key constituencies in order to ensure cooperation and acquiescence in important governmental choices. Therefore, proper limits were not merely desirable, but were necessary. The main veins of contemporary police power scholarship emphasizes the incredible breadth of the police power, the “staggering freedom of action” the states possessed.³⁶ However, a comprehensive account of the power needs to see both sides, to reconcile this awesome power with the concern with the appropriate limits on this power. Constitutions, to be self-enforcing in the sense just described, need to reach an equilibrium, one in which powers and limits are in alignment and in a way that can reassure fearful citizens.

Ultimately, matters of constitutional meaning, purpose, and strategy are inextricably linked. State constitutions were created to be instruments of governance; they were designed to facilitate the efforts of public officials on behalf of the governed. They were designed not as monuments to the public’s fundamental values, but as instruments designed to work. In order to function as effective instruments, the framers needed to have a shrewd sense of the dynamics of state-level politics, not to mention the complexities of federalism, given that these states were embedded in a constitutional system that involved actors at multiple levels of governance. In understanding these dynamics, the framers incorporated views about human nature and the motivations of actors under conditions of constraint and uncertainty.³⁷ Attention to strategy, and to intended and unintended consequences, was not a new insight, but a manifestation of the new science of politics that took individuals as they found them and understood that both citizens and officials would design institutions and procedures in order to achieve certain purposes.³⁸ James Madison not only understood this well, but also gave us perhaps the most famous declaration about the nexus between individual behavior and structural solutions in Federalist No. 10 and elsewhere in the Federalist Papers, where he wrote about factions, democracy, and representative government and the ways to address key impediments to representative democracy under a constitutional framework.³⁹ While these timeless statements were made in the context of the ratification debates over the US Constitution, the overall analysis was important to an understanding of American constitutionalism more generally, and so was pertinent to choices made in state constitutions as well.

The nexus between purpose and strategy is a complicated one and implicates issues broader than what can be captured here; however, the essential point is that constitutions have purposes that we can learn about from a dense and broad inquiry into the text, context, and ideas embedded in these documents and contemporary political practice. Historical exegesis of the sort that has shed important light on our American constitutional tradition has been essential in exposing some of these key purposes, a point central to interpretive methodologies of various stripes, including, but not limited to, originalism. Moreover, we can learn some probative things about political strategy as constitutional designers and other relevant officials thought about such matters at the time. This enables us to understand better the design and performance of certain governmental institutions and how they might facilitate political purposes and objectives. For example, certain executive powers given to the governor can assist interest groups within the political process with protecting against legislative threats that will undermine their interests.⁴⁰ This is illustrative of the deliberate, purposive choice of constitutional architects to create mechanisms of power that can effectuate present and future objectives by anticipating responses and tactics from other government officials with different, and occasionally competing, objectives.⁴¹ All of this is to say that there are connections we can draw between constitutional purpose and strategy, and, when we do so, we can get a better picture on the overall framework of constitutions as documents that help citizens and elected representatives accomplish their objectives by setting out the rules of the game and constructing the institutions that will exercise authority and implement policy. Such information helps us in better understand the police power. We can say, albeit in a fairly abstract way here, that this power helps public officials accomplish certain strategies associated with the people’s welfare. At the same time, this power is not free-floating, as some sort of extra-constitutional emergency power in the sense that, say, Carl Schmitt might have imagined,⁴² but is embedded in constitutions that have internal and external limits on its use as an instrument of governance.

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From this framing of the question, we explore next how the police power helped to accomplish key objectives in state constitutionalism. The focus in the remainder of this chapter and the final two chapters in this Part I, is on specific dilemmas and challenges faced by government authorities and also the courts in dealing with the content, scope, and limits of the police power.

Nascent Federalism: The Police Power/Commerce Power Puzzle

From the adoption of the US Constitution, the overall system of American constitutionalism took on a fundamentally different valence. The question was no longer one of defining and structuring governmental power, as was the principal function of constitution-making in the revolutionary period. Rather, another fundamental question emerged, and that was how to reconcile constitutionally established state power with the power and authority of the national government.⁴³ This was the core issue of constitutional federalism that preoccupied the framers and later the Supreme Court.⁴⁴ A thorough understanding of the framers’ purposes and of their achievements with respect to the distribution of powers in the US Constitution remains elusive, even as generations of constitutional historians and legal scholars have analyzed this critical period of American history. One prosaic point is that the contours of federalism were not made explicit in the document and indeed that term was nowhere used in the document explicitly. The appropriate lines between state and federal authority were not self-evident, to say the least. Ultimately, the distribution of authority between the federal government and the states would evolve in light of practice and also key judicial interpretations.

One of the central federalism controversies in the new republic was the relationship between the police power of state governments and the enumerated powers of Congress in Article I. To what extent could a broad state power to protect health, safety, and the general welfare coexist with Congressional power to tackle major issues that, as the framers had quickly discovered in the early years of the nation’s history, called for national action? One particular puzzle concerned the interaction between the police power to regulate certain business activity, such as transportation, and Congress’s power in Article I, Section 8 to regulate interstate commerce.⁴⁵ The US Constitution accorded Congress an exclusive power to regulate interstate commerce; at the same time, among the reserved powers the states had under the Tenth Amendment was the state constitutional authority to protect health, safety, and welfare. It would not take great imagination to see the potential for these two powers to come into conflict. What would ensure that state governance strategies would not undermine the objectives of our new nation?⁴⁶

Such conflict emerged in the second decade of the nineteenth century, first in the dispute that gave rise to the Court’s decision in Gibbons v. Ogden.⁴⁷ New York had granted a monopoly for steamboat traffic to Messers. Fulton and Livingston. This was challenged on the grounds that this interfered with interstate commerce and therefore impeded the national government’s power under the Commerce Clause.⁴⁸

Chief Justice John Marshall spelled out the basic structure of national governance and state prerogative in circumstances in which the demands of an unobstructed interstate commerce required limiting state control. “The genius and character of the whole government,” Marshall writes,

Acknowledging the secure existence, after the adoption of the US Constitution, of the states’ taxation and police powers, Marshall’s objective is to sort out where the exercise of such powers interfere with the plenary power of Congress to regulate commerce (which, early in the opinion, Marshall explains includes navigation and all the necessary instrumentalities of commerce).⁵⁰ To the Marshall Court, the solution to the puzzle of reconciling police power of the states and the commerce power of the federal government was to view these powers as involving two different imperatives, one that was scrupulously connected to local goals and needs and the other that was a structural mechanism to ensure that our nation could function effectively, that is, without balkanization and interference with common purposes.

Importantly, Marshall acknowledged the broad police powers of the states and also that these powers would be used in myriad contexts when the need arose to protect state citizens’ public health and safety.⁵¹ Noting “the acknowledged power of a State to regulate its police, its domestic trade, and to govern its own citizens,”⁵² he gives the example of quarantines, an action that surely affected transportation and therefore commerce, as an example of such health-related powers.⁵³ However, these powers must be exercised consistent with the purpose and logic of Article I of the US Constitution, to ensure that the state was not interfering with the free flow of commerce. According special navigation privileges to Livingston and Fulton was an example of such an interference.

A point largely taken for granted, then and now, was that if and insofar as there was a clash between national and state interests, national interests would undoubtedly prevail.⁵⁴ The US Constitution explicitly reserved broad powers to the states, but simultaneously ensured that national objectives would prevail where there were conflicts. This is essentially what they meant by federal supremacy. State and national interests could be symmetrical, but they would occasionally come into conflict. Where so, it would fall to the courts to determine whether the states were, in advancing their interests, acting inconsistently with a power vested in the national government. The police power would only pertain to state decisions made within the proper domain of state authority. This would be made more clear by the Court in McCulloch v. Maryland⁵⁵ and other lodestar federalism cases. But there was precious little disagreement on the point that the federal government could constrain the states’ exercise of the police power, that is, so long as these powers came into conflict with legitimate federal interests under the Constitution. The Supremacy Clause made crystal clear that the federal government’s will would prevail.

As to the matter of police power and interstate commerce, the Court further elaborated on this conflict and its consequences in Brown v. Maryland.⁵⁶ The needs of a commercial republic, the Court in Brown reasoned, required restrictions on the balkanization that would happen if states could make their own decisions for their own purposes.⁵⁷ In addition to reinforcing the logic of Gibbons, Brown was interesting in that it was the first instance in which the Supreme Court specifically mentioned the police power.⁵⁸ Without defining it comprehensively, the mention of the power made what might have been a wholly abstract idea of state prerogative to govern on behalf of its people into an actual power with a constitutional source, and a power that survived the adoption of the US Constitution.

The case in which the Supreme Court in the early years of the republic worked out most thoroughly the nexus between the police and commerce powers was New York v. Miln.⁵⁹ This case involved a statute enacted to protect the public health of the community by requiring that a ship’s captain, within twenty-four hours after docking at the port, report in writing the names, ages, and last legal settlement of every person who has been on board the vessel. That this was an exercise of the state’s police power, and not the assertion of a power over commerce, was revealed, said Justice Barbour for the Court, by the state’s rationale for the law, focusing on the town’s purpose, ends, and means of implementation of this law. “It is apparent,” wrote Barbour,

This purpose set this law apart from the laws considered in both Gibbons and Brown. In those cases, the states were asserting power – to regulate commerce – that were exclusively Congress’s under the US Constitution. With this clear conflict in view, the Court held in both Gibbons and Brown, that the federal government’s power is exclusive and thus the assertion that the states had a police power to regulate was of no consequence. In Miln, by contrast, there is no equivalent federal interest and therefore no power that could be squared with the commerce clause. Given that the Constitution is a document of grant, meaning that the federal government has only those powers enumerated in the document, the state’s actions under the police power could not be supplanted by the federal government.

There is no new constitutional law made in Miln, but instead the case nonetheless illuminates the principle from Gibbons and Brown, that where state laws do not impose burdens on commerce, they are not inconsistent with the US Constitution but are, rather, part of the ordinary public health regulations, equivalent to quarantines and the like, that Chief Justice Marshall in Gibbons had said are part of “[t]he completely internal commerce of a state [and therefore] may be considered as reserved for the state itself.”⁶¹ While none of these cases provide a good definition of the police power, such a definition was unnecessary to decide the outcomes. What was ultimately at stake in all three cases was what we might call pure federalism. Was there a conflict? Who would prevail in such conflicts under principles of US constitutional law? Tacit in these early decisions in our history of constitutional federalism was it that fell solely to the states to determine what powers they had under their own constitutions. In these early watershed commerce clause cases, the great chief justice acknowledged the police power, but did not endeavor to define it.

Nonetheless, these cases, decided over a decade and a half period, were important in reinforcing the power of the states to act locally and with respect to the “internal commerce” of the states, while also curtailing state actions which interfered with commerce that was external. This key move could not be regarded as inevitable at the time these controversies were brewing. After all, the Court had two other roads available to them. One involved weighing the interests of the federal and state governments and making a determination of whether and when state interests were superior to national interests. A second road was to view the Tenth Amendment as creating a safe harbor for states when it was acting under its police powers, even if state actions interfered with commerce. This would involve drawing a line between state efforts to regulate interstate commerce directly and state actions which were aimed toward other objectives but, at least indirectly, interfered with interstate commerce. The affirmation of exclusive federal power over matters of commerce in these and other key cases, would ultimately settle the matter of whose will would triumph once and for all.⁶² It became plausible that the courts would second-guess state legislatures and impose more substantial guardrails on the assertion of state power over economic activity in individuals and firms where it might bump up against national concerns. What we learn from the early commerce power cases is that the state police power is reserved power and in that regard is undisturbed by the enactment of the US Constitution. However, the power is not unlimited and cannot be exercised in ways that would interfere with the free flow of commerce. It makes sense, therefore, that the state police power would, from the Supreme Court’s perspective, remain intact even in the face of the steadily growing imperative of exerting national influence and control over various issues that implicated interests of the United States.⁶³

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There were three developments in the first decades after the republic’s creation that shaped the emergence of the police power as a significant force in state governance. The first was the need to conscript the state legislature into the project of helping to solve the problems of interference with individuals and communities’ safety and health by others. This was the classic issue of sic utere, one that was reflected in our private law of torts as developed and implemented principally through the common law.⁶⁴ Governments at both the state and local level began to intervene more actively, through legislation and regulation, in order to address issues that were characteristic of a society with greater risk, economic needs, and more compassion and sense of obligation to the common welfare. The police power was a key element in this enterprise. The second development was the increasing need for infrastructure and public works projects, this to address the important needs of a growing population and ever more interdependent economy. While the national government would play an important role in these efforts, and a profoundly more important role in the twentieth and twenty-first centuries, the fulcrum of these infrastructure efforts was at the state level. The police power functioned here as a mechanism of improving “the people’s welfare.”⁶⁵ Third and finally, just as the legislative power was evolving in distinct ways, so too there emerged new notions of legislating. At the time of the framing and for many years afterward, the common law reigned supreme as a mechanism of addressing conflicts involving property and personal harm and, more broadly, in defining the scope and contents of legal duties and rights. However, as the nineteenth century continued, there were changes in how we thought about the role and functions of common law adjudication and, in addition, how we thought about the province of legislation.⁶⁶

Righting Wrongs, Protecting the General Welfare

As the first state constitutions were forged, and for many years thereafter, common law was in the ascendancy, with positive legislation interstitial.⁶⁷ Tort law had steadily developed mechanisms to combat harms to the general welfare, in addition to redressing various types of person-to-person wrongdoing (including threats to one’s property rights, as with traditional trespass and nuisance actions). And so, to consider a counterfactual, the police power might have developed as a mere adjunct to the common law of torts and property and the emergent criminal law. For instance, it could have been focused narrowly on abating nuisances, that is, the improper exercise of one’s property to cause injury to a neighbor, and about redressing public nuisances and wrongs that represent threats to public health and safety.

Early police power cases suggested that it would play this limited role, essentially a public law version of the sic utere principle. After all, the earliest of American police power cases typically involved redress for wrongdoing and, in that sense, legislation (state or local) was more often than not described by the court as a supplement to the common law.⁶⁸ However, we will see that the police power expanded considerably over the decades of the nineteenth century, so as to develop a quite different, and considerably bolder, rationale for proper regulation.

Let us first consider what this earlier and more narrow construction of the police power revealed. One of the most elemental concepts in the study of American torts and property law, introduced to law students early their first-year study and drawing upon several centuries of caselaw and commentary, is the notion of sic utere tuo ut alienum non laedus, roughly translated into the expressed limit on the ability of one to exercise his liberty or use his property so as to interfere with the rights of his fellow man.

The law of nuisance captures this idea well, albeit in the rather wooly way this body of law has developed over its lifetime. The theory of classical nuisance law encapsulates four basic principles that are important to our understanding of the police power as a mechanism for enforcing the sic utere principle. First, there is the idea that individual rights, including property rights, are “relational and qualified.”⁶⁹ The right to use and enjoy one’s property is a fundamental stick in the bundle of the owner’s rights, but it is conditional on society’s judgment that this use and enjoyment must not interfere with others’ freedom and interest.⁷⁰ Second, there is the wider view that builds from the sic utere notion that individuals should use their property in a peaceful way and in due accord with the society’s general welfare.⁷¹ Third, this “should” extends from something akin to the Golden Rule to an obligation imposed by edict of the government, either through the common law of torts and property or through positive law that limits the actions of individuals so as to maintain the peace and common good.⁷² Fourth and finally, the task inevitably falls to the judge to make the difficult assessment of whether one’s use of property is reasonable or unreasonable; after all, it is not the interference that the law proscribes, it is the unreasonable interference, taking account of the standards that the common law or statutory law delineates in measuring the propriety of the conduct under survey.

Property rights were viewed in these early cases as including the freedom to use. The room for restriction was narrow, principally limited to circumstances involving private or public nuisances. Where such harm-causing activity occurred, however, this matter would warrant public regulation as well as a recovery under traditional principles of tort law. A good illustration of this principle in an early police power case is Brick Presbyterian Church v. Mayor of New York, decided in 1826.⁷³ There the plaintiff claimed that a restriction imposed by the city on his ability to use this land as a cemetery would interfere with his use of the property, more specifically, their covenant of quiet enjoyment. The operation of a cemetery in this community would, argued the plaintiff, impose a distinct harm on the public. Accepting such a claim, said the New York high court, would run afoul of the sic utere principle. Viewed from a public harm perspective, it is “unreasonable in the extreme to hold that plaintiff should be at liberty to endanger … [the lives] of the citizens generally.”⁷⁴

Likewise, in evaluating one year later a municipal regulation limiting a boat owner’s right to connect their boat to a dock in a dangerous manner, the court in Vanderbilt v. Adams insisted that this statute was “passed for the preservation of good order in the harbor”⁷⁵ and was “essentially necessary for the purpose of protecting the rights of all concerned.”⁷⁶ The law protects property owners’ interests only when the owner can be said to suffer an injury, but under the sic utere principle “this is not considered as an injury.”⁷⁷ After all, the property owner benefits reciprocally, if indirectly, as a member of the general public. A law enacted therefore under the sic utere principle is “constitutional and obligatory.”⁷⁸ “Every public regulation in a city may and does, in some sense, limit and restrict the absolute right that existed previously, but this is not considered an injury. So far from it, the individual, as well as others, is supposed to benefit.”⁷⁹

These strong statements of governmental roles and responsibilities under the police power are characteristic of a time in which the public law of government regulation existed alongside the common law as a complementary means to redress private harm.⁸⁰ Government regulation supplemented tort law in this regard. Courts could and occasionally did declare a certain act to be a public nuisance.⁸¹ But the duly enacted ordinance or statute accomplished the same objective in declaring (nay, discovering!) that certain threats to the health and safety of the public were properly addressed through positive law.

To the extent that the police power began principally as an instrument to safeguard the sic utere principle, this was principally because the kinds of regulations created were designed to limit public nuisances and other sorts of threats to individual well-being. Even within this structure, it is important to understand, as Novak wrote, that nuisance law in this time “was neither trivial nor timid”⁸² and “nineteenth-century jurists were quite explicit about both the overarching significance and the public power of the law of nuisance.”⁸³ Ordinary nuisance law focuses on comparing competing private property claims. One’s use of property, so the rule goes, should not interfere with the use of property by another. This use might simply mean quiet enjoyment, and that stick in the bundle is protected against interruption or intervention. Courts saw the police power as protecting against public nuisances, nuisances which reflected threats to the general welfare and not merely violations of discrete duties in the classic tort law sense. In essence, the courts were broadening the meaning of what represented a harm worthy of redress.

Did the redressing of wrongs exhaust the basis and content of the police power?⁸⁴ Not according to the collection of state cases dealing with the police power, especially as we get later into the century. The courts moved steadily away from the strict sic utere idea in considering the scope of its power toward a broader conception of what this power means. While it was easier to capture many of the early safety and health regulations in some sort of “redressing harm” notion, state regulations took on a somewhat different shape as social conditions evolved.⁸⁵ The government became focused on implementing regulations that advanced public purposes. This was not lost on the leading treatise writers of the time,⁸⁶ or on the leading historian of the police power, William Novak, who, looking closely at these developments, sees the development of a salus populi (people’s welfare) sensibility in the rendering of the police power in the early period of its development in state and federal jurisprudence.⁸⁷ He labels this in a recent essay, “The American law of overruling necessity,” and views its principal consequence for constitutional interpretation as “the idea that public right was always supreme, trumping private right.”⁸⁸ Although we will interrogate in subsequent chapters this depiction of the power in the wider context of state constitutionalism and the promise of good governing, it captures crisply and compellingly the basic point that the police power was understood as a means of realizing wider social aims than the vindication of natural rights and compensating for specific harms.⁸⁹

The shift from redressing wrongs, the classic tort law ideal, to embracing the social good was reflected in the phrase “Good order,” a reference to the general welfare of the community, which was a common phrase in the early cases. In an 1835 case from Maine,⁹⁰ the court upheld severe restrictions on the construction of wood buildings, declaring that such a regulation “shall be needful to the good order of [the] body politic.”⁹¹

The evolution of the police power toward a more public welfare-enhancing instrument of active governance is revealed well in the case most widely associated as the foundational state police power case, Commonwealth v. Alger.⁹² As a preliminary aside, it is striking that Alger is viewed as the central case in the development of the police power given that it was decided in 1851, by which time the state courts had roughly thirty years of experience of deciding police power controversies, and had written literally dozens of decisions on this subject. Nonetheless, Alger is considered iconic for its bringing together of perhaps the greatest antebellum-era state court judge, Lemuel Shaw, with a classic dispute over the reach and scope of governmental power to limit private property.⁹³ Chief Justice Shaw writes an elaborate opinion excavating the purpose of the police power and in doing so constructs a framework that is at once powerfully supportive of the government’s broad ambitions in this area, but frequently misunderstood, as we will see, in its depiction of the police power’s true nature and provenance.

Alger involved a municipal ordinance that restricted the prerogative of the defendant Mr. Alger to build a wharf on his property. This wharf, according to the city of Cambridge, interfered with navigation along the Charles River, an imposition properly redressable by the government in its decision to regulate the use of this owner’s property. For the court, the question was essentially this: “Are the prohibitions contained in this statute consistent with every right embraced in the grant?”

At a higher level of generality, the court was confronted with the question of whether this law was within the scope of the city’s discretion under the police power. The court thus had to decide on what basis the government can interfere with one’s use or enjoyment of one’s private property as a means of redressing of a distinct harm and violation of a duty. As to the matter of the appellant’s property right, this was a somewhat unusual case. Critically, the fact that this is a matter involving property in a seabed and, further, involves navigation makes this an easier case for the government in its exercise of power.⁹⁴ “[W]hether this power,” writes Shaw, “be traced to the right of property or right of sovereignty as its principal source, it must be regarded as held in trust for the best interest of the public, for commerce and navigation, and for all the legitimate and appropriate uses to which it may be made subservient.”⁹⁵ Therefore, the government’s power to regulate the property’s use is not only capacious, it is obligatory.⁹⁶ It is part of the government’s role in securing the navigation servitude, a public right that predates the advent of all the state constitutions and is sourced in English common law.⁹⁷

What we remember, however, about Alger is not necessarily the holding, which was unremarkable, given the well-established navigation servitude, but what Chief Justice Shaw says more extravagantly about the nature and scope of the government’s police power taken as a whole:

However certain or precise a particular ordinance or statute is, a duly authorized legislature can (and surely must) develop strategies to protect and promote the public interest through laws that are fashioned ex ante to confront social problems that may emerge ex post. This is an important shift from a conception of positive law as mostly an act of discovery, as embedded in notions of natural right,⁹⁹ to a view of legislation as confronting contemporary social conditions and the needs of a dynamic economy and society. This view would persist largely unabated from the antebellum period in which Alger was decided to the present.

Unfortunately, Alger is occasionally seen as auguring an idea of the police power as an outgrowth of the unlimited monarch, as an exemplar of a conception of governance that sees the police power as mostly tautological, as a restatement of the basic point that the legislature can undertake regulatory strategies for any reason it sees fit. At first glance, perhaps, Chief Justice Shaw’s opinion seeks to hold two irreconcilable ideas in its hands at the same time, the idea that it is no more nor less than the full power of the sovereign and is an American iteration of the idea of the royal prerogative and the idea that it is grounded in American state constitutionalism. The conventional way that scholars square the circle is to read the opinion as the font of the basic idea that the police power cannot truly be defined; it is, as this view goes, a statement that the state government’s power to regulate in the name of the general welfare is subject to no serious structural limits. And so it can be cabined only in two ways, either by the actions of the federal government under the edicts of the US Constitution or by invoking individual rights from either the national or the state constitutions.

This idea of the police power was reinforced memorably by Chief Justice Taney in The License Cases.¹⁰⁰ There he said:

In his book on the police power, Marcus Dubber dwells on the connection Shaw draws between the police power and the limitless executive power instantiated in British law. Although Shaw mentions the term “police” just once, Dubber emphasizes the dichotomy critical to Blackstone’s formulation between police regulation and the protection of private right through “justice” (here quoting Ernst Freund, author of an influential early twentieth-century treatise on the police power).¹⁰² Dubber sees in Shaw’s Alger opinion the insistence that “[p]olice is an executive matter, as opposed to a legislative or judicial one” and, from that, obliterates the obligation of all exercises of governmental power to the state constitution whose design constructs not only official power, but the offices themselves.¹⁰³ Dubber collapses the constitutional subject into the royal prerogative, claiming, amazingly, that “there is nothing about the formulation of the police power in the Massachusetts constitution that is inconsistent with the derivation of the power from the king’s prerogative.”¹⁰⁴

However, this can only be right if the police power is purely executive by nature or design and, further, if the exercise of executive power cannot be limited in any way by constitutional commands, whether through structure or rights. This cannot be right as a matter of ordinary constitutional construction, even in the 1850s, nor is there any evidence that Justice Shaw thought it so. The source of the power to abate public nuisances through a clear prohibition on wharf building as in this case may well be the jus publicum, an idea growing out of the royal prerogative and the government’s obligation to look after the general welfare. Shaw articulates well the history of this obligation and its role in creating the navigation servitude (and, later, the public trust doctrine). But in the recounting of the origins of public trust, there is nothing that points to the notion that a necessary component of the executive’s obligation is that this power be unlimited. Rather, constitutional government emerges in the American context precisely in order to separate government duty from unalloyed discretion. By mid-century, it simply was not a credible view of constitutionalism in America that the police power is a species of executive prerogative, a power whose “defining characteristic became its very undefinability.”¹⁰⁵

There is another flaw in this account. In minimizing the impact of state constitutions and ideas of constitutionalism emerging with a force in and after the revolutionary era, the view that Shaw’s signal contribution was in looking backward to the pre-American sources of police and regulation, we not only risk reifying the increasingly anachronistic dichotomy between private and public law, but also begin to lose the thread of the continuity between common law and new notions of lawmaking. Nineteenth-century lawmakers and legal scholars, following in the footsteps of the revolutionary era constitutionalists, fashioned an approach to lawmaking that was principally prescriptive, not declarative, and was ambitious in creating new structures of public policymaking for society’s emerging wicked problems. The common law was not abolished or abandoned, as Shaw and his contemporaries make clear, but nor was it to be maintained as the one true source of law. Blackstone’s shadow loomed large in the Jacksonian and antebellum periods to be sure,¹⁰⁶ but not so large that it obscured the emerging approach to legislation characteristic of Americans in the post-framing period, an approach that would continue to be reshaped throughout the nineteenth and twentieth centuries. Ultimately, Shaw’s description of the royal prerogative is best understood as a narrow, if shrewd, paean to the navigation servitude and the important notion that much land is imprinted with a public purpose, so sayeth the common law. Shaw noted the continuity of the idea of submerged land being part of the public’s birthright and being an exemplar of the public rights that citizens had in ensuring that such land would be maintained to their benefit, even if it inconvenienced private property ideas.¹⁰⁷

Shaw’s brilliance in Alger is in weaving together myriad themes in the police power to come to the conclusion, and that is that our constitutional culture had come to understand by mid-century that public rights undergird “the release of energy” that Willard Hurst memorably wrote about in describing the pragmatic foundations of state power in that period.¹⁰⁸ At the same time, Shaw acknowledges with remarkable foresight that American constitutionalism requires limits, even judicially imposed ones, and even ones that would need to be crafted in concrete cases through a sort of constitutional common law.¹⁰⁹ Courts would come to shape these limits through their scrutiny of the legislation to ensure that it revealed a public purpose, and not an arbitrary assertion of power.¹¹⁰

Alger was not decided in an historical vacuum. By the time of the Massachusetts decision mid-century, state courts had grappled frequently with the question of the police power as a constitutionally grounded authority in government and also with the question of whether it was limited. In 1838, for example, the Chancery Court of New York struck down a law prohibiting the erection of a hay press, holding that, despite the breadth of the police power, “all by-laws must be reasonable.”¹¹¹ Here the law was clearly unequal in its operation, privileging individuals who had already assembled these contraptions over those who had not yet done so. The concern with arbitrary laws – not just the arbitrary application of laws, something that would come to sound in procedural due process notions emerging later in the nineteenth and into the twentieth century – would persist during the entire history of the police power, from distant past to present, as we will explore in later chapters. For now, the essential point is that the power was not understood either in Alger or in the commentary at the time as a limitless executive power, sprouting directly from Blackstonian notions of policing and the prerogatives that were necessary to maintain the order of the household.

By the time of Alger, sic utere was fading as a foundational basis for the establishment and exercise of the police power.¹¹² While the police power was and would always be limited in its exercise, it was not restricted to the redressing of discrete and identifiable private harms.

We should recall the nexus between rights and social welfare, and the larger connection to the police power in the nineteenth century.¹¹³ Rights were seen as relational from the very beginning of our Republic’s existence and for a good while before. “A natural or legal right was not something to be exerted against society, but was intimately connected to the duties and moral obligations incumbent on social beings.”¹¹⁴ Rights and liberties were embedded in social obligations. This is not the same as saying that rights were always defeasible in the case of government regulation. We need to give context to social obligation. After all, we can turn that back around say that an essential social obligation was to protect the rights and liberties of citizens. Two things were true, or at least plausible: First, rights were relative and were connected strongly to public obligations; second, rights, including property rights, occasionally functioned as trumps, in order to limit the government’s use of the power of the state to place reasonable constraints on liberty. Note that before there was a salus populi conception of the police power, there was the hoary concept of sic utere. Our common law, including our tort, contract, and property law, was critical in redressing wrongs to individuals, and we could conceptualize that as part of a project to protect one’s liberty to be free from injury.

Early police powers cases occasionally capture in interesting ways this idea that the function of regulation under this power is to protect rights. In Vanderbilt v. Ames, the wharf tying case referred to earlier, the court focused on “protecting the rights of all concerned,” going so far as to the say that this law is not only constitution but is “obligatory.”¹¹⁵ In an 1823 Massachusetts case in which the government had prohibited digging, therefore incurring the ire of a property owner, the court insisted that they were protecting the public’s rights. A couple of decades later, the court upheld a law on the argument that the legislature was prohibiting “a use of property which would be injurious to the public.” One might be tempted to refer to the sic utere idea that these (and other) cases were just about prohibiting public harms.¹¹⁶ However, in invoking the language of rights, the courts were urging upon readers a larger idea, namely that there was an agenda at work in regulatory governance. Protecting the public meant not merely safeguarding individuals’ valued personal and economic interests, but the protection of the public’s rights, and these were rights to health, safety, and good morals. In short, the emerging use of the police power illustrated by Shaw’s analysis in Alger and other nineteenth-century cases underwrote a view of what would later come to be called positive rights, an idea that previewed in no small measure what state constitutions would come to look like in the twentieth century.

A collection of state cases in the early nineteenth century and into the antebellum period brought together the sic utere and salus populi notions under a broader framework. The shift from one to the other was hardly a sharp one; after all, the common law remained dominant in this period, with state legislation, to say nothing of regulatory administration, often used in a more interstitial than comprehensive way. The expressed rationale in judicial cases upholding the use of the police toggled between these two conceptions, at least until well into the Progressive era. In this early police power framework, the regulatory power of government was seen principally as securing public rights through the responsible use of the police power. Later cases would focus more conspicuously on the matter of public purpose and the common good. In the nation’s first century, the courts would look deeply at how the government implemented its obligations to protect citizen interests and rights, while also developing notions of public rights under the rubric of jus publici concepts.

One of the more interesting illustrations of the judiciary’s focus on the matter of individual harm-creating conduct as the fulcrum of the power is a Vermont case from 1855, Thorpe v. the Rutland & Burlington Railroad Co.¹¹⁷ The state legislature had enacted a statute requiring railroad companies to compensate cattle owners for all cattle killed whenever the company had failed to put up a cattle guard. The state’s authority over railroads companies was established by the time of the decision, as the Supreme Court had held in the Dartmouth College case that states had plenary power over corporations, power subject to the usual limits of state constitutions.¹¹⁸ (Recall that federal constitutional rights were not enforceable against the states at that time.)¹¹⁹ However, this case did not answer the question of the state’s particular obligation under its police power. As to this, Justice Redfeld notes that breadth of the power to protect harm and do social good: “This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state.”¹²⁰ The regulation of the railroads in this instance, which requires cattle guards and obliges the company to compensate cattle owners if they do not put up guards, is grounded in two elements of the police power: First, “the police of the roads,” well suited of course to the conduct of the railroads; and, second, the general police power, by which Redfeld says, extravagantly, “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state, of the perfect right, in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.”¹²¹ Just as this law brings together the matter of compensating for harm-causing conduct with prospective regulation, the formulation of the power in Thorpe and many other cases of this era highlights the police power’s concern with both sic utere and salus populi principles.

The nature of what a public harm entailed or, better yet, a kind of social problem that required governmental intervention, evolved over the first century of the American law and thus so did the contents of the police power. In this subsection, we have explored the critical ways in which the police power undergirded an evolving vision of energetic government, one that was increasingly decoupled from an antediluvian conception of public law as a mere implementation mechanism for private law ideas of harm reduction and righting wrongs. But, in doing so, they connected their objectives to a plausible model of constitutional rights, one that emphasized democracy and the public good over autonomy and private interest.

Infrastructure and Public Works

By the time the country had reached the age of a quarter century, pressures built on the state governments to make important improvements in their infrastructure.¹²² As William Novak writes with regard to public rights in roads, rivers, ports, & squares, “Today public powers and rights in such locales seem self-evident. But the outcome of nineteenth-century policy was more in dispute. There was, after all, nothing inherently public about a highway or riverway.”¹²³ Progress in the new nation requires considerable energy and initiative in matters of infrastructure and public works. [Therefore,] “[ro]ads, rivers, and ports were singled out early as territory for the extension and elaboration of state powers of police.”¹²⁴

These projects were tied not only to the welfare of the states as states, but also to the larger goal of facilitating commerce and transportation among the states. Madison foresaw this imperative when he wrote in Federalist No. 14:

The building of the Erie Canals and Ohio, as Harry Scheiber has taught us, was a central part of the strategy of ambitious steps to address infrastructure deficiencies and to expand practically the reach and scope of their economy at a time when such expansion was essential to realizing the citizens’ objectives.¹²⁶ Other great infrastructure projects followed. However, it is not only the building of public works that was extraordinary; also remarkable was how the law accommodated the choices of legislators and administrators to undertake this big and medium-size projects when to do so was to impact, and in some cases recreate, extant property and contract rights.¹²⁷

The literature on this period in a way begins in the middle of the story, emphasizing the continuity between an ambitious conception of public authority and a welcoming of energetic governance and the confirmation of public power to do what is necessary to advance the well-being of a rapidly industrializing society. Some scholars view this as more or less inevitable, given the imperatives of the times, while some of the critical history views with skepticism the motivations of courts and legislatures and sees these developments in what are ultimately deterministic accounts.¹²⁸ Both of those views are illuminating, but they do not begin early enough in the story to help us see the tensions and the consequences.

Governmental strategy to create and implement these projects took place in the shadow of important property rights claims. We need not necessarily call these rights “vested,” so as to follow the tradition that would lead to a hypercritical view of the wisdom and ultimately the constitutionality of state and local regulation.¹²⁹ But we can at least note that there were established private rights, coming from contract and property law, that were to be protected and could not be interfered without an adequate basis. Indeed, it would be impossible to make any sense of the inclusion of a contract clause and an eminent domain clause in the US Constitution, as well as the inclusion of specific rights provisions dealing with contract and property, if we did not see the framers of these documents as concerned with the basic integrity of liberty and property.¹³⁰

Robust regulatory powers, including police, taxation, and eminent domain powers, emerged out of a need to address these individual rights and to entrust to legislatures, under limits, the discretion to make decisions that would enhance the public interest, even though it inconvenienced individuals or businesses.¹³¹ In a leading case involving the construction of the Contract Clause where a private corporation complained that Massachusetts had extinguished their rights by providing for a new public bridge, the Court remarked that “[t]he object and the 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.”¹³² This strong declaration of the states’ power and prerogatives to make infrastructure choices in what they viewed as the public interest was especially important, coming as it did in an era in which states were building and improving with extraordinary energy and resolve.¹³³ Both the Supreme Court and the state courts were to give a very broad construction to state power and almost no cotton to individual complaints. At the state level, the choice was generally made in favor of state authority.

As public authorities displaced the interests of private property owners and occasionally entire communities in order to accomplish public work projects, courts acknowledged that these choices reflected tradeoffs that represented very bad news for those displaced. Eminent domain would later provide one form of redress in circumstances in which property was taken, but where the impact was destruction not confiscation, property owners would be compelled to endure sacrifice. As a Pittsburgh court wrote in a case involving the cutting down of a valuable tree on church property:

Many of the expressed rationales for sacrificing individual and community interests to government goals, and indeed the reasoning in these cases more generally, were thin and largely unilluminating; they did not furnish anything helpful in understanding where the limits to such governmental choice lie. The frequent references to eminent domain, as we will discuss in more detail in the next chapter, provided guidance with respect to the category of intrusion – taking versus regulation that destroyed or substantially reduced value – but this would not be helpful in shaping any limits on governmental action in this latter category until the Court developed a regulatory takings doctrine.¹³⁵ What could be gleaned from these cases at most was an articulation of the increasingly accepted view that choices undertaken to regulate the use of private property must be understood as part of the larger context of government progress and the imperative that state and local governments have ample discretion to make policy choices, especially given the important infrastructure needs of this rapidly growing nation.

What is especially interesting about infrastructure as a category of public policy here in the nineteenth century is that these decisions were not about addressing distinct public harms, but were about improvements. They were progressive in the literal sense that they were fundamentally about progress. Moreover, the government, in the pursuit of these bold initiatives required of its citizens sacrifice: sacrifice in the form of both economic contribution (taxes) and restricting the use of private property for the public good. In all, the government asked the citizenry to adjust their expectations about the nature of property and the dominion of ownership, and in ways that were vital in providing governments with the versatility to carry out essential infrastructure projects and programs.

New Notions of Legislating

There is a key point underlying the early police power cases, one that might be considered more prosaic than the vision reflected in Shaw’s famous opinion in Alger. It is that the state’s interest in acting to protect health, safety, and welfare emerged from a distinctive view of the nature and role of state government in implementing public policy through legislation and other forms of regulation. In the nineteenth century lawmakers were working through these new schemes of legislating and the police power helped support a vision of public power that was ambitious, proactive, and centered on improving public welfare.

The police power was shaped in the first decades of the American republic by the evolving character of legislative lawmaking. In the early years of the republic, public officials thought of legislating in ways different than today. In early America, the legislature was seen as an organ acting alongside the courts in developing a common law, one connected to principles of natural law. “Natural law,” legal historian Stuart Banner writes, “formed a backdrop against which the legislation was enacted, a set of background principles from which the legislature was presumed not to wish to deviate.”¹³⁶ Statutory lawmaking was seen as essentially declaratory, much like the constitutional provisions from which the legislature derived its power.¹³⁷ It would take many years, and serious shifts in the understanding of the nature of legislating as a form of distinct positive law, for the American legal system to see regulation and legislation for what it was: the product of specific policy choices made by public officials.

As to whether this declaratory view of lawmaking was tied inextricably to natural law concepts and therefore all the legislature was tasked to do was to discover what the law of nature commanded or was nested in a more complex and multifaceted view of the connection between legislation and the common law, remains uncertain. This was the fulcrum of the famous debate between William Blackstone and Jeremy Bentham.¹³⁸ So far as the police power is concerned, the question is interesting, but is not ultimately fundamental. After all, the choices of how best to protect the general welfare could emerge from many different views of what good public policy demanded. The common good could be, and many citizens and officials at the time thought it should be, embedded in natural law. This would not make any special difference in the efficacy or the authority of the legislation; rather, this was a matter of determining where courts looked to determine whether the constitution authorized governmental action in the first instance. To be sure, a key questioned loomed as to whether the constitution was fundamental law or else was binding only insofar as it was consistent with natural law precepts.¹³⁹ However, by the time that police power controversies came before the state and federal courts, it had long been resolved that the question of power and of rights would be centered by state constitutional analysis and not by natural rights thinking or, in Holmes’s reference to the common law, “the brooding omnipresence in the sky.”¹⁴⁰

Still unsettled in the late eighteenth and early nineteenth centuries was the question of what kind of lawmaking was best designed to protect health and safety. And, more generally, what was the purpose of lawmaking by legislatures as the functions and objectives of state government were just beginning to take shape in the early decades of this new republic? From one perspective, the legislature should undertake initiatives through legislation to implement policy that advanced the cause of social welfare and the public interest. Legislation was the manifestation of the lawmakers’ goal of good governing. From another perspective, however, the legislature should be concerned principally with methods to address particular or general harms. Legislation was a form of positive law to be sure, but as a species of public law that exists in parallel with the common law, is basically intended to recognize and redress individual wrongs. Just as the state’s criminal law exists side by side with tort law as complementary mechanisms to address and punish wrongs, the act of legislating is an act of redressing wrong.

This view of legislating goes along with the sic utere principle. Legislating to protect the public health and safety can be seen as essentially declaratory of specific harms or wrongs that have been committed by, say, property owners and, in its declaration, embody the proactive effort to stop these harms before they occur. This perspective gives the power an anchor to the sic utere principle. Likewise, it effectively narrows the scope of its coverage.

Where notions of lawmaking start to shift later in the century, so too does the framework of the police power. The classic debate between William Blackstone and Jeremy Bentham played out principally in the context of British political thought. However, the themes in this contest illuminated emerging American notions of lawmaking in the federal state context. Under classic views of the law, judges were oracles whose comparative advantage was in discovering legal principles and applying them to concrete cases. The province of legislation remained to be determined as the contours of the police power were likewise being constructed through statutes and judicial decisions. We should see these developments as in a parallel orbit.¹⁴¹

Judicial Review, Individual Rights, and the Supreme Court

The police power in the nation’s first century was embodied in a vision of active governance, an idea of legislatures acting on behalf of the salus populi, and the cases in the state court cases in the antebellum period and continuing through the Civil War and in its aftermath reflected this commitment to progressive public policy. The challenge was to configure appropriate limits to the exercise of these powers. State courts met those challenges through mainly close interrogations of the rationale for the exercise of these powers, looking also to the security of individual liberties and private property rights protected through the common law and through the state constitutions. Judicial review was well established in the states, and so a close review of the many state cases involving the police power in the period from the enactment of the original constitutions through the antebellum period indicates that state courts were reasonably comfortable with examining state actions to assess whether they were consistent with the fundamental law of the state. That said, the methods of judicial review shifted over this period. Early cases looked like explorations typical of common law reasoning. As the century continued, courts took more seriously the ideas that it was a constitution they were interpreting, and adjusted their approaches to judicial review accordingly.¹⁴²

Individual rights played a limited role in the period before Reconstruction. In Barron v. Baltimore, the Supreme Court held that the bill of rights did not apply to the states.¹⁴³ To a significant degree, this made the matter of judicial review simpler in practice, as neither federal or state courts would be troubled to consider whether the exercise of the state’s police power trampled on the rights delineated in the Bill of Rights.¹⁴⁴ Despite Barron, the Court did have occasions to consider constitutional matters involving the exercise of state regulatory power and possible constitutional limits on this power. In Calder v. Bull,¹⁴⁵ decided a half decade before Marbury v. Madison and so before the Court’s foundational judicial review decision, the Court’s justices engaged in an interesting discussion in dicta about whether or not a state law could be rendered nugatory because it conflicts with the constitutional authority of the state to act. Chief Justice Chase offers the example of “a law that takes property from A. and gives it to B,” insisting that “It is against all reason and justice for a people to entrust a legislature with such powers, and therefore it cannot be presumed that it has done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them.”¹⁴⁶ In Fletcher v. Peck,¹⁴⁷ the Court read the Contract Clause of the Constitution to limit the ability of a state to redefine contractual obligations so as to escape what would have been a breach under the standards set at the time. This rule would effectively shape the police power in a small, but not inconsequential fashion, in that it created a limit on the state’s prerogative to define contract rights in a way that obviated any guardrail on state power. The full-throated notion of vested rights and its impact on the police power would come to the fore later in the century, but Fletcher did indeed preview the idea that contract and property rights were insured by the Constitution against destruction. It “began a long line of cases in which the Court used the Contracts Clause to prevent stage legislatures from interfering with ‘vested’ property rights.”¹⁴⁸ It would be much later before the eminent domain power would be read in a similar fashion to constrict the maneuvering room of the state.

In Charles River Bridge v. Proprietors of Warren Bridge,¹⁴⁹ the Court upheld a Massachusetts decision to grant a second franchise to build a bridge over the river, despite a contractual agreement with the corporation operating the Charles River bridge that their franchise would be exclusive. Chief Justice Roger Taney, writing for all but one of the justices, described how the property rights of the incumbent bridge builder were subject to modification as an ordinary part of the evolution of such rights. “While the rights of private property are sacredly guarded,” he wrote, “we must not forget that the people also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation.”¹⁵⁰ This broad paean to the salus populi notion of the police power would be echoed by Taney in his opinion in The License Cases referred to above.¹⁵¹ In that case upholding a restriction on who may be a liquor distributor in the state, Taney wrote:

The enactment of the Fourteenth Amendment signaled a new era in the Constitution’s development as a check on official action, or at least that was the basic idea.¹⁵³ It would seem that individuals would now enjoy the privileges or immunities of citizenship and this would presumably include the equal protection and due process of law. However, the Court’s decision in The Slaughterhouse Cases¹⁵⁴ reduced significantly the role of the Constitution in limiting state action under the police power. Here the Court declined to hold against Louisiana’s butcher monopoly, essentially rejecting in whole cloth the normative arguments propounded over hundreds of pages by Thomas Cooley just a few years earlier. Justice Miller addressed the issue of whether and to what extent the privileges or immunities of citizens clause of the newly enacted Fourteenth Amendment provides a meaningful constraint on the exercise of the police power, writing that citizens within the states “must rest for their security and protection where they have heretofore rested,” and therefore the Fourteenth Amendment adds nothing by way of new protections.¹⁵⁵ This basic approach to understanding the Fourteenth Amendment, including not only privileges or immunities, but also due process – what one scholar labelled a “minimalist interpretation,”¹⁵⁶ under the Fourteenth Amendment – approach would go unmodified throughout the remainder of Reconstruction and thereafter. Indeed, not until the next century would the federal courts look to notions of due process as an independent constraint on the exercise of the police power.¹⁵⁷

The main focus of scholars who have written about the Slaughter-House Cases has been on what the Court did not do, with respect especially to the privileges or immunities clause of the Fourteenth Amendment, and also with the equal protection and due process clauses. However, what the Court did do was to reinforce “the enduring power of the antebellum map of federal and state powers, with its emphasis on the primacy of states to define and to limit the civil rights of their citizens.”¹⁵⁸ This meant that the onus remained on state constitutions to define and, through judicial review, implement constraints on the exercise of the police power, whether through state-level due process protections or other mechanisms.

Questions nonetheless persisted during the Reconstruction period over how the US Constitution limited the states’ use of the police power. Some of these issues grew out of the felt urgency, in Southern states and elsewhere, to enact measures to limit the rights of freedmen. This effort would culminate in Plessy v. Ferguson,¹⁵⁹ considered more fully in the next chapter, and would be echoed in other federal, and some state, cases. The more global question concerned whether and to what extent certain regulatory measures that impacted the prerogatives of businesses and their use of their property would be limited by the Constitution.

The principal decision during this era was Munn v. Illinois, decided by the Supreme Court in 1877.¹⁶⁰ Munn gave the Court the opportunity to examine the so-called Granger laws, and specifically the constitutionality of maximum rates for grain warehouses and elevators. With the Fourteenth Amendment establishing the rights to equal protection and due process of the laws, an establishment that the Court had narrowly limited four years earlier in the Slaughter-house Cases, and also in other key cases involving civil rights at or around that same time, the Court in Munn was not writing on a blank slate. On the contrary, this was an occasion to revisit in a controversial policy setting the question of whether and to what extent a state’s regulatory powers over business conduct would be newly limited by this major constitutional amendment.

Chief Justice Waite, writing for the Court, acknowledged early in his opinion the broad reach of the police power, noting that “the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good,”¹⁶¹ and as to the history of constitutional limitations on such powers, Waite observed that “statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property.”¹⁶² Having dispensed rather quickly with the claim that the Fourteenth Amendment’s guarantees of equal protection and due process limit the police power, the Court returns to the familiar issue of whether the state has properly acted within the scope of its police power. Here the Court repairs to classic common law notions of public property, invoking Lord Chief Justice Hale in his seventeenth-century treatise, De Mortibus Maris.¹⁶³ For businesses whose private property is “affected with a public interest,” the power – and indeed the obligation – exists in the legislature to create all regulations appropriate to safeguard the public’s interest by restricting the owner’s use over such property.

The “affected with a public interest” rationale has been much maligned, with Oliver Wendell Holmes calling it “little more than a fiction” and Felix Frankfurter “an empty formula,”¹⁶⁴ but the ultimate rationale, as Harry Scheiber has explained at length,¹⁶⁵ is unremarkable once you see the connection drawn by Chief Justice Waite to notions of public rights well entrenched in English common law and described by no less than authority than Lord Hale.¹⁶⁶ Moreover, the secret sauce in Munn is not only this framing of the property as public rather than private, but in its exploration of the economic conditions in this industry, conditions that protected, said the Court, Munn’s monopoly over grain warehouses and elevators in this region of the country. The Court explained that the legislature was owed enormous deference in enacting regulations designed to limit the ability of this company to take advantage of their monopoly rents.¹⁶⁷ An important fact in Munn is that Illinois had, just seven years earlier, specifically amended its constitution “to make it the duty of the general assembly to pass laws for the protection of producers, shippers, and receivers of grain and produce”¹⁶⁸ and to carry out further actions to tackle this monopoly situation. For this reason, the legislature would enjoy enormous discretion. Notwithstanding the risk that the legislature would abuse this discretion, the Court concludes that on the equal protection and due process matters, for “protection against abuses by legislatures, the people must resort to the polls, not to the courts.”¹⁶⁹

Munn makes clear that the wide berth states enjoy in enacting police power regulations is largely undisturbed by the enactment of the Fourteenth Amendment. We should say “largely” and not “totally” because neither this case nor other cases decided in the federal courts in the first years after the enactment of this amendment declare that state regulations enjoy some sort of constitutional safe harbor by virtue of the fact that they are enacted under the police power. The skepticism about the states’ invocation of the police power to restrict private property rights would be expressed loudly by Justice Cooley in his treatise,¹⁷⁰ and by other commentators. Moreover, we would see the emergence a quarter century later of a vigorous doctrinal adventure by the Court to restrict significantly the scope and reach of state government under its police powers. And so Munn’s blow to the emerging constitutional protections of individual liberty and private property augured by the Fourteenth Amendment was an important one, but it was hardly the last word.

The Police Power at the End of Reconstruction

The combination of Supreme Court jurisprudence with regard to state police power and individual rights and the voluminous body of state court cases decided by the time that our republic came close to its hundredth birthday revealed a police power that was broad in scope, decoupled from a narrow objective of redressing private harms, and responsive to key considerations involving our rapidly growing and changing economy. The power, like state constitutions generally, was ambitious and progressive. At the same time, skepticism about governmental motives and strategies persisted. Such skepticism was famously animate during the Jacksonian period, and various reforms to the system, including important constitutional reforms, were illustrative of these democratic, and even anti-legislative, impulses.¹⁷¹ While the Jacksonian period morphed into the antebellum period which ended in conflict, dissolution, and a terrible civil war, there were continuing controversies over the proper scope of state regulation, both in its agendas and in its impact on civil liberties and especially private property rights. As courts dealt with these controversies, the awesome police power of the states was reinforced and, where necessary, redeemed.

Concern with the extent to which the police power was undermining individual rights would become most prominent in the early twentieth century, as the Supreme Court began to intervene with a vengeance in controversies involving the police power and contract and property rights. But this concern existed long before this movement and we should account for the difficult position that the courts were in the antebellum period and throughout the Civil War and Reconstruction. Two important considerations motivated these concerns. One was the persistence of natural law and natural rights as an influence on judicial thinking in constitutional adjudication. “Natural law,” notes Stuart Banner, “loomed large in discussions of property. Lawyers often spoke of ‘property as a natural right – as a right derived from the law of nature.’”¹⁷² Such thinking proved remarkably resilient throughout the nineteenth century, and, even after the Reconstruction era legislative debates and the enactment of the Reconstruction amendments, natural law reasoning could commonly be seen in cases involving property and liberty rights.

These modes of reasoning created obstacles to a more progressive approach to regulating, where such regulation implicated established rights, established not only through positive law (which, would have rendered them more amenable to change with legislative action) but through natural law refracted through the lens of classical legal thinking.¹⁷³

Another important consideration was the growing skepticism about legislatures and legislative lawmaking. This skepticism began, early after the framing period and caught fire during the Jacksonian era. Legislatures were viewed as feckless and even corrupt. The critique came from distinct directions. For progressives, state legislatures frequently acted in ways that reflected preference for certain factions or castes. The critique that the public interest was often subordinated to private interest continued to have resonance through much of the nineteenth century. Indeed, state constitutions were reformed in important ways during the Progressive era, most notably to restructure legislative power by narrowing its latitude to act. Legislative skeptics were not content, however, with these structural reforms. They insisted as well on judicial intervention to implement significant checks on the legislature.

From a very different perspective came the state governments of the old South, led by officials who, as Reconstruction proceeded and as Southern states were readmitted to the Union with their new constitutions, worried with good reason that Congress would encourage the states’ use of the police power and would fashion new civil rights in order to impose desegregation, equality safeguards, and other unwelcome restrictions on their way of life. To be sure, the Court’s Plessy decision would ultimately give them reassurance on that score, but that case wouldn’t come until nearly the end of the century. So there would be a quarter century between Munn and Plessy in which White Southerners fretted about the prospects that the police power would facilitate radical change.

Finally, the many individuals and small businesses whose property was at risk from government regulation – remembering that at this time eminent domain was not yet much of a bulwark against property regulation – were skeptical about the legislatures’ commitment to protecting their property and liberty. Even those who could and would concede that property rights needed to be balanced against social need had concerns that state legislators determined to make their mark as agents of major change in urbanizing communities and in states reeling from economic disruptions, such as the panics of 1873 and 1893, would not strike the right balance. Legislatures acting in the shadow of their constitutional frameworks had a rational fear of government intrusion.

Like so many other aspects of American public law and governance strategies in the initial decades of the republic, judges, legislators, and executive officials engaged in experiments. The problems identified above, the principal one being how to balance a broad police power with individual rights, began to be solved in two distinct ways. First, courts, and especially state courts, developed new approaches to deciding cases, relocating private property rights in a wider social mission. The objective was not to diminish them, but to configure them as part of the common good, with a social purpose. Novak summarizes the earlier cases as having “laid the groundwork for a wider assertion of state power throughout the society and economy.”¹⁷⁴ This wider assertion reflected not only a mechanical broadening of power, but “new, creative, and perfectionist (as opposed to old, negative, and preservationist) dimensions of the well-regulated society.”¹⁷⁵

Second, states amended their constitutions (or, in the case of the later-admitted states, deliberately drafted their constitutions) to create new structural rules and arrangements to channel governmental power in a way that they viewed as sensible for this era. They imposed significant checks on legislation action through balanced budget requirements and debt limits. They empowered governors and also municipalities, in order to counteract legislative hegemony. These reforms did not do so much to weaken the regulatory power of state governments as to disperse power through these imaginative checks and balances.

A third aspect of the courts’ approach to the police power as viewed from the vantage point of Reconstruction’s end is worth noting as we look in subsequent chapters. This is the development and evolution of the notion of public property rights, the correlative idea of public purpose, and the burden of showing that the regulation is reasonable. These doctrines reflected a sort of alchemy of good governing, available to courts of the time to examine with an accommodating eye the use of broad and bold governmental power to implement social policies even where private rights would be compromised.

Finally, we should note as one of the central features of the police power during our first century that it was part of the legal underpinnings of a vast deployment of regulatory actions and activity. It is one thing to point to a constitutional authority to act boldly. It is another to describe the many ways in which state and local governments put this authority to work in decisions to protect health and safety through creative regulatory strategies and to facilitate the common good through targeted and general strategies. The progressive era of the late nineteenth century is generally associated with expansive governance and regulatory ingenuity, as also is the New Deal. However, we should not neglect the widespread and sustained use of the police power at the state level during the decades prior to the Progressive era. The result of these efforts was a tangible increase in various health and safety measures, increased regulations of public morals, and extraordinary progress on matters of infrastructure. New predicaments emerged as governments tackled long-simmering problems. But the ledger of regulatory activity reveals an active government pursuing pragmatic goals, availing themselves of the opportunities that the police power provided, and doing so as part of the omnibus project of constitutional governance.

As Americans moved from Reconstruction toward the Progressive era, the hunger for a more activist government grew.¹ The demands of a rapidly expanding economy, and one that was integrated in important way, drove regulatory change and expansion, especially with regard to federal initiatives. While a main focus in the academic literature on the Progressive era emphasizes the ways in which the federal government’s role expanded,² the last quarter of the nineteenth and first quarter of the twentieth centuries was an era in which regulatory activity was focused at the state and local level.³ As Susan Pearson writes in connection with state regulation: “If we turn our eyes from the arenas usually privileged in stories of statebuilding – social welfare provision and labor regulations – and look to the regulation of morals, sexuality, marriage, and race relations, then the postbellum years appear as an era of expanded government.”⁴ To be sure, the architecture of constitutional federalism was reconfigured in important ways by the Reconstruction amendments and attendant statutes,⁵ and it was further reshaped as the imperatives of a national economy emerged. However, the impact of regulatory power remained state-centered, from the end of Reconstruction into deep into the twentieth century.

We will focus in this chapter on the evolution of the police power in the half century from Reconstruction to the aftermath of the Second World War. During this period, the courts looked more closely – and often skeptically – at the state police power, considering whether and to what extent the scope of government authority should be curtailed. This happened most famously in the twenty-plus years defined as the Lochner era, named after the famous 1905 case, Lochner v. New York.⁶ However, we should not neglect what the courts did both before and after Lochner to map out the terrain of the police power. So-called “laissez faire constitutionalism” casts a big light on the subject of governmental authority and property rights during this time and it is generally identified with the period bookended by Lochner and key deal cases, including Nebbia v. New York⁷ and West Coast Hotel v. Parrish in 1937.⁸ Thus laissez faire constitutionalism is indeed a “thing,” a thing whose moment was critical to an understanding of state regulatory power in the first two decades or so of the twentieth century.⁹ But a more complete story of how the police power was shaped by courts and other governmental actors during the half century between Reconstruction and the 1940s requires a more nuanced appraisal. We should see the ways in which the police power itself – and not just the negative rights that were advanced to curtail the power’s scope – took shape as a legal construct and foundational constitutional principle during this long period. Its shape was affected by decisions of legislators and administrators, by the movements in American constitutional development and politics, and, last but not least, through state and federal court decisions.

In this period, we see struggles in the courts and elsewhere over the police power’s scope and its limits. One important aspect of this story is the continuing impact of natural law thinking and the way in which such thinking drove forward the idea that individuals have vested rights that were to be safeguarded against overreach by government.¹⁰ However, the main event, as it were, was not natural law and vested rights, nor Lochner and its progeny, although both of these episodes were important to the story. Rather, it was two developments that supported the general cause of defining the police power, developments that came mainly from separate quarters. First, there was the relentless call for more active government, one that would drive economic progress and would also protect safety and health from the threats that emerged from industrialization and the often dangerous modern world and would also protect public morals from threats. At the heart of the Progressive era was a faith, not lost as the country moved into the twenties and thirties and finally into the Depression and World War II, in the capacity of government to govern for the people’s welfare. The ways in which government actors developed meaningful regulatory strategies to aspire to a well-ordered society is the principal story of the police power in this period.

Second, courts worried with good reason that this faith in activist government would yield power that could not and would not be effectively checked and channeled. Legislative and administrative activism generated strong efforts at counter-balance. The Reconstruction amendments provided an important part of the toolkit, especially in its establishment of due process and equal protection as protections applicable across the nation. Scholars looking at the rise of administrative governance worried about this emerging approach to governance and advocated for greater control.¹¹ But it would be a long time into the future until the federal courts gave full force to these mechanisms of control.¹² Meanwhile, while the federal courts experimented with laissez faire constitutionalism, state courts attended to the risks of excessive public power by close interrogations of the police power’s excesses. Sometimes this was accomplished through the resort to individual rights, such as liberty of contract and private property, as in Lochner, other times it happened through a close look by judges at the justification for state regulation. Key questions were: Was this a reasonable exercise of the police power? Was it arbitrary? That is, based upon little more than prejudice and without process that is due to individuals who would have had their property confiscated or their liberty restricted?

Moreover, in one important new area of law, regulatory takings, the Court developed requirements that obligated government to pay those who were harmed in discernible ways by decisions involving their property and its use. Takings law was a fairly minor part of the police power and governance story in the half century following Reconstruction, However, starting with Pennsylvania Coal v. Mahon,¹³ decided in 1922, and continuing for a century afterward, the federal courts’ approach to determining when and to what extent compensation was owed because of ruinous regulation became an increasingly important part of the effort to balance active government with individual rights.

The struggle never disappeared during this period, nor was the puzzle of how to balance activist governance with individual liberty and property ever truly solved. The picture painted in this chapter is one that highlights these tensions and struggles and situates these conflicts in larger debates about governance, property, and liberty.

We should emphasize as well the growing skepticism toward the legislature as an institution managing governance in Reconstruction’s aftermath. Anti-legislative thinking did not begin in this era, to be sure. The Jacksonian period saw constitutional reformers and ordinary citizens turning the light on legislatures and fretting about lawmakers’ ability to act democratically and responsibly so far as both efficacious governance and protection of liberty were concerned. But the Progressive era was notable in the ways in which reformers adjusted constitutional rules to limit legislative power and, moreover, pushed for regulatory innovations such as greater use of administrative agencies and of municipal governments to implement the police power’s objectives.

One important lesson to be drawn from the exercise of the police power in this half century is that the police power was not limited to actions of state legislatures.¹⁴ During this time, we saw meaningful regulation undertaken by administrative agencies, and the emergence of a significant amount of administrative law. Much is written about the rise of national administrative agencies and struggles about their legitimacy and control.¹⁵ However, this development was mirrored, and even presaged, by administrative decision-making on the part of state-level agencies and bureaus. Likewise, regulatory activity under the police power was a common strategy of municipal governments. A good chunk of public policy, including zoning, which we will examine in some detail later in the chapter, was carried out by local governments under the rubric of delegated police power. These phenomena were controversial; they may have troubled the framers of the various early state constitutions, to the extent that matters to the enterprise of figuring out what the police power means. But, in any event, it was a commonplace by the time of the 1920s and 1930s. Any comprehensive treatment of the police power ought to account for these important developments.

The emphasis in the standard literature on judicial intervention during this period has been on Lochner and the emerging libertarian constitutionalism, an approach that drove more searching judicial scrutiny of economic and social welfare legislation in the name of protecting individual liberty and property rights.¹⁶ The movements that give rise to the fabled Lochner era were part of a growing effort on the part of myriad institutions of government, not limited to the courts, to examine closely the structure and output of legislatures and agencies. The push for progressive legislation grows at the same time that there emerged skepticism about the behavior and conduct of legislatures. To the extent that powerful interest groups and common citizens saw their situation becoming out of balance, efforts at reconciling an expansive police power with individual rights became more prominent. Lochner era cases and other instances of activist judicial review illustrated the countermajoritarian elements of this skepticism, while on the other side was an equivalent concern with maintaining democracy in the face of what was seen as regulatory capture and influence by factions and special interests. Indeed, constitutional reformers were able to express skepticism in both directions, and so forged both majoritarian and countermajoritarian solutions. As a result of these developments, the police power emerged from the era considered in this chapter with a new shape.

Progressive Legislation Emerges

The development of legislation and administrative policy during the Progressive era was largely a consequence of expanding needs of a republic, considered both at the state and at the federal level. Looking back on this period in 1932, Ernst Freund wrote of the extraordinarily widening scope of legislative intervention in the preceding half century, complex but essential, and notable for how it transformed not only regulation as such, but also the role of the state in dealing with more modern exigencies.¹⁷

As to whether the main contents of legislative regulation were supplied by the national government or the state governments, the answer was both. At the federal level, that was an enormous pressure to respond to the condition of an increasingly integrated economy.¹⁸ Transportation was radically transformed, and something that we now take largely for granted – a railroad system that spans many states in order to efficiently ship goods and transport citizens on the move – was in a precarious position, especially given state political interests that tilted toward protectionism.¹⁹ The federal government was called upon to solve problems created by private businesses operating on their own initiative in the marketplace and by state and local governments looking after their own interests. In the Progressive era, the national government enacted legislature that created a large regulatory infrastructure – and a major federal agency, the Interstate Commerce Commission, to deal with these and related issues.²⁰

Likewise, massive public investment, including federal resources and resources collected from the states, was necessary to support a nascent, but then quickly growing, communications infrastructure.²¹ The invention and spreading use of the telegraph was one important technology. Afterward, the building of utility poles and their placement throughout the country was a credit to federal government foresight, and of course it came along with considerable investment. The expansion of communications technologies, the nature of which required support for its use across borders without disruption by individual states or communities, required significant federal intervention.²² As with transportation, the infrastructure of national regulation was changed. Indeed, with the creation of the Federal Communications Commission in 1934, the central role of the federal government in our cross-state transportation scheme became entrenched.²³

Some of the consequences of the rapid integration of the economy are dealt with by simultaneous federal and state action. So, for example, the feds stepped into the matter of safety in agriculture by the creation, in 1884, of the Bureau of Animal Industry,²⁴ tasked with addressing livestock disease, a consequence of the shipment of livestock to distant places – a new development, as previously farmers basically raised their own cows for their personal consumption or for a very nearby market. The states were also active in addressing food safety issues, and had various regulatory rules that dealt with adulterated food products within their borders. Similarly, labor laws were emerging in this era and both the federal and state governments needed to deal with not only the general protection of labor, through, for example, regulation on hours and conditions in the workplace, but also needed to reduce the chances of labor violence.²⁵ Such violence was not uncommon in this period and, after all, a comprehensive national approach would await the enactment of the National Labor Relations Act in 1935.²⁶

The bottom line was that national regulation grew significantly during this period, as the conditions and consequences of a much more integrated market grew. At the same time, state regulation was persistent, and indeed the requirements of state intervention to ensure a modicum of order, including acceptable safety and health, expanded, not contracted, during this period. The steady increase in urban populations, and the attendant health and safety hazards of crowded cities, required new state and local laws. Moreover, an increase in infectious diseases, and occasional epidemics, spurred public health laws, these being almost exclusively the product of state governments. In short, there was plenty for state legislatures and administrators to do during this multi-decade period from the end of Reconstruction to the middle of the next century.

With this significantly augmented role on the part of the state government, the police power was increasingly important as the fulcrum of state authority. As William Novak writes: “The police power increasingly became a more positive public law doctrine that defined modern legislative regulatory power.”²⁷

Progressive Legislation Sustained: The Police Power and the Supremes

We often see the rise and fall of Lochner as reaffirming fidelity to a highly deferential approach to reviewing economic regulation, an approach that would come to be called “rational basis” review.²⁸ However, the reality is that the judicial evaluation of governmental actions that impacted individuals’ contract and property rights was meaningful both before and after Lochner.²⁹ Before Lochner, courts interrogated state regulations, and even though they deferred to legislative judgments and more often than not upheld these laws against constitutional challenges, there was a meaningful modicum of review of the government’s exercise of the police power in the late nineteenth century.³⁰ Because it was deployed most often in state courts, it has long fallen off the radar screen of constitutional scholars, even many trained and tasked to look closely at the history of the period.³¹ And after Lochner, notwithstanding the widespread deference accorded to state government’s economic regulation,³² state courts did scrutinize the reasonableness of government regulation to determine whether the police power had been properly exercised.

Munn v. Illinois, described in the previous chapter, illustrates how the Supreme Court saw the police power at the other end of Reconstruction. The Court there emphasizes that the police power has as its central function a mechanism by which the legislature could promote health, safety, and the general welfare in the face of self-regarding, monopolistic business practices. Property, said the Court in Munn,³³ was subject to public control and was embedded in social welfare considerations. This did not mean that the power of control is unlimited, but that for “businesses affected with a public interest,” the legislature has an exceptionally wide berth. Chief Justice Waite writes: “We know that this is a power which may be abused; but there is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts.”³⁴ The Court continued to refine its approach to resolving these tensions in later cases, some of which gained prominence at the time, prominence that has persisted as we look to understand this era in our constitutional law.

One such case was Mugler v. Kansas. Peter Mugler was a naturalized citizen who arrived in Kansas in 1872 looking to make his way as a self-supporting new American. In 1877, Mr. Mugler built a brewery, aspiring to make and sell malt liquor. Having no permit to do so, he was arrested and charged with a violation of a Kansas statute which imposed a penalty if he “did unlawfully manufacture, and aid, assist, and abet in the manufacture of vinous, spirituous, malt, fermented, and other intoxicating liquors in violation of the provisions of [this] act.”³⁵ This statute was enacted in order to implement a prohibitionist amendment added to Kansas’s constitution in 1880.

Mr. Mugler’s challenge came to the Supreme Court in 1887. He complained that these state acts violated his rights under the Fourteenth Amendment. The Court had already considered and rejected, in The License Cases,³⁶ the argument that these restrictions interfered with the Constitution’s assignment exclusively to Congress to regulate interstate commerce. Therefore, the only constitutional objections left available to this defendant was that the state had exceeded its authority under the police power and had violated the privileges or immunities of citizens or had deprived the individual of his life, liberty, or property without due process of law.

In Mugler, Justice John Harlan, writing for the Court, gave voice to one rendering of this regulation. The law, he notes, might be viewed as deliberately singling out the behavior of one individual for opprobrium, an individual who was merely exercising his liberty rights and, in the case of the manufacture of these alcoholic beverages, his rights to use his private property as he wishes.³⁷ So viewed, he concedes that this approach would be a misuse of the government’s power to control private behavior that caused no external harm.³⁸ However, this misconceives, says Harlan, the nature of the right and the purpose of this regulation.

And so this regulation, very much similar to the regulation on grain elevators upheld ten years earlier in Munn, was a perfectly appropriate use of the police power to protect the community from the actions of an individual.

As to who should determine where and how the line is drawn between general welfare and individual liberty, Harlan says “that power is lodged with the legislative branch of the Government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.”⁴⁰ Justice Harlan goes further than just rubber-stamping Kansas’s judgment, adding the opinion that this restriction on the manufacture of intoxicating liquors is designed to eradicate an “evil,” to protect the public health, the public morals, and the public safety, which “may be endangered by the general use of intoxicating drinks” contributing to “idleness, disorder, pauperism, and crime.”⁴¹ For Harlan, and presumably the other justices who joined his opinion, the legislature was acting wisely to address a serious social problem.

A critical question in Mugler, as earlier in Munn, was whether the Fourteenth Amendment changes the equation. No, says the Court emphatically. As Howard Gillman notes, “Justice Harlan’s statement is not a departure from previous holdings; it is rather, a reassertion of the adjudicative task undertaken by the Supreme Court since Slaughterhouse,⁴² and by many state courts before that.”⁴³ This constitutional amendment does not undermine the wide ambit of the police power, that point being a critical element of Mugler and the police power cases considered in the wake of Reconstruction.⁴⁴ For, as the Court had said in an earlier case, Barbier v. Connolly,⁴⁵ “neither the Amendment, broad and comprehensive as it is, nor any other amendment, 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 add to its wealth and prosperity.”⁴⁶ This last statement proves to be an important one, as the Court from an early stage avoids one possible implication of the Reconstruction amendments, and that is that the font of regulatory authority, at least with respect to guaranteeing the full rights of citizenship (the “privileges or immunities”), was now shifting from the states to the federal government. While difficult issues of federalism persist after these amendments, the Court’s declaration that states maintain their police powers and for important purposes (“wealth and prosperity” and the rest) is left undisturbed.

The Court made clear in Mugler, however, that the police power is not unlimited, and those limits are found in constitutional rules and rights established in the Constitution from the beginning of the republic, as in the Bill of Rights (eminent domain is mentioned explicitly) or from the Fourteenth Amendment, especially the protections of due process.⁴⁷ This is not a new proposition, but one that echoes the previous decisions of the Court. In Mugler, Justice Harlan notes that the law is ever diligent in ensuring that the enactment and application of the regulation not be arbitrary, thereby raising a concern of discrimination.⁴⁸

The Mugler case illustrates well the Court’s imprimatur on the police power’s use by the states as a key mechanism of public governance, including in areas where the animate concern was with protecting the common good. By this time in the second-to-last decade of the nineteenth century, it had become well-established that the concept of general welfare undergirding the police power was much broader than that reflected in the sic utere principle, one where the government’s role is limited to abating individual harm or public harm that could be measured in the way that classic tort law demands.⁴⁹ It also illustrates, as will other cases for the remainder of the nineteenth and the first part of the twentieth century, the point that the Fourteenth Amendment did not shake the foundations of the police power and impose a major set of limits, either from equal protection or from procedural due process. A broad interpretation of the police power would persist throughout the post-Reconstruction and Progressive eras, accompanying the expansion of state capacity and the steadily increasing roles of both the state and federal government.⁵⁰ At the same time, Mugler reveals that the police power, however difficult to define precisely, is not unlimited and that the main objective of the courts is to discern whether and to what extent a duly enacted law is arbitrary or capricious in a way that warrants invalidation. To be sure, this standard was not invented in this decision, but it was refined over time and, in its refinement, started a bridge of sorts to early twentieth-century decisions, including Lochner, where courts at both the federal and state levels gave police power regulations a more searching judicial review.

The broad scope of the police power was reinforced in a case that would become especially notorious, although not for a long while, Plessy v. Ferguson, decided in 1896.⁵¹ In this case, the Court examined and upheld the operation by the railroad managers of a segregated train. “The power to assign to a particular coach,” wrote Justice Brown for the Court, “obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white and who a colored person.”⁵² The Court stressed that the police power was not unlimited, and regulations that were mere subterfuges to discriminate against individuals on an arbitrary or unjust basis would be struck down. This statement remains puzzling. It is no clearer a full one hundred and twenty-seven years after this decision how to distinguish the “unjust” discrimination of, say, Chinese launderers in Yick Wo v. Hopkins⁵³ or other post-Reconstruction cases in which the government was discriminating unconstitutionally. Rather than clarify the standard, what the Court offers instead is a fallacious and fully-discredited argument that Louisiana’s train segregation statute is “reasonable” and that any claim by the Black plaintiff that such segregation imposes a “badge of inferiority” it is “not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”⁵⁴

Justice Harlan memorably dissented in Plessy. The core insight of his dissent is that the use of the police power to segregate train travel runs squarely against the clear import of the Fourteenth Amendment and its guarantee of the equal protection of the laws. Louisiana simply had no credible reason located in health, welfare, or general welfare for this baldly discriminatory law. The legislature’s stated rationale was intentionally discriminatory and so the onus was squarely on the state to describe a reasonable, that is, non-arbitrary, reason for this law, one that could plausibly be grounded in the public’s welfare. The unreasonableness inherent in this Louisiana law, Harlan indicates, is found in its intention, in its revealed attitude toward Black citizens, and the manifestation in action of the view that Blacks are inferior to Whites and can constitutionally be subject to unequal treatment. We start, says Harlan, with the equality rights guaranteed to them by the Constitution: “If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.”⁵⁵ From there, Justice Harlan examines, and ultimately demolishes, the hypothetical laws that would, if this law were upheld, be a fortiori acceptable uses of the police power. He writes

Having dispatched with the argument that this is a reasonable exercise of the police power, in light of the fact that this act functions as a “badge of servitude” placed on Black railroad passengers,⁵⁷ Harlan endeavors to thread the needle of judicial deference, noting that nothing in his opinion should be read as giving judges a roving power to evaluate the wisdom of particular public policies. This is a neglected dictum in Harlan’s celebrated dissent, but it is important to put into context the ultimately limited role of judicial review in police power controversies. His warning is worth quoting at length, as it is a coherent summary of the Supreme Court’s approach to police power controversies in this critical period:

With Plessy’s prominence as an early case cementing for decades segregation and Jim Crow, Justice Harlan’s lone dissent stands out as a powerful declaration of the principle of equality. For the purposes of understanding better the police power, it is also notable for its naming in a most explicit way the fact that the Reconstruction amendments did indeed represent meaningful constraints on the exercise of power at the state level, insofar as they created equal protection and due process limits on government action, limits which were meaningful conditions on the decision of legislatures to impose discriminatory laws and also laws where the connections between means and ends were quite tenuous.

Harlan’s dissent is not ultimately in any tension with his opinion for the Court in Mugler. In both cases, Justice Harlan for the Court acknowledged both the broad scope of the police and the imperative of limiting this power. The essential difference was that the state had, in Mugler, a compelling case for a welfarist-based regulation and no evidence that Mr. Mugler had been singled for discriminatory treatment nor a decent argument that the government was acting in ways arbitrary or capricious. By contrast, invidious discrimination was the sine qua non of the government’s regulation in Plessy. Here the equal protection of laws was necessary to create a baseline limit on the use of the power to disfavor one group. The fabled assertion by the Plessy majority that this discrimination did not attach a badge of inferiority on African Americans was of course risible, but for Justice Harlan it was enough to say that purpose of the law was to discriminate and not to implement an objective that could plausibly be tied to the police power.

Justice Harlan maintains his place as the leading architect on that era’s Supreme Court with respect to defining the scope of the police and its limits in yet another important case of the time, and that is Jacobson v. Massachusetts,⁵⁹ decided in 1905, at virtually the same moment as Lochner. Jacobson involved a mandatory vaccination requirement enacted by the public health authorities in Cambridge, Massachusetts during the middle of the smallpox pandemic. The plaintiff challenged this requirement, insisting “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.”⁶⁰ Writing for the Court, Justice Harlan reiterated the point that it was the responsibility of the federal court to examine whether the exercise of the police was in any way arbitrary or unreasonable. If so, the government’s regulation would fail, whether this protection is lodged in a notion of equal protection, due process, or individual liberty. Harlan added that the linchpin of the police power is the promotion of the common good. He notes that “it was the duty of the constituted authorities primarily to keep in view the welfare, comfort and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.”⁶¹ In undertaking an analysis of whether this “common good” has been met, the judge should not substitute its judgment for the judgment of the legislature either as to the public health and safety imperative that the regulation is designed to tackle or as to the structural means by which the goal is achieved.⁶² In this case, the Court rejected plaintiff’s argument that this was not properly delegated to the public health authorities of the state of Massachusetts.

Jacobson is a notable case,⁶³ especially when we remember that it was decided in the same year as Lochner. The Court accepted what was after all a fairly novel regulation and one that unavoidably intruded on bodily autonomy, stressing the legislature’s wide discretion to undertake measures necessary to protect the public health and resisting the argument that an individual’s freedom could be sacrificed without any opportunity to show that he specifically should be subject to this compulsion. In its facts and the unequivocal statement of deference and its value, we could see Jacobson as reinforcing the principle that the police power of state governments is vast and the role of the federal courts in interrogating acts under this power quite narrow.

This view is accurate, yet incomplete. We will see as we look at this period that the general welfare ideas underlying the police power that evolved over the nation’s first century were quite resilient in the face of libertarian-oriented attacks on energetic state government. Still, skepticism about state legislative policymaking yield important structural reforms. Moreover, courts at the state level were evaluating police power regulations to examine for themselves whether such regulations were arbitrary or unreasonable.

*

The critical developments that we described at the outset of the chapter – anxiety about the interference with property and liberty rights given the broad rendering of the police power and skepticism about legislatures making big and bold regulatory choices – should be considered separately, even though they were mutually reinforcing. We can therefore better understand their character and how they matter for a fulsome understanding of the police power in this era.

Property Rights and the Collective Welfare

Property rights continued to evolve after Reconstruction, and with a valence that bore the imprint of a Republican insistence that certain natural rights, including the rights to private property, were important, if not inalienable. The outcome of the Slaughterhouse Cases was a setback to this effort at strong protection, insofar that it blocked one pathway – privileges or immunities – to the destination of a newly robust protection of economic liberties.⁶⁴ However, the idea that property and also liberty of contract were important to protect persisted.⁶⁵ Moreover, it underwrote an especially strong view of economic liberties that would blossom into a theory of constitutional scrutiny that would later be labelled laissez faire constitutionalism.

The struggle over the scope of the police power in the shadow of this libertarian view of property rights and liberty of contract was captured well by famed jurist and treatise author, Thomas Cooley. He wrote with his concern with the overbearing actions of state authorities and the underprotection of private property and individual liberty of contract under the US and state constitutions.⁶⁶ Cooley’s devotion to property and contract rights was not centered in classic natural law thinking and so it would be misleading to see him as motivated by a crude libertarianism.⁶⁷ Rather, he created a powerful argument, in what was ultimately a vast amount of judicial and extra-judicial writing, for the critical role of constitutions – and especially state constitutions – in constructing a regime of sound governance and the furthering of the public’s welfare. He valued property rights and liberty and worried about legislative excess. And so he “sought constitutional limitations to legislative power because they feared arbitrary and unequal legislation, as well as the identification of legislation with the interests of privileged and powerful capitalists.”⁶⁸

What made the struggle over defining appropriate limits on government regulation of property even more vexing was the idea prominent in this era, which was that property rights were yoked to natural rights and natural law.⁶⁹ The point is not that property rights were viewed as sacrosanct, but that the protection of the natural right to private property was an important “first principle” and created a presumption that these so-called “vested rights” would be protected against the assertion of state power.⁷⁰ Looking at property law through these lens of formalism – or what Duncan Kennedy famously labelled “classical legal thought” – supported a view of property rights as vested, and therefore protected against governmental action, at least where the government was not prepared to pay compensation under its eminent domain responsibilities.⁷¹

In an important recent book on the original meaning of the Fourteenth Amendment, Randy Barnett and Evan Bernick argue that the privileges or immunities of citizens, and the other rights embedded in the Reconstruction amendments and through statutes and the common law of the time, were grounded squarely in natural rights ideas.⁷² The higher law origins of the due process of law – framed in terms from the fourteenth-century British parliament as the “law of the land”⁷³ – was embraced first by Hamilton and other framers,⁷⁴ then by early state and federal courts,⁷⁵ and also by the framers of the Reconstruction amendments.⁷⁶ In essence, the natural law of due process and private property “impos[ed] a duty on both state and federal judges to make good-faith determinations of whether legislation is calculated to achieve constitutionally proper aims.”⁷⁷ From this argument comes an originalist argument for an approach to interpreting the police power that is more cautious and ultimately more limiting of state authority and regulatory prerogative than we see in cases of that period and cases in modern times.⁷⁸

Professors Barnett and Bernick capture something important about the mode of reasoning influential on courts in the post-Reconstruction era, as does Barnett writing alone when he argues that the framers had a “presumption of liberty” that impacted eighteenth- and nineteenth-century interpretations of the police power where property and liberty of contract were put into jeopardy.⁷⁹ This thesis exaggerates somewhat, however, what was actually happening in adjudication in this critical period, the approximately seven decades between Reconstruction and World War II.

The Supreme Court’s commitment to natural rights thinking with respect to property rights and governmental power was equivocal, to say the least. Tellingly, neither Munn nor Mugler reveals a Court on a quest to discover and to enforce the natural right of private property against government under either the national or state constitutions. Rather, the essential thrust of both decisions was to articulate the view that states maintained a significant realm of discretion which economic regulation (Munn) and what was essentially morals legislation with a dose of health rationale (Mugler) was well within the scope of the police power. If there was a presumption of liberty at work in these lodestar cases, it was a presumption rather decisively overcome.

Sometimes the confounding question of where is the best place to look for the source of property rights and the meaning of private property were found in cases that did not involve squarely the matter of government regulation under the police power. One fascinating example is the 1918 decision of International News Service v. Associated Press.⁸⁰ There the plaintiff claimed that their rights were being interfered with by a company competing with them for gathering and disseminating news in a timely fashion. They claimed a property right in the news gathering (this distinct from a copyright in the actual publishing of this news, a matter not at issue in this case). The Court dispensed with the defendant’s argument this news gathering was property by virtue of the defendant’s creative activity by declaring that “the news element – the information respecting current events contained in the literary production – is not the creation of the writer, but is a report of matters that ordinarily are publici juris. It is merely the history of the day.”⁸¹ Two legal giants of this era, Justices Oliver Wendell Holmes and Louis Brandeis, argued over whether this information was property in their respective concurring and dissenting opinions. For Holmes, the focus on effort and energy, which one might see as derivative of a Lockean conception of property,⁸² misses the essential point of property. He writes:

That property, an in rem right whose essence is its tangibility and the right to exclude, is classic formalism. Without quarreling with the larger argument that Holmes in his career rejected natural law and formalism,⁸⁴ this rejection is not evidenced by his rather formulaic dissent in INS. For Brandeis, too, the right to exclude is the central question that separates out property that can be protected from the fruits of one’s labor that enjoys no such status.⁸⁵ However, how he gets there is by induction, from a view of property as socially constructed and contingent. He explains

Further, Brandeis sees an opening to a legal principle that would see news as a resource which could be commoditized and subject to the classic property rights of exclusion. But, for Brandeis, this is not an appropriate role of the courts, as this is pure public policy. As he writes:

Both jurists reject the argument that news-gathering is property, but in explaining their rejection we can see two different modalities of reasoning about property’s content in this second decade of the twentieth century. One is formalistic and the other is pragmatic.⁸⁸

The strong implication of the view associated here with Brandeis (which is not to neglect others whose new thinking was critical to this development) is that property rights are nested in the common good and subject to the intrinsic power, and indeed responsibility, of the government to implement public purposes even where individuals might be compromised in their use of their property.⁸⁹ Taken to its extreme, this view creates a force field around the police power and suggests that property rights as such will seldom if ever impede official choice that is made on a reasonable basis.⁹⁰ More to the point is the functionalist argument that broad governmental power is necessary to advance economic progress and social welfare. Perhaps the leading voice for this position in the latter part of the period we are focused on here was Brandeis himself. “For Brandeis,” Fishkin and Forbath observe, “the nation’s industrial and economic orders were fraught with constitutional infirmities that only legislation could remedy.”⁹¹

Progressives who focused on the need for and value in governmental regulation to address problems were not anti-private property. Rather, they were against the misuse of private property, especially by corporations, and were more or less confident in the government’s ability to channel the use of private property for socially beneficial aims.⁹² In this regard, they were the mirror image of judges and scholars who were not so much wedded to a formalistic conception of private property, one that viewed such property as sacrosanct or even essential to human flourishing as they were quite skeptical about the incentives and capabilities of government to regulate in the public interest with trampling on individual rights. These skeptics were heirs to a tradition reflected in Madison and his expressed concern about factions and about the fragility of individual rights.⁹³

These competing ideas came to be reconciled if not in deep theory then at least in police power jurisprudence in this era. This reconciliation is seen most clearly in the way in which the state courts dealt with the use of the police power to regulate individuals’ private property rights. In a 1911 case in Missouri, for example, the court considered the constitutionality of a law regulating and controlling signs and billboards.⁹⁴ Dissenting from the holding that this was an ordinary safety regulation that met the conditions of the police power under the Missouri constitution, Justice Graves insisted that this law was principally about aesthetics, not public safety, and while the government might have some latitude to enact laws dealing with aesthetic considerations, doing so triggered stricter scrutiny because this law now interfered with the property owner’s vested rights.⁹⁵ The implication of this dissenting view, which echoes some of the big considerations that would arise in Lochner-era cases of roughly the same period, is that the force of vested property rights grows as the rationale for the exercise of the police power wanes.

In Cleveland Telephone Co. v. City of Cleveland,⁹⁶ an Ohio case from 1918, the court considered the question of whether a law fixing rates could be implemented at the local level under the police power. Much of the debate in this opinion involved the question of whether there is some sort of general police power that, with the state’s delegation of authority under local government law, widens the scope of governmental discretion.⁹⁷ The majority said no, over a vigorous dissent on this exact point.⁹⁸ What the court zeroes in on in its holding that this law is an unconstitutional exercise of the police power is the matter of vested rights.⁹⁹ The police power should be viewed, the court argues, as distinct from the exercise of a “governmental function.”¹⁰⁰ The distinction turns on whether the restrictions are imposed on “personal or property rights of private persons.”¹⁰¹ Decided squarely in the shadow of the laisse faire period constitutionalism, the court declares that, in deciding police power cases, they “have uniformly interfered to restrain the arbitrary and unreasonable exercise of that power to the prejudice of private rights guaranteed by the Court of the State.”¹⁰²

It is tempting to see, as some do, the judiciary’s approach to the police power as essentially continuous from the earliest Supreme Court decisions – Gibbons, Brown, and Miln, all from the antebellum era, through Munn and Mugler just after Reconstruction and through the beginning of the twentieth century, and through state court cases decided during the Gilded Age and afterward. Yet that narrative sacrifices nuance for a tight theory. On the one hand, the post-Reconstruction era brought us a fundamental shift in our constitutional structure and understanding of equality and citizenship, though it did not, at least as the Supreme Court came to see it, fundamentally reorder the balance between property rights and governmental power. On the other hand, seeing the police power as a continuous thread from the state constitutions’ charge to govern with energy to Alger’s focus on public rights to the Progressive era’s faith in bold governance is to miss some of the tensions revealed both in ideology and in legal decisions of that time. The collective welfare was at the fulcrum of the government’s strategy of governing under the police power. And yet this strategy was continuously in tension with evolving and shifting views about the nature and scope of liberty and property. The animating tension between individual property and liberty and the government did not dissolve. Much attention was given through the period from Reconstruction and World War II to how we ought to think about the concept of property affected by a public interest and how we can construct guardrails of various sorts to maintain an equilibrium between governmental intervention and private freedom.

To summarize: We should not imprint onto the thinking of courts and commentators of this era a fading commitment to natural law thinking as the nineteenth century ended and an emergent belief in the new century (which we will unpack in more detail in Chapter 6) in rights as trumps, as essentially countermajoritarian instruments, vigorously enforced by courts to restrain official power.¹⁰³ To take just one representative statement of many, Christopher Tiedman, a notorious critic of an expansive police power, begins his treatise by observing simply that courts “cannot nullify and avoid a law, simply because it conflicts with judicial notions of natural right or morality, or abstract justice.”

So how then did courts think about the connection between property and the collective welfare? In the years following the end of Reconstruction and preceding the Progressive era, the courts had emphasized the idea of property as having important jus publici elements. In 1882, for example, the Supreme established the so-called “public trust doctrine,” in Illinois Central Railroad v. Illinois.¹⁰⁴ This significant ruling applied to navigable waters, and could be seen as progeny from the navigable servitude and ancient water law doctrines. This land is held in public trust for all. “The soil under navigable waters,” writes Justice Field, “being held by the people of the state in trust for the common use and as a portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare. It is therefore appropriately within the exercise of the police power of the state.”¹⁰⁵ But the opinion has come to be seen as having a considerably more wide-ranging import. Its impact is best understood as another powerful statement of the idea resonant in so many of the public rights cases, that certain property was imprinted with a public obligation and therefore the dominion that a private owner would otherwise have was limited to the extent that the general interest required.¹⁰⁶

This view is echoed in nineteenth-century decisions that conceptualize the key facets of government regulation as part of a project of protecting so-called public rights, a project that Scheiber summarizes as “robustly pragmatic.” Indeed, it is no coincidence that the term “public” preceded “trust,” “rights,” and “purpose” in distinct constitutional doctrines and these ideas motivated courts to accept governmental authority as not only a matter of discretion, but one of duty. This was not seen as part of a project of effacing liberty and property rights, nor as a project of rescuing a compelling view of public policy through positive law from its roots in natural rights thinking (although this is a common depiction of this time and these strategies). Rather, the case for broad governmental authority under the policy rested on a somewhat more basic, albeit not uncontroversial, idea, and that is that regulating private property was necessary to advance the collective welfare. This was not about undermining property rights, but about constructing such rights around an edifice of common interest and the public good. Struggles over how best to strike this balance between individual liberty and general welfare would naturally continue in ensuing decades, but the rudiments of these ideas were forged during this critical era in which the regulatory power and obligations of state and local governments were taking shape in light of the practical necessities of the time.

The Police Power and Eminent Domain

The jus publici notion, in expressing the idea that we are basically all in the same boat together, supported government regulation that limited an owner’s prerogatives without necessarily requiring compensation, as eminent domain law would seem to require. Takings law did not exist in any judicially cognizable form until much later in the nineteenth century. Nor did the takings clause apply at all to state regulation until 1897. And it wasn’t until 1922, with the Supreme Court’s decision in Pennsylvania Coal v. Mahon that there was a serious restriction on government regulation of private property under the police power in the form of a just compensation requirement that emerged from the eminent domain clause of the federal Constitution.

The centrality of the police power in the regulation of private property in this era was, in a sense, a consequence of the Supreme Court’s reluctance to turn to the eminent domain power as the main practical option available to state governments who would limit property rights in order to implement the common good. This absence of the takings clause for so long a period – at least up to the Supreme Court’s decision in Mahon – is a curious but nonetheless important phenomenon and one that deserves at least some discussion in this account of the police power as the main event in property regulation.

Looking at the issue at a decent amount of relief, eminent domain played a fairly modest role in fights over the use of the government’s regulatory power to control the use of private property.¹⁰⁷ One reason hearkens back to the complexity of defining property rights in the decades after the founding period. While commentators and even judges would invoke axioms about the imperative of protecting private property rights, “the society could not easily maintain a legal posture as to property rights entirely free of paradox and contradiction – at least not in an environment of economic growth so tumultuous as that of the United States in the nineteenth century.”¹⁰⁸ Moreover, insofar as property rights were viewed in fairly static and even formalistic terms through much of the century, equating regulation of property with the “taking” of property for public use was more pragmatic than the times could easily accommodate. The easier route was the formalistic one. The essential dividing line between a government regulation that would or would not be a taking of private property was whether there was in fact an expropriation or else some sort of physical invasion by the government.¹⁰⁹ Very few of the actions of the government rose to this level, but those that did were considered under the rubric of eminent domain, not the police power.

Key steps in the evolution of the takings versus police power puzzle are found separately in state court decisions during the antebellum period and later decisions by the Supreme Court, especially Munn and Mugler, two cases we have already discussed in the context of the expanding interpretation of the police power. In the state courts, judges wrestled with the question of whether certain governmental interventions destroyed vested rights, whether contract rights, property rights, or both. The 1819 New York case of People v. Platt,¹¹⁰ illustrates the tensions between government’s proper role in abating a nuisance by limiting the owner’s right to dam a river, to the detriment of the fish stock, and the owner’s vested rights to use his property as he wishes unless the government was prepared to pay compensation.¹¹¹ In Platt and other cases from the nineteenth and early twentieth centuries,¹¹² the courts referred specifically to eminent domain, noting that the government could well pursue its regulatory objectives, but only so long as it was prepared to compensate owners. One important element to keep in mind as one considers these matters of constitutional controversies is that during this era a number of difficult concepts involving property law (e.g., riparian rights, the scope of the navigation servitude, public rights and public trust) were uncertain in content and in application. Courts were therefore juggling issues of private property law with issues of constitutional power. Both concepts were evolving simultaneously. The variations in how different states dealt with these issues in their state courts reveals these complex dynamics.

The turning point in the takings/police power interface came in the famous case of Pennsylvania Coal v. Mahon.¹¹³ Frequently decried and much analyzed,¹¹⁴ Mahon is the centerpiece of the Court’s so-called regulatory takings jurisprudence. It advances for the first time in the Supreme Court the view that a property owner may have an actionable claim for just compensation under the eminent domain clause of the US Constitution even though the federal government does not take title to the property or physically invades it.¹¹⁵ Eminent domain rules apply, announced Justice Oliver Wendell Holmes for the Court’s majority, when a government regulation under the police power reduces to an unacceptable degree the economic value of the property. “One fact for consideration,” Holmes writes, “in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act.”¹¹⁶

As bold and arresting as this proposition was in 1922, it left unanswered many questions for the next hundred years. What amount of diminished value would trigger a legitimate takings claim? Does this mean that all exercises of the police power that have a negative economic effect on a property owner require just compensation?¹¹⁷ The answer to this question could not possibly be yes, unless a whole bevy of regulations, old and new, including public trust requirements, historic preservation laws, conservation regulations, exaction fees, and so on, would amount to a compensable taking of private property. But if and insofar as there are limits to Mahon’s reach, what are those limits and how does the regulatory takings doctrine square with the police power?

Mahon involved a federal statute, the Kohler Act, a statute that barred coal companies from removing coal when such removal caused subsidence. One company challenged this regulation as a taking that required just compensation, given that the regulation diminished the value of its legitimate property interest. The Court analyzed this regulation and, finding facts that indicated that Mr Mahon had suffered an economic loss by virtue of the government’s regulation, held that this loss should be subject to compensation. Holmes’s opinion focuses closely on the companies’ property rights and the need for their protection by courts. It is therefore tempting to see his analysis as an exercise in formalism, one that bears some family resemblance to Lochner, Adkins, and other “liberty of contract” cases decided in the two decades before Mahon.¹¹⁸ In this light, we can be puzzled, with others, about how this same Holmes could write a paean to the strong constitutional right of private property and the need of its owners to be properly compensated for their troubles.¹¹⁹ But Holmes’s opinion makes more sense when we see it as truly about the justice’s antipathy to wealth redistribution (generally, and here through property restrictions) and his skepticism about the intentions of the legislature in creating these rules.

This does not fully explain the puzzle, however, of why Justice Holmes could reach this striking conclusion, one that would augur a new doctrine of substantial force and once that would create persistent tension between takings and police power doctrines. On the surface of things, this holding threatened to upend the then-state of police power authority under the US Constitution. As Morton Horwitz writes: “As the definition of property was expanded to include not only various uses of land, but also stable market values as well as expectations of future income form property, virtually every governmental activity was rendered capable of being regarded as a taking.”¹²⁰ After all, health, safety, and welfare regulations commonly upheld under the police power, and with his assent in key opinions of the early twentieth century, have distributive effects. Zoning is a prominent example, but there are also various regulations that are designed to abate nuisances and stop other harms. Legal rules that uphold social interests at the expense of owner prerogatives are redistributive not only in the metaphorical sense that the balance is struck in favor of the public and against the private citizen, but they are redistributive in the real economic sense in that they impose costs on discrete individuals in order to fulfill general welfare objectives.

Justice Brandeis makes this point explicit in his Mahon dissent, although there too he focuses more narrowly on the way in which this federal statute was intended to abate public nuisances.¹²¹ He might have written, though he did not, that by the time of the Mahon decision state and federal courts routinely upheld police power regulations even where they could not be yoked to the classic sic utere rationale.¹²²

Taking Justice Holmes’s analysis on its own terms, there are two essential confounds in this important decision: First, as an effort to curtail legislative excess and to ensure against redistributive measures, the invention of a new element of takings jurisprudence is a rather ham-handed way to accomplish this objective. Second, it is of precious little help in defining the boundaries between what is an ordinary police power regulation, one that does not require any governmental compensation, and what is a regulatory taking. Despite Mahon’s centrality in the history of takings law, cited in cases all the way up to contemporary times and therefore part of the essential architecture of eminent domain,¹²³ it has had a fairly modest impact on other elements of constitutional law in either the federal or state courts that continue to shape the contours of police power regulation. In particular, neither zoning laws nor health and safety regulations have proved especially vulnerable to a takings clause analysis. For example, we will see in the next chapter how the courts in the recent COVID-19 pandemic routinely, and often without any serious energy expended in analysis, rejected takings claims where a business made highly plausible factual arguments that the government’s shutdowns caused major economic hardship.

Taking a step away from the doctrinal focus, we can see the 1920s project of establishing a route for establishing a compensation right for regulatory takings under the takings clause as at least clunky, if not ultimately rather ill-fated. One reason was that the state and federal courts were struggling with the instability of property rights notions, a struggle that was embedded in a larger, complex journey from classical modes of legal reasoning toward more modern approaches to understanding the dimensions of private property, to examining issues of government regulation, and understanding whether and how state constitutions limit government. Louis Brandeis was ahead of this curve in adumbrating the social context and empirical bases of property and regulation, but even his prescience in this domain was a product of its time and was not a fully worked theory that commanded consensus among jurists and commentators in this era. Brandeis was a maverick and was viewed by contemporaries as such. Moreover, there is also a realpolitik in all this as well. Regulation and constitutional review went through enormous change as the Supreme Court’s membership changed in the New Deal era.¹²⁴ At the Supreme Court level, it fell to the Hughes Court to work out what we might call a “political accommodation” that would secure significant governmental prerogative and discretion while also attending to property rights and other aspects of private right, albeit through a more conspicuously process-oriented approach.¹²⁵

As to eminent domain law in particular, its ambiguities and complexities made it difficult to assist the enterprise of configuring the metes and bounds between reasonable and unreasonable government regulation of private property. Viewed generously, it at least set out the terms of the bargain in a way that sought to accommodate private and public interest by, recalling the famous Calabresi and Melamed formulation,¹²⁶ by insisting on a liability rule that would enable the government to cost out its regulatory interventions. Good governing is all fine and well, but it comes at a price.

As for determining the scope and shape of the by then well-established police power, the advent and evolution of regulatory takings doctrine meant that the issue of balancing public interest and private right remained in the quagmire. Should the government be able to supplant an individual’s private property right in order to protect health, safety, or the common good, and on what terms? Is the ever-present risk of a property owner losing one or more sticks in the property rights bundle merely a condition for living in society? In the period following key Supreme Court cases such as Munn and Mugler, state governments could see the space created by the Court’s acknowledgment that the common good did warrant interventions to protect health, safety, and morals. However, such interventions were not then, nor would they ever become, unconditional. The struggle that manifest itself in the Progressive and Populist eras, represented by not only police power controversies, but also eminent domain and due process, was how best to set and enforce those conditions through judicial review.

Legislative Skepticism Aborning

In the book’s first two chapters, we noted the ways in which American political culture revealed from the republic’s beginning an enormous deference to elected legislatures. This was largely a reflection of our distinct science of politics emerging in the pre-founding period, one cemented by the framers of the US Constitution, and reflected in the idea that state constitutions were documents of limit and sources of the principle that legislative power is plenary. Skepticism about the prominence of the legislature began as early as the Jacksonian era, although deference to legislative judgment persisted.

The period after Reconstruction, however, brought with it a notably greater anxiety about the tendencies of the legislature to act in ways that were seen as undemocratic and overly intrusive into the realm of private freedom. As the Alabama Governor Emmett O’Neal commented in 1913: “We have come to believe that the legislature, like a strong man inflamed by violent passion and dominated by wicked influences, was likely to ‘run amuck’ trampling down the interests of the just and the unjust alike.”¹²⁷

Legislators were increasingly viewed as captured by special interests and dominated by factions external to the legislature.¹²⁸ This, of course, was a concern raised famously by James Madison in Federalist No. 10, and some of the “auxiliary precautions” he wrote about included measures to cabin such factionalism.¹²⁹ However, the main device he offered – expanding the scope of the republic so as to make a democratically elected legislature harder to control, and also federalism – were less promising as devices to limit excesses in state legislatures. Such legislatures were comparatively smaller, and some were small by any measure. Moreover, the breadth of legislative power meant that interest-group influence would be more impactful on public policy generally. This risk went with the territory, as it were. Madison’s original worries therefore were echoed in late nineteenth-century commentary on the state of American constitutionalism.

Concerns that state legislatures were becoming unwieldy, unworkable, and overbearing pushed citizens and officials in states to amend their constitutions (or, in rare instances, to replace these constitutions entirely) in ways that would reduce legislative power. Rather than see the many legislative checks created by state constitutional reforms as destructive of legislative power and as the scaling down of the sphere of politics, it is better to see them as, to use some economic jargon, introducing legislative transaction costs. Legislatures could still engage in active governance, but there would be mechanisms that created burdens, and occasionally barriers, to such actions. In all, legislators would need to forge compromises (often with executive branch officers) and innovate in lawmaking in order to do the people’s business.

If we unpack the reasons and rationales for this emerging skepticism, we can see that it does not present itself as primarily an anti-government movement; it does not necessarily undergird the so-called libertarian constitutionalism so commonly associated with the Lochner era and, for some commentators, even the years before that notorious case. Citizens were concerned that legislators were not advancing the people’s welfare. They could point to examples of overbearing laws interfering with personal liberty and private property as illustrative. As Edwin Godkin wrote in 1897: “One of the faults most commonly found in the legislatures is the fault of doing too much.”¹³⁰ At the same time, they could (and did) point to examples of their elected officials not doing enough to reign in rapacious corporations and to redistribute opportunities to those more in need. Indeed, the leading academic accounts of the Progressive and Populist eras focus rightly on the concerns with caste legislation and private regarding legislation.¹³¹ Taking account of those who objected that government did too much and those who objected that they did too little or did what they did incoherently, there was building a robust group of disgruntled citizens, citizens who could capture the attention of those in real or potential positions of power. And so, not surprisingly, the period between the end of Reconstruction and the Second World War was a time of active reform in the wheels of governance, including state constitutions.

Among these reforms were structural mechanisms that were intended to limit the scope of legislative power. These included the imposition of public purpose requirements and of prohibitions on special legislation, balanced budget requirements, and enhancement of the governor’s fiscal powers. The development of initiative lawmaking, a manifestation of the view that direct citizen democracy had a role to play in public policymaking, was also illustrative of this legislative skepticism and the need for checks and balances.¹³² In addition, there were significant amendments of the US Constitution, including the Seventeenth Amendment (which took the function of electing senators out of the state legislatures and gave it to the people) and the Nineteenth Amendment (women’s suffrage), which could be tied, even if indirectly, to concerns about legislative supremacy and its actions in the tenor of the times.

This legislative skepticism led to a fork in the road. Should the courts continue their deferential posture or should they respond to concerns with legislative performance by taking a more skeptical tack? State and federal courts could well have responded to intense concerns with legislative malfeasance by bolstering judicial review of legislative actions. They had the tools to do so through due process especially, and through other measures and mechanisms. Lochner showed one such avenue, as we will discuss next. But note that insofar as skepticism emerged in earlier years, the fact that state courts maintained a largely deferential posture toward police power regulation and also imprinted upon private property doctrines of jus publici of various sorts, was strong evidence that the police power of Justice Lemuel Shaw and of less celebrated judges who had approved regulatory interventions to preserve health, safety, morals, and the people’s welfare was alive and well. That all said, the Lochner era would test this faith.

Laissez Faire Constitutionalism and the Police Power Renewed

With the Court’s decision in Lochner in 1905 and subsequent decisions in a similar vein,¹³³ the Court insisted on a much tighter justification for state legislation that infringed on what they described as the liberty of contract. This also pertained to impositions on private property and, while the emergence of a truly robust takings jurisprudence for regulatory takings would await the 1920s, the effect of the Lochner era line of cases was to limit in a significant way the sphere of authority state and local governments exercised in the name of health, safety, and general welfare.

In Lochner v. New York,¹³⁴ the Court considered a maximum hours law for bakers in New York. Acknowledging that this law fell under the traditional rubric of the police power, the Court said that this “is a question of which of two powers or rights shall prevail – the power of the State to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid.”¹³⁵ The Court makes two essential claims, each addressing the standard of review of police power legislation: First, “[t]he act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.”¹³⁶ The first claim reflects a more searching review of the reasonableness of the legislation than was typical in previous cases before the Court, including Jacobson, decided just before Lochner. The second, and even more arresting, claim is that there exists a right to contract that stands against the legislature’s efforts to regulate for the public good. Ultimately, the Court dismisses the state’s argument that this is a valid health law and, accordingly, holds that this legislation is outside the scope of the police power and, moreover, are “meddlesome interferences with the rights of the individual.”¹³⁷ Justice Harlan dissented, joined by two other justices, in which he pointed out the many state cases which had upheld public health and safety regulations similar, he suggests, to New York’s.¹³⁸ Moreover, he detailed the health-related considerations associated with heavy duty employment as a baker. Justice Holmes wrote a celebrated dissent wherein he accused the majority of enacting its own economic theory into constitutional law through a novel reading of the Fourteenth Amendment.¹³⁹

In the standard story, the Court invented substantive due process in this era to protect economic liberties that had long been vulnerable to regulation under the rubric of public interest and general welfare rationales.¹⁴⁰ This rationale, it was said, came out of nowhere, was an indefensible edict – an ipse dixit – that individuals had vested rights against government regulation, and threatened to undermine the basic structure of regulation that enables markets to operate and protected individuals from injury and unfair economic treatment. This was, as Professor Laurence Tribe puts it, “a misguided understanding of what liberty actually required in the industrial age.”¹⁴¹ In this account, Lochner was surprising at the time, deeply mistaken as a decision then, and rightly repudiated two decades later by key New Deal cases which formally overturned the holdings of Lochner and other cases representing similar themes and discredited its essential logic.¹⁴²

This standard story has met resistance by a wide cadre of legal scholars over the past few decades. No one doubts that the Court provided in Lochner and its progeny a more muscular approach to restrictions on property and liberty and was looking with more skepticism at government regulations that had passed muster under older state court cases and Munn and Mugler in the Supreme Court. Revisionist scholars question, however, whether the Court’s approach was truly a significant departure from the jurisprudence of an earlier era or was, instead, broadly congruent with the anti-caste philosophy that had long undergirded the courts’ view of state legislatures and the expected wisdom of state legislation or the lack thereof.¹⁴³ “A consensus is emerging,” David Bernstein writes in his provocative book, Rehabilitating Lochner, “that the liberty of contract doctrine arose from a combination of hostility to ‘class legislation’ and a desire to protect natural rights deemed fundamental to the development of American liberty.”¹⁴⁴

One window into the Court’s approach in the Lochner era is provided by scholars who see in this era’s cases a commitment to laissez faire constitutionalism properly actualized through classical modes of legal thought, and modes that used natural law and natural rights reasoning to reach results and to ground their ratio decidendi.¹⁴⁵ These modes were familiar, having anchored common law adjudication for a significant time, yet in the Lochner era, these methods were mobilized in the service of a new, and in many ways radical, conception of vested rights and the circumscribed role of the government in intervening in the economy and in private choices. The pre-political character of rights and the deontology of constitutional law during the period leading up to the Legal Realism movement helped forge a strong attack on government regulation that threatened private ordering and the neutral market.¹⁴⁶

For some other scholars looking closer at Lochner and its progeny, the basic approach of the Court majority was, while characteristic of then-au courant methods of reasoning, unremarkable. Legal historian Ted White, for example, insists that the formation of a distinct judicial approach to police power, due process, and private rights was neither more nor less than a sensibly wrought “guardian review,” one that foregrounded a reasonably searching judicial review by the federal courts (which is White’s sole focus) and presumably also by the states. Sometimes the states won, other times they lost; in either event, the Court’s focus was on what White calls “boundary pricking,” which is to say that they examined the reasons for the state’s assertion of power and balanced it against the individual liberty interests.¹⁴⁷ Barry Cushman likewise views the principal Supreme Court decisions in the era demarcated by Lochner and the summative decisions of the New Deal as broadly congruent with relevant precedent, albeit not suggesting that they were correctly decided, but suggesting that the renewal of expansive legislative power in cases such as Nebbia v. New York and Muller v. Oregon was not a radical departure from standard constitutional law. Rather, neither the methods of reasoning nor the interpretation of previous decisions suggested that the Court had taken a radical turn, one steeped solely or even mostly in the commitments to free market libertarianism.

We can bridge in some ways these competing stories by emphasizing the skepticism toward legislatures and legislative regulation that animates these and other decisions in the early decades of the twentieth century. For some scholars, the turn toward greater scrutiny was not a cataclysmic change for conceptions of governmental power and its responsibility to act for the general welfare. Instead, they see Lochner and its progeny as focused on pathologies in the legislative process.¹⁴⁸ The idea here is that the judiciary’s approach to the police power has always concentrated on the legislative process and the fundamental fairness of this process, especially from those whose interests could be compromised by interest group influence and self-dealing. Joey Fishkin and William Forbath see this effort as part of an enduring, if unstable, commitment to democracy-as-opportunity, and to an “anti-oligarchic constitution.”¹⁴⁹ While themselves skeptical of the motives and techniques of justices in the first two decades of the twentieth century who saw the legislature as a threat to liberty of contract and private property, the basic idea that the courts would interrogate legislation to ensure that it was not arbitrary or in another way unreasonable was well in line with the objective of protecting democracy-of-opportunity. In a similar vein, Howard Gillman sees this skepticism of legislative lawmaking echoing in the Jacksonian democracy and explains Lochner and the epoch of libertarian constitutionalism as an outgrowth of a view steadily growing into the Progressive era that “legislating special privileges for particular groups and classes” stretched beyond what the police power authorized and that the approach that become prominent after the enactment of the Fourteenth Amendment, albeit for a few decades, was one in which the Court “organized its police powers jurisprudence primarily around a distinction between legitimate general welfare legislation and illegitimate factional politics.”¹⁵⁰ In this rendering, cases that on first glance look like evidence of a strong commitment to private property and liberty as such are actually best viewed as interrogations into the self-dealing of state legislatures and, relatedly, the inequitable disadvantages on certain individuals and groups meted out by these legislative enactments.¹⁵¹

This revisionist argument about Lochner’s lack of special novelty is incomplete. This focus supposes that the Court had a rather purposive commitment to redressing flaws in the legislative process and redistributing power to the have-nots., at least as an explanation of the evolution of the police power in the period between the end of Reconstruction and the end of World War II. Much of the debate over the origins and impact of the Lochner era focuses on the question of whether and to what extent the Court developed and implemented a scheme of substantive due process in order to create liberty and property-based constraints on the exercise of power. However, the more fundamental issue for the framing of the police power is how the courts, state and federal, came to view the tactics and strategies that state and local governments pursued in this era to protect health, safety, and welfare. Reading through these Lochner era cases in the Supreme Court, alongside the many less prominent decisions rendered by state judges, an important theme is the overall robustness of the courts’ scrutiny of legislative strategy. Was the legislature pursuing a reasonable set of objectives and, even if so, were they using mechanisms that accomplished these ends in ways that were neither arbitrary nor in any other way inconsistent with the general welfare? Lochner-era histories generally focus in on the questions of how solicitous were courts with regard to individual rights, ones mostly unenumerated and, to many, historically underprotected.¹⁵² However, during the two decades demarcating the Lochner era, government at the state and local level developed novel techniques for protecting public welfare (we will consider one of the most important ones in the next subsection of this chapter) and in which the meaning of property and liberty continued to evolve. Moreover, state constitutional changes made more salient the connections between political tactics and societal objectives, objectives realized through evidence-based governmental action. Plucking Lochner from these complex developments risks positing an incomplete, if not distorted picture, of the history of regulation and the ever-evolving police power.

With the end of Lochner and the beginning of the New Deal, the Supreme Court moved sharply away from a skeptical approach to reviewing police power regulations. Summarizing the caselaw of the period between Nebbia and Parrish and the mid-1960s, when modern substantive due process emerged as a means of creating and protecting unenumerated rights against official restriction, liberty of contract quickly faded as a basis for scrutiny and invalidation. Taking its place was a fairly “minimalist, procedural” due process, one in which “due process meant fair process; that was all.”¹⁵³ The courts largely abandoned the approach of scrutinizing the means-end fit of legislation in order to ensure that the law passes muster under the police power. As we will see in our examination of zoning later in this chapter and in the next, the Court made clear that it was not within the proper role of the courts to scrutinize the wisdom of legislation and, more to the point of the police power, the degree and extent to which a certain regulatory strategy in fact furthered general welfare as it could credibly be measured. The much-heralded Brandeis brief, a shrewd tactic of describing the factual basis and logic of a legislature’s approach to regulation in a particular instance, faded not because skillful lawyers could not engage deeply with evidence- and data-driven analysis, but because the courts were no longer interested in taking such a deep dive into the legislature’s rationales and regulatory strategies.¹⁵⁴ At bottom, the Supreme Court was largely solicitous of the capability of state and local governments to pursue the people’s welfare through a judicious but energetic use of the constitutional police power.

One last point here, not especially profound as an account of Lochnerian jurisprudence, but of consequence for the general argument in this book: Most of the accounts of the Lochner era, whether standard or revisionist or something less well defined, focus like a laser on a handful of Supreme Court cases and do not look closely at what was going in in the state courts. Much more often than not, regulations that were challenged during the Lochner era period were upheld under the police power.¹⁵⁵ This was certainly true of morals regulations, but also true of many regulations of private property and liberty of contract. Indeed, as we discussed earlier with regard to regulatory takings, it was largely from the frustration with the unwillingness of the courts to stop or slow the train of regulations which reduced the value of owners’ property that the Court developed an important safety value – regulatory takings. Public health regulations were commonly upheld, especially notable in this era of increasing density and infectious diseases; so too were safety-oriented regulations, a development that was particularly important before tort law would develop doctrines such as enterprise liability and worker’s compensation, in order to deal with the uptick of industrially-related injuries.¹⁵⁶ In short, the police power did not wither away during the Lochner period. On the contrary, state legislatures came out of the New Deal period with great powers and with robust capacity and resolve to tackle matters of health, safety, and welfare.

Assessing Reasonableness in This Period

Out of the progeny of Munn and Mugler in the first years after Reconstruction and, later, in the post-Lochner era, there emerged a better view of the police power and its limits. The standard of reasonableness was invoked in various cases, especially at the state level, and proved to be a moderately formidable restriction on legislative power.¹⁵⁷ This reasonableness standard was hard on its face to separate from an inquiry into the wisdom and means-end fit of legislation; and courts were disinclined, especially as the period of laissez faire constitutionalism passed, to look closely at the reasonableness of legislation. In constitutional review generally, intrusions on so-called economic liberties were subject to rational basis review,¹⁵⁸ a standard that did not really change in the many decades since its emergence as an adjudicatory standard. And while impositions on property rights are not always identical to violations of economic liberties, the courts applied what amounted to the same standard, with one exception which we will touch on here and explore in more detail in the next chapter.

In Chapter 7, we will explore in more depth the courts’ myriad approaches to judging reasonableness and improper governmental regulation under the police power in the contemporary US. The discussion there will be more normative than descriptive. Here we want to use judging and assessment in a wholly different sense. The inquiry is not principally into how courts evaluate police power regulations under these standards, except insofar as what one or another court says can illuminate the critical issues. Rather, we want to look at how reasonableness was understood in the key era between Reconstruction and the New Deal as a measure of proper governmental power and the resilience of individual liberty and property interests.

What emerged in the Progressive era and its aftermath was an important new sense about the capacity and ingenuity of government in regulation. As the administrative state emerged as a key mechanism for the exercise of governmental power, attention was drawn to how the government might deploy expertise in the pursuit of good governing. Quite simply, our normative expectations for government performance increased even while concern about how government actually behaved grew. At different junctures, we have seen how structural constitutional reforms were created to limit government power. But this is only part of the story. State constitutional reform and, alongside it, state constitutional adjudication were the fora for the examination of such central questions as: What were the best means of effectuating the salutary aims of government? What were the best structures to ensure that the state and local governments would reach the best balance between safeguarding individual liberties and property rights on the one hand and the “overruling necessity” of government to implement the common good?¹⁵⁹ Novak and other legal historians looking at this period find a nearly unbroken line from distrust of government in implementing new regulatory strategies to the securing of broad and resilient governmental power (with one hiccup in the Lochner era). These broad and dense analyses capture important truths about this period. However, when we look at the treatment of government regulation alongside struggles involving state constitutional architecture and reform, we see that this period was as much about tension as about reflexive confirmation of authority, about how to balance liberty with regulation, and, critically, how law could be designed and used to effectuate a strategy of good governing. This means more than just ensuring that democracy and the rule of law would be observed. It means also that governmental officials would perform well and that regulatory means would reach their desired ends. The principal way in which this would be ensured, as commentators and courts of the time viewed it, is by close attention to reasonableness and rationality in lawmaking.

State and federal courts had long been focused on the question of whether the government’s actions were arbitrary or discriminatory. That they less often found arbitrariness in official action than otherwise is not the measure of the jurisprudence of constitutional review in police power cases. Notably, most of the key cases predated Lochner, and they did not rest on the considerations urged by contemporary scholars such as Tiedeman and Cooley and on the principles that would become prominent after the Court’s decision in Lochner and for several years thereafter.

For example, in Lawton v. Steele,¹⁶⁰ decided by the Supreme Court in 1894, the Court considered and held unconstitutional a New York law that instructed law enforcement authorities to confiscate or destroy fishing nets in order to protect the fish. The Court delineated the scope of the limits on the exercise of a police power to impose a general regulation:

Concern with protecting against arbitrary imposition of regulation, especially where this disrupts the freedom of individuals to pursue their trade and conduct their business, was conspicuous in key state cases in this period as well. A case from California involved an ordinance that imposed various restrictions on building structures for hospitals for the insane. The plaintiff complained that these ordinances were created after his building, and the substantial investment pertaining to said building, had been completed.

Courts protected against arbitrary regulations in a number of important public health-related decisions in the late nineteenth and early twentieth century, as the government struggled to contain infection diseases through quarantines and other measures. In Jew Ho v. Williamson,¹⁶² the court considered the imposition of a quarantine in turn-of-the-century San Francisco, a quarantine designed to control an outbreak of the bubonic plague. This law had the effect of limiting individual travel and the conduct of business of those of “Chinese race and nationality only.”¹⁶³ While accepting the power of the local public health authority to impose this regulation, the district court held that this was created in a palpably discriminatory way and so exceeded the scope of the local government under the police power. Moreover, the court illuminated evidence that suggested that this quarantine was likely to be wholly ineffective at controlling the spread of this disease. “[T]he court must hold that this quarantine is not a reasonable regulation to accomplish the purposes sought. It is not in harmony with the declared purpose of the board of health or the board of supervisors.”¹⁶⁴

That reasonableness was thought promising earlier in American legal history as a more muscular standard of review was evidenced in some of the more influential summaries of the police power. In his 1904 treatise, Ernst Freud has an entire section devoted to “the principle of reasonableness.”¹⁶⁵ Municipal police regulations “must be reasonable in order to be lawful.”¹⁶⁶ The courts, says Freund, were “emphatic in their assertion that they have nothing to do with the wisdom or expediency of legislative measures.”¹⁶⁷ Yet still there was a requirement, he argued, a requirement of “moderation and proportionateness of means to ends.”¹⁶⁸

In any event, judicial inquiry into the reasonableness of legislation under the police power in the early decades of the twentieth century was neither recognizable as a precursor to rational basis review as formulated in early Supreme Court cases, nor as a dense interrogation into the efficacy or coherence of the legislature’s work product. Remembering Justice Harlan’s opinion in Jacobson, the Court’s inquiry into what is reasonable, anything more searching than the deferential look the Court gave to the public health agency’s policy “would usurp the functions of another branch of government,” for “[i]t is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain.”¹⁶⁹

That the Court’s approach was highly deferential did not mean that it would not engage in discussion of the rationale of the government’s action. In Muller, for example, the Court departed from Lochner in a fairly explicit way, upholding a law that limited the working hours of women. In a short and otherwise rather perfunctory opinion, Justice Brewer, for an unanimous court, opined at some length about the physical “disadvantage” of women and their “dependen[ce] upon man.”¹⁷⁰ It was upon this rationale that the Court distinguished the case from Lochner. And yet the Court’s choices about when and how to interrogate a state’s reasons for its laws remained unclear, and at times even baffling. In Buchanan v. Warley,¹⁷¹ a case brought by a White plaintiff challenging a racially restrictive covenant, the Court eschewed relying upon, or even really referring to, an avalanche of arguments made in the form of a “Brandeis brief” against racial mixing, instead insisting, per Lochner, that such covenants restricted the liberty of contract, Q.E.D. Ten years later, in the notorious case of Buck v. Bell,¹⁷² Justice Holmes for the Court reflected upon the reasonableness of a Virginia law which authorized mandatory sterilization. Noting that “three generations are imbeciles are enough,”¹⁷³ curiously, Holmes invoked Jacobson as authority for the holding. However, here, unlike in Jacobson, the Court freely interrogated the legislature’s purposes and strategy, in order to arrive at the conclusion that the law was unreasonable under the police power.

In the period we are focused on in this chapter, the federal courts grappled with issues of discrimination and arbitrariness, in evaluation the constitutionality of government action. As in the quarantine cases in San Francisco discussed above, the gravamen of the complaint was not with the fact that the government was undertaking to regulating a business affected with a public interest or was limiting property rights, but that it did so in a palpably discriminatory way. When, by contrast, the government was drawing lines between proper and improper conduct in an area in which a property owner on the wrong side of the line would bear a particular burden, the Court made clear, as in Lindsley v. Natural Carbonic Gas. Co.,¹⁷⁴ that “it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.”¹⁷⁵

It would be too pat, therefore, to see the Lochner era’s experiment with laissez faire constitutionalism as an abandonment of meaningful judicial review in police power cases. In the next chapter, we will look broadly at the development of the police power, including judicial interpretation, from the mid-century up to the present, and so we will see how the courts approached these issues in broad outline. But it is nonetheless important for the purposes of our evaluation of police power in the critical half-century between Reconstruction’s end and the end of World War II to see how the state and federal courts reshaped police power doctrine from a formalistic, natural law-based interrogation into vested rights, and one that began with a studied skepticism about legislative motivation, to an approach that aspired to some degree at least to be a check on legislative malfeasance and arbitrariness and one that, more ambitiously, was concerned with public welfare as a rationale and as an objective of the exercise of the power. As we said at the end of Chapter 2, there emerged in the second century of the republic new ways of exercising police power, including the use of administrative regulation to implement health, safety, and welfare policy. In so doing, the regulation of the police power shifted from standard constitutional review of rights versus power to a more eclectic review structure, one that was found in the internal structure of administrative law and process.

The courts’ invocation of the principle that government regulation cannot be arbitrary to pass legal muster would do work in various constitutional law contexts outside the realm of property rights and liberty of contract. While there was little in the constitutional law jurisprudence of the first half of the twentieth century that illustrated a searching review of legislation for arbitrariness or unreasonableness in a more robust sense. However, such approaches would become one of the linchpins of the courts’ evolving equal protection doctrine later in the twentieth century and would also factor into the consideration of content and viewpoint neutrality in the consideration of free speech and free exercise controversies. More recently, as we will discuss in Chapter 7, the Court has undertaken to review state and federal laws that, it has been urged, show evidence of animus and should be evaluated under new sorts of equal protection principles, ones that inquire more deeply into legislative and administrative motive.¹⁷⁶ While motivation-centered constitutional review had fallen out of favor, especially after Lochner’s demise, this approach to review made a roaring comeback in key cases involving discrimination against LGBTQ+ individuals and also in recent cases involving executive decisions from the Trump administration.¹⁷⁷

Beyond constitutional law, the concern about arbitrariness would become critically important in the development of administrative law in the late nineteenth and early twentieth centuries. What would ultimately answer A. W. Dicey and other influential critics of the administrative state (not completely satisfactorily, then or even now, to be sure) is that the courts would maintain guardrails to ensure that administrator were exercising discretion sensibly.¹⁷⁸ They did so by requiring that agency decisions, to use the language codified into the federal Administrative Procedure Act of the 1940s,¹⁷⁹ were neither arbitrary nor capricious.¹⁸⁰ This requirement was likewise central to state administrative law, from truly the beginning of our expanding use of regulatory agencies at the state and federal level and the practice of administrative discretion.¹⁸¹ We will see later how various bodies of law, especially administrative law and constitutional law, could work together to limit the risks of arbitrary government action and could, more ambitiously, facilitate good governing. For now, we should just see that what came from the end of the Progressive era and by then nearly a century and a half of experience with the police power was both a robust and resilient power to govern, even where private property rights and other freedoms were affected, and also a framework for ensuring that the government did not abuse its power by undertaking actions that were arbitrary or discriminatory.

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In the Progressive era and deep into the twentieth century, the police power was evolving from, first, an outgrowth of the sic utere principle and a means of protecting against public nuisances and other similar public harms and, second, a wider mechanism for protecting the common good through salutary regulation of health, safety, and welfare, to an ever more significant means for implementing more modern forms of regulation to promote the general welfare in an increasingly complex society. To best understand the trajectory of the evolving police power, we should understand both how it became more capacious in its scope, thanks to actual legislative practice and also the imprimatur given by the courts, and also how it morphed from a power exercised mainly through state legislation to one that was a key arrow in the quiver of administrative agencies and municipalities. Perhaps the best policy area available to illuminate these developments is zoning, the topic we turn to next. Emerging in earnest in the second decade of twentieth century, zoning presents an especially tricky set of issues for government policymakers and also for courts, the former involved in constructing new techniques of regulation for a rapidly changing urban environment and the latter struggling to develop appropriate limits on the exercise of this awesome power by state and local governments.

Managing Property through Zoning

What makes zoning important is not only its ubiquity in modern American urban life, but the fact that the case for zoning power cannot be so easily tied to considerations of health and safety.¹⁸² To be sure, some land use regulations have been yoked to health and safety rationales, thinking of government efforts to reduce blight and the problems of poverty and crime that are associated with certain patterns of property use and residential life.¹⁸³ However, the courts have approved zoning laws under the police power without requiring the sort of means-end connection to health and safety that one might have thought were necessary.¹⁸⁴ The approval of zoning reflects a triumph of a particular approach to interpreting the police power, long ago and persisting for decades afterward, and so we should look closely at how these developments came to pass.¹⁸⁵

Zoning is commonplace now, but it was not always so. Local governments’ early efforts beginning in the 1920s to regulate land use by comprehensive zoning regulations were challenged in court by property owners, to no one’s surprise, and the courts worked to accommodate these novel regulations within existing police power doctrine. An important early case was Miller v. Board of Public Works of Los Angeles.¹⁸⁶ The California Supreme Court there responded to the argument that this zoning law effaces the traditional constitutional limits on the government’s regulatory power, both because there was not a nuisance and therefore the sic utere principle didn’t apply and because this imposed discrete burdens on particular property owners in order to advance public purposes. Land use regulation under the police power is not limited to abating nuisances, said the court. This form of regulation emerged not as a redundant mechanism for protecting private rights from interference by others, but as a novel means of responding to changing conditions, especially in big urban areas such as Los Angeles. It is understandable and acceptable that the police power would change with it, for

This power is not unlimited to be sure, and the court noted that some municipalities have “under the guise of zoning, sought to enact and enforce unreasonable and discriminatory ordinances.”¹⁸⁸ The courts’ role, therefore, is, as in other police power controversies, to investigate whether these regulations are proper or improper exercises of this regulatory power. Miller is important in clarifying that it is not enough merely to say that this is a zoning regulation, as though this will automatically trigger added scrutiny. The government’s role in protecting the salus populi having become well established, zoning was viewed by these courts as the kind of practical instrument that government has designed to ensure that owners’ use of their private property is consistent with the common good.¹⁸⁹

The biggest and boldest step in the constitutional law of zoning was the Supreme Court’s decision in Ambler Realty Co. v. Village of Euclid,¹⁹⁰ decided just a year after Miller. This decision was both momentous and rather unexpected, given that it was decided by the Supreme Court in the midst of the Lochner era. Moreover, its holding was squarely in favor of local government power, in both its decision to limit significantly a key stick in the bundle of private property rights, and without any compensation, and also the approval of the decision by state governments to permit a general-purpose local government to make this choice.

The property owners in the Euclid case cleverly styled the case as not just about a moderate intrusion on certain property rights as a result of this novel land use regulation, but as an existential threat to individual liberty and, especially, the market economy. “The ordinance,” argued the lawyers for the plaintiffs, “constitutes a cloud upon the land, reduces and destroys its value, and has the effect of diverting the normal industrial, commercial and residential development thereof to other and less favorable locations.”¹⁹¹

One of the lawyers arguing for the town, reflecting upon the Euclid decision nearly three decades after the decision, captures colorfully zoning’s logic: “Housekeeping for municipalities is, under zoning, finding an orderliness. Zoning is merely keeping the kitchen stove out of the parlor, the bookcase out of the pantry and the dinner table out of the bedroom. It provides that houses shall be built among houses, apartments in apartment zones, stores in store zones, and industry in zones set aside for industry.”¹⁹² Importantly, Euclid’s lawyers met the objections to the use of this novel land use regulation head on, not relying solely on the argument that restrictions on private property are typically permitted under a long line of police power precedents, but explaining to the Court what zoning was about, how it was tied to old notions of regulating to proscribe owners’ property uses that would harm individuals and members of the general public, and painting a picture that would illustrate how this scheme would help bring order to cities and eliminate the chaos that existed before New York authorities created this new scheme of scientific management.¹⁹³

Euclid was styled by its conservative author as a narrow ruling, and one that he grounded in existing law. And yet the import of Euclid was anything but modest. Most cities eventually adopted some version of zoning regulations, versions which had much in common with one another.¹⁹⁴

The Euclid decision represents a convergence of a number of developments from the first quarter of the twentieth century that impacts the nature and scope of the modern police power. First, it is a reminder made explicit of the fact that under our constitutional traditions the use of property is subject to the requirements of society and the common welfare. Zoning is a modal example of the need to balance individual property rights with the public good.¹⁹⁵ Second, it pushes past the sic utere idea that property regulation is warranted only to abate a nuisance, even if the property owners played no particular role in the conditions that give rise to the decision of the local authorities to create a structure of zoning – indeed, what has become known as “Euclidean zoning.”¹⁹⁶ Land use restrictions typical of these zoning arrangements included separation of commercial from residential uses, height restrictions, lot sizes, density rules, setbacks (distance between buildings and property lines), and development rules of various configurations.¹⁹⁷ The idea of salus populi as a principle undergirding the police power appears prominently in the arguments made on behalf of the city’s zoning policy in the state and ultimately the Supreme Court. It is explored, if a bit more opaquely, in the Court’s decision. This decision largely embraces these arguments, even if the precise rationale for its decisions remains somewhat opaque. Third and finally, Euclid represents a commitment to expertise and administrative government in accord with principles of scientific management.¹⁹⁸ Zoning again captures this principle well; and the approval of the municipality’s decision reaffirms this movement in regulatory governance.

Zoning law would of course become very prominent for the century (and counting) after the Euclid decision. However, the constitutionality of zoning laws would fade almost entirely from the federal constitutional agenda and mainly from state constitutional law, except in the latter circumstances in which concerns regarding due process in the implementation of certain zoning decisions arose. Viewed through the lens of constitutional adjudication, the Euclid decision nearly completely effaces the security of private property against governmental management of its use through zoning regulations. While the Court might have limited zoning to a narrow sic utere rationale, or somewhat more generously limited it to circumstances where the government could show that land use restrictions were necessary to improve health and safety, they did neither of these things, nor did other courts in later cases.

Often neglected in the story of Euclid and the establishment of a fairly safe harbor for federal constitutional purposes around zoning regulations is the jurisprudence of zoning and police power in the state courts in the years following Euclid, especially with regard to non-constitutional principles. One of the more interesting post-Euclid cases was Mansfield & Swett v. Town of W. Orange,¹⁹⁹ a New Jersey case from 1938. The state supreme court began by drawing an interesting, if underdeveloped, distinction between land use planning and zoning. By contrast to the more mechanical method of restricting certain uses through zoning (much of which came to be called Euclidean zoning, after the Supreme Court case), planning “is a term of broader significance. It connotes a systematic development, contrived to promote the common interest in matters that have from the earliest times been considered as embraced within the police power.”²⁰⁰ Moreover, planning is entwined with municipal power and choices made at the local level to manage and control the use of private property. “Planning confined to the common need,” wrote the court, “is inherent in the authority to create the municipality itself.”²⁰¹ But how should this authority be so confined?

In the New Jersey case, the court continues in this vein, describing how the emergence of land use planning in industrializing America pushed open, properly, the boundaries of what were appropriate objects of regulation under the police power. Such power should be concerned not only with public health, public morals, or public safety, but “embraces regulations designed to promote the public convenience or the general prosperity.”²⁰² In so doing, no expectation of compensation was necessary (echoing a key point of the Court in Euclid, and that zoning is not a taking, and so does not fall under the requirements of eminent domain, either public use or just compensation).²⁰³ Nor would planning regulations need to be static and neglecting of “changing conditions” to pass constitutional muster.²⁰⁴ The only limit is the ordinary one, and that is that the “circumstances and character of the regulation” are neither arbitrary nor unreasonable, the latter being defined by reference to whether the law in fact accomplishes “a legitimate public purpose.”²⁰⁵ Other zoning decisions from the 1930s through the next several decades were largely congruent with the logic and emphasis of this New Jersey case.

Up to now, we have focused on the relentless march of the law toward Euclid and also with state court decisions before and after Euclid, toward upholding zoning under the police power. This development is especially important to see, in that the kind of regulation undertaken through this emerging project of land use planning was truly novel and did push up against the boundaries of what was tied to public health, safety, and morals. Ultimately, it is hard to square Euclid with the traditional police power categories unless we embrace the idea that “general welfare” in fact has meaningful content as a basis for regulation in the service of the common good. The imprimatur the courts put on zoning is an important confirmation of the broad view, manifest most dramatically in the Progressive era, that the police power is about the project of good governing, and that both the state and federal constitutions support that project even as new needs for, and methods of, regulation emerge.

In a strongly critical account of Euclid and the emergence of Euclidean zoning, land use scholar Eric Claeys rightly notes that zoning traces the shift from a classically exclusion based idea of property rights to a governance conception.²⁰⁶ He writes:

This is a fairly accurate depiction of not only zoning as it emerges from the Euclid decision, but a transformation conspicuous during and after the Progressive era toward an unsteady, but essential, marriage between owners’ bundle of property rights and the public’s interest in managing owners’ interests in property in order to accomplish public welfare goals. What Claeys misses as a descriptive matter is that this transformation was well underway by the time of Euclid. This so-called negative liberty had long been tied to the necessities of public purpose and the common good. The approval without serious limit of Euclidean zoning no doubt confirmed this emphasis and therefore advanced the transition from vested rights to governance as the best way to think about property rights and their protection in the Progressive era and its aftermath. However, zoning was not a cause of the same. Ultimately, Euclid is best understood as a product of a twentieth-century conception of property rights and regulation rather than a font of these principles and approaches.

There is another important dimension to the rise of zoning in the early part of the twentieth century and the courts’ examination of this form of regulation under the constitutions. This concerns the matter of who is doing the regulating. Zoning has been and continues to be almost entirely a matter of municipal law. Sometimes the institution responsible for establishing the basic zoning rules is a general-purpose local government and, where this is so, it is exercising official power under the structure of state law ultimately, with matters becoming more complicated under home rule provisions. Other times the basic decisions are being made by an administrative agency. This was the case in the Town of West Orange case we examined above; and this would become a commonplace in the exercise of zoning power – both in the configuration of the rules and in the implementation of the standards through various zoning boards or whatever they were and are precisely called.

While this fact may seem unremarkable when viewed through our present prism, the question whether the police power could be exercised by an administrative agency on essentially the same terms and conditions as a state legislature was not without consequence. Outside of zoning law, we can find a smattering of state police power cases in which the courts looked askance at legislative delegations of authority. In Thomas v. Smith,²⁰⁸ a Virginia case from 1930, for example, the court considered whether a revocation of a driver’s permit by an administrative official, exercised in accordance with a duly enacted state law, was proper under the police power. Given the “right of a citizen to travel upon the public highways [as] a common right which he has under his right to enjoy life and liberty,”²⁰⁹ a legislative body can limit this right “by legislative enactment and not by administrative edict.”²¹⁰

In upholding zoning laws under the police power, the courts were embracing a new approach to lawmaking, one that was centered on bureaucratic decision-making and administrative discretion. While this embrace was seldom made explicit, we can see the logic of these cases as exemplifying another way of viewing the reality and potential of ambitious public administration in this new era of widespread regulation. This view pushes back against the traditional idea that only the legislature could exercise police power authority because, after all, only the legislature could engage in good governing. Zoning illustrates a distinctly managerial model of the police power.²¹¹ The management happens through a partnership between the legislature and administrative agencies. It is forward-looking, and, in that, it reflects a significant departure from the sic utere model of the police power.

The police power has since the beginning of our republic been associated with the legislature and statutory lawmaking. Many statements made this condition explicit, noting that the police power emerged from the idea of plenary legislative power. This was not simply for mechanical reasons, that is, because the legislature is the institution that enacts statutes; it was because the legislature was the institution most connected to the people and most reflective of our constitutional commitment to popular sovereignty.²¹² Yet, as the country grew after Reconstruction and into the Gilded Age, the exigencies of the economy meant the regulatory policy was often implemented and occasionally manufactured by sub-state officials and by administrative agencies.²¹³

In the context of zoning, which we considered earlier as an illustration of the ubiquitous use of the police power after the Progressive era and into the twentieth century, the typical institutional mechanism for the practice of zoning has been a general-purpose local government, often a charter city operating under its home rule powers, developing the zoning rules under a state enabling act. The implementation of those rules has long been entrusted to boards and bureaus operating under the authority of the local zoning ordinances. These agencies will always be making difficult choices, and the issues of accountability and efficacy have arisen since the advent of comprehensive zoning. Perhaps we can draw a line between the assertion of authority to promulgate the actual zoning regulations and the responsibility to implement these rules. However, this line will be understandably unstable. We can sensibly say that zoning is embedded in state and local schemes of administrative regulation, and is very much an illustration of the police power’s evolution from something that pertains solely to legislative lawmaking to mechanisms that involve a confluence of institutions and complex spheres of accountability.

One additional note about the changing role of the police power as it became more embedded in the administrative state. This development also frayed, if not broke entirely, the line connecting police power regulations to the common law. Recall that one of the important themes of the cases, and this is a theme that animates William Novak’s framing of nineteenth-century police power, is that the focal point of the state courts’ interpretations of the police power, in its purpose and its limits, was the common law, especially as it pertained to evolving ideas of torts and harm and private property.²¹⁴ As governments turned more to administrative regulation, they also moved away from reliance on common law understandings of public power, in its nature and in its scope. As Morton Horwitz writes:

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In sum, the police power evolved to meet conditions appropriate to a more industrial and economically ambitious era, and the constitutional law involving the police power and its limit likewise evolved to confront these conditions. Accepting that the main restrictions on the exercise of the power would be structural and internal to the legislature was a key part of the jurisprudence of these times. However, the courts would maintain their necessary role in ensuring that the legislature not undertake health and safety regulations for reasons that are arbitrary or discriminatory or else a clear violation of individual rights. Balancing public and private interests would remain the quest of reviewing courts. As Tiedeman would write in his treatise: “Fundamental principles of natural right and justice cannot, in themselves, furnish any legal restrictions upon the governmental exercise of police power. Yet they play an important part in determining the exact scope and extent of the constitutional limitations.”²¹⁶

In the last two chapters, we have taken an intensive and mostly longitudinal look at the evolution of the police power from an authority embedded in state constitutions to a whole power for governments to act in order to further the “people’s welfare.” Through the long period from the founding through the mid-twenty-first century, legislators and administrators created and implemented regulation to meet the constitutional obligations of active governance. To be sure, they did so in the shadow of shifting conceptions of liberty and private property. A capacious police power survived the turbulence of public skepticism about legislators and legislation, economic crises, and the rise and fall of laissez constitutionalism. How this happened is illuminating, not only in order to better understand the history of the police power, but as a framework for understanding how state and local governments developed approaches to good governance and also how the courts fashioned limits on these strategies through doctrinal innovations.

In thinking about the ways the police power evolved to the present time, it is crucial to consider two developments directly relevant to this topic. These are, respectively, the changing approaches to regulatory governance in the roughly the second half of the twentieth and the first couple of decades of the twenty-first century, and key developments in state constitutional reform, developments that implicate the nature and contents of the regulatory power of state and local governments. Both topics are more capacious than can be comprehensively analyzed in part of one chapter, but some observations are useful to set the table for a robust discussion of the modern police power.

Modern Approaches to Regulatory Governance

The period after World War II was marked by a faith in American ingenuity and a broad confidence in the government to undertake programs and projects that would enhance the general welfare.¹ Among many examples, the interstate highway system² and the creation of the national parks³ were gargantuan projects, and were not only valuable initiatives in their own right, but they also evidenced, as would also the space program that would begin in earnest in the 1950s,⁴ the relentless commitment of the public sector to aspire to great heights of achievement, and to bear the sacrifices and burdens to see achievements happen.⁵

State-level governance was an important part of this omnibus effort. So far as direct programs funding was concerned, states funneled steadily increasing monies into social welfare initiatives, public works, and, especially, education.⁶ California’s higher education master plan was just one illustration, and an extraordinary one, of a state making a colossal investment to implement a vision of a world-changing program.⁷ Other efforts by state governments, sometimes in conjunction with federal projects and sometimes developed on their own initiative, reflected the confidence at the sub-national level in the government’s ability and commitment to further public welfare goals, in this period of American expansion and technological progress.

The attention paid at the local level to perceived failures in the overall urban condition was reflected in the continuing efforts at regulating in order to address the externalities that stemmed from an increasingly busy community life. In Kovacs v. Cooper,⁸ a rather obscure 1949 case, the Supreme Court upheld a municipal prohibition on “loud and raucous music” against a charge that this curtailed protected expression under the First Amendment. In doing so, they made clear that the “[p]olice power … extends beyond health, morals, and safety … to protect the well-being, and tranquility, of a community.”⁹ One year later, in Berman v. Parker, the Court upheld against a takings and police power challenge, regulations that were intended to redress the predicament of so-called urban “blight.”¹⁰ The impact of Berman on the regulatory power to deal with property use outside the constraints of eminent domain will be discussed in more detail below. For now, it is important merely to note the Court’s very broad rendering of the police power’s scope in a case decided smack in the middle of the century. Justice Douglas for a unanimous Court declares: “Public safety, public health, morality, peace and quiet, law and order – these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power, and do not delimit it.”¹¹

Growth of state and local regulation was notable as new problems emerged and continuing problems persisted. The increasing urbanization of America generated special pressures to tackle serious public health and safety dilemmas.¹² Simultaneously, the role of the federal government grew massively. The Progressive era, its aftermath, and the New Deal and post-New Deal period illustrated how the federal government addressed through regulation problems that have a nationwide valence. Federal regulation grew in most dimensions and in most domains. The New Deal is especially notable for the creation of myriad new federal agencies, each with substantial jurisdiction over major parts of the economy and social life. With the New Deal, we moved in an era that Sophia Lee calls our “administered constitutionalism.”¹³ This was a phenomenon of extraordinary consequence, even as the theory of the federal government’s role, under ancient paradigms of limited government and enumerated powers, was stress tested by the needs and wants of a population, a population that demanded, and ultimately came to expect, a robust federal presence. Regulatory expansion, in short, happened on both fronts, expansion in state interventions in most facets of social and economic life and also expansion in federal regulation and the national administrative state.

Public faith in regulation was not, however, a linear story from the end of World War II to the present. In the 1980s, with the election of Ronald Reagan, and continuing through the end of the century and into the next, there was an emerging backlash to federal regulation.¹⁴ American politics embraced a wave of anti-regulation sentiment, a sentiment that was captured to some degree in a skepticism on the part of a large segment of the GOP, of political officials in the executive branch, through the administrations of Reagan, Bush I, and even to some extent Clinton and Bush II as well, and of some courts.¹⁵ Fast forward ahead to the most recent decade, there has been an emerging “anti-administrativism” in the federal courts, including the Supreme Court, that can be sourced at least to some extent in a concern about overbearing regulation and the decoupling of regulatory administration from the rule of law.¹⁶ Moreover, the last four decades or so have witnessed a renaissance in attention to the role and important of private property and, we might say, at the risk of exaggerating the point, a property rights revolution.¹⁷ Public interest organizations, primarily libertarian in origin and focus, worked to protect through legal and political strategies private property from what they viewed as overweening government regulation.¹⁸ They had a number of prominent successes, noteworthy in the modern era in which so-called economic liberties were not viewed as fundamental and so strict constitutional scrutiny was not the a prominent part of our tradition of contemporary judicial review.

State and local regulation transitioned in focus as well, as one might expect in a dynamic society and changing political circumstances, and thus the targets of regulation often shifted. In any event, the general trend line in the period from the end of the Second World War through the next thirty odd years was very much in the direction of widening governmental intervention, including in core matters of public health, safety, and morals. With all that, however, the persistence of state and local regulation under the police power has not seriously abated. To take one important area, whose history was detailed in the previous chapter, municipal zoning, land use regulation by local governments has continued without much interference and without serious retrenchment occasioned by judicial scrutiny. To be sure, “zoning is by no means static…. [c]hanged or changing conditions call for changed plans,”¹⁹ as a New York court note in a case from the early 1950s. However, the utility of zoning as a mechanism for regulating the use of private property in order to accomplish what authorities perceived as worthwhile public aims persisted in the second half of the last century and the first part of the new one.

The interesting story of evolving regulatory governance in the long era herein described – basically the last eighty years – involves the evolution of new regulatory techniques, as well as the steadily expanding role of the federal government, including into matters that had historically been left to local discretion (thinking here, for example, of education and housing policy). The sheer breadth of constitutional power of state and local governments to regulate, however, under the police power and other fonts of authority, has remained largely undisturbed. That said, the so-called “rights revolution” did bring meaningful limits on police power regulation; and the internal constraints that stem from the requirements in both constitutional law and administrative law that police regulations not be unreasonable or arbitrary. We will discuss these developments in successive chapters in the next Part of this book. For our purposes here, it is crucial to note that the basic underpinnings of the government’s power to regulate under the police power in order to protect public health, safety, morals, and the general welfare were established long ago, as we have seen, and have not been seriously disturbed. The objectives of these powers, however, have evolved as new conditions and needs have arisen; more formally, they have evolved in order to meet circumstances of state constitutions as these documents too have evolved in the last many decades.

State Constitutional Developments

While no new states have been admitted since Hawaii and Alaska in the late 1950s, a number of states have either adopted new constitutions or substantially reformed their constitutions in the period from the mid-1950s to present day.²⁰ “During the twentieth century,” Alan Tarr writes, “formal constitutional change in the states has occurred primarily through constitutional amendment.”²¹ Moreover, “[m]ost states have amended their constitutions far more frequently during the twentieth century than in previous eras.”²² A number of states undertook meaningful reforms. Some adopted new constitutions, while some adopted particular amendments to implement significant new agendas. In all, just about every state adopted amendments to their constitutions during the second half of the twentieth century and first twenty years of the twenty-first century.²³

By way of summary, one fairly common element in these reforms was the expansion of the public sphere and the development of new obligations on government.²⁴ Some of these were framed as so-called “positive rights,” a phenomenon we will discuss in more depth in a later chapter. However labelled, these provisions put a greater emphasis on progressive social agendas and, with it, a greater onus on government to undertake initiatives to implement objectives viewed by reformers (sometimes including the people themselves, as where state constitutions were amended through popular initiatives) as critical pieces of the overall vision of governing and public policy within states.²⁵ It is a commonplace to see twentieth- and twenty-first-century constitutional amendments and changes as part of an agenda of modernization and, for that reason, seemingly mechanical. However, even reforms that were deeply in the weeds on the implementation mechanisms of governing are best viewed as means of rethinking broader policy goals.²⁶ Other notable constitutional reforms during the twentieth century includes reconfigurations of the overall fiscal systems in states (Hawaii and Colorado’s reforms were especially substantial), the overall restructuring of state government (Texas), changes in relations between state and local governments through home rule amendments (Michigan), the expansion of individual rights (New York), major changes in the structure of judicial system (Florida), and creation of new positive rights including natural resource protection and safeguarding the rights of indigenous peoples (Alaska). Moreover, some states adopted entirely new constitutions during the second half of the twentieth century, in response to changes in the state and variegated political pressure.²⁷

In writing about the project of state constitutional reform in the modern era, Frank Grad and Robert Williams posit a general view of state constitutional functioning, a view that bears well on the evolution of regulatory power under state constitutions over time: “The least we may demand of our state constitutions is that they interpose no obstacle to the necessary exercise of state powers in response to state residents’ real needs and active demands for service.”²⁸ In contemporary constitutional reform, including the substitution of old or new ones, no serious obstacles have been imposed. Rather, and in contrast to a raft of state constitutional reforms in the late nineteenth and early twentieth centuries, at a time of skepticism about legislative power, the shape of constitutional change has been in the direction of improving governmental performance and imposing new obligations emerging from new policy goals.²⁹ As Jeff Sutton labels it, the project has been one of “[a]mending constitutions to meet changing circumstances.”³⁰

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Governance strategies evolved, as one might expect, given changing social and economic conditions. And so state and local governments maintain the same level or type of discretion to regulate that existed in prior eras. In particular, state and federal constitutional law has obviously shifted in important ways over these many decades and especially with the expansion of federal governmental authority and the widening scope of individual rights. The impact of the police power has changed in meaningful ways. Nonetheless, we should recognize, as we summarize these developments, the resilience of the police power. At a core constitutional level, the power of the states to regulate health, safety, morals, and the people’s welfare persists in a remarkably strong form. We mentioned in the book’s introduction how the police power has faded from view. But it has not faded in relevance and impact as an element in the government’s regulatory strategies. This formidable power is at the very center of state constitutionalism. Chapter 4 illuminates some key dimensions of this.

The Police Power and the Urban Condition

The idea of the well-ordered society plays a consistently large role in the continuing evolution of the police power.¹¹⁹ After all, order presupposes a decent level of collective security and public health. Securing and maintaining this level is at the heart of the police power, in its origins, its rationale, and its basic logic. Many of the cases involving the police power and its exercise involve the question of whether and on what terms the government may undertake measures to control certain uses of property in order to protect the interest of the government, presumably derivative of the interest of the community the government serves. We discussed in the last chapter the advent and evolution of zoning as a method of ordering urban life through the management of private property and its use, and we saw state courts and finally the Supreme Court giving their blessing to zoning under the police power. However, the issue of how broad is the government’s power to regulate the use of land in order to realize objectives in an ever more urban society did not die down because of the Euclid decision from nearly a century ago. Matters concerning zoning and the police power continue to come to courts, as do the related issues of land use regulation and regulatory takings. Taken together, these twin doctrines show the judiciary and the legislature working together, even if unintentionally, to strengthen the authority of the government to address problems of modern urban life through the creative use of the police power.

An important case in this regard is Berman v. Parker,¹²⁰ a regulatory takings case discussed earlier. Berman involved a comprehensive plan in the District of Columbia, a plans whose purpose was to deal with slums and sub-standard housing in the area, efforts that they believed would alleviate blight and conditions that contributed to crime and general social disorder. To implement this plan, the city required the razing of many existing houses and other major steps toward redevelopment, requirements that they aimed to implement through eminent domain. To the objection that this strategy did not meet the requirement of taking for a public use, because the land would not be necessarily transferred to the ownership of the district, but would transfer to private developers, the Court deferred to the locality’s judgment and accepted that the overall plan had a clear public use. This was, in the end, enough to satisfy the constitutional requirements of eminent domain.

Berman illustrates well the intersection between the police power and eminent domain. The fulcrum of both doctrines is the common good, with the police power expressing this in the salus populi idea of general welfare and the proper use of the eminent domain to facilitate a public use. In its relatively short and undertheorized opinion, the Court found that the public use rationale was obvious in this case. But there is more to Berman’s logic than meets the eye in this respect. The taking in this case was redistributive in the classic sense; that is, the government was taking individual’s property and making it available to other property owners as part of an omnibus scheme of urban renewal. The idea emphasized by the Court in the eighteenth-century case of Calder v. Bull that it is unacceptable for the government to, in essence, rob Peter to pay Paul is nowhere mentioned in Berman. Nor is it prominent in a half century’s-worth of cases following Berman, including Hawaii Housing Authority v. Midkiff¹²¹ and Kelo v. City of New London,¹²² both instances of policies used to redistribute land from one private owner to another. In all of these cases, the public use requirement is easily satisfied by evidence, largely unquestioned by the courts, that this government action was intended to advance a public purpose.

In Berman and its progeny, the police power and eminent domain work in synergy with one another to further the objectives of advancing the common welfare, even where such advancement requires a wealth transfer. Blight, says Justice Douglas, is a scourge, impacting the District of Columbia community. And it is very much in the public interest to undertake major land use policies, of which eminent domain is one part in a comprehensive strategy, a strategy that can address blight as an urban problem in need of a solution. Hard cases would continue to arise under eminent domain law and also under police power with respect to zoning and its proper scope. However, Berman is important in setting out the broad parameters of a doctrine that establishes a wide terrain of government action concerning individual sacrifice permitted under the constitution in order to accomplish salus populi goals.

As the century wore on, and the new century emerged, local governments became deeply invested in regulating land uses and in undertaking efforts to improve urban life. The strategies of doing so intersected in key ways, so that efforts to combat urban blight went along with emerging crime prevention measures (some enduring, others discredited), and with various safety regulations in housing and other circumstances. Such regulations came in various shapes and sizes. However, we can focus on land use regulations as a good window into governmental choice and the shadow cast by the law and practice of the police power.

Consider the controversial emergence of land use regulations designed to protect the character of the community, whether pertaining to aesthetics or the characteristics of residency, or other subjects of restriction. Village of Belle Terre v. Boraas is a well-known case from the early 1970s in which the Supreme Court upheld a municipal regulation under the police power, one that limited dwelling residents to one family.¹²³ While it was hard to see this regulation as promoting public health or safety, the Court, in an opinion by Justice Douglas, saw this as within the power of the local government to advance the public good, noting that “boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds.”¹²⁴ The government could properly seek to ensure for the benefit of the village’s citizens “[a] quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use project addressed to family needs.”¹²⁵

The Court saw in Belle Terre an instance of ordinary economic and social legislation, one that had long accepted as constitutionally acceptable. Local governments had an interest on behalf of the public in the number of occupants dwelling in a particular residence. As to the claim that the law targeted certain individuals based upon their status – or, more accurately, their non-status as relatives with one another, the Court rejected this argument, insisting that the legislature can properly draw “[l]ines against the charge of violation of the Equal Protection clause if the law be ‘reasonable, not arbitrary,’ and bears ‘a rational relationship to a [permissible] state objective’.”¹²⁶

The half-century line stretching from Euclid to Belle Terre suggests a fairly straight connection from the law’s approval of zoning as a means of promoting the common good in its earliest iterations to a reapproval even after the nation had experienced the Warren Court rights revolution.¹²⁷ However, to suggest that this line is an unbroken one would be misleading. The scope of the state and local government’s general zoning power has continued to be challenged and the courts regularly confront arguments that certain techniques of land use regulations are unreasonable and counterproductive,¹²⁸ leaving to one side the separate question of whether they interfere with individual property rights as defined by contemporary law.¹²⁹ The critique of contemporary land use as being unsuitable for its stated purposes has been a persistent one for many years. A year before Belle Terre, for example, noted land use expert Professor Robert Ellickson wrote an important article in which he questioned the modern state of zoning law, suggesting that the rationale for certain techniques, even some widely accepted, were unreasonable and even counterproductive. His argument presaged a steadily growing body of theoretical and empirical scholarship that questions the nexus between zoning and the public welfare as we will consider as part of the police power’s future in Chapter 9.

The argument against zoning from the perspective of the general welfare of the community found a receptive ear in a state court one year after Belle Terre, in the New Jersey supreme court’s Town of Mount Laurel decision.¹³⁰ There the court held unconstitutional a particular zoning regulation enacted under the state’s police power, on the grounds that these regulations had deleterious effects on the conditions of low-income individuals (echoing an argument that Ellickson had made two years earlier¹³¹) in the state. The court insisted that the state government had not been given a free pass of sorts from constitutional scrutiny under the police power as a result of Euclid and its progeny. “It is elementary theory,” Justice Hall wrote, “that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection.”¹³² This comment echoed the prevailing sentiment of the time, that individual rights as interpreted (often broadly in many state courts and the Supreme Court of this era) could be invoked as brakes on the police power. However, the court said something even more striking with regard to the foundational question of the government’s discretion to regulate land use in a certain way under the police power. Such zoning regulations, the court wrote, “must promote public health, safety, and welfare … [a] zoning enactment which is contrary to the general welfare is invalid.”¹³³ This suggests that even in the absence of a cognizable equal protection claim or a substantive due process claim, the court might invalidate the zoning law as inconsistent with the general welfare. Moreover, general welfare itself is an elastic concept. The court must consider after all “whose general welfare must be served or not … in the field of land use regulation.”¹³⁴ The ordeal that has become the Mount Laurel land use situation in New Jersey has been written about widely.¹³⁵ Whether the New Jersey supreme court was ultimately unrealistic in its demands for accountability and specific redress is an enduring question and a difficult one. However, the import of the court’s reading of the proper exercise of police power in its effort to control the use of land to full public objectives has remained influential. This is so because the court ultimately asked the right question: Is this use of zoning consistent with the government’s responsibility to protect the general welfare of the community?

Beyond zoning, the police power has been a source of ample local authority to address myriad problems that are associated with urban disorder. As we discussed in the previous subsection, some of these laws, for example, drug and anti-prostitution laws, have been tied to traditional views of morality. And yet the rationale invoked in many cases in which they have been challenged as constitutionally suspicious has been that this conduct has noxious secondary effects. Without revisiting the issue of whether these laws are really truly about morals or are about curtailing bad effects on the community, an issue that seems impossible to settle given that it rests on complex assessments of legislative purpose among other puzzles, we might hope that at the very least, claims of bad community effects should rest on evidence-based analysis. It is easier to proclaim that society is going to rot without regulatory interventions than it is to do the hard work of measuring the effects of certain behaviors on community welfare and, afterward, measuring the effects of regulatory interventions.

One area of robust local regulation designed to implement public society in urban environments is laws protecting tenants from sub-standard housing. Much of this legislation emerged from litigation challenging what had been too-common landlord behavior. The courts developed various doctrines, such as the implied warranty of habitability, in order to protect tenants.¹³⁶ Moreover, responding to persistent racial exclusion in the housing market, state and local governments built upon the federal government’s federal housing laws of the late 1960s to develop legislative mechanisms to protect people of color from various practices.¹³⁷ One of the most substantial efforts was the development by the Uniform Law Commission in the early 1970s of the Uniform Residential Landlord Tenant, a proposed piece of legislation ultimately adopted by many states.¹³⁸ While some of these legal developments can be seen as classically anti-discrimination law, it is important to see the laws as part of a pattern of enhancing public safety and the general welfare, both through minimal standards of acceptable conduct on the part of property owners and through protections against unequal treatment.

The police power can and does supporting governmental efforts to address problems of urban life. These problems typically go beyond blight and so to see the essential police power project as being about, to use an old phrase, urban renewal, is myopic. Improving the urban condition for al its residents means improving the conditions of the least fortunate. Such strategies will inevitably be redistributive. They also focus, sometimes specifically and other times at broad relief, on anti-discrimination. Progress in this domain owes much to the active, creative use of the police power to address deficiencies in the urban condition. Even so, much progress remains to be made.

Once area of public policy in which complex issues continue to surface is zoning. On the question of zoning as a mechanism to improve safety and the general welfare, controversy has steadily grown in recent years.¹³⁹ There is a serious debate newly underway about the efficacy and desirability of contemporary land use regulation.¹⁴⁰ This debate has brought together some strange bedfellows. Zoning has occasioned continuous objections from libertarians who point to the heavy-handed use of municipal authority to limit owner choice.¹⁴¹ Economists, not all of them avowedly conservative, have contributed a large body of scholarship showing the negative welfare effects of the current configuration of zoning in many parts of the country.¹⁴² In particular, they have connected the affordability crisis and dearth of adequate new housing construction to patterns of zoning law.¹⁴³ As a result, we are experiencing a surge in the number of challenges to zoning laws.¹⁴⁴ As always, this litigation grows from the efforts of disgruntled landowners to advance their interests in this traditional venue of conflict. Perhaps more surprisingly, the anti-skepticism movement has had some successes at the legislative level, and advocates of various ideological stripes have adopted the colorful moniker “YIMBY” (Yes in My Backyard) in order to push for legislative and administrative solutions to our contemporary housing crisis (one that is double-barreled, in engaging with issues of affordability as well as the predicament of the unhoused).¹⁴⁵

In one sense, the current debate is not primarily about the scope of governmental power, but about the best use of this power, that is, the wisdom of certain strategies to implement municipal objectives. However, when skepticism about modern zoning does come to center stage, as we will explore in Chapter 9 in our discussion of the modern police power as a means of redressing America’s housing crisis, there are some very creative, if controversial, uses of the police power to impede certain laws, this on the theory that the public’s welfare is undermined by the imposition of strict land use laws and therefore its use can, under certain conditions, be a violation of the constitution in that the law is outside the scope of the power.

Urban life is increasingly Americans’ life, with now 80 percent living in areas defined by the census as urban.¹⁴⁶ Even if this share stays relatively steady in the future, the steady increases to the US population means that the sheer numbers of individuals living in urban American will increase and, with it, the various problems that accompany density, to say nothing of the serious problems of polarization that is plaguing modern society in the US as elsewhere. The police power is not nearly a panacea, but remains as a key component of the strategies of state and local government to respond to social problems in urban settings and also act preemptively to deal with issues that can simmer to a boil. In this author’s home city of Chicago, to take just one example, we are struggling with various upheavals to our urban area – having in our head the idea of a well-ordered society – from property damage occasioned by groups of young people congregating in the “fancier” areas of the city, and with motives that are not at all appealing and temptations that are unattractive. One reaction to these not infrequent episodes is to bring traditional law enforcement resources to bear in order to stop or at least disincentivize this bad behavior. Enforcing the public safety laws on the books is a classic police power strategy after all. However, others in our community are suggesting more imaginative policy actions that go to the root causes of the discontent, or even sheer boredom, faced by these groups (largely made up of young people of color, if this was not obvious to the reader). Such steps could obviate the need for command-and-control law enforcement, while addressing the urban disorder that keeps residents on each. This a complicated issue, but the point is that the police power is both ample and supple; it can provide, in the hands of creative municipal governments, the means of addressing urban problems at their source, without resort to the traditional modalities of criminal law and policing that raises its own set of complications in our fragile polity.

Occupational Licensing

One important area in which states governments have used the police power as an instrument of consumer protection and control has been in matters of occupational licensing. The licensing of professionals, including in medicine, law, and myriad other settings is nearly entirely a matter of state law. Long ago, state courts rejected claims that state schemes of occupational licensing were improper interferences in the freedom of individuals to practice their trade. Moreover, the federal courts have largely stayed out of these disputes, under its persistent reasoning that such licensing involves economic regulation and is therefore subject to the lowest standard of review.¹⁴⁷ By combination of state and federal caselaw, there has been little room for legal challenges to the contemporary schemes of occupational licensing on the grounds that it exceeds the state’s police power.

This is problematic, in that the way in which occupational licensing has unfolded over many decades has been both provincial and protectionist.¹⁴⁸ In the case of medicine, it made it more difficult for many years for individuals to seek public health providers, given how the marketplace was structured to advantage physicians and certain segments of the overall health profession.¹⁴⁹ In the case of law, severe restrictions on legal advice and representation has fueled an access to justice crisis, limiting access to the civil justice system to only those wealthy enough to afford services and savvy enough to know where to look for support.¹⁵⁰

Occupational licensing illustrates some of key difficulties with the police power as a fulcrum of state specific regulatory authority. To begin with, the reliance on state authority means that the entire system is deeply balkanized.¹⁵¹ This is troubling in a world in which transactions and human activity often take place across borders. States have different admissions, ethics, and malpractice rules for both lawyers and doctors. The federal government’s role is fairly interstitial; and the longstanding efforts to develop and implement coherent model rules so that states could converge on best practices has been a political rollercoaster.¹⁵² Second, the regulatory choices made, including the critical choice of who to license to practice in one or another occupation, are typically made by incumbents.¹⁵³ The incentive to pull up the drawbridge on individuals who would enter into the marketplace and potentially take business away from incumbent providers is great. Therefore, we see in the overall structure of regulation rules that seem manifestly in the collective interest of those already in the tent, and not necessarily in the best interests of consumers.¹⁵⁴ Third and relatedly, there is precious little mechanism for citizen input. Occupational licensing decisions are not in the main made in a democratic process. Rules governing lawyers, for example, are forged by state supreme courts and bar authorities to whom courts delegate great power.¹⁵⁵ They are largely cordoned off from the democratic legislature by the tradition of self-regulation, which means as it says that lawyers and judges will be the gatekeepers of the profession. They seldom carry out their work in a way that anyone would responsibility view as transparent. Finally, state courts are quite reticent to get involved in disputes involving occupational licensing. In law, it is these same courts that are doing the regulating, so the conflict of interest – or at least the cultural bias – makes such scrutiny unlikely. Outside of law, courts are understandably reticent to intervene in matters which they have little expertise and in which the wholesale and retail choices are being made by field experts.

Despite the largely hands-off approach to occupational licensing under traditional police power principles, there have been some salutary changes in how the law has responded to difficulties and distress in the areas in which licensing operates. In the medical field, for example, the Covid pandemic accelerated the use of telemedicine and created mechanisms to break down barriers and restrictions in order to get to individuals sensible health measures.¹⁵⁶ In law, there has been some attention paid to state experiments that widen access to legal services by removing protectionist rules and other obstacles. The advent of the so-called Uniform Bar Exam is a promising modern development toward greater access, as is the acceptance by a few (and hopefully growing number of) states to allow lawyers unlicensed in those states to assist with providing necessary legal services after, say, a natural disaster. Moreover, the federal government may well intervene in more ambitious ways, through the targeted use of antitrust laws and, via litigation, through First Amendment claims. There are cases pending involving the latter,¹⁵⁷ and some activity with regard to the former.¹⁵⁸ All of this suggests that the matter of occupational licensing is becoming turbulent in a way that has not been common in the past.

What is important for our discussion in these debates over occupational licensing and its deficits is to explore how explicit is the connection between the status quo and consumer protection. And if and when the state government acts through legislation to reform contemporary practices, it will be within the general framework of the police power, establishing regulations (we can hope) that are in fact serving the public’s welfare. Evidence-based efforts by scholars and others to examine more closely the connection between current schemes of occupational licensing and the general welfare of the public are critical to this inquiry. They will help us to develop a strategy of regulation under police power that is truly modern and constructive.

Public Health Regulation in the COVID-19 Era

The Covid pandemic from 2020 to 22 brought into the sharp relief questions over how proactive the state and local governments could be in enacting emergency measures under the police power. In this period, states were imposing draconian restrictions on individual and business behavior, including lockdowns distancing requirements, and restrictions on travel. Even as these rules began to recede, litigation over these and emerging restrictions brought to the fore questions of how far the government could go to restrict individual liberty in the time of a pandemic.

We have discussed Jacobson at different junctures, as illustrative of the Court’s deferential view of police power regulations, including when public health regulations were at issue. Jacobson followed earlier cases,¹⁵⁹ and presaged later cases, in which the Supreme Court made clear that public health laws were well within the scope of the state government’s constitutional authority. This deference to public health measures was echoed in important state cases dealing with public health pandemics. For example, in People v. Adams, a 1992 Illinois case,¹⁶⁰ the court upheld a law requiring individuals convicted of prostitution-related offenses to undergo medical testing for HIV. “Like other measures intended to enhance public health and community well-being,” the court wrote, “governmental action designed to control the spread of disease falls within the scope of the State’s police power.”¹⁶¹

Jacobson emerged from some amount of obscurity (outside of public health law circles at least) to become a central source of authority (and also inscrutability) as courts during the recent Covid pandemic worked through difficult questions of the police power’s scope.¹⁶²

One of the earliest cases in which Covid shutdown measures were scrutinized under the state and US constitutions was a case out of New Hampshire, Binford v. Sununu.¹⁶³ There the Superior Court upheld the governor’s executive orders limiting gathering and imposing shelter-in-place regulations, finding that the facts “establish a strong need for immediate intervention” and detailing the statutory and constitutional support for the decision to suspend certain constitutional protections in order to implement emergency measures. The court did not refer in any place to the police power or to Jacobson, but implicit in its opinion was the view that the statute which gave the governor this regulatory authority was consistent with the state constitution. Likewise, in Friends of Danny DeVito v. Wolf,¹⁶⁴ (no, not THAT Danny DeVito), the Pennsylvania supreme court rejected the plaintiff’s takings claim, noting that this effort “to protect the lives and health of millions of Pennsylvania citizens undoubtedly constitutes a classic example of the use of the police power to ‘protect the lives, health, morals, comfort, and general welfare of the people’.”¹⁶⁵

A 2020 case out of Texas, which ultimately came before the 5th circuit, illustrated an interesting twist on the matter of governmental authority under the police power. In re Abbott involved a Texas restriction on non-essential surgeries, including elective abortions, during the early crisis period of Covid.¹⁶⁶ The court was asked to decide whether such a restriction was consistent with the plaintiff’s abortion rights and, as a key threshold matter, whether the governor in the first instance had the authority under the police power to impose this regulation. Judge Duncan for the 5th circuit upheld the restriction, arguing that it was plainly legal under the Court’s holding in Jacobson and its progeny. In so doing, he did not suggest that the rule is that constitutional rights “disappear during a public health crisis,” but he noted that the Jacobson Court “plainly stated that rights could be reasonably restricted during those times.”¹⁶⁷ Having decided that such restrictions were warranted under these circumstances, Judge Duncan resolved the issue of abortion rights by indicating that “nothing in the Supreme Court’s abortion cases suggests that abortion rights are somehow exempt from the Jacobson framework.”¹⁶⁸

Cases involving Covid shutdowns and other restrictions regularly rejected arguments that such laws were beyond the scope of the police power. Likewise, courts rejected repeatedly arguments that they interfered with property rights (for instance, were takings of private property without just compensation), free speech rights, and due process.¹⁶⁹ They also rejected claims that turned on the government’s distinctions between one kind of activity (or business) and other, for the purposes of a health-related restriction.¹⁷⁰ There was some debate, in the legal literature and occasionally in the cases, about whether the courts, state and federal, were supposed to apply something like ordinary judicial review or something extraordinary, given the emergency nature of the decision.¹⁷¹ This line between ordinary and extraordinary review proved to be of minimal practical impact and, frankly, of less interesting theoretical import than would meet the eye at first glance. After all, neither the Jacobson Court in 1905 nor courts applying the rationale of that decision in the decades following had ever said that there was an emergency exception to judicial review, that the courts should adjure their authority to look closely at the government’s purported power to act and at the rights that would be affected, if any, by the exercise of this power. Even under ordinary review, the fundamental question is whether the state constitution permits the government to act in order to protect the public health, safety, and welfare and whether, under all the circumstances properly taken into account, there are individual rights that are at risk from the imposition of these measures.

In our more extended discussion of rights in Chapter 6, we will return to the Covid controversies to see the ways in which the Supreme Court used the First Amendment’s protection of religious liberty to overturn particular police power regulations dealing with Covid. This was an important reckoning about public health restrictions and freedom of religion in the United States, as it was carried out in a handful of opinions, each with passionate opinions on both sides of the issue. And yet in none of these cases did the Supreme Court overturn Jacobson; indeed, in no case did the Court seriously interrogate the matter of whether the police power should be viewed more narrowly in light of strong objections to the scope and impact of these highly intrusive public health measures (including shutdowns, gathering restrictions, and vaccine mandates) and claims that the lines being drawn by the government were dubious.

Looking back at this Covid constitutional litigation, it is hard to disentangle the legal reasoning and precedential impact from the profoundly polarized way in which these legal objections were made and these issues resolved. However, it is important to draw out the appropriate legal lessons, for the question of how far the government can go under its public health police power authority is one of present and future relevance. In this light, we can build out from the decided cases, federal and state, and say the following: First, Jacobson survives as the lodestar case for the government’s use of public health measures, and even draconian ones, in times of crisis. Second, Jacobson is best understood not as approving a suspension of the Constitution in emergency times, but as a holding that reconciles the matter of official power and constitutional rights (especially due process, which was the most prominent claim in that particular case) under what we might call ordinary constitutional review. Third, and accepting that such review is ordinary, there is nothing static about our constitutional rights jurisprudence. As we will see in Chapter 6, the evolution of constitutional rights in the twelve decades since Jacobson means that the practical import of that holding has been affected in that individuals might meet the legislature’s claim of public health exigencies with an assertion that a fundamental right, such as their religious liberty right, has been affected without adequate justification. Fourth, and turning more directly to the practical effects of this Covid episode on public health restrictions, it is hard to predict with any confidence how courts will see the government’s proper role in times of emergencies. The polarization of these issues can hardly be overstated; nor can we be confident that this polarization will not seep into judicial decision-making. Certainly the lines between conservative and liberal justices on the US Supreme Court and also on the state courts in which there have been discernible partisan differences can be easily connected to Covid-related public health decisions. Conservatives have been highly skeptical of mandates and the power of the government to issue them, and liberals have been more solicitous of these measures.

Fifth, many of the Covid restriction arguments in litigation had become entangled in debates, often only legal in a tangential sense, over the role of science and scientific expertise. Where the issues were framed around whether a particular mandate made good sense – which is how the conversation in the political process and the media focused upon, understandably – then the court found itself often ahead of its skis. The considerations moved away from Jacobson and the constitutional authority of legislatures, governors, and public health officials to act to contain the virus’s effects, toward the question of whether the government’s actions were warranted, based upon the reasons given for the decision and the evidence upon which they relied, and the traditional deference given to experts in matters of public health. The tacit assumption of power to evaluate the merits of these public health decisions from other institutions in government was arguably one of the casualties of the Covid public law litigation saga.¹⁷² It would be worrisome if this trend continued in the next major public health crisis or in the enterprise of evaluating episodic public health regulations more generally.

Sixth, and finally, the majority of issues prominent in government responses to public health emergencies do not involve the first-order constitutional considerations that we saw in Jacobson and the few Covid cases we have discussed in this subsection and the religious liberty cases that we will examine in Chapter 6. Rather, public health strategies ordinarily involve regulatory policymaking and detailed implementation strategies undertaken by agencies and administrators. The broad authority is set by statute, of course, and so we can assume that all matters of administrative execution are derivative of statutory authority that is, in turn, compliant with state constitutional authority, including the police power. But the point here is that the devil is usually found in the details. And so the important questions of how best to tackle public health emergencies consistent with the police power are usually to be answered by dense engagement with these matters by those administrators who will deal with these issues as the experts, as the front-line regulators and implementors. Their legal instructions and scope of discretion will generally be constructed by a statutory infrastructure and aided by state (and often also federal) administrative law. The police power considerations will loom fairly far in the background – until, that is, major constitutional controversies of the sort that we saw in the first two years of the Covid pandemic come forth with alacrity and passion.¹⁷³

Summary

We have taken a long tour in this Part of the police power as it evolved from the time of the founding, and he development of the first state constitutions, through the antebellum period, Reconstruction, the Progressive era, and deep into the twenty-first century. In this Chapter, we have seen how some key, persistently controversial issues have been framed around the police power’s contents and its purposes. If there is one overarching lesson it is that the police power has proven adaptive to changes in the needs, wants, and conditions in contemporary public policy. (How further adaptive it might be is the subject of Chapter 9.)

Constructing a police power for modern times is not something that can or should happen tabula rasa, and this is exactly how it should be. This police power has evolved, as have state constitutions, too. Moreover, and as inevitable, larger legal and political developments have shaped the scope and direction of this power, The police power’s evolution has accompanied evolution in strategies and conceptual understandings of regulatory governance. Governance, as we discussed at some length in our discussion of morals regulation, involves not only tactical considerations of how best to regulate, but fundamental questions of whether regulation is warranted. There is no one big answer, of course. In the case of regulation of morals, we might see that the government has gone too far, and risks subordinating individual freedom for dynamic judgments about social morality – something that can be sucked into the vortex of the culture wars. In the case of occupational licensing, the essential problem may be that the government has shied away from tackling a wicked problem with proper regulatory interventions. In short, deep thinking about the police power invites us to think about more than techniques of governance, but also about the rationales for regulating in a complex modern society.

We should see the police power as resilient and robust as a constitutional power in our states, even if it has eluded attention in contemporary constitutional discourse. It has a logic embedded in salus populi, that is, it aims to advance the general welfare, a commitment congruent with the overall objectives of our state constitutions, whether considered individually or collectively. At the same time, questions have arisen in modern times about how exactly it can be used to alleviate various problems, including the compromising of public morals, urban disorder, occupational licensing, and public heath crises. Likewise, we can see ways in which the police power can be misused in the pursuit of addressing these problems (or even in the defining of certain conduct as problematic).

In Part III, we rejoin this discussion by looking at the ways in which the police power might be used more sensibly to tackle wicked problems, and where the stressors are where these problems are adumbrated and regulatory solutions proffered.

The historical exegesis in this Part was important in illuminating the evolution of the police power over our republic’s history. In the next Part, we consider further the structure and functions of the police power and also how it is interpreted in circumstances of conflict and controversy.