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Necessities of State: Police, Sovereignty, and the Constitution

Published online by Cambridge University Press:  27 April 2009

Christopher Tomlins
Christopher Tomlins
Affiliation:
American Bar Foundation, Chicago
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Extract

Over the last fifteen years, legal historians have been exploring conceptualizations of the state and state capacity as phenomena of police. In this essay, I offer a genealogy of police in nineteenth-century American constitutional law. I examine relationships among several distinct strands of development: domestic regulatory law, notably the commerce power; the law of indigenous peoples and immigrants; and the law of territorial acquisition. I show that in state and federal juridical discourse, police expresses unrestricted and undefined powers of governance rooted in a discourse of sovereign inheritance and state necessity, culminating in the increasingly pointed claim that as a nation-state the United States possesses limitless capacity “to do all acts and things which independent states may of right do.”

Type
Articles
Information
Journal of Policy History , Volume 20 , Issue 1 , January 2008 , pp. 47 - 63
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 2008

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References

Notes

1. Tomlins, Christopher L., Law, Labor, and Ideology in the Early American Republic (New York, 1993), 35–97Google Scholar; Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, 1996)Google Scholar; Dubber, Markus Dirk, The Police Power: Patriarchy and the Foundations of American Government (New York, 2005)Google Scholar; Dubber, Markus Dirk and Valverde, Mariana, eds., The New Police Science: The Police Power in Domestic and International Governance (Stanford, 2006)Google Scholar.

2. For a comparable attempt, see Aleinikoff, T. Alexander, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Cambridge, Mass., 2002)Google Scholar.

3. Amar, Akhil Reed, America's Constitution: A Biography (New York, 2005), 243Google Scholar.

4. Ibid., 5, 33.

5. See, generally, Christopher Tomlins, “Framing the Fragments. Police: Genealogies, Discourses, Locales, Principles,” in The New Police Science, ed. Dubber and Valverde.

6. Tomlins, Law, Labor and Ideology, 35–59.

7. Amar, America's Constitution, 5, 8–13, 29.

8. Blackstone, William, Commentaries on the Laws of England (Chicago, 1979), 4:162Google Scholar (“due regulation and domestic order”).

9. See §91, the British North America Act (1867), patriated in 1982 as the Constitution Act (1867), at http://www.solon.org/Constitutions/Canada/English/ca_1867.html (last visited 27 January 2006).

10. Mariana Valverde, “‘Peace, Order, and Good Government‘: Police-Like Powers in Postcolonial Perspective,” in The New Police Science, ed. Dubber and Valverde.

11. First Charter of Virginia (1606), in Thorpe, Francis Newton, The Federal and State Constitutions (Washington, D.C., 1909), 3784Google Scholar. See also the charters of Delaware (“Well-being and good Government”), Maryland and Pennsylvania (“good and happy government”), and Rhode Island (“peaceable and orderly Government”), at 558, 1669, 3035, 3217.

12. See Tomlins, “Framing the Fragments.”

13. 61 Mass. 53, at 65–83.

14. Ibid., 82, 83, 85. See also Novak, The People's Welfare, 20–21.

15. Massachusetts Constitution, Preamble and Part I Articles V and VII.

16. See, generally, Adams, Willi-Paul, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Lanham, Md., 2001), 133–134Google Scholar.

17. See 61 Mass. 53, at 78.

18. Thorpe v. Rutland and Burlington Railroad Company, 27 Vt. 140, 149, 150, 154, 155 (1854).

19. Freund, Ernst, The Police Power: Public Policy and Constitutional Rights (Chicago, 1904), 2Google Scholar.

20. Gordon, Colin, “Governmmental Rationality: An Introduction,” in The Foucault Effect: Studies in Governmentality, ed. Burchell, Graham, Gordon, Colin, and Miller, Peter (Chicago, 1991), 8–9Google Scholar

21. Freund, The Police Power, 62–65.

22. See, e.g., Chae Chan Ping v. United States [the Chinese Exclusion Case] 130 U.S. 581, 603–11 (1889); Fong Yue Ting v. United States, 149 U.S. 698, at 712, 731 (1893). The “plenary powers” doctrine was first articulated as such in United States v. William Rogers, 45 U.S. 567 (1846), affirming successor-state sovereignty over territory occupied by indigenous peoples.

23. See, e.g., Nishimura Ekiu v. United States 142 U.S. 651, 658 (1892).

24. See, e.g., Fong Yue Ting, at 704–11 (as a sovereign and independent nation, the United States exercised certain “inherent and inalienable” rights essential to its safety, its independence, and its welfare, as asserted in international law and discovered by examination of the usages and actions of other sovereign and independent nations). For an early hint of the same, see The Schooner Exchange v. M'Faddon, 11 U.S. 116, at 136, 146, and generally 135–47 (1812).

25. Johnson v. M'Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1830); Worcester v. Georgia, 31 U.S. 515 (1832). Johnson v. M'Intosh is the modal case; Cherokee Nation v. Georgia and Worcester v. Georgia expand upon aspects of that decision.

26. 21 U.S. 543, at 590.

27. Ibid., 588, 591, and generally 587–91.

28. United States v. William Rogers, 45 U.S. 567, at 572 (1846).

29. 118 U.S. 375, at 379. For the background to Kagama, see Ex Parte Crow Dog, 109 U.S. 556 (1883).

30. 187 U.S. 553, at 565 (1903).

31. Chae Chan Ping v. United States, 1889 U.S. Lexis 1778 (1889), Supplementary Brief for Plaintiff (filed by James Coolidge Carter), §III, ¶1.

32. 130 U.S. 581, at 603, 605.

33. Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892).

34. 149 U.S. 698, 707, 711 (1893).

35. 149 U.S. 698, 707, 737. Chief Justice Fuller and Justice Field entered separate dissents.

36. 182 U.S. 1, 218.

37. The Court was divided into two blocs: Brewer, Fuller, Harlan, and Peckham took the “Constitution” position; Gray, McKenna, Shiras, and White took the “sovereignty” position. Brown took the sovereignty position but voted with the majority in each case, by dint of which he wrote the lead opinions in both De Lima and Downes.

38. 182 U.S. 244, 279–80 (Brown): “The power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the ‘American Empire.’”

39. 182 U.S. 244, at 284–87.

40. Ibid., 306.

41. Ibid., 359, 369 (Fuller in dissent, joined by Peckham and Brewer); 380 (Harlan in dissent).

42. Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Fourteen Diamong Rings, Emil J. Pepke, Claimant v. United States, 183 U.S. 176 (1901).

43. Dooley v. United States, 183 U.S. 151 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. 138 (1904).

44. Ron Levi and John Hagan, “International Police,” in The New Police Science ed. Dubber and Valverde, 207–47, esp. 207–22.

45. Ibid.

46. Gibbons v. Ogden, 22 U.S. 1, at 196, 197, 204, 208 (1824). See also Brown v. Maryland, 25 U.S. 419 (1827).

47. Miln was the Supreme Court's first real attempt to summarize what it knew of state police powers (see generally 36 U.S. 102, 139–43).

48. Ibid., 139. See also Cooley v. Board of Wardens, 53 U.S. 299 (1852).

49. See, e.g., Slaughter-House Cases, 83 U.S. 36 (1873); Henderson v. Mayor of the City of New York, 92 U.S. 259 (1876); Munn v. Illinois, 94 U.S. 113 (1877); Railroad Company v. Husen, 95 U.S. 465 (1878).

50. Wabash, St. Louis and Pacific Railway Company v. Illinois, 118 U.S. 557 (1886).

51. 134 U.S. 418, 456–58 (1890).

52. 165 U.S. 578, 590 (1897).

53. 169 U.S. 366 (1898).

54. Ibid., 392 (emphasis added).

55. 197 U.S. 11, 26.

56. Ibid., 29.

57. Harlan wrote the majority opinion, but this particular passage has a noticeably Holmesian ring.

58. On which, see Dubber, The Police Power, 190–202.

59. 198 U.S. 45, at 53, 54, 56.

60. Ibid., 57, 62.

61. Ibid., 60–61. This language is clearly aimed at Harlan, but also at Holmes, for whom the health of the state was sacrosanct.

62. 198 U.S. 45, at 65, 67, 68.

63. Ibid., 76.

64. For Holmes's opinion in Buck, see 274 U.S. 200, 208.

65. Note and Comment (J.F.K.), “The Police Power and Liberty of Contract,” Michigan Law Review 7 (1909)Google Scholar.

66. 208 U.S. 412; 211 U.S. 539; 243 U.S. 426.

67. 261 U.S. 525 (1923).

68. Upholding Washington State's minimum wage statute in West Coast Hotel, the Supreme Court unleashed all the classic tropes of police: prevention, discretion, and even peace, order, and good government. “[T]he legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted.” 300 U.S. 379, 391, 393.

69. See, e.g., Balkin, Jack M., “‘Wrong the Day It Was Decided’: Lochner and Constitutional Historicism,” Boston University Law Review 85, no. 3 (06 2005): 677–726Google Scholar.

70. On which, see Dubber, The Police Power, at 195.

71. Pound, Roscoe, “Liberty of Contract,” Yale Law Journal 18 (1909): 454, 457–58Google Scholar.

72. Ibid., 464.

73. Kornbluh, Mark, Why America Stopped Voting: The Decline of Participatory Democracy and the Emergence of Modern American Politics (New York, 2000)Google Scholar