The police power has long been bound up, as we saw in Part I, with the broad power of the state legislature to govern. Part I’s discussion of the police power has taken a somewhat abstract concept – the government’s power to protect health, safety, morals, and the general welfare under the state constitution – and looked at how it was operationalized in disputes over more than 200 years of American legal history. In this chapter, we look at some key practical elements of the power, some seemingly timeless and some that have become more prominent in the past several decades and even as recently as the Covid pandemic, a multi-year episode that brought controversies over the exercise of the police power to the fore. This is how the state constitution, relevant legislation, and government practices allocate authority to exercise the police power. At bottom, state constitutional law is clear in caring now only about what power is being exercised by government, but how it is exercised and by whom.
The Separation of Powers in State Constitutions: Internal and External
As we discussed in Chapter 1, the separation of powers were hardwired into the revolutionary-era constitutions. They were often expressed, unlike in the US Constitution, in explicit terms.1 The decision to preserve a coherent separation of powers was especially notable in light of the fact that the early framers in these documents “tended to exalt legislative power and the expense of the executive and the judiciary.”2 Separation of powers in these early constitutions was intended to meet multiple overlapping needs of these new governments. This constitutional structure provided important limits on what was by any account an extraordinary compass of state legislative power.3 Even more meaningful were the restrictions imposed on the executive branch, added to reduce the risk of the king’s prerogative sneaking in to new constitutional government as a sort of Trojan horse. In addition to regulating governmental action and reducing the potential for the abuse of power, the internal distribution of powers enabled these new states to have a mixed government, and so then able to have the best combination of types of authority, representation, democracy, and wise decision-making.
More than two centuries later, we now see some of these goals as illusory, or at least overly optimistic. How, for example, was bicameralism supposed to help support a mixed government insofar as members of both houses were elected in more or less the same way? How would popularly elected judges help provide a bulwark against runaway majoritarianism, thereby protecting individual rights from government overreach? Constitutional design was shaped around the experiences of colonialism in the eighteenth century and a goal of advancing interests germane to the new states. Events unfolded quickly and conflict, rather than consensus, animated a good amount of the practice of constitutionalism in these critical early years. State constitutions were constructed in thoughtful ways, building upon the new science of politics that was emerging from the republic’s founders and principal intellectual architects. Nonetheless, there were limits to how prescient the framers could be. Some structural mechanisms proved problematic, while others endured. However, let us not dwell here on when and how the state constitution makers ultimately came up short in their design for a coherent system of checks and balances, but let us focus instead on how their tactics helped shape a system of mixed government that would help them govern effectively and justly on behalf of their citizens.
There are many examples of how they aspired to do this, but let us take one to discuss in more detail: The creation of the plural executive. State constitutions have long included executive power as “unbundled,”4 that is, power to be exercised by multiple executive departments, not limited to the governor as the supposed head of the executive branch. This distribution of executive power was designed to cabin executive power, critical in an era in which legislative power was viewed as “plenary” and as essentially superior to power authorized and exercised by other departments in state government. The plural executive, a structure that persists to the present day, notwithstanding changing views on the nature and scope of legislative and administrative power, is emblematic of the sense that constitutional framers had that power should be checked and balanced, even with respect to internal departmental functions.5
To be sure, conflicts have arisen frequently over the scope of legislative and executive power in the exercise of certain functions in state governance. The idea of the governor as a superior institution to other executive officials with regard to the exercise of law enforcement has been largely tempered, if not eradicated, by state court decisions that insist that attorneys general, if not other executive officers, have the residuum of executive power assigned to them by either the constitution or statute or both.6 Viewed in the aggregate, these cases have eroded any notion of an “inherent” executive authority.7 Governors and other executive officials have only those powers that are delegated to them.8 Likewise, administrative agencies function under the rubric of assigned constitutional power.9 Unlike those who would advocate in the federal constitutional context for the view, as did the late Justice Antonin Scalia for example,10 that all administrative power is derivative of executive power, in the state constitutional context administrative power is best viewed as a sphere of power that can and often does partake of legislative (read “lawmaking”), executive, and even judicial power.
Recent scholarship by leading state constitutional law scholars have emphasized not only the ubiquity and persistence of state administrative agency power, but also the ways in which such agencies can act in ways that both supplement and check the other branches of state government. Some of the advantages associated with state agencies are, as John Devlin notes, with respect to their independence. “Independent election by the people,” he writes, “gives those elected state executive officials far greater autonomy, and far greater control over their departments, than any federal official enjoys.”11 However, as Miriam Sefter notes in her important study of agency independence, part of her larger inquiry into democracy and state political performance under the objectives of state constitutionalism, a combination of factors, including weak norms and strong governors, may stack the deck against agency independence.12
So far as the police power is concerned, the principal question is whether one branch and only one branch has the prerogative to exercise this awesome power. As the legislature’s power has long been viewed as plenary, the question of whether the legislature has the police power is straightforward (even if the content of this power is not). More intriguing is the question whether other branches have the prerogative to exercise this power. There are three plausible answers, not unrelated, but still fundamentally inconsistent with one another. Ultimately, as will be explained, one is most convincing in light of the best overall view of state constitutional governance.
The first answer is that administrative officers cannot exercise the police power, because such an arrangement would be inconsistent with fundamental principle embedded into every state constitution that the legislature has plenary power and thus cannot delegate this power to another institution within the state government. This does not leave non-legislators without adequate power to govern, but instead embodies the view that state constitutions can and do delegate specific powers to executive, administrative, and judicial officials; moreover, any other powers that are exercised must come from legislative delegations. Just as the US Constitution instructs that the chief executive must take care that the laws be faithfully executed,13 there is an explicit or implicit charge in every state constitution that officials outside the legislative branch will implement the laws passed by the legislature. This view leaves out any space for the executive to exercise the police power on his or her own initiative.
The implications of this view are substantial. For example, in the case of the COVID-19 pandemic, governors in the spring and summer of 2020 issued executive orders that called for extreme actions (lockdowns, travel restrictions, etc.) to be taken to combat the spread of the coronavirus, and they did so under what they insisted were their police powers. In some instances, the governor was careful to locate this executive authority in statutory delegation and, where so, the argument that this was an unconstitutional exercise of public power was significantly weakened. In other instances, however, the objection was made that the governor lacked any explicit delegation. The implication is that the legislature lacked the constitutional power to circumvent the separation of powers under their state constitution.
A different way to view the matter is to see governmental officials outside the legislature exercising powers under the terms and conditions of legislative delegation. In this respect, the function of the executive or administrative officer is unremarkable and wholly acceptable, the only looming question being whether the statute does in fact give such authority to the officer or agency. This becomes essentially a matter of statutory interpretation. In Wisconsin Legislature v. Evers,14 for example, decided in the early weeks of the pandemic, the Wisconsin Supreme Court read the governor’s emergency powers narrowly, describing how Article IV of the state constitution listed all of the proper bases of executive power, but omitted any mention of a general emergency power, or anything else that would ground the power to impose emergency measures such as he did here.
There is a third alternative, a middle ground of sorts, in the debate over whether the states’ separation of powers can accommodate the exercise of the police power by institutions other than the legislature. Under this view, state legislatures can delegate to executive officials and administrative agencies police powers, and so the exercise of such powers is constitutionally legitimate. The fact of legislative delegation and its scope is measured by ordinary techniques of statutory interpretation. Nonetheless, there is an important constitutional limitation to legislative discretion in the form of the nondelegation doctrine. That is, the legislature cannot delegate too much power to non-legislators, for that would run afoul of the separation of powers principle that, as John Locke put it, the legislature cannot delegate the power to make legislators.15
In notable contrast with the Supreme Court and the US Constitution, where the nondelegation is basically moribund, a number of state courts have enforced a non-delegation doctrine against certain legislative delegations.16 In some instances, this power has been essentially a delegated police power, deployed to regulate certain activities in order to protect the general welfare. COVID-19 once again provided an occasion for an important state court decision involving delegated administrative power. In the early days of the pandemic, Governor Whitmer of Michigan invoked the Emergency Powers of the Governor Act of 1945 to impose her emergency orders to shut down businesses in the early part of the pandemic.17 The statute was a clear instrument of the state police power, providing that when “public safety is imperiled” the “governor may proclaim a state of emergency,” then proceeding to lay out some of the requisites for such actions, including, significantly, a requirement that such orders be “reasonable.”18 In a much-watched decision, a closely-divided majority of the Michigan supreme court struck down the statute as unconstitutional “because it purports to delegate to the executive branch the legislative powers of state government – including its plenary police powers.”19
There is both more and less than meets the eye in this insistent statement of the Michigan supreme court regarding nondelegation and the police power. The decision is remarkable in asserting the police powers are quintessentially legislative powers and, as such, cannot be delegated, even to a coordinate branch of government. It would seem then to follow, a fortiori, that no delegation of regulatory power to an administrative agency to protect the public health, safety, and welfare – say, a legislative delegation to a statewide public health agency – would be constitutional. Writing for the court, Justice Markman dispatched the arguments that this delegation could be properly checked through ex ante standards (in the nondelegation doctrine parlance, courts have spoken of the requirement of “intelligible principles”)20 or ex post procedural requirements.21 In doing so, he distanced this view from other state court nondelegation decisions that have dwelled mostly on process. At the same time, there may be limited impact here because of the incredible breadth of the holding, as well as the exigencies of this pandemic, exigencies which have famously generated unusually vituperative partisan stresses and struggles. Whether this court, or other state courts, will zero in on language in the Michigan decision that declares that police power is a plenary power of the legislature that can only be exercised by this institution remains to be seen.
The three positions are, respectively, administrative officers lack the power under the constitution because they are not the legislature, the state legislature has not delegated this power to agencies under any relevant statute, and, third, the legislature is limited in its choices to delegate under principles derived from the nondelegation doctrine in the state’s constitutional law.
So how do we sort out the merits of these different positions on an issue of enormous consequence, to wit, who in the state government may exercise the police power? We should do so by resort to the underlying structure and functions of state constitutionalism, as has been the theme of this book and in accord with the broad framing in the introduction and first chapter.
Let us begin with the separation of powers in state constitutionalism as such. America’s “other separation of powers tradition,” as Jon Marshfield describes it, looks at state constitutional structures as mechanisms not only, or even primarily, to ensure that majorities will govern and will not be interfered with by factions of the sort that worried James Madison especially, but as means of ensuring that governmental officials could be effectively monitored.22 “What matters most under the state theory,” Marshfield argues, “is that government is separated along lines that allow the public to track and respond to malfeasance.”23 What should be added to this picture of the rationale for state separation of powers in the state tradition is that these mechanisms of governance and of constitutional structure would be in the service of promoting the common good. This preservation requires tempering governmental overreach, and so the careful delineation of structural safeguards and sound administrative procedures24 and of legal requirements (as the requirement of a public purpose and prohibition on special legislation) helps to ensure that the government is acting for general, not special, interests, while at the same time facilitating the ability of we the people in our respective states to monitor and mobilize governmental action.
Accountability is important with respect to any department of government. And so the instruments of governmental checks hard-wired into state constitutions, along with evolving procedural mechanisms created by statute and reflected in actual administrative practice, function as the composite mechanisms control over governmental behavior. The separation of powers is a coherent mechanism for that, and it is little surprise that it would be adapted from the serious thinking on the part of the framers of the US Constitution on the structure and purpose of state constitutions.25 These adaptations would continue in the emerging state constitutions of the nineteenth and even twentieth century. Many of the Progressive-era reforms to state constitutions are fulfilling many of the same purposes as separation of powers in the grand sense.
As we move from the general to the more specific, we can see the police power as a power that can be exercised by agencies and departments other than the legislature, and therefore as an important element of governmental purpose and functioning. While the legislative power remains plenary, broad discretion is given to these elected officials to decide how best to protect the common good and which institutions can be called upon to implement wise public policy. That these delegations were seldom mentioned explicitly in the constitutional documents was not inadvertent; rather, these constitutions reflect the understanding that the main choices to be made about whether and to what extent to delegate certain regulatory and administrative powers would best be made by legislatures.26 They could widen these powers and they could pull them back. They might do so in times of relative calm or in the urgency of a crisis, as in the times of the Covid pandemic.
The nondelegation doctrine fulfills an important function in this regard, and so we should be reluctant to throw out the baby with the bathwater, as has been characteristic of the federal non-delegation doctrine for nearly a century.27 The insistence upon intelligible principles to guide discretion, especially where the awesome police power is concerned, is important to cabin discretion and limit overreach. In this respect, a sensible nondelegation doctrine helps fulfill the public monitoring function that Marshfield focuses on in his discussion of this “other tradition” of state separation of powers. Also, the requirement that there may be a reasonable basis and strategy for governmental action, something which we will discuss in more detail in a later chapter, is supported by the ability of state courts to regulate legislative action through constitutional constraints.
The advantages of a modulated non-delegation doctrine in the police power context was captured nicely by Chief Justice Bridget McCormack in her dissenting opinion in the Michigan Covid case. At the outset, she recounts the myriad ways in which the state legislature can superintend the processes of administrative regulation. The nondelegation doctrine in its traditional form is focused exclusively upon ex ante instructions. But the reality she introduces into this equation is that much of the worry with respect to rogue administrators becomes managed by ex post devices – of the sort that prominent political scientists have labelled “police patrol” and “fire alarm” oversight.28 As Justice McCormack notes, neither history29 nor sensible public policy demand what the majority here (essentially incorporating, as she notes, the views in various concurring opinions by Justice Neil Gorsuch and a few occasional allies), which is a comprehensive set of standards designed to guide administrators and tether discretion to transparent legislative will. “The particular standards in the EPGA,” she writes, “are as reasonably precise as the statute’s subject matter permits. Given the unpredictability and range of emergencies the Legislature identified in the statute, it is difficult to see how it could have been more specific. Indeed the EPGA contains multiple limitations on the Governor’s authority, each limitation requiring more of the Governor 8 when exercising authority.”30
To summarize, a vigorous separation of powers doctrine in state constitutionalism is consistent with a pragmatic view of the ability of multiple state departments, not limited to the legislature, to implement public policy that protects health, safety, and public welfare. A formalistic conception of state constitutionalism that limits this power to the state legislature is anachronistic as a matter of legal history, as executive officials and administrative agencies have long performed functions under the police powers. More to the point, it does not serve the larger objectives of state separation of powers, objectives that accomplish the twin aims of ensuring that governmental decisions will be made by representative, accountable institutions and can be properly monitored in their exercise while also facilitating the ability of governmental officials and entities to accomplish salutary aims, to engage in which we call good governing.
At the same time, judicial intervention to ensure that our complex mechanisms of government are functioning consistent with the broad goals of the state constitution is not only acceptable, but is essential.31 Our constitutional architecture and practice give us many avenues for such useful interventions. In previous chapters, we spoke of judicially created and legislative designed mechanisms, including the public purpose requirement, prohibitions on special legislation, debt limits, and various guarantees of equal protection, due process, and reasonableness requirements. The non-delegation doctrine is copasetic with these mechanisms, so long as it is understood as a calibrated tool of sound governance, not a blunderbuss that instantiates a too-skeptical view of public power.
*
So far we have focused on state governmental institutions, be they the legislature, the governor, and state-level administrative agencies. The reality, however, is that the institutions which commonly exercise police powers, especially with regard to the creation and implementation of public safety rules, crime control and public order, and the myriad regulations of the use of private property, are local governments. How should we think about the delegation of power to local governments to protect our public health, safety, and welfare?
The Police Power and Localism
That the police power can be exercised only by institutions of the state government, following from the principle of the legislature having plenary power, is largely a shibboleth. The police power has been exercised by other institutions, all under the rubric of legislative authority and, correlatively, under the authority of the state constitution. Prominent among them are municipal governments, those acting in power on behalf of cities, townships, counties, or however else the state sub-divides its power. While police power deployed by local governments is ubiquitous, there are still some complex issues that arise in connection with state/local relations, what Richard Briffault long ago called “localism” (as an analogy to federalism).32
This dependence of localism on state choice is true despite a richly textured history of local governance through municipal corporations that pre-date the formation of states and state constitutions.33 Whatever the practice of public regulation and administration prior to statehood has meant to a fuller understanding of the nuanced and politically salient connection between state and local governments in the US, the framers of our state constitutions, from early days and persistently through the next two centuries, have insisted upon a structural dependence of municipal governments on state choice.
This is not to say that the idea that there is some sort of inherent local authority did not have its moment in the sun.34 The first great treatise on municipal corporations, authored by Eugene McQuillin, described this view, writing:
Local self-government of the municipal corporation does not spring from, nor exist by virtue of, written constitutions, nor is it a mere privilege conferred by the central authority … [I]it is axiomatic that local self-government is not a mere privilege, but a matter of absolute political right, the existence of unlimited authority in the law making body to concentrate all the powers of local government in the state does not exist.35
The principal advocate of such a position on the bench was our very own Thomas Cooley. As a justice, he argued for an imperium in imperio view of local governments, sourced in preternatural American constitutional history and in natural law. As he wrote in People ex rel LeRoy v. Hurlbut:36 “The state may mould local institutions according to its view of policy or expediency; but local government is a matter of absolute right, and the state cannot take It away.”37 This view, rather inscrutable in its origins and qualified, as this Cooley quotation indicates (“state may mould”), was put to rest in any event early in the twentieth century and most famously by the Court in Hunter.38 Hunter involved a constitutional challenge to the actions of two local governments in a municipal annexation proceeding. The Court rejected this claim and, meeting the argument that there is a constitutionally protected status of local governments viz the state, the Court elaborated on the fundamental point that municipalities enjoy no such status, but are beholden to the discretion of the state. As Justice Moody wrote in an unanimous opinion:
Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them…. The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state…. The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.39
Hunter remains solidly good law, and efforts to resuscitate a sphere of true imperium in imperio, with local governments given constitutional status and authority sans legislative or state constitutional delegation, have gone nowhere in the many decades since the Hunter decision.
Just as the Court was settling the question of whether local power could reside in some uber-principle of inherent municipal sovereignty and power, the realpolitik of the situation was pushing hard against efforts to champion local power and autonomy. The principal reason was the disastrous decisions of local governments in issuing railroad bonds.40 John Dillon devoted a key part of his treatise on local governments to the idea that local government power should be narrowly construed in accord with state authority.41 “All corporations, public and private, exist and can exist only by virtue of express legislative enactment, creating, or authorizing the creating, of the corporate body … municipal corporations are created by legislative act.”42 And so, in Dillon’s view, “localities had no inherent sovereignty because the sovereign people delegated their entire sovereignty to the states.”43 Not only were states to be viewed as creatures of state governments, but they were creatures on a fairly tight leash!44
Despite all this, local power did not evaporate in the face of this disposition of the big constitutional question. State constitutions enacted in the nineteenth century (including those, such as California, that were significantly reformed during this same century)45 went to great lengths to preserve local power.46 “States began adding provisions to their constitutions that regulated the relationship between the state and municipal governments in the mid-nineteenth century,” Jeff Sutton writes, “as the local governments grew frustrated with twin evils: arbitrary, sometimes pretty, oversight of local governments, and negligent, sometimes intentional, neglect of local conditions.”47 Home rule was a structural legal mechanism for ensuring that local governments would have a proper authority for exercising regulatory power without the need to rely upon state legislatures to authorize local power in every instance or to oversee in a micro-managerial sense the performance of local functions.48
That municipal governments could enact police power regulations was seldom questioned. To be sure, the content of local ordinances were regularly attacked, and many of the leading police power decisions involved local ordinances, rather than state statutes. But a close look at these decisions through the eighteenth, nineteenth, and twentieth centuries does not reveal a serious argument that local governments should, as institutions exercising the police powers as would state legislatures or administrative agencies, exercise powers that should be viewed more skeptically, and thus more narrowly, than the exercise of power at the state level.49
One muddy element in this otherwise rather pristine picture of local governments as police power agents involves the question of whether local governments had or should have more latitude for action, given that they were, after all, closer to the people.50 Should this be particularly salient in those states whose constitutions contained specific authority for local governments to act, regardless of any separate statutory authority – in what came to be called “imperium in imperio” states?51
The basic logic of state constitutionalism in “imperium” states, was that local governments would have plenary authority to act over all matters of local concern. Arguably, a large swath of health, safety, and morals regulation fell under that rubric. Whether and to what extent the inclusion of local affairs language in the home rule provisions of state constitutions was intended to create sovereign authority, that is, the power to act without any state authority to preempt such local actions, remains a difficult historical question.52 Some courts have read these provisions more narrowly, to maintain what Sho Sato called the “enabling” function of municipal home rule, while some courts have read them more broadly, so as to provide for a “protective” function. The rendering of home rule generally and the sphere of local affairs in particular is of direct relevance to the scope of the police power. After all, to the extent that municipal governments can act with immunity in affairs of local concern, this is quintessentially a delegation of police power to local governments in this area and, by logic, an effacing of the Hunter principle that state governments can direct its “creatures” in the way they wish.
The historical inquiry into the proper scope of municipal power has raised interesting issues of substance to our analysis of the police power and its promise. The latter part of the twentieth century saw the emergence of a strong view of local governance and the fruitful role of municipalities in creating progressive policies.53 A diverse and growing group of social scientists and legal scholars, including Gerald Frug,54 David Barron,55 Saskia Sassen,56 and Richard Schragger,57 have described the ways in which more muscular local governance would advance social welfare and why revisiting the question of local power and the constitutional status of municipalities is essential. Though never specifically lodged in arguments about the nature and limits of the police power, a theme culled from these local government advocates was that commitments to democracy, as an attractive normative principle in its own right, or as a component of a sound public sphere, require robust local governance. Further, localism has been defended as a means of advancing substantive constitutional rights. As David Barron writes: “This defense [of localism] proceeds instead from a structural conclusion that substantive constitutional rights sometimes presuppose the existence of a local decision-making process capable of ensuring the protection of those rights.”58
The case for municipal governments as a fulcrum of the state police power is appealing, for just the reasons sketched, and is illustrative of wider renderings of the values and vitality of local governance. Local governments are necessarily closer to the people than are state governments. Addressing concrete public health and safety issues frequently requires local knowledge.59 Moreover, the people whose welfare we attend to through the conscientious use of the police power are the people who are found in communities, communities whose shape is ineluctably configured by geographical and legal boundaries.60 However, we should be careful not to embrace an overly idealized conception of local governments and their functioning. Municipal governments are indeed closer to the people. Yet this is both a virtue and a vice.
The proximity to the people means that they are able to refract more effectively the views of citizens on matters of regulatory governance, and other matters fundamental to the choices made by government officials under the police power. The values of the so-called laboratories of experimentation have long been noted in the context of American federalism. And recent efforts by prominent public law scholars, including Heather Gerken, Cristina Rodriguez, Jessica Bullman-Pozen, and others, have pointed to ways in which sub-national governments can participate in dynamic, collective conversations about policy choices and strategies of implementation.
Encircling these normative and positive debates about the components of decentralized conversation and policy choice is a wider, essential debate about what democracy means in an extended republic. Empowering local governments is a key piece of the puzzle, given their stakes in this debate about democracy and their comparative advantages in accessing and using local knowledge and recognizing citizen wants and needs. This is a larger, denser issue to contemplate and, for the most part, lies beyond the scope of this book. But we raise it to note that unless we can wrestle to the ground the question of whether the constitutional definition of health, safety, and welfare is to be answered at the state or local level, it will become rather difficult to give content to the police power or to assess the performance of state and local institutions in exercising it.
The closeness of local governments to citizen interests can also be a vice. Madison’s insight about the role of factions has special resonance in the context of local decision-making, especially as we consider the ways in which “hyper-localism” takes hold in making regulatory choices in many settings.61 Local decision-makers, often city council members (or the equivalent in zoning and education boards), are pushed and pulled in various directions by insistent local interests. They can become bazaars for the trading of goodies; they can become captured by powerful groups of citizens. The result can be policy that is both short-sighted and, in a broad sense, anti-democratic.
Nadav Shoked has coined the term “the new local” to describe the ways in which sublocal governance operates through mechanisms that are “informal, fluid, task-specific, ad hoc, and geographically indeterminate.”62 It is in the fluidity of these governance mechanisms that questions might arise about the democratic content of local decision-making. Moreover, local policies that generate externalities, as is common, are hard to capture without serious regional or even state-wide assessment and supervision. Even those who would valorize local choice are writing on a slate that includes the practice, long embedded, of state and even national intervention where local choice goes off the rails and where local capacity is limited.63 it is crucial to say that the best progress in effective regulatory governance requires intentional collaboration among levels and layers of government. General-purpose local governments are one piece of a multifaceted puzzle.
The focus on localism’s limits often does, but should not, distract us from focusing on the larger and rather complex point that the most productive route to regulatory success under the rubric of the police power requires collaborative solutions engaging many different levels and layers of government. In a brilliant essay entitled simply “On Participation,” Hannah Fenichel Pitkin and Sara Shumer explain that democracy requires a clear-headed appraisal of the myriad dimensions of and venues for participation, thereby cautioning against the romanticization of the local polis or excessive skepticism of that form. They write
Face-to-face citizen assemblies are indeed essential to democracy, but one single assembly of all is not. Representation, delegation, cooperation, coordination, federation, and other kinds of devolution are entirely compatible with democracy, though they do not constitute and cannot guarantee it …. The point is not to eschew all organization and all differentiated leadership, confining democracy to the local and spontaneous, but to develop those organizational forms and those styles of authority that sustain rather than suppress member initiative and autonomy. From historical examples we know that such forms and styles exist; it has sometimes been done.64
This insight can be applied to modern American constitutionalism and commitments to democratic choice. State constitutions, rightly understood and sensibly construed, empower state government to use a constructive mix of institutions at various levels of government in order to attend to the problems that the police power is designed to address. Neither the formal separation of powers nor the expressed and tacit concerns that choices be made democratically stand in the way of this imaginative approach to regulation and governance.
General Welfare Requirements
One of the more interesting, if poorly understood, elements of state constitutional checks on governmental actions are those that explicitly require that such actions be directed toward the public interest. Progressive-era reforms brought into state constitutions the requirements that legislation have a public purpose.65 In addition, prohibitions against special legislation were added,66 as were guarantees of equality, usually framed as equal protection clauses (enacted both before and after the Fourteenth Amendment of the US Constitution).67 Other doctrines were invented by courts, including the public trust doctrine in the late nineteenth century, a meaningful expectation of “public use” in takings law, certain restrictions on public debt, and, with cases such as Munn and Mugler, a requirement that regulation reveal an acceptable degree to a public purpose. Taking these temporally and structurally disparate provisions as a whole, they represent a view of state governance as motivated by public-regarding, rather than private-regarding, interests. An account of the distribution of the police powers must focus both on who is doing the regulating (hence our discussion of other branches of state government, and municipal governments), and also on where they should look in formulating their objectives of promoting public health, safety, morals, and, especially, the general welfare.
Historians of state government and state constitutionalism have highlighted the adoption of public purpose requirements in state constitutions as illustrations of the ways in which citizens in the nineteenth century became unsettled with the choices being made by state legislators and administrators on behalf of private interests and interest groups.68 Were these requirements that would facilitate a general welfare sense of constitutionalism that goes back to the beginning of the republic, or did the zeitgeist of the Progressive and Populist eras push the legislatures and courts toward a truly new of the role of government in a rapidly changing commercial republic? Whether the truth of the matter lies in one direction or another, the key point is that state constitutions were absorbing through these reform efforts and democratic energy a scheme of governance that was intended to connect the police power to a stronger public welfare orientation. That the Supreme Court joined with state courts to further this development is revealing. We would come to see by the fin de siècle the imperative of government operating on the people’s behalf and with the public interest front of mind. Various permutations of constitutional law tests (thinking of, for example, the rise of the rational basis test in US constitutional law to examine restrictions on so-called economic liberties69) made these interventions perhaps less radical than one might have imagined from the discourse and even the express language of, say, a public purpose requirement for legislation. However, there remained something of substance to this insistence on a general welfare orientation to regulation.70
A deeper dive is needed, however, to know what was to be, and should be now, the lodestar of the people’s welfare. Welfarist accounts of public policy are common,71 and the aggregation of myriad theories of the public welfare lead us to the vexing conclusion that there is not, nor can we ever truly expect, consensus upon what it means to pursue welfare-enhancing public policy. Debates over the common good have raged from Plato and Aristotle’s times, despite the considerations by Bentham and others about utilitarianism as the best grounding for collective interests up to the present. Jodi Short, in her useful inquiry into public interest as a policy framework, has organized various theories into proceduralist, constitutive, and cognitive approaches that have helped shape debates over the public interest, but without pointing to a clear way to discern this interest in democratic processes. Resort in modern times to economic standards, and especially cost-benefit analysis, has gained favor, and indeed is hardwired into many aspects of contemporary regulatory policymaking, especially at the national level.72 Assessing public policy by resort to cost-benefit principles, while imperfect for reasons many have noted, might nonetheless come the closest to providing a promising perspective at least for examining the demands of government to facilitate the general welfare in regulation under the police power.
More recently, scholars from different points of ideological and methodological orientation have urged attention to general welfare that goes beyond welfarist accounts represented by cost-benefit analysis. In his book on administrative governance, for example, Blake Emerson calls for government to perform a “duty of public care,” one requiring government officials “to invest in the welfare of individuals [and] to provide those institutions, services, and protections that are necessary to people’s moral and political agency but which they cannot obtain on their own initiative.” The reference to “services” and “protections” resonates with a conception, at least a thin one, of the police power has concerned with taking care of the public.
One of the more prominent recent accounts of public welfare that specifically looks to constitutional values is Adrian Vermeule’s important defense of what he calls “common good constitutionalism.”73 Explicitly contrasted with what he sees as the Progressive era’s focus (what he calls its “sacramental narrative”) on individualistic autonomy, common good constitutionalism would read “constitutional provisions to afford public authorities latitude to promote the flourishing of political communities, by promoting the classical triptych of peace, justice, and abundance.”74 He refers specifically to health and safety, and elsewhere describes at length the ways in which this common good constitutionalism obligates public officials to protect public morals.75 Vermeule’s focus is solely on the US Constitution and its tradition, and so the relevance of his view to the police power under state constitutionalism remains elusive. However, this ambitious theory points rather clearly to what he calls a “framework” (presumably then much short of a template) for discerning what is entailed in the common good. The police power, Vermeule notes, “create[es] a loose-fitting garment allowing the exercise of broadly reasonably discretion by government to promote the common good over time.”76 This is, taking into account the larger context of Vermeule’s work, especially true of the police power’s focus on the protection of public morals against myriad (secular) threats.
A full engagement with Vermeule’s theory of common good constitutionalism is beyond the scope of this book. Ditto the various other accounts, some bolder and more worked out than others. But a few general thoughts here, pertinent to our discussion of the police power. First, Vermeule’s account finds common ground in many of the cases, and especially the nineteenth-century and early twentieth-century ones (which were discussed in Chapter 3), where the courts aim toward protecting health, safety, and morals even where such powers trample – or as Novak, cited by Vermeule, put it, “destroy[] private right, interest, liberty or property.” Common good here could be traded as a phrase for general welfare, and the same essential point would be well illustrated. Common good constitutionalism has doctrinal roots in classic police power cases, those that constructed and advanced the salus populi vision of the power. Second, and in some ways in tension with this point, the components of the common good as Vermeule defines it are sourced in what he describes as our country’s “classical legal tradition.” The resort to old principles and moral commitments to decide modern cases seems anachronistic without a fuller explanation of why we should be beholden to the past. For example, Vermeule has a sidebar note on laws prohibiting blasphemy and laws grounded in the police power, and ruminates about what we have lost with our more modern approaches to free speech protections.77 Can we really associate laws prohibiting blasphemy or pornography with a convincing modern account of the common good? Vermeule’s account has a timeless quality – reviewers have insisted that it is the product of a distinctly sectarian worldview, Roman Catholic, to be exact78 – that makes it more challenging to defend as a plausible account of the common good. Still and all, there is a through line from an account of the police power as embedded in constitutional objectives and this well-developed theory offered here by one of our leading public law theorists, and this is reason enough to take this account seriously. We can vigorously disagree about whether and to what extent his view of the common good is the best one while seeing the enterprise as broadly congruent with the objective of defining what good governing is about and what it aspires to.
The police power speaks in terms of what the government is able to do. It is a power, after all, and so the legal question must necessarily turn back to how wide a discretion has the government acting under this power. However, we can only understand this matter of discretion and authority when we understand the obligation of government to act in the common good, an obligation that is revealed in our collective discussion about what the public’s interest means and legislative demands of government. More succinctly, inquiry into the scope of the power illuminates what the government is authorized to it; and yet a deeper inquiry into the nature of the power helps illuminate what the government should do. A full account of the police power must deal with both aspects of this – power and performance, discretion and obligation. Any exercise of governmental power to improve health, safety, and welfare must account for the responsibility of the government to act with a public purpose, and in the public interest. These are intersecting principles of state constitutionalism and, perhaps more generally, in the moral authority and government, and we can best see them as structural principles baked into the state police power.
Expertise, Delegation, and the Rule of Law
As we discussed earlier in connection with the use (and misuse) of the nondelegation doctrine to limit administrative power, a persistent concern among commentators and courts at the federal and state level is that the legislature is shirking its lawmaking responsibilities by assigning important tasks and functions to agencies, usually made up of unelected officials and with meagre statutory instructions. This ubiquitous concern has been expressed in both formal and functional ways. Formally, the objection is that the only institution properly authorized to make public policy, whether under the police power or another source, is the legislature. This formalism is made concrete in Article I of the US Constitution, but is also echoed in myriad state constitutions that express a substantially similar distribution of powers, with the legislature assigned the exclusive power of lawmaking. In earlier versions of the nondelegation doctrine, at both the national and state level, it was said by courts that the legislature may not assign its “core functions” to another body,79 although that rigid rule softened by the time of the New Deal and was displaced by the standard that requires only that adequate intelligible principles be provided.80 Nonetheless, the formalist objection to delegation has hardly withered away. There remains a drumbeat of scholarly arguments, often drawing upon constitutional history, against delegation on the grounds that it violates the letter and the spirit of the separation of powers.81
There is nothing especially new in all this, save for the increasing support within the conservative majority of the Supreme Court and a few state supreme courts. While the use of agencies and administrators to create and enforce regulation has been an omnipresent part of our governmental system from time immemorial, controversy over administrative discretion in the exercise of public power has accompanied its use, going back to the Progressive era, and continuing to the present. For example the legendary Ernst Freund, as Daniel Ernst pointed out in a thoughtful analysis of Freund’s effort to bring to the US what he calls an “American Rechstaadt,” was concerned about restraining administrative discretion, even while promoting an ambiguous use of the police power to protect health, safety, and the general welfare.82
Many scholars from various perspectives, writing about the development of administrative governance in the late nineteenth century, have described why and how administrative bureaucracy emerged as an essential tool for creating and administering this novel new regulatory regime.83 The story is substantially similar at the state level and, indeed, state bureaucracies emerged even earlier than their federal brethren, as regulation required innovations in governance and institutions which were neither legislatures, named executive entities, or courts, were created to implement policy.
The widespread use of agencies reflected a confidence in the idea and ideal of expertise, or technocratic planning, represented by Max Weber in broad theory84 and Frederick Winslow Taylor in practice85 and captured concisely in Mayor LaGuardia’s famous statement, “there is no Democratic or Republican way to pave a street.”86 Expertise in administration would become essential to the broadening sphere of regulation, in both states and later in the federal government. The implications of this development for democracy were noticed, and the push toward bureaucratic modalities of policymaking and administration were accompanied by variegated campaigns for such experiments, campaigns reflected in public commentary and in legal advocacy. “Legitimacy,” Daniel Carpenter writes, “is the foundation of bureaucratic autonomy in democratic regimes. Only when politicians and broad portions of the twentieth-century American public became convinced that some bureaucracies could provide unique and efficient public services, create new and valuable programs, and claim the allegiance of diverse coalitions of previously skeptical citizens did bureaucratic autonomy emerge.”87
The rise of administrative bureaucracy persisted well into the twentieth century, and the New Deal was an important focal point for the struggle over the scope and domain of agency governance.88 In the policy areas that were best suited for the exercise of the police power, regulatory agencies emerged as critical instruments of social policy. This was true at the national level, as the common story reveals, but this was also true at the state and local level.89 State and national regulation were more often complements than they were substitutes. And it is important to understand the techniques of public power at all levels of government as the state police power reveals a systemic commitment to bureaucratic governance and expertise as a precept of governance.
One feature of administrative delegation largely unique to the states has been the use and utility of special-purpose authorities.90 These authorities are created by the state legislature to carry out specific functions. They are often funded through own-source revenues and occasionally are constructed in collaboration with regional and local authorities – think here of transportation as an example – in order to function on behalf of the state government.91 While it is hard to imagine that the framers of nineteenth-century state constitutions expected the police power to be exercised energetically by institutions that were neither the legislature nor general-purpose municipal governments, the reality of modern regulation in the American states is that these special-purpose authorities have become very common, and even essential, to the administration of public policy. To illustrate this phenomenon with some data on special-purpose governments, census data from five years ago indicates that of the approximately 90,000 local governments in the United States, over 50,000 are special-purpose governments. In Illinois, the figure is 6,000 of the 8,900 local governments and in California, there are over 3,300 special districts providing myriad services, including fire protection, sewers, airport, and other transportation, and this is not counting the very large number of independent school districts (nearly 1,000).
In a number of states, the advent of special-purpose governments has transformed enormously both the scape and the techniques of governance. Courts have largely blessed these developments, and various constitutional doctrines (for example, the electoral equality principle)92 have been adapted to meet the needs of legislatures determined to create these new methods and methods of policy making and implementation. The creation of local administrative bodies to replace for certain discrete purposes the reliance on general-purpose municipal governments has been a notable development of the last century or so as well.93
Looking at bureaucratic governance through a wider aperture, concerns about the scope of administrator power have been expressed by critics over many years.94 The late Theodore Lowi proclaimed in The End of Liberalism that the New Deal had “established the principle for all time that in a democracy there can be no effective limit on governmental power.”95 The twin critiques that expertise is too porous to sustain an enduring basis for unelected bureaucrats making policy with little control and, further, that democracy is a superior goal to technocracy have steadily grown in vehemence and in attention. Moreover, with Covid-era restrictions, as discussed in Chapter 4, has come a skepticism toward expertise-based arguments for important limitations on liberty.96 Some have chalked this up to an anti-science sentiment, pointing especially to vaccine hesitancy.97 But another way to look at all this is to see this as an example of an eroding faith in expertise as a basis for policy.
There are two stories that are important for our large assessment of the police power generally and for our examination in this chapter of the structural separation and distribution of powers. In a sense, they come in chronological sequence. The rise of expertise as an underpinning of the choice to vest broad authority in bureaucratic institutions has fueled the use of the police power by agencies to implement good policy. After all, the faith in experts and expertise trade on a faith in scientific truth and the ability of governments to find this truth. Ideally, we should agree on what is truly in the service of public health or safety or even general welfare. With such agreement comes less to argue about in making and assessing policy, and so disputes over the content of policy and who decides becomes less freighted with controversy. Without overly romanticizing the sixty or so years from the post-Reconstruction to the end of the Second World War, we can nonetheless view this era as one in which confidence in public health authorities and in local governments regulating the use of land, to take two of the more conspicuous examples of common policy choices, were high, insofar as citizens viewed these as matters which could be solved by experts, preferably by science.
The other story, still very much unfolding, is one of growing skepticism with experts and expertise. With it, there is an erosion in faith in legislatures and courts’ ability and willingness to control bureaucracy in its pursuit of public policy. The emergence and persistence of such skepticism is not linear, of course, as this has happened unevenly, and as much more of a punctuated equilibrium than a steady collapse in the faith in expertise. For example, the 1960s brought with it some confidence in health and safety regulation, with the biggest impact being at the federal level, as new regulatory agencies were created in order to implement new welfarist policies.98 By the end of that decade, we even put a man on the moon, evincing a faith in science and engineering and ability to mobilize resources, vision, and energy to implement a common good. As we moved into the seventies and eighties, skepticism in government grew with Watergate and the Vietnam War fresh in view, and with respect to human well-being at the sub-national level, the concerns about the state of order in our cities and our educational system grew. Concerns with our aging infrastructure also expanded as we came into the new century. Further, we would see in the period after the Great Recession an erosion of trust in expertise in many aspects and elements, without some profound differences noted between national, state, and local institutions.99 The Covid pandemic has exacerbated this decline of faith; and institutions as consequential as the US President (Trump from 2016–20) and the Supreme Court (from this same period up to the present) have opined on the flaws in unelected bureaucrats – sometimes described as the “deep state” – making public policy with adequate controls.100
There is an inextricable, even if sometimes ineluctable, connection between the matter of what power can be exercised under our constitutions and who gets to exercise this power. We have seen in the rise and fall our faith in administrative governance how the “who decides” question gets tangled up in the dispute over whether power can be exercised at all. At the national level, a debate rages on two fronts about the nature and scope of federal agency power. There are serious, if somewhat measured, threats lobbed by the more conservative members of the Supreme Court to resuscitate the nondelegation doctrine to limit Congress’s power to delegate governing power to agencies.101 Meanwhile, this same conservative majority on the Court has constructed the so-called Major Questions Doctrine as a means of reining in administrative power.102 The idea there is that questions of major social and economic significance should be decided by Congress, not by agencies. This is not the place to take on these normative arguments for a significant change to our constitutional and administrative law. We will note in passing, however, that both of these significant developments in the Supreme Court and other federal courts often rest on undertheorized, if not largely unexamined, premises about the performance of the regulatory bureaucracy, the relationship between Congress and agencies, and the origins of the administrative state.
The legal developments just recounted involve turbulence in federal policy and its implementation mechanisms. However, the currents of policy and public opinion do not easily separate matters into “national” and “state.” It is perhaps just a matter of time before some version of the Major Questions Doctrine emerges in state constitutional law to limit significantly the choices that institutions other than legislatures, here including administrative agencies, special-purpose authorities, and maybe even municipal governments, can make in controversial areas of social and economic policy.103 Whether intended or not, such a move would risk degrading public governance by limiting the objectives and also the strategies of multiple levels and institutions of government in state systems. A more robust set of anti-administrativist legal tactics at the state level would likely hamstring governance instruments, thus effectively limiting the scope of the state police power and making it all around more difficult to govern.
Still, we might come at this conundrum from a different direction. Rather than focusing on the legal consequences of anti-administrativist and anti-regulatory thinking, we might return to the threshold question of how we have arrived at a place where there is so much ambient distrust in the capacity of government institutions to implement the people’s will. In an influential paper discussing the matter of trust in government officials, Houston and Harding note that “trust refers to a willingness to rely on others to act on our behalf based on the belief that they possess the capacity to make effective decisions and take our interests into account.”104 In the polarized US, government efficacy is often tied to a perception of whether the government is acting in our best interests or, instead, in the best interests of the other guy. This concern with factions was noted by Madison, of course, but what makes it fresh is the increasing rigidity of individual beliefs, a rigidity that can be explained in no small measure by the role of social and other media, population sorting, and other ways in which we have come to form and maintain political opinions in a series of echo chambers. Repairing a broken public and securing a republic that encourages cooperation and empathy, generally and with respect to confidence in government more specifically, is a tall task and one that preoccupies many contemporary big thinkers.
A necessary, even if not sufficient, focal point should be on evaluating government performance, with appropriate evidence and upon measures that agreed upon by otherwise divided social groups. This commitment to evidence-based evaluation of government performance – here including all levels and levers of government – should be equally strong with respect to public health and safety. Without being naïve about the promise of public acceptability and restoring public trust in government, we can say two things decisively: First, the restorative project is absolutely critical to choices made about both the mechanisms of government power (Should we be using agencies more? Less? Is the legislature a more trusted source of regulation? Can we create new institutions that are more likely to garner public trust?) and also about the scope of the power itself. Various legal consequences, not to mention political consequences, emerge from the public’s trust or mistrust in government and its regulatory strategies, as we have discussed in this chapter. Second, public trust follows transparency, as well as widely disclosed evidence of success. State and local governments need better press agents! Seriously, the performance of government at the level less conspicuously covered by mainstream media – recalling that we are witnessing the disappearing of a meaningful local press105 – can only be assessed when it is more widely known. In order to sustain a robust police power, distributed in ways acceptable to our constitutional architecture and objectives, we need to be able to point to evidence of both good and bad governing. That is, if we want to repair the torn fabric of public trust in government.
Structuring Power, Enabling Governance
State constitutions create the conditions under which state legislatures will work collaboratively with other institutions to implement policy. They are documents that aspire to, and even frequently assume, meaningful institutional collaboration, even while they attend to the risks of excess governmental power and the threat to property and to individual liberty. This commitment to collaboration is essential to realize the aims of good governing. After all, many of the constructive solutions to health and safety issues require coordinated solutions. As we consider specific policy domain later in this book, most issues that are addressed by governmental action under the police power are instances of so-called “wicked problems,” those that require imaginative strategies and, at least, inter-institutional coordination. They also require the creative design of institutions. Such design is not inconsistent with, nor is it orthogonal to, the text and structure of our state constitutions and our larger constitutional tradition. On the contrary, the commitment to creative problem-solving and the use of properly constructed institutions that facilitate good governing is deeply and broadly consistent with the best sense of our constitutional system of government. Yet, as we will see in the next chapter, this is not, to borrow from a famous depiction of the US Constitution as a “machine that would go of itself.”106 Fulfilling the promise of a police power that has both integrity to the historical objectives and circumstances that gave it life in the creation (and, where needed, reform) of the relevant state constitution and also is well suited to the needs and wants of a contemporary citizenry requires attention to not only structure but, as is inevitable in our legal order, sensible judicial interpretation. The articulation of a set of principles and doctrines that can ground a successful modern police power is the subject matter of the next chapter.
With respect to matters of institutional design, a few lessons from the previous discussion, here and in the earlier, more historically tinged, chapters. One lesson is that the constitution must aspire in its structure to a balance between majoritarian and counermajoritarian elements. In this respect, we return to our discussion of constitutional strategy in Chapter 2 and also our short discussion of the Constitution’s founders early in Chapter 3. We want in our state constitutions a decision-making architecture that will enable it to promote and implement the general welfare. Viewed in a less sanguine way, the constitution must safeguard private interests to a level that reduces the stake of politics, hoping to maintain stability in government and hoping as well to ensure the protection of private liberty and property rights, protection which will be vital to a government that wants to eschew violence and pursue endeavors that will safeguard the common good. In addition, the police power should be seen by well-intentioned governments as a source of authority that she could be exercised in a measured way. We referenced the so-called “presumption of liberty” in an earlier chapter. This captures the important point that the government ought to be duly parsimonious with its use of coercive powers, given the rational fear that citizens might have about government will choose security over liberty, will develop, say, restrictive public health measures even where burdens fall heavily on particular citizens and interfere with their personal goals.
A second lesson is that there is a decent amount of intrastate diversity that should be accounted for in the implementation of certain police power measures. Even in the absence of any notion of inherent local authority, local governments have powers that need not be inert. In Chapter 3, we looked at the advent and role of zoning, quintessentially local powers. Because zoning power is generally focused on local governments, municipal decisions usually drive land use strategy and enable local citizens to, as economist Charles Tiebout asserted several decades ago, sort themselves in order to find a place amenable to their views.107 Looking at this the opposite way around, it would be good to have local governments promote and implement goals that are relevant only to a certain cohort of folks and do not necessarily aspire to comprehensive treatment or coverage. Ultimately, the police power is a flexible mechanism, one that will enable local governments (general-purpose municipal governments and others), to look at what is the best of goods and services can be made available to respond to the needs and wants of residents.
Finally, democracy and administration entail tradeoffs. We could tie the police power scrupulously to the legislature and to general-purpose local governments, institutions with representatives elected by the people and accountable in ways that classic models of democracy expect. That democratic decision-making is an attractive ideal where the authority of the state is at issue presumably needs no extended defense, either long ago or today. On the other hand, we have learned by experience, political and otherwise, that sophisticated policymaking benefits from institutions who are constructed in order to develop and manifest expertise. Sometimes democracy is rightly sacrificed for more bureaucratic arrangements. The rise of administrative agencies beginning in the nineteenth century and the utility of special-purpose governments for myriad policy tasks indicates that we have committed to such arrangements, even in a system that prides itself for its democratic bona fides. Our system is not either/or, and we can appreciate that social choice requires adaptation and tradeoffs. This is true as much of the police power’s use as of any tools of modern governance.
The focus of this book is on the nature, content, and functions of the state police power. Stripped to its essence, we can think of the police power as the foundation of regulatory authority and public governance in the states of the United States. It is a necessary condition for the government to act in order to protect health, safety, morals, and public welfare. Conceptually, we can understand the state police power as a source of authority distinct from external limits of that power, whether in the form of structural restraints of conditions, such as the separation of powers or individual rights. In the previous chapter, we focused on structural limits, including separation of powers and similar restrictions. In the next chapter, we will discuss internal constraints to the police power’s exercise. In this chapter, we discuss what many perhaps associate with the main limits on the state police power, and that is individual rights. This book is not intended as a treatise detailing comprehensively the police power’s interpretation in court, and so we will not run through each and every salient constraint in both federal and state constitutional law on the exercise of the power. Rather, we will look at the issue of rights at a higher level of generality in order to better illuminate the nature and substance of the modern police power. We want to look at the way in which rights constrain the police power’s exercise so as to better illuminate the underlying logic and function of this power. After all, our preference for a broad or narrow approach to interpreting the police power may well turn on our confidence in the role of rights in regulating the exercise of these powers and, moreover, the willingness of federal and state courts to enforce these rights so as to limit excessive regulations. So we ask this: How does a general assessment of rights fold into our general view about the nature and scope of the state police power?
Constitutional Rights as Trumps
It is an elementary, and essential, point of our American scheme of constitutionalism that the power of government is limited by those rights embodied in the relevant constitution. There may well be other fundamental restrictions – such as, for example, the requirement that the federal government can act only in accordance with its enumerated powers – but rights constraints are the most conspicuous, and also the most contestable, sources of limits on the exercise of power. Alexander Hamilton viewed the inclusion of a bill of rights as unnecessary,1 given ubiquitous, structural limits of the exercise of governmental power, but ultimately his faith was viewed as overly optimistic. Madison succeeded in convincing his fellow delegates to include a slate of rights as part of our US Constitution.2 The rest, as the old saying goes, is history, as individual rights have come to be defined, interpreted, and ultimately expanded in the 200-plus years since the adoption of the document.
In their original form, these rights constrained only federal power.3 They came to constrain state and local power as well, first through the explicit protections wrought by the Reconstruction amendments and, in the next century, by the steady incorporation of (most of) the bill of rights to the states.4 While there are very few generalizations we can make about the contours of individual rights under the US Constitution, we can say that the courts have never regarded the police power as in any way a source of authority protected from the commands of the Constitution and its prohibition on unconstitutional action. That the police power may not be permitted to trample on an individual’s right is at the core of what it means to say that the constitution is fundamental law.
This generalization is of limited practical consequence, however. The question that looms conspicuously in constitutional adjudication is how interventionist or deferential the courts should be in examining governmental actions where constitutional questions are raised. The answer to this question has evolved over more than a century as various approaches to judicial review have evolved. The nineteenth century was reflective of a time where rights-based review looked fairly unfamiliar and deference was the norm. Invalidation of state statutes and acts of Congress were rare. Without saying so explicitly, the federal courts’ approach could be captured well by the views of various legal giants of that era, such as Oliver Wendell Holmes, James Bradley Thayer, Benjamin Cardozo, and Learned Hand, diverse thinkers all, but with views that saw the judiciary’s role as quite limited to correcting clear judicial error.5
Significantly, the Supreme Court intervened in a number of cases in the twenty-plus years that marked the Lochner era. This efflorescence of judicial activism represented a very new approach to assessing and protecting certain individual rights under the US Constitution. In an earlier chapter, we looked closely at the Lochner era and the experience of the Supreme Court in invoking novel, and ultimately unsuccessful, limits on the state police power. Without repeating here the debates over whether and to what extent Lochner era jurisprudence aspired to invent a brand new species of individual rights – economic liberties, protected through some notion of substantive due process – or else was a conventional rendering of what legal historian Ted White has called “boundary picking,”6 we saw that the federal courts would persist, even after Lochner’s demise, in giving a close look to police regulations to ensure that they were not implicating the Constitution’s fundamental rights or targeting what the Court would come to call a “suspect class.”7
As constitutional rights became, in the 1950s and onward through the Warren and even Burger Courts, much more robust and extensive, the scope of the police power was correspondingly narrowed to meet these new judicial ideas of the balance between authority and liberty, between power and rights.8
This expansion of rights and contraction of state police power has been revealed in many different contexts. Some of the most profound in their impact has been in regard to the widening scope of equal protection, including but not limited to decisions involving discrimination on the basis of race. Consider the 1985 case of The City of Cleburne v. Cleburne Living Center.9 There the Court unanimously struck down a zoning regulation, implemented under the normal police power of the local government to restrict certain land uses, on the grounds that this regulation singled out mentally disabled individuals in a way that could only be seen as arbitrary and irrational and, worse yet, reflective of prejudice.10 Cleburne is especially intriguing in that the Court reached its conclusion without disrupting in any serious way its developed tiers of judicial scrutiny, and the view that the so-called mentally retarded (to use the vernacular of the time) were not members of a suspect class. Cleburne hearkens back to an approach a century earlier in Yick Wo v. Hopkins,11 which also involved a law that mistreated without a credible rationale a discernible group of individuals without any reasonable basis; and it presaged more contemporary cases in which the Court was concerned about animus and irrational discrimination, a theme we will return to in the next chapter.
The broad interpretations that courts, and especially the Supreme Court, gave to the First Amendment’s guarantee of free expression was especially significant in changing the dynamic relationship between the traditionally broad scope of the police power and rights of individuals to communicate freely.12 While the Supreme Court has never taken an absolutist position on free speech, it has created a scaffold of doctrine in dozens of cases that impose very heavy burdens on government to demonstrate that their police power restrictions are warranted.13 The police power’s scope has changed in important ways as a result of these First Amendment decisions.
No case involving freedom of expression is entirely typical. Laws dealing with communication and expression, either directly or indirectly, are ubiquitous. State and local governments enact criminal laws and underwrite civil justice rules in the tort, property, and contract realm that arguably have an impact on the freedom of expression. Many of these laws are enacted under the police power, and thus are designed to protect the public safety, morals, or general welfare. For much of our constitutional law history, the First Amendment was simply inapplicable to state and local laws. And even after the incorporation of the First Amendment to the states,14 seldom were state laws struck down as violating the rights of free expression. This was simply not a preoccupation of the Supreme Court in the first century and a half of the nation’s existence.
In the years after the Second World War especially, the Supreme Court expanded the free expression guarantee, putting the First Amendment in a “preferred position,”15 one in which free expression interests would frequently trump police power regulations enacted to protect public safety. In one early case, Terminiello v. Chicago,16 the Court invalidated local laws that purported to protect against “disturbances of the peace,” effectively a police power regulation purporting to protect public safety. Although this regulation was not targeted toward expression as such, the impact of the regulation had the effect of limiting the speaker’s free speech rights, and without demonstrable evidence that peace necessitated this rule. Likewise, in Texas v. Johnson,17 the case in which the Court struck down a law prohibiting flag burning, the Court rejected the “breach of peace” rationale, here because this was seen as more in the nature of a law restricting expression that the government objected to (or, though of the same consequence, individuals would likely object to).18 In both cases, the Court embraced the fact that difficult expression would cause unrest and unease, and in that sense did not deny that there would be a certain disturbance of the peace, at least in the sense of folks that would likely be riled up in anger. But the Court was clearly drawn to a vision of the First Amendment that privileged expressive conduct over public safety considerations. Laws restricting freedom of expression have been struck down in a variety of contexts, even where the government has acted neutrally and with an expressed interest in protecting public safety and the general welfare.
In no way is this vision an absolute one, however, and so, for example, in Virginia v. Black,19 the Court upheld a statute prohibiting cross burning where such actions reflect an “intent to intimidate,” given that there could well be public safety and general welfare considerations that would outweigh the expressive value of certain speech (or conduct). Nonetheless, the general lesson from these cases is that free speech regulations will always get strict scrutiny and will often be a reliable trump over all but the most carefully considered police power regulations.20 Indeed, this burst of judicial intervention in favor of free speech rights has been one of the single defining features of modern constitutional adjudication.21
In a valuable analysis of the origins of the First Amendment right of free expression, Jud Campbell notes that the primacy of free expression rights was accompanied by an erosion in the priority courts had historically given under the police power to the implementation of the public good through morals regulation.22 Campbell situates the free expression right in a vision of natural law, a vision that has evolved in a direction in which the Court seems most concerned with minimizing the burden laws impose on free expression and the assurance that the laws are operating neutrally.23 Whatever the foundational source of free expression in the original understanding, the courts have long accommodated public welfare considerations in considering the constitutionality of regulations that would burden individuals’ rights to free speech. Consider, for example, the lengths to which the Court has gone over a long time to protect laws forbidding defamation and also obscenity.24 As to the latter, the cases discussed in Chapter 4 in which the Court has upheld certain restrictions on the time, place, and manner of adult entertainment also illustrates the courts’ willingness to accord some modicum of respect to the underlying public purposes advanced by such regulations. Further, and perhaps more foundationally, the way in which the Court over more than a half century has articulated the values of free expression suggests that it sees this robust protection as safeguarding not only an individual freedom interest – what Professor Martin Redish calls the value of individual self-realization25 – but also a collective interest in promoting democratic self-government and expressive speech and conduct that enhances the salus populi.26 It would oversimplify matters to say that the Court used to privilege the public good or private freedom and then reversed course. A more synthetic analysis of the caselaw suggests that the Court has long thought the best strategies for protecting the public welfare of free speech lay in the protection of free speech at a level that, rightly or wrongly, it thought would meet the Constitution’s objectives of well-ordered liberty.
Such developments have not come without controversy. Conservative justices, beginning most notably with Justice Felix Frankfurter in the early days of free speech jurisprudence, expressed skepticism about the right’s preferred position and the Court’s activism in this area.27 These views have been articulated frequently in prominent dissents in free speech cases. Moreover, the sheer breadth of the Court’s First Amendment protections has occasioned in the last several years criticism from the political Left as well. Some leading scholars have identified the Court’s resolute protections with a sort of “Lochnerization” of free speech doctrine.28 The idea here is that the insistence on protecting the negative right of individuals to communicate (and also to spend) in a world in which the modalities of expression and opportunities to participate in politics is unevenly distributed is akin to a Lochnerian jurisprudence in which economic inequality is subordinated to individual freedom.
There is much to say about the intriguing argument that freedom of speech doctrine should be criticized largely on the same grounds as Lochner, although to do so requires a deeper dive than we can undertake here into the understandings of what the US Constitution and other constitutions expect the lines to be between public and private conduct and the domains of government and the private sector.29 For our purposes, it is important to stress just one factor that makes the Lochner/free speech analogy problematic. Whereas the classic critique of Lochner focused on the ways in which interventionist judicial decisions undermined the ability of state and local governments through regulation to level the playing field by implementing regulations that were essentially redistributions of economic power (recall Justice Holmes’s criticism that the Court was enacting Herbert Spencer’s social statics),30 the critique of modern free speech doctrine reflected in these claims that it has become Lochnerized generally argues not that ordinary police power regulations should be left in place and expressive freedom thereby curtailed. Instead, the essential argument by those who are complaining about the present libertarian slant of the Court’s First Amendment jurisprudence is that the courts should intervene by recreating the First Amendment into a positive right, one that would obligate courts to either insist that legislatures and agencies enact measures that redistribute economic power in a way that facilitates meaningful political freedom and opportunity or create doctrine that has this redistributive effect in and of itself. Lochnerization then becomes synonymous not with Lochner’s ill-fated experiment in libertarian constitutional intervention, but with a road not taken. This is a road that views the US and other constitutions as imposing affirmative obligations, as looking to rights in the constitutions that effectively redistribute wealth and power. Constitutional rights become less in the way of trumps and more in the nature of focal points for government obligations that can be satisfied only through edicts directed by courts toward non-judicial governmental entities.
Other constitutional rights have become more recently prominent in battles over the scope and limits of governmental regulation under the police power. Perhaps the most visible contemporary development has been the renewed respect accorded to the Second Amendment. In District of Columbia v. Heller,31 the Court declared that the Second Amendment guarantees an individual right to keep and bear arms. This decision along with later decisions has limited the ability of state and local governments to restrict the possession of guns under the rationale that there are manifest public safety risks with widespread access to guns.32 The scope of governmental power to regulate guns is being played out in many cases and will be for years to come, but we knew from Heller and were reminded in New York State Rifle & Pistol Ass’n v. Bruen just recently that the burden faced by the government in showing that a particular regulation is necessary, despite its interference with individuals’ right to possess a firearm, is a very high one indeed.33
One interesting point of contrast between the Court’s extensive jurisprudence under the First Amendment (focusing on speech, but also including its religion clauses) and the Second Amendment is the different lens the Court has, over time, used to view the content and scope of these highly protected individual rights. Free speech and religion doctrine over eighty or so years cannot be easily summarized, but we can say at least that it has been an admixture of dense doctrine, evolving as what scholars might accurately label a sort of constitutional common law,34 with some attention to policy impacts (as, for example, in the “incitement,” obscenity, and natural security cases).35 By contrast, the focus in the majority opinions has been squarely originalist.36 From Justice Scalia’s seminal opinion in Heller through the Court’s 2022 decision in Bruen, the clear talisman for understanding the scope of the Second Amendment right, and also the proper prerogatives of government to limit those rights through legislation, has been the original understanding of the right to keep and bear arms. The Court has waded deeply into this history and we can expect as this body of Second Amendment law continues to evolve, that the focus will remain on the historical origins and original public meaning of the right.
In an interesting research paper prepared for the Brennan Center, legal historian Saul Cornell looks closely at police power cases involving the right to keep and bear arms under the US Constitution and relevant state constitutions, some from the nineteenth century.37 He finds compelling evidence from some of these key cases, including State v. Reid in 1840,38 that courts understood the right as an individual right, consistent then with what the Court would say many years later in Heller, but, significantly, they saw it as subject to purposive state police power regulation – hence the holding that the state could properly regulate an individual in their concealing of a gun.39 Post-Reconstruction constitutions echoed this same view, and Cornell points to the Idaho and Georgia constitutions, the former providing that “[t]he people have the right to bear arms for their security and defense; but the legislature shall regulate the exercise of this right by law” and the latter providing that “[t]he right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne.”40 In this wider historical context, it is a strange position indeed for the current Court to point to the strong protections for private gun ownership without acknowledging that the states were especially diligent about yoking these protections to the imperative of state regulation. Moreover, the nineteenth-century interpretations of the police power gave a wide birth to state regulation. “In short,” writes Professor Cornell, “reasonableness has always been a defining feature of the right to carry arms in public under American law.”41
The jurisprudence of the First and Second Amendments is complex and dynamic. We have focused on just two elements – freedom of speech and the right to keep and bear arms – and have neglected other aspects of these amendments, not to mention other parts of the bill of rights that might stand against the assertions of the police power. Moreover, the treatment of those subjects we have focused on has been incomplete, although hopefully not too cursory. That said, we can reach two conclusions that are germane to the issue of constitutional rights as trumps to state police power regulation. First, and at the risk of sounding banal, the rights described here are viewed by the Supreme Court as in a preferred position. Barring change, we know that interferences with these fundamental rights will be scrutinized strictly. Second, there is and will continue to be concerns that the government will neglect these rights and so, for better or worse, we entrust the solemn duty to courts in exercising judicial review to define and enforce these rights against public action. In order for these (and similar) rights to operate as trumps, it is enough to show that the interference by the government through its police power regulations are trampling upon individual rights without a compelling justification and, further, evidence that the regulations are narrowly tailored and use the least restrictive means of accomplishing the government’s purposes. Therefore, even neutral, well-configured regulations are of concern, insofar as they intrude on the rights protected by the Constitution. Lest these principles sound formulaic, we should understand that, taking the history of constitutional adjudication as a whole, there has been a sea change in the last three quarters of a century in how the Court seems individual rights and how it requires these rights to be protected against interference at the hands of government.42 At the same time, the Court appears to be unmoved by the arguments that the general welfare as we approach the second quarter of the twenty-first century demands more fertile and adaptive regulation to account for the harms of unrestricted speech, especially in an time of changing technology. Likewise its majority is unmoved by largely unregulated gun possession and ownership, in a period of unprecedent gun violence and public fear. Even if the best interpretation of the police power as a broad grant to government to act on behalf of the salus populi had stayed more or less the same over the past seventy-five or so years, the practical effect of the police power has undergone a significant change as a result of the rights revolution of this era.
Taken as a whole, federal rights have long been, and continue to be, powerful trumps on the state police power. They ensure that the overall objectives that are intended to be realized through public health, safety, and morals legislation are measured against the impact on individual liberties under the US Constitution and state constitutions. To put this point into a form suitable for a bumper sticker: As rights expand, the police power contracts. But, like any other effort to put dense legal concepts onto a bumper sticker, nuance is sacrificed. When we say that there is a zero-sum tradeoff between the right and the power, we also seem to imagine that the values that undergird the power, in this case the commitment to the ideal of government regulation as furthering the people’s welfare, erode in the face of powerful claims of individual freedom and liberty. However, there are alternative ways of thinking about rights as judicially enforceable entitlements, that is, as some things other than trumps.
Returning to the exploration of natural rights and free expression in Jud Campbell’s important work, he notes that the framers’ understanding of natural rights embedded in a deeply theorized idea of natural law could mean that rights existed alongside public welfare regulation. He writes: “Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal ‘trumps’ in the way that we often talk about rights today.”43 Rights-as-trumps, as conventional as this idea is in our modern discourse of constitutional law and politics, needs to be understood as a normative idea, and not as a conceptual requirement of the term’s definition. Indeed, a widening group of contemporary constitutional theorists are imagining a certain hollowing out of the traditional Dworkinian notion that rights are essential tools to restrict democracy and that they must operate as trumps.44 The implications of this movement are intriguing, and while mainly beyond the scope of this chapter, we might say at least that the reimagining of rights might consolidate deep debates about governance strategy and constitutional objectives in a political forum. As Jeremy Waldron has recently noted, consistent with his general critique of judicial review, “[t]o uphold and protect our rights in the future we will need to think about different strategies – a non-judicial politics of rights-protection or at least non-judicial strategies to bolster and complement whatever shreds of judicial respectability are left in this regard.”45 It is perhaps paradoxical that the refashioning of rights as legal protections embedded in a complex understanding of public good, government obligation, and private interest is appealing to theories of constitutional democracy that are seem as novel and progressive, although, as Campbell reminds us, they have deep roots in natural law thinking.
On the other side of the coin, however, there is the idea that we considered in Chapter 1 in our discussion of constitutions and constitutional frameworks. Suppose we can conceive of rights as something other than trumps. If the overarching commitment to the people’s welfare through the police power is accompanied by an ambivalence about the need to protect individual liberty and property against government restriction, then we need to imagine, as a bulwark against constitutional failure and as insurance against citizens’ rational fear, other auxiliary precautions. Rights have long been part of our vocabulary in measuring security and official discretion. It is hard to see exactly what takes their place if they are seen as intolerable intrusions on the functions of governance.
The Matter of Equal Protection and Due Process
In adjudicating controversies involving the police power, the courts have long been considered indispensable to ensure that regulations are being administered fairly. The linchpins of this concern with fairness are both external and internal – that is to say, we see doctrine as defining criteria of fairness that can be implemented by courts to ensure that police power regulations are reasonable and fair ab initio. We also see doctrine as developing rules of fairness that can act as trumps, rendering nugatory regulations that fall short of what these rules demand. In the next chapter, we will focus on considerations that are more internal or structural, by which we mean factors that emerge from the definition of the scope of the power itself. Here we say some more about what equal protection and due process brings in by way of external (that is, individual rights) constraints.
That the police power must be exercised consistent with due process rights was made clear by the Court in Jacobson, even though Justice Harlan’s opinion was not very solicitous of the plaintiff’s argument that he should not be subject to a general vaccine requirement. This claim in 1905 that the plaintiff’s principal recourse lies in the political process and not in courts echoed claims brought during the recent Covid pandemic where individuals and businesses insisted that the governor’s sheltering orders, insofar as they were not comprehensive, interfered with both due process and equal protection rights. While the courts at both the state and federal levels usually rejected these arguments, they always did acknowledge that police power regulations, no matter how essential to respond to public health emergencies, must be enacted consistently with due process protections and also must be applied consistent with equal protection.
As to equal protection, the standard form of scrutiny that the Court has long given laws that discriminate on the basis of inappropriate criteria apply in full force to police power regulations. The Court has explicitly disavowed some of its most noxious cases in which equal protection principles were disregarded, including Plessy and Korematsu.46 The less memorable cases involving the quarantine laws in San Francisco’s Chinatown and the razing of homes and other properties in Hawaii, discussed in a previous chapter, are also illustrations of the foundational principle that police power regulations must be equally imposed. That these cases all involve discrimination on the basis of race and ethnicity is no coincidence, of course. The use of regulation to separate and sort individuals and private behavior on the basis of race and ethnicity, in purpose and/or in effect is a long part of our nation’s history, and it should go without saying that all such efforts are unworthy of the government in its exercise of these powers.
At the same time, the Court has maintained a controversial fidelity to cases such as Washington v. Davis in which it has demanded evidence of discriminatory purpose to invalidate laws that could be given a neutral reading. Finding clear intent to discriminate is a high burden for complainants and there is precious little reason to believe that the bar is more easily met in disputes involving the police power. Indeed, one could wonder what function this requirement of discriminatory intent fulfills in a world in which equal protection is understood as eradicating the impact of historical discrimination and of leveling the playing field. Such debates come to the surface in present controversies over the use of racial preferences. In its recent affirmative action decisions, SFAA v. Harvard and SFAA v. U. North Carolina,47 not exactly a police power case, to be sure, as the policy being reviewed was created by universities in order to pursue its own internal goals, the Court read equal protection to impose a nearly impenetrable requirement of neutrality and color-blindness. Where this all might matter for the police power is in the evaluation of state or local laws which also undertake affirmative action in order to, as the government sees it, advance the general welfare. If the Court’s recent decisions in the two university cases is any indication, the courts are likely to weigh in on what they may see as the government’s policies that discriminate, in the sense that such policies take account of race, even while justified as mechanisms to ultimately eradicate discrimination.
Taken as a whole, equal protection doctrine has boxed in and out certain kinds of objections to police power regulations. It certainly does not seriously restrict the prerogative of state and local governments to draw lines among individuals, businesses, and even key parts of the economy – as we saw in the Covid era and also in a variety of settings in which property-impacting regulations are imposed. Government policymaking would be impossible without the discretion to discriminate and on various grounds, that is, to permit the government to sort and separate individuals and groups on the basic of meaningful, relevant criteria. What it does is focus like a laser on racial discrimination, somewhat less so on gender discrimination, even less on discrimination based on LGBTQ+ status, and maintains certain standards and argument rubrics that will constrict police power regulations in a very concentrated, and (happily) rare, band of cases.
Due process is a tricky concept to apply as an external constraint to police power regulations. First, let’s begin with the easy cases. Where the regulation singles out individuals for special mistreatment – say, a requirement that a particular landlord put safety features into her apartment rental, while requiring nothing of the sort for a similar situated landlord – we can readily invoke due process as a brake on governmental action. But this is a far cry from accepting, as the plaintiff maintained in Jacobson, the argument that the government owed a duty to explain why this general vaccine requirement should be applied to this particular defendant. Leaving aside considerations that are more internal (such as claims of unreasonableness or animus, to be discussed in the next chapter), due process does little work in requiring the government to explain why it did not exempt individuals from generally applicable laws. Nor are such claims usually successful when they rest on the argument that the government should not have configured the category of individuals subject to these regulations in one way rather than another. Take for example a strange little Covid case from 2020 where cannabis dispensaries in Massachusetts who were selling their product for recreational use objected to a shutdown order that applied to their dispensaries but not to dispensaries that were selling cannabis for medical use (both under approved state laws) nor to state liquor stores.48 The Massachusetts court quickly dispensed (pardon the pun!) with the argument that this line-drawing effected a violation of due process and of equal protection. The judge said that this regulation had a rational basis, in that the closure would help dissuade residents of nearby states where recreational marijuana is illegal to come to Massachusetts to purchase marijuana, thereby increasing the risk of Covid spread. This was typical of the run of Covid shutdown cases, given that these executive orders did typically draw distinctions between certain businesses and gatherings which could remain open and others which could not. To be sure, the Court did in three important instances strike down Covid restrictions on certain modalities of religious worship, but we should take from those cases (which were decided by close majorities) that the Court is very solicitous of religious liberty claims under the First Amendment, not that there is emerging a strong impulse to invoke due process to interfere with the government’s efforts at line drawing.
Two famous cases in administrative due process illustrate this principle well. In the 1908 case of Londoner v. Denver,49 the Supreme Court held that a city council decision to impose a certain assessment for property improvements requires an opportunity on the part of an affected landowner to be heard. This was a legislative action, but functioned effectively as an adjudication, a consideration of a valuable claim by resort to facts and relevant laws.50 Due process was the appropriate tool for imposing this requirement. By contrast, in BiMettalic v. State Board of Equalization,51 decided seven years later, the Court rejected the due process claim of a property owner who insisted upon a special exemption from an individual tax. “Where a rule of conduct applies to more than a few people,” the Court wrote, “it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or in an assembly of the whole.”52 The BiMettalic situation captures in essence what the typical police power regulation entails, that is, a law applicable to “more than a few people” enacted in order to protect public health, safety, morals, or the general welfare. Objections to this law should be made in the ordinary political process (or, if this is an administrative regulation, in the processes provided in the relevant administrative procedure acts), not in court on the grounds that there is a sort of “due process of lawmaking.”53
Property Rights Revisited
The safeguarding of property rights was a persistent priority from the origin of the first state constitutions and over the course of the following decades, disputes arose in which the courts were obliged to define the scope (and occasionally even the existence) of the property right, before proceeding to the analysis of whether and to what extent government regulation under the police power or another font of authority could take precedence over the owner’s interests. As we have already noted, the reasoning in much of the first and into the second century of the republic’s history was tethered to classical, and often natural law, ideas, ones that had in mind what were very much essentialist notions of property. Is this a thing that is being managed, regulated, confiscated, etc.? We saw beginning after Reconstruction and into the Progressive era a transformation in the conception of property. Echoing the influential voice of Justice Stephen Field, even in his dissenting opinions (as, for example, in Munn), the courts increasingly saw property as a means of exchange – in other words, for what it could be used for profitably by an owner – and not merely as a thing. This transformation would come to be of great importance in takings jurisprudence, as the court measured the imposition of regulation on the economic value of property, not just on whether title had been transferred to the government. However, this transformation was also relevant, even going back so far as the late nineteenth century, to how courts viewed the nature of property rights and, correlatively, the balance between public and private interest.
Two developments in regard to the reconfiguration of property rights animated this longish period from Reconstruction’s end to deep into the twentieth century. One, picking up again on Horwitz’s famous description, was that the shift to a market value conception of property meant that “the very conception of property became infinitely expandable.”54 Courts heard creative new claims that owners’ investment backed expectations and so “[d]uring this period, American courts came as close as they had ever had to saying that one had a property right to an unchanging world.”55 At the same time, notions of general welfare and the jus publici nature of property, described in an earlier chapter, cabined some of this creativity. Many regulations met the bar of public justification under the police power, notwithstanding the clear burden on property rights, in the context of use and exchange. While this change accompanied the shift from private to public law, it is perhaps at least as useful to describe this as a shift from an obsession with property rights to property as a concept intrinsically embedded in objectives of governance and of the common good. Rights do not necessarily dissolve in this governance framework, but it is important to see their contours and contents as defined by the decision-making apparatus and expectations (the latter set by the state constitution, and occasionally the former as well) of democratic governance.
In the twentieth century, debates about the scope and content of property rights continued, as one might expect, given ubiquitous conflicts between owners’ interests and the strategies of governments. The idea of property as a bundle of sticks, a hoary concept going back to Blackstone, continued to resonate with courts and commentators, and so rather than the quixotic effort to define property and property rights formally and finally, courts looked in both police power and regulatory takings cases to the nature and magnitude of the imposition on one more sticks in the bundle and, as always, on the government’s objectives.
For some period of time beginning in the sixties and continuing for a couple of decades or so, many left-leaning scholars were taken with the notion that, as Charles Reich had explained in 1964, there was emerging a novel conception of new property, one that would encompass a wealth of government created entitlements and services that should become, in their necessity to citizen well-being and human flourishing, protected as property rights in much the same way as tangible, in rem rights. This logic bled over to important scholarship calling for constitutional welfare rights.56 In the main, this effort to identify property rights with the needs of the propertyless would be short-circuited by developments in procedural due process law in the second half of the twentieth century, and especially in the seventies and eighties. To make a very long story short, the Court in Goldberg v. Kelly57 advanced a strong version of procedural protections applicable to property rights that were far from in rem, but were shaped entirely by government-created expectations. And so the welfare beneficiary in Goldberg was given a property right in the continuing stream of benefits such that the government must given him an important measure of procedural protections before it could taken. But just as Goldberg and other cases of that era seemed to move close to the notion that government entitlements represent property that can be protected against interference – perhaps not only in the ending of those rights, but even in the reduction of value – the Supreme Court said that the content of property rights are defined by state law, not by something that is in and of a part of the US Constitution. Moreover, in Matthews v. Eldridge,58 the Court shifted from a maximalist view of protecting property rights through a bevy of procedural protections to a balancing test, one that would look at the matter of administrative costs and risks of erroneous deprivation (among other factors) to strike the balance between important property rights and government interests.
Where this development left us by the beginning of the 1980s was with the hard question of how best to think about the content of property rights in a world in which states continually shaped and reshaped what property means and the expectations of individuals under the scheme of rights and privileges defined by state law. In an important article in 1981, Frank Michelman, who, perhaps more than anyone else, advanced a highly sophisticated progressive view of property and its protection through constitutional rules,59 principles, and theories, argued forcefully for a view of property that, contra the Court’s decision in Roth and similar cases, derived directly from the Constitution.60 He would define constitutional property as essentially “political rights,” that is, “what one primarily has a right to is the maintenance of the conditions of one’s fair and effective participation in the constituted order.”61 These rights would ideally be protected against both eminent domain and also against government action under the police power, as those rights emerge directly from the US Constitution and would thereby restrict any and all interference by state and local authorities, inter alia.
New and creative conceptions of property rights in the half century or so since the progressive efforts at rethinking property and expanding its scope to address wealth inequality have mostly followed a similar script, although this is not to minimize their innovative qualities.
At the same time, largely thanks to the pathbreaking work of Thomas Merrill and Henry Smith,62 we are seeing the renaissance of the classical notion of property as a “thing,” and the view that property’s exclusion rights are at the core of understanding both the origins and the functions of private property. It is not clear from this account, however, how property is better (or worse) protected from government interventions under the police power. Property as exclusion can be enormously helpful in defining the parameters of what is or is not property, but it cannot, on its own, blend well the public law governance ideas and strategies under principles of state constitutionalism into the private law underpinnings of property’s definition. It is not that there is any inconsistency in the twin projects of defining property rights’ boundaries and in defining the boundaries of legitimate government power. It is just that we need more clarity and understanding on the role and function of government in order to assess how centering the right to exclude bears on the constitutional scope of the police power.
Returning to doctrinal matters, we revisit an issue discussed in Chapter 3, and that is the nexus between eminent domain and the police power. A challenge that has not gone away, despite the depiction by scholars that the doctrine is inscrutable and problematic, is how to sort out when it is appropriate to scrutinize government regulation of the use of property solely under the police power or when it is viewed best as potentially a taking of private property and therefore warranting just compensation. Coming on a century after the Court’s decision in Mahon, we seem to be no closer to solving the regulatory takings puzzle. This puzzle is problematic not only in leaving us with uncertainty about the proper scope of the government’s takings power, but also because we cannot easily articulate a coherent standard that tells us when the government can act to protect the general welfare without facing a significant economic cost (and therefore disincentive) for this choice.
In the famous Penn Central case of 1978,63 the Court reviewed New York’s landmark law, a quintessential instance of the government’s general power to regulate land uses. The Court noted that it had long upheld ordinary zoning laws as consistent with the police power.64 But where, as here, the government’s regulation negative affected an individual’s use of property in a way that “caused substantial individualized harm,”65 considering the regulation under the Takings clause is appropriate. Justice Brennan writing for the Court was concerned to replace the wholly ad hoc character of post-Mahon regulatory takings case with workable criteria for evaluation. In Brennan’s formulation, the questions to be considered in cases involving economic loss, but short of a government confiscation are (a) the economic impact of the regulation on the property owner, (b) the extent to which the regulation interferes with the owner’s reasonable investment-backed expectations, and (c) the character of the government action. Two parts of this Penn Central test are especially illuminating for our understanding of the police power: First, it is not enough that individual property owners suffer a loss, and even a loss of a magnitude different in kind from other individuals affected by this regulation, but these expectations must be “reasonable.”66 Second, the “character” of the government’s action becomes relevant. And the historic preservation laws, as with zoning, that purport to “enhance the quality of life by preserving the character and desirable aesthetic features of a city” are acceptable, even acknowledging that they can come at the expense of an individual’s right to use their property, one of the proverbial bundles in the stick of ownership.67
The focus on the reasons for the government’s decision to regulate was critical to a Supreme Court regulatory takings case decided just two years after Penn Central, Agins v. Tiburon.68 This case, which has largely fallen out of the pantheon of leading modern takings cases, is especially interesting in shaping the framework, at least for that time, within which the police power is examined in light of the takings clause. The key statement is this: “The determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest.”69 Bringing to the front and center the question of how to balance private property rights and public values in consideration of the threshold question of whether a taking happened at all was novel and refreshing. This approach was short-lived, however. The Court would ultimately move away from this framework, tacitly at first and explicitly in the new century.
In the forty-plus years since Agins, the Court has bolstered regulatory takings and, with it, has brought more skepticism to the reliance on the police power to ground legal efforts to enhance quality of life. The key case in this modern development is Lucas v. South Carolina Coastal Council.70 In Lucas, the Court summarized its earlier takings cases, including Penn Central and Agins, insisting that the test is an economic one, focusing on the question whether the regulation “denies an owner economically viable use of his land.”71 What is lost entirely in this is attention to the rationale for the government’s regulation and, in particular, the way in which the regulation enhances the general welfare, even while imposing a cost on an individual – something that, upon reflection, is more or less always the case where the police power is exercised, and so too when eminent domain is used to advance a “public use.” This theme had been prominent in regulatory takings cases going back to Mahon in 1922.
There have been a plethora of criticisms of Lucas in the years since that case decided.72 Broadly speaking, commentators stress two essential problems: First, not all advantageous regulations can or ought to be assessed upon an economic basis;73 and, second, there is little reason to expect that the courts are better at this assessment than are legislators and administrators.74 These are significant practical concerns, and echo arguments made in Justice Stevens’s powerful dissent. Curiously, however, these critiques do not go to the heart of the question raise by Agins: Can certain governmental be evaluated by resort to whether and to what extent there are common benefits, despite the special burden imposed on the individual subject to regulation? If this question sounds familiar, it is because this was pretty much the question asked in the ordinary police power cases throughout the period in which it was viewed through a salus populi lens.
By any measure, the operation of contemporary regulatory takings jurisprudence is in serious tension with the use and utility of the police power to regulate private property. All hope is not lost, however, in shaping the police power around the Court’s holdings. Let us consider first the impact and next some possible ways through this meandering and maddening tunnel.
What Lucas and its progeny do, among other things, is to shift the focus entirely away from the rationale of the government’s action. The “character” of the government’s action, as noted in Penn Central,75 becomes irrelevant to the inquiry. The conventional view is that, in the main, zoning, historic preservation, and even redistributive laws is not disrupted by this refocused analysis. The owner’s interest in the ordinary zoning case is real to be sure, but usually the restriction is part of an established plan, a plan which buyers can be expected to know in the first instance. Zoning functions then like a public law version of a running covenant, and the imposition on owner’s use, even where meaningful economically, is not an interest that either the federal or state constitution should necessarily protect. The same logic operates in historic preservation, as the Court explained in the Penn Central question described above. In this way of thinking, there is no need for the government to state its rationale for the imposition, save for locating its power in a pertinent statute or regulation.
This neglect is problematic on its own terms. What both the California Supreme Court and the Supreme Court of the US made clear in the Agins litigation is that the government has a burden to explain and justify its promulgation of a regulation that impact property and owner use. This requirement is not divorced from text, as eminent domain clauses typically require a public use (or, as sometimes in state constitutions, a public purpose). And it makes sense from the vantage point of democratic decision-making and transparency in governance.
In addition, the absence of a focus on the government’s interest in the regulatory takings context leaves, ironically, given the paean to private property in Lucas and again in Lingle, property rights generally underprotected, at least when measured against other takings contexts. Consider, for example, the Court’s 2021 decision in Cedar Point Nursery v. Haddid.76 There the Court evaluated a California state law that gave, in essence, an easement (a “right to access”) over a farm to labor organizers. The Court found this imposition on the owner’s exclusion rights a per se taking, saying simply that the government must pay for what it takes.77 This per se takings holding is distinguished from other scenarios in which takings claims are used. It is different than the imposition on owners’ use rights, and thus distinct from the analysis in Penn Central and other lodestar regulatory takings cases. More precisely, it is also distinguishable from instances, as in the famous Pruneyard Shopping Center case,78 where the owner has generally opened her property to the public and so limits on the owners’ right to exclude can be limited without running afoul of the takings clause. None of these lines, however, are helpful either in defining the nature and scope of the property interest. We know that the concern is with the owner’s exclusion rights, but why does this emerge as uniquely sacrosanct? Nor do they undertake in any way to assess either the government’s objectives under the police power in regulating the use of this private property or to measure the economic loss or other impact on the owner’s property rights. Through one lens, Cedar Point Nursery is a big victory for private property owners, as the farmers get to exclude labor organizers and others who otherwise would have the right to come onto their property to further one or another social or political goal. But through another lens, it is just a reminder of how fierce is this conservative Court in protecting the property owners’ exclusion rights from even a temporary intrusion, and how blasé it is in protecting owners’ prerogatives when it comes to avoiding severe zoning or historic preservation laws or what Professor Molly Brady has called “damagings” or other interferences of consequence on the property owner’s ability to use and to profit over her property.79
Many decades ago, the distinguished legal scholar Joseph Sax wrote an important article, “Takings and the Police Power,”80 that aspired to help solve the difficult puzzle of when to distinguish regulatory takings which demanded compensation from intrusions, oft significant, on property rights under the police power. The essential difference, argued Sax, was between the government acting as a guardian of the public interest and the government acting in a way that could be viewed as proprietary, as self-interested in a pecuniary or self-dealing sense.81 In Sax’s account, we would have more trust as a general matter in the government acting in the former way, as we expect when it acts under the police power, than when it acts in the second way, as will be more frequent in the context of regulatory takings. While the Court has never really followed this line of analysis, as Penn Central certainly reveals, this analysis captures a larger truth that could conceivably help in disentangling the vexing pieces of the takings/police power puzzle. We are searching in these property rights cases for either a big truth of the matter – as in early days asking, “is or is there not a property right at issue, such that the government needs to be diligent in providing adequate procedures if not eschewing regulation altogether” – or else measuring the degree of government benefit and individual burden. But these are quixotic adventures, especially when we consider that we are asking these functions of courts, in the context of litigation under the rules of the adversary system we cherish. Efforts to define the inquiry by resort to how the government is deciding whether and to what extent to regulate and to interfere with owners’ interests and on what bases it is making these judgments, at least focus the attention at the right places. Here again it is important to recall the good road constructed, although ultimately not taken, in Agins. This case, and likewise Pruneyard – both decided by the Court in exactly the same year –, exemplify a group of justices deeply engaged with the right set of issues about how to assess and to weigh competing interests of owners and of the public. That the current Supreme Court, and many state courts echoing the same themes, has too often collapsed into arid formalisms about property rights’ essential purpose in protecting against invasion and, maybe worse yet, a set of incommensurable and chaotic set of variables in a stew made of state positive law, common law, and the exogenous views of justices about what property is and isn’t is unfortunate.82
We end this discussion of regulatory takings with a comment on two cases decided by the Court in 2005, both of which reflect the precarious nature of judicial intervention to measure the public interest when it comes to the regulation of property rights. Lingle v. Chevron83 involved a somewhat complicated state statute that aimed to reduce concentration in the retail gas station market. The Court, in an opinion by Justice O’Connor, characterized the emphasis in Agins on whether a regulation “substantially advances” a legitimate government purpose as “free standing,” and not suitable to the inquiry relevant to assessing whether a law represented a regulatory taking.84 O’Connor writes that the “‘substantially advances’ inquiry reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights. Nor does it provide any information about how any regulatory burden is distributed among property owners.”85 True enough, but the point of that part of the Agins analysis is not to come to a conclusion, based upon an answer to the question whether the government regulation “substantially advances” a legitimate purpose, that there is no regulatory taking. Rather, it is to help shape the analysis of how to assess the burdens (amount and distribution) of the regulation against the strategy undertaken by the government to realize a stated objective of general welfare. The insistence on a standard that the takings rubric should be fully distinct analytically from the police power rubric is ultimately question begging. These are species of the same genus, that is, an inquiry into whether the government’s actions impose such a burden on private property owners’ interests that some constitutional matter is implicated – either that the government has gone too far under the police power, or that the government’s actions are acceptable but only so long as compensation is paid.
In that same term, Justice O’Connor was on the losing end of a closely divided course in Kelo v. New London.86 There the Court goes through a set of takings cases that are focused squarely on the question of whether a government regulation is of a “public use” such that eminent domain is a permissible strategy. These public use cases, going back to Berman v. Parker, ask what is essentially the same question in different ways, that is, does the public benefit from the government’s imposition on owners’ rights? Is this a law that promotes that the general welfare, or merely, as Justice O’Connor fears, simply a law that would replace any “Motel 6 with a Ritz Carlton” or any “farm with a factory”?87 The answer the Court gives is yes – perhaps not a resounding yes, as the vibe of the Court’s opinion, to say nothing of Justice Kennedy’s concurring opinion,88 is that this is a hard case.
These inquiries in those two cases from several years ago are two sides of the same coin. They look closely at the government’s revealed interest, in promoting a public purpose at the expense of property rights, and reach opposite judgments about the legitimacy of that strategy. The incoherence of the Court’s approach is rather striking. Or perhaps we should be more generous in seeing these cases as illustrative of the intrinsically vexing character of the regulatory takings project on the whole. Either way, it is hard to square current doctrine with a view of the state and local government’s regulatory power as aspiring to reconcile private rights with the public good.
To summarize, the focal point of regulatory takings remains, ever since Lucas, on the magnitude of the deprivation – to put it more generally, on the burden imposed on the property owner. The ordinary police power cases, by contrast, continue to be focused on the government’s rationale and, of course, any coherent claims that individual rights are being compromised. Neither purports to assess the costs and benefits of regulation. However, the relentless focus on burdens and costs in the takings context, and not in the police power context, leaves these two doctrines as fundamentally incommensurate. As with any analysis of these and related doctrines, this observation comes at a particular moment in time. The Supreme Court will continue to hear regulatory takings cases and commentators will have their say. Likewise, we will be able to see whether and to what degree the federal courts determination to protect property rights through a harm-focused inquiry will seep into police power cases.89 For now, we might just reflect for a moment, as merely a thought experiment, what might have happened in Mahon had never been decided, and the question of property regulation under the police power was forever decoupled from the evolving – and, again, deeply vexing – character of regulatory takings jurisprudence over a century’s time.
The Form and Function of State Constitutional Rights
In assessing the place and persistence of rights and rights discourse in considerations of the police power, we have been focusing mostly on the contours and impacts of federal constitutional rights, the topic that gets the lion’s share of attention in scholarly discussions of the tension between governmental power and individual liberty. But there is another important layer of constraints on the exercise of state police power and that is the body of state constitutional rights under state constitutions. What role do these rights play in the understanding and implementation of the state police power?
Because all state authority is subject to federal supplanting under the supremacy clause, we might ask why are state constitutional rights necessary? Could not our basic individual freedoms be safeguarded adequately through the bill of rights and the important additions in the Reconstruction amendments?
To give a negative answer to this question, and therefore to make the affirmative case for state constitutional rights as an independent source of limits on public power returns to us to Chapter 1. State constitutions create the foundational objectives and measures of performance of those who would wield power in the name of individual citizens in our states. The structure of governance under a given state constitution reveals these goals, as does the content of rights embodied in the state constitution. Yes, the federal Constitution does create the bedrock for these objectives by the rights it has created. However, a state may confidently supplement these objectives by adding protections to the federal floor. Moreover, they should construct and interpret these unique rights in ways that are best suited to their internal objectives (while also being cognizant about the nature and scope of external constraints). This may happen at the time of the original creation of the state constitution, or later, during periods of constitutional reform or through episodic amendments. The history of state constitutionalism in the United States shows political officers and ordinary citizens deeply engaged in the enterprise of framing state constitutional objectives, creating appropriate implementation mechanisms, and assessing constitutional quality and performance.
It is telling that before the Bill of Rights was made part of the US Constitution in 1789, the early state constitutions were already including rights of their own. “All of our most celebrated constitutional rights,” writes Judge Jeff Sutton, “originated in the state constitutions.”90 Moreover, state constitutions have frequently been amended (sometimes by acts of the collective public directly, in those states that provide such a mechanism) to include new constitutional rights. It is impossible to understand state constitutionalism in all its complexity without understanding the instantiation, and sheer ubiquity, of individual rights.
The prevalence and persistence of state constitutional rights has accompanied the growth in state regulatory power. This makes sense, as we think closely about the matter. Expanding state power has revealed distinct threats to individual liberty. State courts, as we saw in Chapters 2 through 4, intervened occasionally to limit the exercise of state power. And even where they declined to intervene, they took care to remind us that there were in fact rights-based constraints (in that case, due process and equal protection) on the power deployed by state officials. That states had broad power to act does not mean that they have the power to act without constraint. Reference to constitutional rights, including rights embedded in state constitutions, undergirds this important reminder. Rights in both state constitutions and in the US Constitution work in tandem, sometimes redundantly, often complementarily, to keep governmental power within appropriate guardrails.
State constitutional rights are distinct from constitutional rights in the US Constitution in ways worth noting. Political scientist Alan Tarr, who has written widely on state constitutional development, highlights some of the key differences in the language of state constitutional rights in the early constitutions. Often the provisions used the term “ought” rather than “shall,” suggesting that these provisions were more hortatory than binding.91 Another difference, critical to our analysis of the police power, is the emphasis in state constitutions on the community and the general welfare. With respect to the police power in particular, “[s]everal early constitutions even include the police power within their declaration of rights.”92 This more communitarian focus is broadly congruent with the republican character of state constitutionalism in the founding period, noted by Gordon Wood and others and as discussed at greater length in Chapters 1 and 2.
In framing his highly influential analysis of the state police power in its origins and functions, William Novak emphasizes the connection between the emerging state constitutional rights at the time of the framing and the commitment to the general welfare. “Government and society,” he writes, with reference to the late eighteenth-century formulation of American constitutionalism, “were not created to protect preexisting private rights, but to further the welfare of the whole people and community.”93 The connecting of individual rights in the state constitutions to general welfare was more complex than a depiction of state constitutionalism as fundamentally Whiggish or Lockean. Certainly some of the rights embodied in the early state constitutions and included in the constitutions adopted throughout the nineteenth century and into the twentieth included what we can see as restraints on government, and so are classically negative rights. Madison struggled with Hamilton and Jefferson over whether rights should constrain state-level actors and in the limiting of the Bill of Rights to the national government. The standard story is that he lost that battle. However, this was rather a long and complex struggle, one in which critics of a legislature with unlimited plenary power successfully included declarations of negative rights into the emerging state constitutions. Therefore, we might agree with historian Gary Gestle, that the framers of the early state constitutions derived their view “from a different political principle – one that held the public good in higher esteem than private right,”94 but still insist that these constitutions regulated governmental power through, among other devices, the inclusion of individual rights.
Early attention by the state constitutional framers to rights was often articulated in the document’s design by explicit text. Moreover, often the arguments mustered in favor of it were pitched in a fairly abstract way. For example, constitutional framers would often opine about the value of private property and liberty. However, the precise ways in which these sacred values should restrain the government in its pursuit of the common welfare remained elusive.95 Once a right was described as part of the fundamental law and its importance was championed, the question remained unanswered of how it might function to constraint governmental power where there emerged a conflict between the will of government and the contents of the right. A key threshold matter, conspicuous in the late eighteenth- and early nineteenth-century debates, was whether and exactly how the courts would intervene through judicial review to measure and resolve conflicts over government prerogative and individual rights embodied in the state constitutions. These debates, early and later, had an unavoidable impact on the character and contours of the police power.
Rights and Judicial Review
It is one thing to declare the objective of protecting individual liberties within the structure of state constitutions; it is another to provide for the means to enforce these rights through judicial review. Those skeptical that the framers of the early state constitutions saw rights as anything truly distinct from the progressive ambitions to promote the general welfare, as “depende[nt] on the carefully regulated society that government would construct,”96 have to grapple with the fact that judicial review quickly emerged from the states as a mechanism for reviewing exercises of state power.97 Judicial review was developed early in our constitutional history by state courts to limit certain excesses in government action, including, in some instances, the tramping on individual rights. Before the Supreme Court decided Marbury v. Madison,98 it decided Calder v. Bull.99 While the claims about judicial supremacy in Calder were largely dicta, the Court was unmistakable in its declaration that judicial review accompanied the basic idea of the constitution as fundamental law. Justice Chase wrote:
There are acts which the federal or state legislature cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power, as to authorize manifest injustice by positive law or to take away that security for personal liberty or private property for the protection whereof of the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.100
The authority of state courts to review legislative acts to make sure that they were consistent with the state constitution was confirmed in a plethora of early cases, so much so that judicial review under state constitutional law was well established by the time of Marbury.101
The emergence of judicial review can best be understood in light of the risks attendant to the awesome authority given to the stage legislature through the police power. Judicial review was a critical check on the exercise of this power, especially necessary given what was emerging in the early nineteenth century (culminating in Barron v. Baltimore102) as an unwillingness to rely upon federal constitutional rights to limit state power. It was also important because of a declining faith on Americans’ part in the jury as a mechanism to resolve factual and legal issues in connection with constitutional authority.103 “The country became increasingly comfortable,” writes Jeff Sutton, “with empowering judges to resolve constitutional cases and with perceiving them as trustworthy agents of the people.”104 Citizens frequently objected to state legislative decision-making, noting that explicit constitutional procedures were not followed, and that, more seriously, legislators were behaving in ways inconsistent with the common good. Judicial review became a key mechanism for ensuring that the overall objectives of state constitutions were fulfilled. This did not require, for the first several decades at least, any bold effort to expand the contours of the constitutions’ rights provisions; it required only that state courts be vigilant in guiding state legislators and other government officials toward a way of good governing that would square the circle of individual liberty and society’s general welfare.
Up to now, we have focused on the origins and evolution of judicial review largely as an historical matter. Looked at through more modern eyes, are there reasons to revisit the role and function of judicial review in light of the changing conceptions of the police power? The answer here is a highly qualified “yes.” With the understanding of the police power steadily broadened to include the project of what we have been calling good governing, the expectation is that legislatures and agencies will function effectively to create and implement policies that will facilitate health, safety, morals, and the common good. Significantly, there will be meaningful checks on both institutions, the legislature, in the form of some measure of reasonableness review, and agencies, through traditional forms of administrative law. This retains judicial review in exceptional cases, but in a form distinct from what we typically observe as regards evaluation of the content and applicability of individual rights and the compelling interest of state or local officials to administer certain policies.
Another qualification to the general assent in a more circumscribed role of judicial review comes from the imperative that there may be a decent realm for judicial intervention when government officials, motivated as they can be by short-term political considerations, impose serious restrictions on individual liberty or private property with only a tenuous connection to sound public policy. Illustrative of such actions was the decision by the Florida governor during the mid stages of the pandemic to invoke the police power as a rationale for restricting private businesses’ choices to require certain mitigation measures, including proof of vaccination, in order to use their services.105 This followed a strange logic. Mitigation measures were intended to protect public health; the governor’s position was that these measures interfered with personal liberty. However, with the sensible legal advice that the liberty claims would clearly fail in the face of the public health emergency, and the historic deference given to public health officials to act in such emergencies, the governor insisted that it was in the interest of public health to forbid private businesses from undertaking public health measures. This was undertaken in the absence of any single source of evidence that public health would be improved by such steps.
Judicial review is an important tool in this context to restrain nonsensical actions that reflect distorted viewed of the police power and of individual liberty. Such review often an instrument of promoting the public good. Rights need not be envisioned solely or even mostly as the means by which the courts protect someone’s desire to be left alone, in the misanthropic sense of the phrase. They may well be part of coherent effort to exercise one’s freedom in order to promote the common good. Judicial review can function to separate out the rationale for one’s invocation of a right, along with the rationale for the government’s imposition of a regulation restraining private conduct.
Natural Rights
Early conceptions of rights, as many scholars of the founding period have taught us, were associated with natural rights, sourced in pre-political, rather than positive, law.106 “A natural right is an animal right,” Thomas Paine wrote, “and the power to act it, is supposed, either fully or in part, to be mechanically contained within ourselves as individuals.”107 These natural rights sometimes evolved into distinct textual commitments, embodied in the declaration of rights or, as in the US Constitution, in a separate bill of rights. Sometimes these rights remained unenumerated, and so we get the Ninth Amendment of the US Constitution which provides that “the enumeration … of certain rights, shall not be construed to deny or disparage others retained by the People.”108 And we also get what Anthony Sanders in a recent book has called “baby ninth amendments,”109 provisions in state constitutions which stand for the existence of unenumerated rights, those viewed mainly as emerging from natural rights.
The natural rights origins of the Bill of Rights in the US Constitution have been a topic of significant debate in the literature on American constitutional history.110 Moreover, it did emerge in controversies in the nineteenth century over the meaning of privileges or immunities of citizenship or due process under the Fourteenth Amendment.111 However, it remains largely of historical interest, as the federal courts have shown little attention to the actual discerning of these natural rights and their enforcement in cases in which these rights have been invoked. While it may be that natural rights thinking will have its moment, as an originalist majority on the Supreme Court looks to the natural rights underpinnings of certain protections, such as those found in the first two amendments in the Bill of Rights and also the Constitution’s guarantees of privileges and immunities and due process, it is unlikely that natural rights will be distinctly identified by the Court, sourced in the Ninth Amendment, and enforced against governmental action.
By contrast, natural rights thinking persists in state courts, and it is worthwhile to consider how the discovery and enforcement of these rights can be used to limit the actions of state and local governments under the police power. A recent case from Indiana is illustrative of these conflicts. In Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest,112 the Indiana Supreme Court considered constitutional challenges to the newly enacted abortion law, a law that proscribes abortion except in the case of rape, incest, or life or health risk to the mother. This was a law similar to those enacted in several other states, all passed in the wake of the 2022 Dobbs decision by the Supreme Court.113
The court considered, and ultimately rejected, the claim that this law interfered with the plaintiffs’ liberty rights as contained in Article I, Section I of the Indiana Constitution.114 Yet, in doing so, the court took great lengths to explain that these protections of inalienable rights of life, liberty, and happiness are “standard in state constitutions” and are “generally understood as constitutionalizing the social contract theory of the English political philosopher John Locke.”115 The police power functions, the court explains, in order to protect “peace, safety, and public good” (the quotation coming directly from Locke), and is the residuum of government power left after ensuring that their freedom not delegated to the government has been safeguarded.116 The court acknowledges that the document contains a number of specific rights guarantees.117 However, it sees these rights (hearkening to the original debates about the Bill of Rights among the framers) as just illustrative of the natural rights of every state citizen, rights which can be and often are unenumerated.118
The claims expressed by the high court in Indiana are unremarkable as a matter of constitutional history and ideology, at least when viewed at a decent level of generality. That the framers of state constitutions, like the federal constitution, were deeply and broadly influenced by natural rights thinking is well known by scholars, and is an important part of our understanding of the underpinnings of American constitutionalism.119 What is more notable, and potentially more problematic, is the willingness of the court to develop and implement a jurisprudence of constitutional rights in 2023 that rests on the view that there are Lockean natural rights that infuse contemporary constitutional law. Moreover, in the right case, they can help define the scope of the police power (insofar as they restrict this “general welfare” power to circumstances in which citizens’ rights have not been reserved in order to preserve their natural rights to life, liberty, and the pursue of happiness) and can thus do work in limiting the reach of government action. Yet, even the more robust versions of libertarian constitutional theory have been cautious about this view of constitutional rights and the role of the court in locating and enforcing unenumerated provisions.
Is there a place for Lockean natural rights thinking in a modern view of the police power? Mostly no, for the following reasons: First, the expressions of generalized interests in life, liberty, and happiness, while part of the Declaration of Independence’s compelling rhetoric, give us, both back then and now, little by way of a discernible constitutional rule or rubric to enforce rights as trumps against government action. Instead, and as the weight of scholarly commentary on both the Declaration and the expressions of the goals of constitutional government has indicated, these expressions of natural rights thinking are helpful in articulating the general ambitions of public welfare and governance. They are hortatory, but no less valuable for that. They can help us better understand, for example, the great objectives of due process in both its original and contemporary valence; it can likewise help frame the enduring inquiry into what we mean when we think of the welfare of We the People, at both the national and state level. But, like the preamble of the US Constitution, the grand articulated goals of, say, promoting the general welfare and securing the blessings of liberty, the content of life, liberty, and the pursuit of happiness cannot do the hard work of defining a sphere of private autonomy and freedom that is unreachable by government regulation. Indeed, if things were otherwise, the development of the police power in the early decades of our republic would have looked much different.
Second, and relatedly, the effort to define the police power by reference to the natural rights of citizens is more than a category error, but risks serious confusion in articulating the fundamental nature of a government power by reference to what natural rights have not been delegated to the government. The Indiana court’s opinion in the abortion case is confusing in this respect, positing the relationship between the natural rights of life, liberty, and happiness and the police power. The court proclaims:
There is symmetry here. While the State worries judicial enforcement of unenumerated rights may overreach, most of the State’s police powers are unenumerated too, so there should be equal concern that the State might view its own powers too generously. After all, our Constitution’s language in delegating authority to the State for promoting the “peace, safety, and well-being” of Hoosiers is no less capacious than its language guaranteeing Hoosiers’ rights to “life, liberty, and the pursuit of happiness.” Ind. Const. art. 1, § 1. So, Article 1, Section 1 strikes a balance: it allows the State broad authority to promote the peace, safety, and wellbeing of Hoosiers, but that authority goes no farther than reasonably necessary to advance the police power, and not at the expense of alienating what Hoosiers have commonly understood to be certain fundamental rights.120
With this supposed symmetry, the state government will constantly be challenged to show how their regulations under the police power advance the life, liberty, and happiness of its citizens. This becomes simultaneously the rationale for the use of the police power (framed further, in Lockean terms, as peace, safety, and well-being) and also the constraint on this power. The difficulty in deciding when rights function as trumps to power is, of course, a ubiquitous one, and not at all limited to the matter of Lockean natural rights thinking. However, bringing to the fore the enforceability of unenumerated and ill-defined natural rights provides, as here in the abortion case and other matters involving modern culture wars, a tactic made readily available to attack government regulation.
We equivocated above with the term “mostly” preceding “no.” Where natural rights thinking can assist in helping us to puzzle through the matter of mediating, even if not solving, the police power/rights conundrum is by better understanding how the articulating of rights against government was the product not of existential dread that the government would crush private initiative and interfere with the citizens’ right to be left alone,121 but, instead, was part of a robust view of the government’s obligation to look after the welfare of the community. Part of the end of essential liberty of citizens is the preservation of civil society.122 This is the standard wisdom of the social compact theory central to Lockean thinking.123 As the Indiana Supreme Court puts it: “[W]e left the state of nature and entered a civil society, giving up some of our natural rights in exchange for better protection of the remaining natural rights and for the enjoyment of new positive rights.”124 Such thinking, refracted of course through the evolution over 240 years and counting of what is distinctly American in our American constitutional tradition, can help us better understand the scope of governmental power under the police power and also its limits.
And yet ultimately this Lockean natural rights jurisprudence is unhelpful in settling matters involving abortion and other matters where the government’s prohibitory power is put alongside rights that are not only unenumerated but are, as the Court majority expressed at great length in its Dobbs decision, profoundly controversial and difficult to administer. This is not the place to investigate in detail whether and to what extent abortion can be limited under the police power, although flagging this issue as an important one for the state courts in the coming years is necessary as there will be frequent litigation involving state constitutions in the post-Dobbs era. Let us say at least that this controversy is not easily solved by resort to natural rights thinking flowing from Lockean social compact theory. If the Supreme Court’s mode of reasoning in Dobbs is any bellwether, then state courts are likely to immerse themselves in the now ascendant originalist methodology in order to determine how far state government can and cannot go in restricting abortion rights, and rights that bear on similar bodily autonomy issues (assisted suicide, access to contraception, etc).
The Puzzle of Positive Rights
A marked development in state constitutionalism in the twentieth century, often implemented by direct democracy and enabled by the relative ease of amendment of state constitutions, was creation of new rights that functioned as affirmative obligations on government. These so-called positive rights were distinctive in remarkable ways from what we have long understood as the nature and function of constitution rights under the US Constitution.125 Whereas these latter rights reflected protections of negative liberties, that is, edicts not to act, so as to violate individual freedom and liberty, positive rights insisted upon government acting to protect the welfare of individuals through access to services and resources.126 As Emily Zackin writes in her book on positive rights in American state constitutions: “The advocates of protective constitutional provisions consistently argued that, for a certain segment of the population, intrusive government and the risks such government posed to private property and individual liberty were not the most salient or urgent threats to the well-being of every citizen.”127
The content of these rights differ among the states, but common are rights to educational equity and quality, environmental protection, bail, and housing. The effective protection of these rights required government action in the form of findings that the present provision of these social goods was suboptimal and, in addition, the furnishing of adequate resources – if not by the court itself then indirectly by commands directed toward other state governmental institutions. The history of judicial treatment of positive rights is an interesting topic in its own right, and largely beyond the scope of this book.128 However, we should say a bit more about how the phenomenon of positive rights, looked at as a whole, implicates our thinking about the police power.
Positive rights present us with a real puzzle. On the one hand, the progressive ideal which has framed the analysis here and elsewhere about the origins and functions of the police power maintains that the responsibility to implement policies that would further the common good, by protecting health, safety, morals, and the general welfare is vested in the legislature, administrative agencies, and other officials with the authority to enact public policy. The state constitution sets out the objectives and the contents of the power, but the responsibility for the implementation of these goals lies outside the four corners of the constitution. What role would positive rights play in this picture other than as a sort of “and we mean business” principle?
On the other hand, we might see positive rights as the yin to the police power yang; that is, the description of general welfare ambitions in the language of rights encapsulates elements of the public welfare objectives that are incorporated into the wide mission of good governing under the police power. More practically, positive rights give citizens the ability to bring government actors before courts, so as to make sure that they are carrying out their duties under the police power. In this ambitious rendering, the police power is the basis of governmental action, the font of governmental authority; whereas positive rights reflect some of the most central foundations of its obligation. Both are sources of real law; both are judicially enforceable.
A close look at the role and function of the police power suggests that the solution to this puzzle lies somewhere in between these two competing views. The reader might be disappointed in the brute pragmatism of this resolution, but hopefully she will be persuaded that such an accommodation to these competing views reflects a fruitful way of thinking about what is a truly difficult issue, at the level both of history and of tactics.
Positive rights are in and of themselves principally hortatory, at least when measured by the usual yardstick of “How can I get affirmative relief in court?” Seldom have courts used these rights to invalidate governmental actions as inconsistent with the social welfare requirements embedded in the right. “Seldom” does not mean “never,” however, and it is principally in the area of educational equity and finance that we see an elaborate and largely sustained effort by state courts to implement a right to educational quality.129 This has been a highly complex area, and it is hard to measure the overall success of the endeavor without breaking the story in the state-specific stories.130
The right to education is rightly viewed as an example – maybe the most compelling example – of a judicially enforceable positive right. However, it relates to the larger solar system of the police power in a more attenuated way. A successful educational system is of course part of a well-functioning society, and so there is an obvious and important connection between educational quality and the general welfare. Nonetheless, the way that state courts have understood, broadly speaking, their charge to enforce the right to education is a responsibility of government to provide educational equity through targeted fiscal strategies. It is not the aspiration to have the best possible schools within a county or a state, however worthy that is as an objective of our state and local government. Rather, the legal construct is one of equity in finance. The overarching goal is to ensure that individuals in district A are being treated in no essential way different than those in district B. Quality differentials, at least as best can be measured by courts, are the problem; and disparities in finance, which will predictably be reflected in test scores and other relatively objective measures, can be examined and adjudicated, with the aim of fixing these disparities through judicial edicts and some supervision of legislative and administrative action.
Policy areas that can be seen as more at the core of the police power, for example, adequate public health, safety from harmful behavior (crime) or substances (drugs), or some general deterioration in the conditions or urban life, are rarely the subject of positive rights. To be sure, some talk eloquently about the right to adequate health care;131 others will talk about the freedom of movement, enabled only by the provision of various services to aid what is called “instrastate travel.”132 But these have not been translated into positive rights, and so do not really connect coherently to the police power.
Lest we abandon entirely the use and utility of positive rights in our quest to connect rights to the police power, we should think creatively about how the positive rights experiment does help us shape a vision of government as a matrix of institutions that come along with a social obligation. The fact of a police power, and nested in a wide theory of good governing that has permeated this book, suggests that the government has a special obligation under our state constitutional structure to act to promote the “people’s welfare.” Obligations to govern go beyond the minimalist state and also beyond the sic utere idea that government steps in to redress private harm and certain forms of social disorder that make up public law in a narrow sense. The police power is illustrative of these obligations. Likewise, the inclusion of positive rights in state constitutions are emblematic of this same vision of the government as a progressive force for protection of the public interest and facilitator of the social good. We can see positive rights as expressing, at the very least, a symbolic form of this commitment and, critically, a form that is hard-wired into the state constitution, and not merely floating freely as an academic idea. Positive rights, as Zackin reminds us in her important study, were the result of distinct social movements;133 we saw in the 1960s and 1970s in particular (and even as recently as the past decade with regard to the issue of housing and homelessness) the mobilization of citizens to push for progressive social policy and to use the mechanisms of constitutional change to augur this development. Even with mixed success at the level of judicial intervention the fact of this citizen movement has become an important element of our social change and of the use of constitutional reform to implement such change. Positive rights are a novel mechanism for such change, and can be viewed in partnership with the ancient edifice of the police power as a conventional and vitally important element of ambitious social policy in the service of the common good.
Defining and Contesting Rights in a Good Governing Framework
Jud Campbell, who we have discussed previously in this chapter in connection with insights about free speech and natural rights thinking, provides a useful way of thinking about the transformation in rights thinking more generally, one that bears on our discussion of rights and the police power. He explains:
Until the mid-twentieth century, fundamental rights were bimodal. First, courts employed an ostensibly deferential ends-means test to ensure that any legislation restricting natural rights was within the police powers – that is, that the legislature was aiming to promote the public good. These “rights” were not antiregulatory at all, and they did not exclude particular reasons for restricting rights, so long as those reasons were public regarding. Second, courts applied a set of more determinate limits on legislative power that included fundamental common-law rules. In this latter sense, rights were “trumps.” Natural rights and common-law rights were thus the twin pillars of American rights jurisprudence.134
In this account, we could glean much from our examination of the proper scope of governance under state constitutions and the US constitution regarding the meaning of individual rights. It oversimplifies this just a bit to say that the rights at issue were subservient to the government’s overall interest in protecting and promoting the general welfare. However, this conception of rights explains well the courts’ simultaneous regard for private property as a fundamental constitutional value and its willingness to accept ambitious governmental regulation that would limit the discretion owners had over their property’s use where such limits were necessary to protect the common welfare. Rights are adapted to the circumstances of constitutional governance rather than the other way around.
But time brought change. Campbell writes:
The modern notion of constitutional rights, by contrast, reflects a transmogrified synthesis of these earlier ideas. In terms of scope, modern rights privilege certain realms of freedom, like communicative activity, rather than specific, historically defined limits on governmental power or general protection for liberty. Nor do modern rights carry the same implications for governmental authority…. The very idea of rights, then, limits the reasons why the government can restrict them.135
He is examining mostly the free speech protections of the First Amendment to illustrate this point, but the lessons could be applied as well to property rights and other economic liberties. This transmogrification requires the government to tread with much more care when it made a choice that is ultimately redistributive, that is, sacrifices individual dominion over one’s property to the public interest. Takings law, for example, makes this caution explicit, imposing a liability rule that ensures that the value of the restriction will be capitalized into the decision to restrict the property owner’s rights. In the regular instance of regulation over private property under the police power, however, the mechanism by which the caution is imposed on governmental choice is a strong enforcement of an individual right. We see this also with respect to the Second Amendment. We might have imagined that the “right to keep and bear arms” was part of an overarching goal of maintain public safety. But in the hands of the current Court, it is an individual right that, in Campbell’s words, “limits the reasons why the government can restrict them.” In so doing, it manages the efface the very rationale for the right.
The transition to this modern view of rights has two major implications for our understanding of the police power. First, the preference for certain individual freedoms means that the government’s commitment to public safety, health, and morals will need to be calibrated so that the realm of freedom in these highly protected areas is not too disturbed. In the free speech context, this has important implications, as we have discussed, for morals regulation. Communicative freedom has a privileged place and the government will face a high burden when it restricts such freedom and a nearly impossibly high burden when it does so in any non-neutral way. Gun rights seem also quite privileged and, to the chagrin of a solid majority of Americans, restrictions that are designed to keep us safe and to protect the public from gun violence will be viewed skeptically, with the government carrying a rather high burden in showing that such restrictions are warranted. Second, not only will rights outside of this preferred contexts emerge as trumps restricting government action (leaving here to one side regulatory takings as a somewhat special case), but they will also not be viewed within a framework which otherwise might help us figure out how best to balance governance strategies that are public regarding and motivated by police power’s underlying logic and purpose with the concern and interests of individuals who want to be assured that their property and liberty will be protected in a constitutional republic that values freedom and individual choice.
We will see as we turn to further considerations regarding the interpretation of the police power in the next chapter that there are other mechanisms available to courts in navigating these difficult issues and resolving conflicts. What this chapter has illuminated is the way in which the evolving jurisprudence of rights, in both US and state constitutional law interfaces with the police power and the quest for good governing where rights might come into conflict.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.
In 2020, a group of women in Georgia, organized under the name Reaching our Sisters Everywhere (“ROSE”) filed a complaint against the Secretary of State, challenging the constitutionality of the Georgia Lactation Consultant Practice Act. This Act limited strictly the provision of lactation services to providers who had had obtained an appropriate license. These licenses were available only to those who were members of the International Board of Certified Lactation Consultants. This regulation, ROSE argued, prohibited them from providing their services to needy women. They argued that the statute was irrational, lacking in any reasonableness connection to public health, safety, and welfare.
This case came to the Georgia Supreme Court beginning in 2020, and was finally decided in 2023. If it were considered under the rubric of Supreme Court of the US precedent, it would surely have failed. Alleging a due process or equal protection claim that this exercise of the police power was unjustified by any plausible public health rationale would have failed under a web of decisions, arguably going back to Munn and Mugler in the nineteenth century, running up through Nebbia v. New York,1 an important New Deal era case that illustrates the Court’s retreat from Lochner era jurisprudence, and, most definitely, by the Supreme Court’s decision in Williamson v. Lee Optical in 1955.2 In that case, a unanimous Court upheld a regulation that limited, for reasons not at all apparent from the legislative record or statutory text, the provision of certain eyeglass services to registered optometrists and ophthalmologists. As in the Georgia case Raffensberger v. Jackson,3 the plaintiffs in Lee Optical attacked this law as lacking any reasonable basis and as reflecting an arbitrary distinction among service providers. The Court, in an opinion by Justice Douglas, made relatively quick work with this argument, insisting that, even if the law was stupid, “it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”4 While the statute is not immune from review in any formal sense, Justice Douglas made clear that the standard of review in these matters of economic regulation is highly deferential. He wrote: “[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”5 Douglas makes a rather half-hearted effort to deal with the forceful argument that the statute was palpably ineffective at curing a problem that, in and of itself, elided description, and then concludes that “[t]he prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here.”6
Lee Optical illustrated the “apogee of deference,” as historian Ted White describes it.7 It was reinforced in later cases and, indeed, remains rock solid as a precedent. It is cited regularly by the Court in instances in which occupational licensing and other economic liberty litigation is brought in federal court. And where justices dissented in important substantive due process claims involving individual liberties and privacy, including Griswold, Roe, and Casey, Lee Optical is notable again as an illustration of why Lochner’s reasoning fails and why the only question, says Justice Rehnquist in his Roe dissent, is whether the law being challenged bears “a rational relation to a valid state objective.”8
The Georgia court in Raffensberger was unmoved by the thread of Supreme Court decisions since the Court retreated in the New Deal from its close interrogation of economic liberty-impacting regulations. Whereas these cases reflected a “nearly toothless deferential posture the Court has assumed where stated regulated business and industrial conditions,”9 the supreme court of Georgia’s approach was anything but. The language of the due process clause of the Georgia Constitution was essentially identical to that in the Fifth Amendment of the US Constitution. And yet Georgia has “‘long recognized’ that this provision ‘entitled Georgians to pursue a lawful occupation of their choosing free from unreasonable government interference’.”10 This understanding of due process (and, the court noted in an important footnote, also equal protection under its constitution) has been unbroken from the beginning of its constitutional law, through constitutional reform, and up to the present day.
The question begged by this broad account of what due process and equal protection ensures by way of occupational freedom is what deference is owed to the judgment of the legislature that certain regulations are proper under the police power. The key statement of the Georgia court is this: “[U]nless an act restricting the ordinary occupations of life can be said to bear some reasonable relation to one or more of these general objects of the police power, it is repugnant to constitutional guarantees and void.”11 The discrimination that matters in occupational restrictions (and presumably any other regulation that draws line between individuals able to engage in certain business activities on certain conditions) is not necessarily “invidious discrimination along the lines of modern equal protection analysis.”12 Rather, the courts should be concerned with “the imposition of arbitrary (i.e., not reasonably necessary) burdens on the ability to pursue a lawful occupation.”13 Thus the court in one fell swoop distances itself from any conceivable kind of rational basis review, review which would eschew any consideration of the means-end fit or the evidentiary basis of this regulation and also makes clear that the state will need to provide some reasonable justification (which they equate here with non-arbitrary) for this particular regulatory strategy.14
In one sense, Raffensberger’s approach hearkens back to Lochner. In another sense, the court conjures a standard of review that is internalist and purposive. It is internalist in that it looks to the rationale and method of regulation – what Hamilton calls the inquiry into the “commission under which it is exercised” – to determine its constitutionality. It is purposive in its further inquiry into whether the statute’s means are tied adequately to its ends. Unlike in Lochner, the court in Raffensberger does not dwell excessively on the applicable liberty interest. Presumably the only liberty interest at stake here is the right to pursue an occupation or else the right to furnish services to individuals in need. These feel like manufactured liberty interests, even if we subscribe to some decent amount of freedom of action. Instead, the question at the center is whether this law makes the regulation makes any good sense, in light of the government’s stated aim of promoting public health and safety. The court concludes that there is insufficient evidence that this law is “reasonably necessary to advance a specific health, safety, or welfare concern.”15
*
This detailed consideration of a recent state case illustrates the issues we explore in more depth in this chapter, drawing upon some of the more historical dimensions of constitutional review in Part I and the more conceptual and doctrinal discussion in the previous chapter on the role of rights review in police power cases. Rights claims will continue to loom large, in both the federal and state context, in disputes over the government’s police power regulations. Yet, as we discussed in the previous chapter, this will mostly be true of rights claims brought under those enumerated rights that have long enjoyed a preferred position. Relatedly, the protections will be most salient for individuals who are part of a suspect class, therefore raising the antennae of courts worried about equality under the law. By contrast, judicial review of regulations that impact individuals’ property and liberty rights, and that are not focused on whether adequate procedures have been given under the Due Process clause or whether the actions are a regulatory taking, have been minimal, at least since the retreat from economic liberties review in the period of Lochner and, albeit unsteadily, in the first half of the century
What are the limits that grow out of the police power itself, that is, separate from constitutional rights as trumps? Constitutional law is not unfamiliar with internal constraints. For example, the question of whether Congress can exercise certain powers under the rubric of the Commerce Clause is an interrogation into the meaning of this power-granting provision. The puzzle is even more puzzling, to be sure, in the state constitutional context, because here we embrace the principle that state constitutions are documents of limit and so the legislature is viewed as having plenary power. However, this power must be defined, and its outer boundaries established. Plenary power is not the power to act without any constraints. The focus in this chapter is on the configuration of these constraints growing out of the police power itself. To put the point in a homely way: Rights are part of the perspective of we the people looking for outside limits on government; structure looks from an internal vantage point outward.
Reasonableness
A plethora of police power cases stretching back to the early nineteenth century and continuing through Raffensberger and other cases involving governmental regulations of various shapes and sizes under the police power use the term “reasonableness,” standing alone under the spotlight or connected to other words nearby, to describe what is necessary to uphold a state law under the constitution. However we might critique “reasonableness” as a criteria too opaque for meaningful judicial review, the prominence of reasonableness in constitutional review is understandable. Under a vastly diverse range of theoretical views about the proper role of government and scope of government action, some deeply philosophical, others more pragmatic, we nearly always come back to the question: Has the government acted in a way that we regard as reasonable?16
That said, resort to the generic and ultimately inscrutable notion of reasonableness standing alone is ultimately a fool’s errand. There is little content to this standard other than that imputed by other considerations and elements, as we will investigate more fully below.17 Viewed practically, reasonableness might be little more than a residual category, something that captures in an omnibus rhetorical way the notion that laws ought not be stupid; they ought to be based upon a sensible and even sufficiently rigorous analysis of the problem to be solved and the ways in which this law will tackle this problem. Unreasonableness in this account is little more than a trope, invoked as a synonym for a bad law. That this is a problematic basis for judicial intervention under our constitutions is revealed in a vast body of constitutional scholarship, perhaps most cogently by James Bradley Thayer in his exhortation that courts review legislative acts for only clear error. Thayer writes: “[T]he constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.”18 But even judges willing to intervene in proper cases to either narrow the scope of ill-configured legislation or, in extreme instances, to invalidate these laws as exceeding the bounds of what the government ought to able to do under its police powers have found the residuum of unreasonableness to be part of a robust test.
But there is a deeper concern than just with opacity and fear of over- or underinclusive review. Reasonableness as an account decoupled from other, sharper standards of sorting out proper from improper legislative action can easily slide into a judicial assessment of the merits of a particular law. Investigating the rationale of a law and the connection between its ends and means – akin to what the Court has long used in strict scrutiny review of legislation in fundamental rights cases – inevitably substitutes legislative for judicial judgment. This is a feature, not a bug, of such review. Gerald Gunther’s fabled comment that strict scrutiny is strict in theory but fatal in fact is best understood as revealing not only the consequence of such interventionist review, but the purpose behind such scrutiny.19 And this purpose could and should be implemented by an informed cynicism of the reason for the law (“Is the state interest compelling?” “Is this the least restrictive means?”), the strategy (“Is this law narrowly tailored”), and a consideration of alternatives. The thumb, in such strict scrutiny review, is squarely on the scale in favor of protecting individual rights against governmental overreach. By contrast, the police power has long accepted a wide ambit of governmental power and also an acceptance that the government knows best how to effectively govern. Intervening to determine whether the government’s approach is or is not reasonable risks collapsing what is essentially strict scrutiny review into a shapeless, but ambiently utilitarian, approach to reviewing the form and strategy of legislation.
This is not to say that judges have not proffered approaches to judicial review that aim to assist in the inquiry as to whether the government has exercised its wide regulatory discretion to impede upon individuals’ liberty. Even where this liberty cannot be sourced in any particular state or federal constitutional provision, the Court has undertaken, albeit in a somewhat piecemeal fashion, the task of interrogating laws that interfere with privacy and intimate relations. For example, in his famous dissent in Poe v. Ullman, Justice Harlan looks skeptically at the anti-contraception law enacted by the state legislature, insisting that “[t]hough the State has argued the constitutional permissibility of the moral judgment underlying this statute, neither its brief, nor its argument, nor anything in any of the opinions of its highest court in these or other cases even remotely suggests a justification for the obnoxiously intrusive means it has chosen to effectuate that policy.”20 Moreover, it is the “utter novelty” of this law that warrants his skepticism and ultimately, he argues, dooms this law as in excess of the police power and in violation of the substantive due process rights of liberty.21
Although not embracing the substantive due process formulation, Justice David Souter’s concurring opinion in the 1997 assisted-suicide case Washington v. Glucksburg22 also illustrates one approach to evaluating legislative reasonableness. He says there that “[i]t is only when the legislation’s justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way.”23 Stripped to its essence, this flips the script on the traditional deference accorded to legislation except when it interferes with fundamental rights. It asks, instead, is this legislation arbitrary? Pointless? The burden is on the legislature to justify its policy, not only the rights-holder to show how a policy about which the court stands agnostic is in conflict with their liberty (or other substantive) rights.
Harlan in Poe and Souter in Glucksburg attract inordinate attention by scholars who would urge on courts a more searching review, more latitude to call out truly dumb laws for opprobrium and possible invalidation. Nonetheless, the spotlight on these and similar opinions is at least interesting for a focus on a road not travelled. Certainly there has not been any meaningful review of economic regulations under federal constitutional law in many decades. And the treatment of preferred constitutional rights, as we discussed in the previous chapter, has long followed the architecture of tiered review. And so we can ultimately be less alarmist (if we fear more muscular scrutiny) or less hopeful (if we welcome it) about the courts embrace of so-called reasonableness review, the kind of review illustrated by the Georgia case that began this chapter. For in the lion’s share of the cases, including contemporary ones, what the courts look to is not an open-ended consideration of statutory reasonableness, but other factors that raise doubts about whether the police power was truly being used for good governing, for furthering objectives central to state constitutional purpose.
Arbitrariness
In Raffenberger, the Georgia high court used “reasonably necessary” as a syllogism for “arbitrary.” The main apparent concern here was that the state enacted a law that drew a line between acceptable and unacceptable conduct – or, more precisely here, acceptable versus unacceptable providers of services – that could not be justified as anything other than arbitrary. For example, if the principal concern here was with competency and public safety, they might have established comprehensive quality control guidelines, perhaps with a test. Putative plaintiffs might still quarrel with the heavy-handedness of such quality control. They might challenge the law alleging that such laws were too strict in design, effectively keeping well-intentioned folks locked out of providing important services. But notice that this is a different kind of objection, in that it does not claim that the legislature is acting arbitrarily, but just that it is acting unreasonably, if based upon some assessment of whether such (to them) severe limitations are justified. After all, if the court must interrogate each standard-setting regulation, they are interfering deeply with the legislature’s policymaking discretion. However, the court does concern itself with claims that the drawing of lines through police power regulations is utterly senseless, and therefore arbitrary.
The law’s concern with arbitrariness is ubiquitous. Even a minimal examination of the basis of a state law might require the lawmakers to explain why they drew lines that included some and excluded others from the law’s reach, whether by way of protection or of prohibition. This explanation might come in the form of a “whereas” clause, as are typical in both old and modern legislative acts; it might come in the form of legislative history; or it might require some judicial creativity in assessing legislative purpose. Interrogating legislation to determine whether or not it is arbitrary has been a common, if somewhat episodic, element of constitutional review in both federal and state courts for generations. For example, the Cleburne Living Center case,24 which we described briefly in a previous chapter, is a relatively contemporary instance of the Court invalidating a law that did not, as it viewed it, infringe on fundamental rights or impact a suspect (or even a quasi-suspect) class. Rather, it was the sheer arbitrariness of the law’s impact that warranted invalidation. “[T]his record does not clarify how,” wrote Justice White for the Court, “the characteristics of the intended occupants of the Featherston home rationally justify denying to those occupants what would be permitted to groups occupying the same site for different purposes.”25 This arbitrariness gave rise to an uncontested belief that the permit requirement in Cleburne rests only “on an irrational prejudice against the mentally retarded, including those who would occupy the Featherston facility and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law.”26
Arbitrariness as a rubric for review can be sensibly deployed in a range of cases. However, it carries with it some risks of uncertainty. When used in the administrative law context, for example, the basic thrust of arbitrariness review is procedural, that is, it smokes out real reasons for the government acting, reasons that can be evaluated on the basis of a record of some sort to make sure that there are, at the very least, not capricious, nor are they rationally indefensible when measured by what the statute does or does not require.
This approach has been described in modern federal administrative law as “hard look review.”27 Efforts to go beyond proceduralist review, to something more searching in the sense that it assesses the overall merits of the agency’s decision is not unprecedented. Colin Diver long ago called this strategy “synoptic review,”28 and Martin Shapiro has commented informatively on the tendency of the federal courts in the latter decades of the twentieth century to look at the overall reasonableness of agency performance, this at the risk of substituting the courts’ judgment for the judgment of Congress.29 Still, this approach has been heavily criticized as beyond the scope of what courts should do in reviewing agency action.30 In any event, it is important to understand that administrative law review is not free-floating; its standards are forged through the deep analysis of the agency’s enabling law. Review that is trans-statutory (itself an awkward locution given the nature of administrative governance) is mainly directed to ensuring that the agency is providing reasons adequate to warrant the use of the awesome power of the government, use outside the four corners of the structure of Articles I–III of the Constitution.31
Bringing the subject back to constitutional review of police power regulations, we see the same essential logic at work here. Even without the principle of legislative supremacy, we can expect that the legislature has a wide lane of discretion to choose its preferred regulatory ends and means. With it, the tilt is toward a more limited judicial role in assessing the legislature’s regulatory choices. Constitutional review must necessarily assess what is or is not merely arbitrary by resort to what obligations the constitution imposes on legislative or administrative action. And so we are back squarely to the question of how much demand the text, structure, and (especially) purpose of the police power imposes on the government to act rationally and non-arbitrarily.
Arbitrariness review absorbs the assumption that random decisions by government are intrinsically unacceptable. But this view may not be so clear in all cases. Suppose that the government enacts a law that forgives student loan debt up to an amount of $25,000 per person, regardless of the amount of individual debt. This is a policy intended to address hardship, but of course it does so only in a partial way. Some former students carry $250,000 worth of debt, and so this relief is relatively modest. Some carry $25,000, but have sufficient wealth that the burden was consequential. And all this is not to mention, as we hear today in arguments over student loan forgiveness, that the line is drawn between individuals with student debt and others who did not take out student loans, for whatever reason, but still face crushing debt. Suffice it to say that there are many dimensions upon which such a law makes arbitrary distinctions. This does not necessarily mean that the law is stupid or that partial help is unwarranted, but that there is not a rationale that can meet any strict standard of assessing “why x but not y?” Police power regulations of this type are common; indeed, they are especially common in a world in which states can enact laws for what we have called salus populi reasons, and not merely as a matter of sic utere. The general welfare has not been understood to mean that individuals are equal beneficiaries of equal sufferers from legislative or administrative acts.
Arbitrariness review is a conventional part of our constitutional review toolkit, especially so far as state constitutional review of police power regulations are concerned. But it carries its pitfalls. It can be overinclusive, as where legislatures drawn lines for what are entirely pragmatic reasons. It can also be underinclusive in that laws that are neither arbitrary nor targeted on particular individuals or groups for discernible reasons might raise constitutional concerns not addressable by “arbitrariness” review. Nonetheless, courts have persisted in their inquiries into the arbitrariness of legislative action under the police power.
Animus
Concern with laws that draw lines in ways that reveal “invidious discrimination” or what the Court in United States Dep’t of Agriculture v. Moreno memorably called “a bare … desire to harm a politically unpopular group,”32 has been longstanding. We can see as far back as Yick Wo the Court’s concern with baseless discrimination and animus in legislation.33 Justice Harlan’s famous dissent in Plessy,34 which we discussed in Chapter 3, illustrates well the dismay with laws that convey to those denied protection or facing burdens a badge of inferiority. What the past few decades have revealed is a greater skepticism of legislative action that reveals animus in just this way described.
Even so, animus has seldom been used in an ungrounded way, but rather has been packaged usually with strict scrutiny of laws that impose burdens on members of protected classes under classic equal protection doctrine.35 Evidence of animus is used to support a claim of invidious discrimination, not to define what is in fact invidious. In more modern parlance, animus is what fuels efforts to subordinate members of disfavored groups, to enact laws and regulations that segregate, sort, and ultimately humiliate individuals on the basis of what are typically immutable characteristics that are anathema to those in power.36 The law sensibly (even if inadequately) imposes constitutional barriers, flowing from both the US Constitution and state constitutions, to such acts of subordination.37
A more recent phenomenon, still emerging and so understandably more difficult to frame as a distinct element of modern constitutional law, is the resort to animus as the main basis for invalidation of legislation under either the equal protection, due process clauses, or both. We have already discussed two of the exemplar cases of this modern development, Romer v. Evans and Lawrence v. Texas. Another example of this use of animus in this way is the Court’s 2018 decision in Masterpiece Cakeshop v. Colorado.38 In that case, the Court considered a constitutional challenge under the Free Exercise clause to a decision of the Colorado Civil Rights Commission objecting to the bakery owners refusal to make a cake for a same-sex wedding couple. Accepting that the Commission may have been acting consistent with Colorado’s anti-discrimination laws, but scrupulously avoiding taking the step of invalidating those laws as violative of the First Amendment, Justice Kennedy rests his opinion for the Court ruling in favor of the bakery on his view that Commission acted with unacceptable animus in their evaluation of their claim. “The Civil Rights Commission’s treatment of his case,” Kennedy writes, “has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”39 It is hard to excavate from Justice Kennedy’s opinion a clear through line from earlier cases such as Romer and Lawrence, and so the exact role played by animus in this inquiry into unacceptable discrimination under the First Amendment remains somewhat inscrutable. In any event, Masterpiece Cakeshop must be understood in the special context of the Court’s religious liberty jurisprudence and the focus on government neutrality in matters religious, this a sine qua non for the evaluation of constitutional claims under this clause of the First Amendment.40 However, the broader point – that government decisions evincing animus raise red flags – is illustrated in this recent opinion, here by the author of Romer and Lawrence.
Sticking for now with the development of animus as a strong constitutional principle in Supreme Court jurisprudence, it is important to highlight three cautionary notes: First, the conundrum of assessing legislative purpose and motivation does not evaporate even as courts focus studied attention on the reasons for discriminatory laws. In evaluating skeptically the Court’s rationale for invalidating the Colorado civil rights commission’s decision in Masterpiece Cake Shop, Leslie Kendrick and Micah Schwartzman summarize the cluster of familiar and deeply-theorized arguments against the judicial assessment of motivation and intent in legislative (and, as here, administrative) decision-making.41 These arguments range from the ontological claim that intent does not exist in ways that are tractable for judicial decision-making and, further, even if it did, we could not draw conclusions from the aggregated intent of multiple decision-makers, to the epistemic objection that “[c]ourts may not be able to know with any reliability what reasons motivated a particular action or decision.”42 Perhaps most vexing, for the purposes of assessing whether animus can do the work of separating and sorting constitutional illegitimate from legitimate bases, is the objection that a law can be justifiable under the conventional standards of constitutional evaluation, even if ill-motivated. As Kendrick and Schwartzman note, “[w]hether an action is permissible, or allowed, turns on whether that action is justified, not on whether the officials who carried it out believed it was justified … [W]hat matters is whether there are sufficient reasons for an action and not whether officials were motivated by those reasons.”43
Second, these arguments against animus-based reasoning have been articulated by justices in other opinions. In his dissents in Romer and Lawrence, Justice Scalia exclaimed that unacceptable animus is extremely difficult to define, despite our intuition that it permeates certain legislative decisions. In Romer in particular, Scalia explains that one of the difficulties with relying on animus as a basis of constitutionally relevant opprobrium is that it does not acknowledge that there are kinds of animus that we permit legislatures to express, and that we indeed want them to do so. Scalia mentions the example of polygamy and shows unequivocally that Congress’s animus, undoubtedly reflecting public opinion of then and now, was directed at the state of Utah, which had refused to outlaw polygamy in the state. As a result, Utah’s application for admission to the union was long postponed until they were willing to formally renounce plural marriage. Animus toward individuals whose conduct has disqualified them from government benefits is common, whether we are considering felon disenfranchisement, sexual predator registries, or other such laws. How do we distinguish between acceptable and unacceptable animus in assessing laws? This inquiry, of course, parallels the difficulties we have already considered in connection with the evolution of morals regulation under the police power.
From a big picture perspective, animus can be seen as motivating most of the kinds of morals legislation we discussed in Chapter 7. We criminalize, for example, gambling and prostitution principally because of the animus we hold against these activities. More precisely, we have animus toward individuals who engage in these activities. While we might climb off that moralizing precipice saying (silently) something like “love the sinner, but hate the sin,” the essential point remains: It is our antipathy toward certain activities that motivates our decision to proscribe one act while permitting another.
More recently, the Court has expressed some unease about the use of animus as a criterion for constitutional review. In the case of Trump v. Hawaii,44 for example, the Court heard the objection that the ban on immigration of individuals from certain Muslim majority countries was the product of the Trump administration’s antipathy toward these groups, rather than a legitimate concern with national security. Over Justice Sotomayor’s impassioned dissent in which she argued that this evidence of animus ought to be relevant to the Court’s analysis of the constitutional claim,45 the Court declined to consider evidence of animus and prejudice in evaluating the legality of a ban on immigration of individuals from certain Muslim countries. “[T]he issue before us,” writes Chief Justice Roberts for the Court, “is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”46
Despite some of these criticisms, animus can furnish a critical part of the inquiry of government strategy under the police power. Returning to the overarching objective that motivates this book’s normative argument, commitment to good governing under the state constitution surely requires that the government treat individuals in its charge fairly and without prejudice. Animus directed at a group based upon any characteristics, but certainly those characteristics that are immutable and not the product of behavior or conduct that we have a vested interest in restricting in order to reduce public harm, should never be a reason for imposing a regulation or denying a public benefit. In reality, however, we know that animus is ubiquitous. Indeed, it may well be on the rise in our polarized politics. We further know that personal animus can and does aggregate itself into a collective force that influences politics and generates legislation. And it may behoove federal and state courts on whose shoulders the responsibility rests to resolve conflicts over the scope of the police power to investigate laws for evidence of animus in both their origins and their implementation. Even if animus does not ultimately furnish the essential basis for invaliding the law, it can illuminate the legislature’s purpose and objective, potentially relevant considerations in both constitutional and statutory interpretation contexts.
To make this discussion somewhat less abstract, it is important to see the troubling rise in efforts at the state and occasionally local levels to translate animus toward disfavored groups into state laws. We can think here especially of the plethora of anti-LGBTQ+ and, more particularly, anti-trans bills that have emerged at the state level.47 These bills may or may not raise issues under the US Constitution. Despite watershed decisions such as Romer, Lawrence, Obergefell v. Hodges,48 United States v. Windsor,49 and Bostock v. Clayton County,50 the jury is still out on the lengths to which the current Court is likely to go to protect LGBTQ+ rights against interference. Now and in the next several years, it is likely that the main battleground for the fight over such rights will be in state courts adjudicating state constitutional claims.51 In these fights, the consideration of animus may well become important. More than in the past, courts should be prepared to look at the expressions in public of legislators and executive officials to put some contextual reality into legislative acts and regulations that can often by styled as neutral and acts of equality rather than revelations of base discrimination and prejudice. To be sure, advancing evidence of animus does not mean that these cases will decide themselves. Looking fairly at the other side of the coin, advocates of various anti-trans bills have simultaneously revealed ignorance and an absence of empathy while at the same time advancing arguments that what they are really concerned about is the welfare of families, of enabling families to make choices without the interference of outside actors (such as health professionals) and guarding against decisions by minors that can have permanent consequences. These are difficult issues, bound up seemingly inextricably with the modern culture wars, and, like other such difficult issues, they are likely to end up before judges in litigation. But the narrow but important part here is that a full evaluation of the legality of these controversial actions under the modern police power, a power that has long given wide deference to public authorities acting in the name of public health, safety, and morals, should consider the ways in which prejudice and animus have factored into choices about how best to advance the public welfare and how to assess the rights of free individuals to pursue their own choices, especially in the most profoundly intimate matters.52
Self-Dealing
A foundational principle undergirding the police power is that the legislature, through the use of its awesome plenary power, will act responsibly to further the public interest. This principle goes back to the origins of state constitutions, persists through early court decisions involving the power, and has also been hard-wired in state constitutions through such devices as the public purpose requirement and the prohibition against special legislation. In light of this principle, courts are occasionally receptive to claims that the legislature is acting for private-regarding, rather than public-regarding reasons. Under this logic, where there is critical evidence that regulatory initiatives reveal what Cass Sunstein famously called “naked preferences,”53 actions taken under the police power should be struck down. The fundamental idea is that there is a baseline of proper governmental action under the relevant constitutional commands, a baseline that emphasizes that whatever the legislative output, the consideration of policy should be carried out with public-regarding aims in minds, not their own self-interest.
The notion of a self-dealing legislature is a complicated one, however.54 Legislators are appropriately response to constituent demands, as part of their democratic commitments. These demands are manifest in unequal ways, and this has always been the case. The structure of the legislative process reveals many elements, both features and bugs, that will push legislation in directions that meet the needs and wants of interest groups. Clinging to a positive view of the legislature as eliding these elements and always putting the public interest first is naïve. Similarly unrealistic is a rigid normative commitment to a faction-free legislature. Therefore, courts will always be faced with the difficult challenge of sorting between laws that are adequately public-regarding – good enough for government work, we might say – and those that reveal considerations that are so tangibly private-regarding that the requirements embedded in the police power are not met.55
Courts have faced this ubiquitous challenge in the US constitutional law context. Lacking an explicit public purpose requirement or special legislation prohibition, courts have looked episodically at the propriety of legislation under the doctrines of equal protection and due process. Cases are infrequent in which the Supreme Court has invalidated a piece of legislation on the grounds that a plausible public purpose is lacking. That said, there are cases, even some landmark ones, where the gravamen of the problem is that the legislature, Congress or in the states, has configured processes that are rather manifestly private-regarding.
Perhaps the best examples are found in the Court’s election law jurisprudence. In these areas, thinking of the Court’s reapportionment jurisprudence beginning with Baker v. Carr 56 and also race-relevant cases such as Gomillion v. Lightfoot,57 the Court has acted where the justices have been skeptical of the underlying reasons for certain electoral structures. In Gomillion, even a pillar of judicial restraint as was Justice Frankfurter notes that this “was not an ordinary geographic redistricting measure, even within familiar abuses of gerrymandering.”58 “If these allegations, upon a trial, remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.”59 Calls for intervention have been persistent in the scholarly literature for many years. Richard Pildes and Sam Issacharoff have written about the risks of partisan lockups in the political process and the prospect of fruitful judicial intervention;60 other scholars have looked at various legislative and electoral rules and have opined that there are available doctrinal structures to temper these power instantiating policies.61 Indeed, one of our most important normative paradigms in all of constitutional law – John Hart Ely’s democracy-reinforcing theory of judicial review62 – is concerned at an elemental level with self-dealing (among other tangible political process problems).
In the state constitutional law context, we have available not only the same supply of doctrinal hooks to attach skepticism about legislative self-dealing, both from federal constitutional rules including due process and equal protection, but also state constitutional rules, which are least as capacious in design and function for these purposes. Moreover, we have the logic of the police power itself. In other words, state courts can look at the police power under their own constitutions and, consistent with decades of precedent that have adverted to “reasonableness” as a basis of serious scrutiny, interrogate state laws to determine whether they reveal nakedly private interest and therefore do not honestly attend to the public’s interest in health, safety, morals, or furthering of the general welfare. Such scrutiny, to be sure, may to eradicate the mechanisms of self-interest that underlie the legislature’s behavior. Concerns have been raised, especially by scholars working within the traditions of public choice theory, that legislatures are essentially transmission belts for interest group influences.63 Nonetheless, judicial review, insofar as courts pay attention to the avowed public purpose of the legislation, can at the very least raise the costs to the legislature in making and implementing policy that smacks of self-dealing.64
Interpretive Canons, Presumptions, and Other Shortcuts
Our history of judicial review in the American context reveals myriad uses of interpretive canons to assist courts with resolving what might otherwise be difficult disputes. (We will leave here to one side the true meaning of “difficult,” noting just that this may be difficult in the interpretive or political sense.) The canon of constitutional avoidance is a classic example of such a principle used to avoid deciding on constitutional grounds where other bases are available.65 In addition, the various clear statement rules emerge to put the onus on the legislature to express their intentions to accomplish an objective that might otherwise be legally suspect. Taken together, these canons and presumptions are “shortcuts” in the sense that they enable courts to reach results without the strong arm of constitutional invalidation.
We can see these mechanisms functioning in the context of the police power. For example, state courts have looked closely at whether and to what extent the state legislature has authorized other governmental entities, be they general-purpose municipal governments, special-purpose agencies, or ordinary administrative agencies to exercise police powers. In doing so, courts have relied on some of the familiar (at least to them) interpretive canons, for example, Dillon’s rule, named after the author of the famous treatise noted earlier, in order to settle the question of what the legislature has or has not done. Even more important as an example of this practice has been the presumption described in many state judicial opinions of the nineteenth century in favor of securing liberty and private property. In Forbes’ Case,66 a New York case from 1860, the court considered whether a certain criminal vagrancy statute should be upheld under the police power, noting that such statutes “are constitutional, but should be construed strictly, and executed carefully in favor of the liberty of the citizen.”67 In a Massachusetts case from 1846, Commonwealth v. Tewksbury,68 the court upheld a law forbidding the taking away of sand and gravel from the owner’s own beach, on public safety grounds, but observed that the police power is “a high power, to be exercised with the strictest circumspection, and with the utmost sacred regard to the right of private property and only in cases amounting to an obvious public exigency.”69 These observations need not be read as equivocations by courts on the fundamental question of whether the power enables the government to act, but they do function as guides of a certain sort to legislatures in enacting such statutes and to later courts in construing the scope of the power in close cases.
Another venue in which interpretative guidance is potentially promising is in the determination of the statute’s purpose. Is the government using the police power to actually facilitate public health, safety, and general welfare? In the preceding sub-parts of this chapter, we have looked at this question from the standpoint of constitutional adjudication. But there is another way to come at this question, and that is to interrogate the statute’s context, its objectives, and its mechanisms in an effort to reveal as best as possible the overall statutory purpose. In the heyday of the so-called Legal Process era (roughly from the 1950s through the early 1980s),70 purposive statutory interpretation was viewed as an entirely proper, for some the most compelling, approach to discerning statutory meaning in difficult cases.71 As Henry Hart and Albert Sacks expressed it, the court should look at the legislature as “a group of reasonable persons pursuing reasonable aims reasonably” and should do their best to look at statutory purpose in order to give a reading of the statute “that the words can bear.”72 While purposive statutory interpretation has lost much of its luster, as the modern courts have embraced textualism as the most credible theory of interpretation, its use in discerning the connection between the underlying objectives of the police power under a state constitutional tradition and the purposes of the statute can be especially helpful.
The Police Power and Administrative Law
The discussion thus far has centered upon constitutional review of state or local legislative action. Interrogations about the “reasonableness” of legislation under the police power, unpacked as we have above, are intended to determine the ultimate question of whether this power has been exercised consistent with the state constitution. However, there is another body of law that will often be brought to bear in the consideration by courts of whether the power has been misused. This is state administrative law. It will provide the principles, rules, and standards for the courts to consider when evaluating the exercise of the power by institutions other than the state legislature, including local governments and state and local administrative agencies.73
Without going into depth about the components of state administrative law (which will differ from state to state in any event), we can make some general observations about the rule and function of administrative law in police power controversies. First, considerations of reasonableness are omnipresent in administrative law.74 Courts at both the federal and state level have always looked at the reasoning process of agency officials to determine whether the agency decision passes muster. This phrase “substantive review” is often used in the administrative law context to distinguish the enterprise from “procedural review,” the latter focusing on the question of whether the agency has complied with required procedures and the former capturing the general inquiry into whether the agency provided adequate reasons for the actions taken. Thus, whatever concerns we have about close interrogations by courts into the reasonableness of legislative action, some of which we surfaced and summarized in the first subsection of this chapter, we should regard reasonableness review as by and large business as usual in the administrative law context.
Second, we should ask: Are there guidelines in doing this review in the administrative law context that are especially well-suited to disputes involving the police power? One guideline, an important consideration in administrative law is that agencies should be required by courts to reveal transparently the evidentiary basis of their actions and, where evidence is introduced by others in the rulemaking or adjudicatory process, the agency should reveal why they rejected some evidence and considered others.75 As part of its responsibility to undertake hard look review of administrative rulemaking, they should make sure they have reasoned well from premise to conclusion and they should to the extent possible base their decisions on the best available science, especially where the matters involve public health and safety, where there are truly facts and scientific elements to the decisions reached by the relevant agencies. The closer the agency’s choices come to evidence-based considerations – which will be often, but not always, in the police power context – the more the agency’s reasoning process should be tethered to the facts.
At the same time, the courts in undertaking their administrative law responsibilities should give agencies an appropriate space for discretion, this in order to acknowledge the important place and prominence of expertise in administrative decision-making. We discussed expertise as an important element in the evolution of the police power generally (Chapters 2 and 3) and in the steady acceptance of the legislature’s decision to delegate to agencies police power functions in order to get the best advantage of expert decision-making (Chapter 5). Administrative law that defers in appropriate ways to the judgment of agencies is key to the overall functioning of a regime in which choices about health, safety, and even in some cases morality. The essential idea is that decisions are made by those who have expertise and can balance the demands of democracy with the imperative of good governing in ways that are as objective as possible and, where not possible, reflect reasonable disagreement.76
Another way to think about the role of administrative law as a partial substitute for more searching constitutional review of regulations under the police power. After all, one way to maintain a commitment to a light-touch judicial review while also interrogating the basis for the particular policy choice is to look at administrative regulations to ensure that they are well-reasoned, non-arbitrary, and procedurally fair, standards which are familiar parts of mainstream administrative law, whether in the state or federal governments. As we saw in our discussion of rights and judicial review in Chapter 6, such interventions maintain legislative power after all, since the focal point is on the agency, not the legislature. If we worry that vigorous constitutional review is a too-blunt tool for addressing goals of sound public policy and fair regulatory decision-making, administrative law, by contrast, can provide greater nuance and flexibility, with fewer costs to democracy.
In reconfiguring the focus from constitutional law to the administrative law, the issue moves away from the big issue of “Does the legislature have the power to do X or Y?” to “Has the agency/municipality acted properly in exercising power that we can accept without further interrogation that the legislature has delegated to the relevant administrator?” Administrative law provides the government with a softer landing. Second, courts have more flexibility in using administrative law doctrines in the ways that are typical in both federal and state contexts. So, for example, the court might find that the agency has, in enacting a public health regulation, acted in an arbitrary, and therefore illegal, way. This gives the agency an opportunity to revisit their regulatory choice and to do so without running a legislative enactment gauntlet. Or maybe the court orders that the regulation not apply to a particular individual or entity (perhaps for reasons having to do with arbitrariness or other bases) but leaves the regulation otherwise intact. Still yet, the court might impose certain procedural requirements, presumably sourced in administrative law doctrine or relevant statutory procedures, requirements which regulate how the agency can exercise their delegated police power, without fundamentally challenging the fact that they have this power. As one final example, consider a judicial decisions that holds that the agency has erroneously interpreted the statute and in a way that renders the agency’s judgment ultra vires. This strategy, again, draws a distinction between the authority of the agency to act under the police power and the propriety of the way the agency acted. These (and other) doctrines are part of the classic toolkit of courts in administrative law. Insofar as they are geared fundamentally to ensuring that an agency has acted in ways consistent with sound and fair administration, there is built-in flexibility in how the court goes about its evaluation.
*
As explained in the introduction, this book endeavors to focus on the origins, the shape, and the functions of the police power. The question of how best to interpret the police power in matters of dispute is a part of this inquiry, although it is not the central point. The reasons for its relatively cabined place in an analysis that covers a wide amount of terrain both temporally and conceptually is two-fold: First, whether the government has exceeded its authority under the police power, either because it has violated someone’s constitutional or (considering federal supremacy) statutory rights entails a close look at the particular legal architecture, including both text and doctrine. Not only are there many potential rights objections that stem from federal law, but there is the brute fact that we have fifty distinct states, with their own constitutions and bodies of law. So, anything more than a 10,000 feet look at interpretive issues here is unrealistic, especially in a book that doesn’t aspire to be a treatise. Second, at the risk of sounding overly grandiose, the issues of interpretation, hopefully raised in a clear way in this and the preceding chapter, can be resolved best by a more coherent understanding of the overall purpose of the police power. Courts will decide concrete cases in accordance with their favored rules and techniques of interpretation. And law professors, including this one, will reserve the right to criticize or applaud these decisions for how well they fit with our own favored approaches. However, we are remiss if we do not properly situate this awesome and often misunderstood power in a framework, even an incomplete and evolving one, that helps answer the question, put colloquially: “What is the police power about anyway?”
That all said, this chapter concludes with some normative views about the basic parameters of the interpretive approach to the police power, taking account especially of the myriad state court cases in which state supreme courts have aimed to give shape and content to the overall structure and scope of this power.
Two Cheers for Moderate Scrutiny
The great police power treatise writers of the late nineteenth and early twentieth centuries, along with distinguished scholars who tackled the big question of what the police power means and how it should best be construed, were in general agreement on three big principles: First, the police power was broad in its scope and had been and should be read as accepting government regulation that advanced public health, safety, morals, and the overall welfare of the community (which is not to say, as we have already discussed, that everyone agreed on what this “welfare” entailed); second, this power should be scrutinized by courts with an appropriate appreciation for the prominent role and value of private property and individual liberty, crucial parts of the constitutional firmament in which the police power functioned; and, lastly, the disputes over the scope of the police power would be justiciable, in both the federal and state courts; moreover, so far as the state courts were concerned, having the responsibility to interpret their own constitutions, it would principally fall upon their shoulders to look at the government’s exercise of this power to determine whether it was reasonable.
With the hindsight of more than a century, during which police power disputes continue to arise, the same basic principles animate the interpretation of the police power. We can characterize the courts’ approaches, viewed holistically, as revealing a sort of moderate scrutiny. While no effort has been made to truly count all the police power cases decided in two centuries’ time or any subset, a decently informed observer would notice that state and local governments prevail in the vast majority of cases where the exercise of the police power is contested; and when they lose, it is usually because the power runs up against a constitutional right that trumps the legislature or agency’s action. Still, the argument has always been available that the agency has acted in ways arbitrary, or unreasonable in some other sense. The Indiana case which began this chapter is an exemplar of the state courts’ insistence that the government present decently rigorous arguments for why they encroached on individual liberty or property rights in order to implement a policy. It is jarring to an audience whose familiarity with the constitutional caselaw involving economic liberties is mainly limited to federal constitutional cases, cases which, since the end of the Lochner era and the Court’s momentous decision in Lee Optical in the early 1950s, have almost never struck down an economic regulation on the grounds that such a regulation was patently unreasonableness. By contrast, state constitutional law occasionally does march to the beat of another drummer.
Looking at the recent Covid-related cases, it is noteworthy how frequently lawyers on behalf of individuals and businesses framed their arguments against certain measures, such as shutdowns and gathering limits, as basically “this restriction makes no sense and dumb laws should not be allowed to stand.” Few Covid regulations were struck down on this basis. On the other hand, state courts did not reject these arguments out of hand. The extent of scrutiny suggested that there remained room in state constitutional jurisprudence for a decent examination of these public health regulations. Tellingly, the Supreme Court in Jacobson was explicit in saying that individuals could challenge police power regulations under the US or relevant state constitution, and they could do so under a theory of equal protection or due process that, in essence, made out a strong claim that the legislature’s approach here made no good sense.
All of this is to say that the courts’ approach to interpreting the police power has been less than strict, but, on the whole, tougher than what we find in the run of US constitutional law cases in which a rational basis standard has been used. If rational basis is minimal-level scrutiny, and strict scrutiny has been, as Gunther wrote, generally “fatal in fact,” state judicial review under the police power is somewhere in between. Some might label it “rational basis with a bite;” or “rational basis plus,”77 but ultimately the label matters less than the overall gestalt of the approach.
This moderate scrutiny has much to recommend it. It does open the door somewhat to plausible arguments that the legislature has acted in untrustworthy ways. The focus, as we have discussed above, on animus and self-dealing reveals such skepticism, and a moderate scrutiny of state legislative and administrative decisions can, in the right hands, smoke out government decisions that are noxious and inappropriate, when judged by reference to the values of our state constitution. When combined with arbitrariness review, which has more or less always been around, standing ready to strike down a state or even federal law (as in Yick Wo, and a century later in Cleburne) that reveals that our treasured legislatures sometimes act irrationally and, where they do, judicial review is an important line of defense.
Moreover, review by state courts that goes beyond rational basis enables courts to focus on protecting private property and liberty of contract in a more meaningful way than the federal courts have done since Lochner’s end and since the Court in Lee Optical swept away in a breathtakingly shallow opinion by Justice Douglas any credible argument that an interference with so-called economic liberties is more or less nonjusticiable. Federal and state courts have been haunted by the ghost of Lochner. Even now, Lochner and Lochnerization is a convenient pejorative phrase, something to be hauled out where the judge or commentator is annoyed by the depth of judicial intervention (or, in the case of the so-called Lochnerization of the First Amendment, the absence of intervention that would provide what in their view is some appropriate redistribution of economic and political power).78 State courts need not be haunted by Lochner, however. For one thing, they never really got the memo that economic liberties and private property rights are at the mercy of the legislature. There are a number of important, but largely neglected by legal scholars, state court cases that have protected economic liberties against interference. We could quibble and quarrel about the wisdom of particular state decisions to be sure, but the larger point to be made here is that the effort to protect liberty and property and, in a more measured sense, to balance these liberties with the imperative of enacting and implementing policies to advance the overall welfare of the relevant citizenry even at the price of some liberty or property interests has not withered away in the state constitutional context. It will not do to say that “Lochner is alive and well” and, as such, such a claim would be rather facile. But what has persisted is the effort by state courts to look at the myriad rights and values wired into their state constitutions and, in that process, to interpret responsibly the police power to ensure that the government is pursuing the public’s good and is governing well.
Why only two cheers? Putting Lochner’s ghost and also the tortured history of rational basis review in US constitutional law to one side, there have been good reasons for the courts being very judicious when they examine closely the structure and purposes of legislation in order to determine whether the government’s approach has been reasonable. Legislatures enact statutes in a very complicated way, with a wealth of pressures and incentives, not to mention formal and informal rules. While we can envision, when we think about American politics and democracy in the most noblest sense, a kind of “due process of lawmaking.”79 But when we bring the rubber of this standard to the road, it is challenging, to say the least, for courts to do the necessary interrogations to determine whether a police power statute was enacted for the “right” or the “wrong” reasons. We can be more optimistic about evaluations that are focused on means and ends, but even that raises the specter of Monday morning quarterbacking. Especially interventionist approaches risk stifling legislative innovation and do not account for either the ingenuity of legislatures and agencies in developing strategies that might seem opaque to an outside reader or also the complexity of legislation in its enactment and implementation phases.
In addition, the effort to examine the reasonableness of legislation, which is formulated as an inquiry into the legislative product irrespective of its tangible impact on a right that the courts would protect under its constitution can become rather aimless. It gives the state court a role perhaps more akin to the French constitutional court than a court that decides cases and controversies. Scrutiny of the government’s power independent of this scrutiny of rights is necessary as a matter of constitutional logic, and yet it should be cautiously used.
At the end of the day, the state courts have an important, indeed vital, role to play in interpreting the police power and in resolving disputes over questions of whether the government has gone too far. This is true as an historical matter. It is likewise compelling as a matter of state constitutional theory. Courts have an obligation to ensure that the police power is being properly viewed. This is especially important in the state context in which the legislature has the plenary power of governing, and so where an unregulated legislature poses risks for democracy and, as we considered in Chapter 1, the stability of our constitutional regime.
In this chapter, we consider more carefully how the states’ broad police powers are nested in an American constitutional system in which a good deal of discretion is maintained by the federal government to decide whether and to what extent to displace state with federal policy. Whether consistent or not with late eighteenth and early nineteenth-century understandings of federalism, there has been a relentless expansion of federal regulatory power, especially since the New Deal and the period demarked by the sixties and early seventies, a period occasionally labelled the Second Reconstruction.1 This emerges out of a clear sense that the national government expanded its power and, in key respects, supplanted state and local power in areas of social and economic policy. Despite the emergence of some meaningful limits on federal power under the Constitution, especially in the years since the Court decided United States v. Lopez,2 United States v. Morrison,3 and New York v. United States,4 we can see the police power adapting to the twentieth-century expansion in national power and prerogative.
That said, the police power remains significant, notwithstanding the great expansion of national authority. While the national government has expanded the scope of its power and into areas that historically had not been practically subject to federal intervention, the national government still leaves the lion’s share of decisions to regulate private property, protect public health, ensure citizen safety, and further public welfare through state and local regulation to state and local governments. We could debate whether and to what extent the Constitution permits the national government to displace state and local authority in areas traditionally decentralized, but most of this debate would be purely academic. As a practical matter, the state police power matters greatly and is in no real danger of being eradicated by the federal government through design or direction.
The focus of this chapter is not on constitutional federalism per se, but on the impact of expanding federal power on the exercise of the states’ police power. The relationship between national and state regulatory power has been a thread through this book, but it has not been its principal topic. Nor is it now. Our main objective is not to situate the police power in a positive and normative account of constitutional federalism, as interesting and valuable that such an analysis would be. Rather, we are interested in the impact of federal authority and, more broadly, federalism in principle and in practice, on the functions of the police power in the modern administrative state. To summarize: We can see that the greater use of federal authority to regulate the use of private property and business conduct, consequences of contemporary administrative regulation has imposed appreciably more burdens on individuals and businesses. What are the practical consequences, if any, for the state police power of these added burdens? In short, what are the consequences of an expanding federal role?
Federal Power Expands, State Police Power Endures
The expansion of the federal government’s role in regulating private and business conduct is a story frequently told and, when viewed through a practical lens, is explained as part of a necessary intervention into the actions and activities of individuals, business leaders, and governments. State regulation proved incapable of meeting the demands of an increasingly complex economy. Moreover, the demands of equal citizenship imposed by profound changes to our constitutional order after the Civil War led to a more robust and active federal government.
The feds expanded involvement can be measured in the first instance by major national legislation, including the Interstate Commerce Act, the Sherman Antitrust Act, the Food & Drug Safety Act, and the Federal Trade Commission Act, to mention just these notable Progressive-era statutes.5 Congress stepped in to address issues that could conceivably have been tackled by the states through their ample regulatory powers, but were not being attended to adequately, at least as viewed by public opinion and ultimately by Congress and the executive branch. As well, innovative legislative action characterized the New Deal period, as President Roosevelt and Democratic allies in Congress constructed a novel national apparatus for the implementation of vigorous national regulatory policy, especially with regard to the economy and the workplace.6 Here, blockbuster statutes such as the Securities & Exchange Acts, the Federal Communications Act, and the National Labor Relations Act loom large in this regulatory history.
In addition to expanding national authority, a principal innovation during this half-century period running from soon after Reconstruction through the so-called Second New Deal was the development of what Stephen Skowronek calls the “expansion of national administrative capacities” and the creation of the modern administrative state.7 In the early years of late nineteenth-century and early twentieth-century federal regulation, it was unclear exactly what were to be the right mix of institutions and implementation mechanisms to undertake national goals. On the one hand, for example, the Interstate Commerce Act created a powerful multi-member bureau, the Interstate Commerce Commission, to carry out its functions in transportation ratemaking.8 On the other hand, at essentially the same time, Congress enacted important new antitrust legislation, leaving to federal law enforcement and the federal courts the principal responsibility to define what conduct is impermissible and to ferret out and punish wrongdoers.9
As we approached the New Deal, however, Congress had become more purposive in its creation and use of administrative agencies to carry out its regulatory objectives. These agencies were given important authority to set general public policy, authority ratified by the Supreme Court in important pre-New Deal and New Deal era decisions. Moreover, Congress had, albeit less decisively, accorded to agencies the power to create rules of binding effect, a power codified in the Administrative Procedure Act of 1946.10 Looking ahead from this era, agencies created in the 1960s and 1970s were especially ambitious in using this rulemaking power. With these choices, administrative agencies emerged as the fulcrum of national regulatory power, a position that would become further entrenched in the decades following the New Deal.
As the need grew in our nation in the second half of the twentieth century to build a much greater administrative capacity, the federal government undertook many more initiatives. They did so largely with the blessing of the courts, albeit with some turbulence in the third decade of the twentieth century when a skeptical Supreme Court endeavored to put some limits on federal authority.11 Though not entirely an invention of the Progressive era, the national government’s role certainly expanded as we moved steadily toward the fin de siècle in the late 1800s.12 Important social and economic issues that had been left largely to state governments to deal with or, in some cases, to the market in that they were essentially unregulated, came to the fore of national legislators and critical pieces of federal legislation was enacted by Congress. After a period of some quietude and resistance, not coincidentally during periods in which the Republican Party was largely ascendant in Congress, the White House, and the federal courts, the New Deal period brought forth a wealth of new, ambitious legislation.13 Congress and the administrative agencies created during this fertile period for public policy were intervening in economic and social life in myriad ways. They were defining a new vision of national power. The courts for the most part gave its imprimatur to these developments.14 This vision carried through the rest of the twentieth century and also into this century.
The main shifts in federalism and the breadth of state power came about through two developments, neither of which can be traced to changing views about the police power per se. One was incorporation, that is, the application of virtually all of the Bill of Rights to the states.15 This was a development of the Supreme Court in second half of the twentieth century. The other was the use of federal authority under the commerce clause (and, to a much lesser degree, section 5 of the Fourteenth Amendment).16 These reflected monumental changes in the fact and rationale of the authority exercised by the national government and, likewise, the immunity of the state government from federal control. However, these changes did not fundamentally undermine the state’s power to protect health, safety, and welfare, save for the critical condition that state power must do go beyond its domain by discriminating against out-of-state interests (thus violating the dormant commerce clause or the privileges and immunities of citizenship) or creating unwarranted externalities. Within its rightful domain, states could (and did) continue to wield its police powers.
The incorporation of the bill of rights affected the scope of the police power, however, insofar as it created new limits on state authority in the form of constitutional rights, a topic that we discussed at length in Chapter 6. The rather sensible view that official action would be subject to constitutional limits, whether this action came by way of the federal government or state and local governments, was propounded by Madison and other framers; however, this view was rendered nugatory by the Supreme Court a half century after the Constitution was adopted, in the case of Barron v. Baltimore.17 Barron held that the bill of rights would not be applicable to state and local governments. Without specifically overrunning Barron, the Warren and Burger Courts, beginning in the 1950s, held in a series of key cases that various rights contained in the first eight amendments were part of a scheme of ordered liberty and should, especially given the enactment of the Reconstruction amendments, be incorporated via the Due Process clause of the Constitution.18 The incorporation of these rights obviously impacted the operation of the police power, in that it created meaningful limits on the use of this regulatory authority. We saw in an earlier chapter how these constitutional rights, especially those in the First and Second Amendments, emerged to create significant limits on the police power.
The expansion of the commerce clause began especially during the New Deal era, when the Court decided a number of major cases upholding legislative authority to regulate segments of the economy at the national level.19 Especially with its decisions in in the 1960s upholding the Civil Rights Act under the commerce clause,20 the Court created an architecture of national power that has proved durable. In a related vein, the consistent use of the so-called dormant commerce clause to limit state action viewed as protectionist and discriminatory put brakes on state laws that aspired to further discrete state purposes. In a number of these dormant commerce clause cases, the stated reason given for the state’s law was public health and safety. The task undertaken by the federal courts was to consider whether the law, however persuasive was the argument that it was about health, safety, or the general welfare of the community, effected a constitutionally unacceptable burden on interstate commerce.
There is a message tacit in these cases decided under the commerce clause, in its two iterations, direct and dormant, and that is that the strength of the case for a state law intended to protect the interests of state citizens must give way to the overall welfare of the nation. This message is an old one, of course, and as we saw in Chapter 2, the Court has been resolute in its commerce clause jurisprudence, beginning with Gibbons v. Ogden, to make clear that the police power standing on its own gives no special warrant to the state in disrupting the free flow of commerce. There are often two welfares at stake, that of the community whose law is enacted on their behalf and that of the common community of American citizens. So, while the general idea remains intact that the state’s regulatory power is left undisturbed by a widened national regulatory presence, the constitutional rule that lies at the background of these evolving conditions is that the interests of a common national economy will reliably trump the specific interests of states no matter how sound is the police power rationale for enacting certain safety, health, and morals measures.
This triumph of federal constitutional authority has been nonetheless tempered somewhat by doctrinal developments over the last three decades or so. First in United States v. Lopez21 and next in United States v. Morrison, the Court read the commerce clause as requiring a greater connection to the imperative of national authority – at the very least, Congressional findings that the situation required national intervention.22 These notable commerce clause decisions was accompanied by a renewed attention on the part of the Rehnquist Court to separation of powers constraints on legislative and executive action, and there were a handful of significant cases that imposed what amounted to procedural limits on the strategies Congress could use in implementing policy.23 In a somewhat similar vein, the Court created a novel “anti-commandeering” doctrine that forbade the federal government from relying on state institutions to carry out national goals.24 To complete the picture during this key period of the 1980s to roughly the end of the century, the Court created a canon of statutory interpretation – named after its decision in Gregory v. Ashcroft – that imposed a higher burden on Congress when it enacts legislation that displaces state power.25 Through these judicial decisions, augmented by administrative decisions within the executive branch, federalism became more robust, even though the fundamental expansion in national authority has not eroded.
Beyond the doctrinal edifice of the commerce clause claim the national welfare will always trump state interests and preferences, we can ruminate about whether there is a larger claim at work here, that is, that the national interest is the relevant focal point in assessing considerations of general welfare that are tied to the police power. One way to think about the police power’s advancement of the salus populi is that it must be ever attentive to the national welfare. As chaotic is the present state of dormant commerce clause jurisprudence; as we were reminded in the last Supreme Court term when a very decided court decided National Pork Producers Council v. Ross,26 at its core is the idea that state parochial interests cannot impede a national marketplace, a marketplace being in the public interest as the framers thought central in the creation of a federal commerce power in Article I and in the enactment of the US Constitution more generally. The energy in this bold claim about national interest driving state decision-making should be tempered, however, by the reminder crucial to the overall argument of this book, and that is that the state police power is embedded in understandings of the role and function of state constitutions. To make the larger, and rather ambitious, point that state constitutions are principally constructed in design and interpretation as servants to a larger national interest requires much more analysis than embedded in either two centuries plus worth of Supreme Court caselaw on constitutional federalism or in the scholarly exegeses on the place of state constitutionalism in our American republic. Moreover, this claim would be, in any event, in serious tension with how the framers understood the idea of reserved powers under the Tenth Amendment, and also how both federal and state courts viewed the best interpretations of the police power’s scope under the salus populi rationale.
One last observation regarding the resilience of state regulatory power in light of the Court’s many federalism decisions. After some quiet with regard to national/state disputes at the constitutional level, the Roberts Court has developed some doctrinal innovations that have the effect, if not the design, of cabining national power, principally at the administrative agency level.27 The direction of at least a plurality of the current Court (and perhaps even a majority, although it is too soon to tell this with certainty) is “anti-administrativist,”28 in that these more conservative justices are quite skeptical about the vast power exercised by federal administrative agencies. A few justices have called for a resuscitated non-delegation doctrine to limit agency power;29 the Court is on the verge of overruling its 1984 decision in Chevron v. NRDC,30 a decision that ushered in an era of significant judicial deference to administrative agencies’ statutory interpretations;31 and, perhaps most notably, the Court has invented a so-called Major Questions Doctrine, which essentially requires that matters of economic and social significance shall be resolved by statute, not by administrative regulation.32
Taken as a whole, these decisions restrict the tactics of the federal government in their claims of authority, even if they do not weaken national authority in a formal sense. In other words, these anti-administrative decisions are not about federalism as such, but they can lead to the same end, which is that the national government’s discretion to make policy in the matter that it believes best suited to sound implementation is limited. At the same time, we should not overstate the significance of these developments from the vantage point of the national scope of regulatory power. The space of national power, having been greatly expanded in the Progressive era, the New Deal, the Great Society, and in eras in between and afterward, is broad and resilient.
Is There a National Police Power and Does It Matter to the State Police Power?
A key question is whether the broad national power that exists under the Constitution comes at the expense of the state police power. This question can hardly be answered in the abstract, for the matter must be illuminated by resort to specific controversies that involve the overlap of federal power on state authority as traditionally measured. This question was a focal point, or at least was made so because of Justice David Souter’s dissenting opinion in United States v. Morrison, a 2000 case in which the Supreme Court invalidated the Violence Against Women Act as outside the scope of Congress’s commerce power. Justice Souter argued that this holding was outside the realm of previous Court precedents involving the commerce clause in that it presupposed that once an issue was one that had long been handled at the state regulatory level, it was not for the federal government to wade in through its commerce authority. “The premise,” Souter writes,
that the enumeration of powers implies that other powers are withheld is sound; the conclusion that some particular categories of subject matter are therefore presumptively beyond the reach of the commerce power is, however, a non sequitur…. To the contrary, we have always recognized that while the federal commerce power may overlap the reserved state police power, in such cases federal authority is supreme.33
At the heart of the case, both the majority and dissenters agree, is whether this act falls under the established definition of commerce.34 The very expansive definition of commerce, one that denies, somewhat strangely to be sure, a discernible line between commercial and non-commercial activity and likewise denies an interpretation that would limit the scope of the federal power to economic activities, has supported broad Congressional power. This was reaffirmed by Wickard v. Filburn35 in the New Deal and again in Gonzales v. Raich,36 a case decided contemporaneously with Morrison. But this power is not without judicial limits, as the Court made clear in both Morrison and Lopez. Two lessons relevant to our discussion can be drawn from these modern spate of cases, even accounting for the vigorous disagreements reflected in the dissenting opinions in each case: First, no justice has gone so far as to argue that the national government has a general police power. Despite Chief Justice Rehnquist’s characterization of Souter and his allies position as suggesting such a power, a careful reading of the dissenting opinion here, and also in Lopez and Raich, is that the key question if whether the traditional scope of the police power over various local matters, including basic elements of criminal law and domestic activity, means that the federal government must stay out of these issues as a categorical matter. It is ultimately a fruitless and even odd disagreement between the majority and dissenting opinions. After all, Chief Justice Marshall made rather clear in Gibbons and the other early commerce clause cases we discussed in Chapter 2 that the state’s police power authority was indeed part of the reserved powers of the states, and did not belong with the federal government, but, at the same time, this power could not interfere with commerce. This fundamental principle of constitutional review remains good law, even as the Court has and presumably will continue to struggle with the question of how best to limit the scope of what commerce means.
Second, and related to the first point, is that there can surely be instances of simultaneous regulation by the federal and state governments of various activities related to public health, safety, and morals. Yes, the Court draws a line in Morrison that rules out criminal law relating to violence against women as defined in this historic act. However, it does not rule out in any way, shape, or form, federal criminal law in toto. The criminal law books are filled with conduct that is punishable by the states and also the federal government under statutes. Drug laws are an obvious illustration of this, but there are many other examples as well. Interestingly, federal laws that criminalize certain activities on the grounds that such activities are immoral – rather than, say, that they impede the free flow of economic commerce – have been long upheld as constitutionally acceptable under the commerce clause. And so while the Court insists that “[t] he Constitution … withhold[s] from Congress a plenary police power,”37 the scope of national power in areas that have traditionally been the primary province of state regulation is strong and, and even after Lopez and Morrison, largely intact.
While this is not principally a point that emerges from the Court’s federalism decisions, it is worthwhile mentioning, as it gives shape to a “no” answer to the question asked in the title of this chapter’s subsection, and that is that the functioning of the state police power is not seriously affected by the ubiquitous national power to regulate many of the same subjects through the criminal law and other forms of law as would the states. Preemption of state regulatory authority is not without meaning; however, it is seldom the case that the national government displaces state authority because the feds have decided to step in. There have been very few areas of social life and public policy where the position of either Congress or the courts have been that the states may not meddle through its use of the police power on the grounds that these areas have become exclusively federal. This is true even through periods in which there has been very strong support for national interventions and a corresponding skepticism about the states’ capacity and willingness to address the problems at issue. Moreover, it is more typical that the national government has actively encouraged states to exercise authority under its police power, and whatever other added authority given by Congress, to advance health and safety objectives. The 1960s and 1970s were an important time in which such encouragements took place, as the federal government got itself more involved in urban policy38 and other areas that had largely been the province of the states.39 Health care policy was another area in which Congress pushed states to undertake initiatives,40 this illustrated well by the provisions of the Affordable Care Act that incentivize states to participate in insurance exchanges.41 In the area of environmental law, federal statutes and administrative regulations have set up structures to encourage states to innovate, even while insisting that minimum national standards be enforced. And even in the area of antidiscrimination law, an area whose history illustrates the critical role of federal intervention given the states’ quiescence or, as with Jim Crow, even worse, state and local governments will frequently enact protections for subordinated communities that go beyond the federal baseline. To be sure, these episodes are not principally about the police power qua police power, yet they are good illustrations of the general point, and that is that expanding federal power has not supplanted state authority under the police power.
Looking at the national regulatory landscape broadly, national and state governments have worked, and continue to work, in partnership with one another in many key policy areas.42 The national government must find its authority to undertake the federal functions of this partnership in the US Constitution, although two centuries’ worth of caselaw on constitutional federalism has given the feds a fairly wide berth in exercising authority under Article I. This national authority exists often alongside the police power of the states and so it is in the confluence of these two powers that these two levels of government interact in ways that a commentator on federalism once described as a system of marble cake federalism.43
There are precious few instances in which the courts have been asked to settle a dispute over the federal government’s effort to displace the state police power through national legislation. The modal controversy involving federal regulation implicates not the question whether the state has properly acted, but whether the national government may regulate at all under its enumerated powers.44 Preemption presents what we can credibly label a federalism issue, but, in reality, preemption is a statutory interpretation issue.45 We consider whether and to what extent the federal government’s actions can be properly read as supplanting actions of the state or, more generally, keeping states out of the domain altogether, as in controversies over so-called “field preemption.”46 Finally, an issue that has become prominent over the last thirty or so years, that of anti-commandeering, concerns the limits on Congress’s ability to conscript state or local officials into national policy.47 This does not implicate the scope and content of the police power of state government in any important way.
At bottom, any assertion by the national government that it has a police power analogous to the police power in the American states is belied by both our American constitutional history and by the logic of American constitutionalism. As to the former, recall the basic idea that the federal government is one of enumerated powers, as this is beyond the scope of this book and is covered amply in the large historiography on the formation of the US Constitution. Within these limits, the only conceivable source of a national police power would be the “necessary and proper” clause invoked as a police power of sorts to accompany the federal government’s broad power to regulate interstate commerce. But the connection here is an especially weak one, as even a broad rendering of that clause, plausible after McCulloch v. Maryland and supported by myriad scholars over the long expanse of American constitutional history, assumes that the powers referred to in that sweeping clause can only be, as Chief John Roberts wrote in the Affordable Care Act case, NFIB v. Sebelius,48 “exercises of authority derivative of, and in service to, a granted power.”49 This is not necessarily an idle debate, as prominent constitutional scholars have argued that the reference to general welfare in the Constitution’s preamble might be a source of such power. Nonetheless, the conceptual and historical architecture of our American constitutional order has never embraced the idea that there is a national police power, and neither the text nor the history sustains such an idea.50
To this point, we have been dwelling in the comfort of big constitutional theory. We might ask the same question from a more practical vantage point. Does the expansion of federal authority carry along with it at least an implication that states should be more circumscribed in the use of the police power to carry out objectives that, in modern times, can be realized more effectively by national policymaking? It is a commonplace in the literature on regulation and government to point out that solving society’s wicked problems requires an active central government, one that will account for externalities and lassitude on the part of state governments. The federal government, in these accounts, is needed to save the day in the face of the inadequacies of state and local government. While the empirical and theoretical bases of a reasonably active national role are compelling, it is naïve to see the national and state governments as substitutes rather than complements. What these arguments for a reliably muscular national government, perhaps something akin to a federal police power, do not support is a limit on the states’ ability to protect health, safety, and general welfare through a capacious police power. The expanding national role has not accompanied an erosion of state authority, either as a normative matter or as a practical matter. As to the latter in particular, it must be said that the state and local government’s role in creating and implementing regulations in the areas of health, safety, and morals has not seriously abated since the 1930s; if anything, it has grown by most measures.
Much of the preceding discussion has been framed in the negative. That is, we have insisted that the evolution of national regulatory has now disrupted the legal and practical underpinnings of state regulatory initiative. However, we should still press on the point of whether our expanding national government has generated new perspectives on federalism that has implications for how the police power functions. This is where we turn to next.
Dynamic Federalism Means a Dynamic Police Power
Traditional federalism debates have been mired in disagreements about what are the states’ separate spheres. Under what conditions can the states as sovereign exercisers of legal power without risking federal intervention? Resort to categories and factors to support the placement of lines separating federal from state concerns has proved difficult, despite occasional forays by the Court into that kind of analysis in resolving disputes. In recent years, a large number of public law scholars looking anew at federalism have helped reorient the conversation from this “separate spheres” analysis to a deeply pragmatic and avowedly political perspective on federalism.51 All of this diverse research and analysis points to a picture of a dynamic federalism, one that escapes from the relentless question of “Who’s in charge?” and pursues instead the more practical question of “How should the many relevant institutions of American governance work together to carry out important objectives and, further, how should we deal with constitutional conflict?”
Yale Dean Heather Gerken has called for a robust federalism which protects the power of sub-national governments as a means of poking and provoking national political institutions and officials into making more socially just decisions.52 The power of the servant is the power to dissent, to exercise, as she puts it, “‘voice’ in an exceedingly muscular form.”53 These dissenters, acting within the authorized governance frameworks of the state and local governments, can stir up trouble and engage in conflict, as well as collaboration and conflict on behalf of dissenting minorities. “States and local officials administering federal law,” Gerken writes, “can edit the law they lack the power to authorize precisely because they are inside the system, not outside of it.” So, for example, the decision by San Francisco mayor Gavin Newsom in 2004 to issue marriage licenses to same-sex couples, despite any reasonable basis in existing state constitutional law for this decision, had the beneficial effect of engaging the national debate in a constructive way. But what of the fact that this political move by the mayor was beaten back by the California Supreme Court? Says Gerken: “While local resistance surely has its costs, minority rule at the local level generates a dynamic form of contestation, the democratic churn necessary for an ossified national system to change.”54 What federalism all the way down aspires to do is to help the project of building good national policy.55 This is true not only of the functions of state governments to implement federal law, but also in the circumstances in which state governments are enacting state law. So, this is a really remarkable twist: Even purely state law should be seen as a means of advancing national interests. As her Yale colleague, Abbe Gluck, puts it succinctly: “Congress has asked the states to enact their own state laws, create new state institutions, and pass new state administrative regulations – in other words, to exercise their sovereign powers in service of the national statutory project.”56 To summarize, federalism creates the space for democratic contestation by citizens exercising voice at the sub-national level and in ways that national authorities are obliged to respect and this will counteract the power of majorities to use federal institutions to dampen dissent and disable minorities. Loyal opposition by sub-national governments enables minorities to speak truth to power. Taken as a complete story of what federalism purports to accomplish, it does help explain a hard puzzle: Why ought state and local governments flourish, notwithstanding the post New Deal reconfiguration of national/state relations and the necessary augmentation of federal power?
The larger point that this and other related literature supports is the idea that American federalism is not about boundary drawing and the quest for separate spheres of regulatory prerogative, but is about creating mechanisms consistent with the ambitions of American constitutionalism to facilitate a dynamic, interactive, and interinstitutional process by which dynamic American politics can be explored and improved and the project of good governing refined and implemented.
Health and education policy are excellent examples of this dynamic federalism in operation. States maintain principal control over some key aspects of the health system, such as occupational licensing and the determination of whether quarantines or cordon sanitaire restrictions are necessary. Other aspects, including matters of data privacy, insurance under the ACA, the development of vaccines and prophylactics to assist with major, cross-border infectious disease emergencies, as well as other elements of health care delivery that demand efficiencies of scale, will involve active federal intervention. The system could not effectively run without the engagement and collaboration of the national government and the governments of the states.57 Education policy, likewise, involves issues that benefit from federal engagement short of displacement of local control. Not only are there dynamic policy issues at work that implicate national interests and values, but they are also considerations of constitutional rights, of both teachers and students, that mean that state and local choices are made in the shadow of national law.58
Paeans to intergovernmental collaboration are perhaps the easiest part of this inquiry into dynamic federalism as a description and an aspiration. Who could be against cooperative federalism? More difficult is the question of how to resolve serious conflict. States will frequently disagree with one another, especially in area of hyper-partisanship. And state views will conflict on occasion with the views of the national government. The dual challenge is to ameliorate the conditions of conflict and create rules that can resolve conflict when it happens, but in a way that preserves both goodwill and policy innovation. The default might be, unavoidably, a respect for the federal government’s supremacy in matters that rightly implicate national concerns and, likewise, a respect for state autonomy where there is no basis for federal control or interference. But what about the myriad situations that fall between these two extremes?
To understand the way out of conflict we need to understand the source and reasons for this conflict. At one abstract level, we can see that conflict usually stems from disagreement about policy, rather than disagreement about federalism. Citizens often behave as policy entrepreneurs, seeking sustenance from that level of government that supports their preferences. But we need still to take the lens out a bit to see whether this conflicts maps onto institutional instabilities. The most plausible model available about how institutions – and here we are talking about the two primary levels of government, states and the federal government – is that sketched by James Madison and Alexander Hamilton in the Federalist and refined in more complex ways in the centuries since. Madison made the important point in the Federalist No. 10 that individuals and public officials will pursue their own ambitions and therefore “ambition must counteract ambition.” Yet it was Hamilton who dug deeper into the question of how to think about the competition that would likely arise between layers and levels of government. In Federalist No. 28, he reminded us that “power is almost always the rival of power.” Indeed, the national and state governments are frequently rivals, as are state and local governments. They compete for the loyalties of, and the benefits of, citizens. They use electoral structures and political institutions, including, for example, political parties to mobilize support, to secure acquiescence, and, where necessary, to divide and conquer. Yet it is crucial to see this opportunism on the part of state and local governments not as institutional self-dealing or as some conspiracy to undermine electoral accountability, but as tactics to effectuate the will of the people, whose preferences and objectives are realized through the actions of these units. Conflict can be navigated at the policy level. But it must also be navigated at the institutional level.
Further, this relationship can be viewed as one between principals and agents, with the citizens being the principals. They will have an admixture of policy preferences. A critical mass of citizens care about, say, a clean environment, the financial well-being of their family, access to education, reliable health care, equality of opportunity, and national security. Others will have a different mix and priority of preferences. Some of these goals are best realized through national policy – national security, for example – others through local policy (say, land use), and, for the rest, the relevant group of citizens may well be agnostic about which level of government implements their preferences. Knowing that different policy goals align with different institutional capacities and tactics, rational individuals are likely to want governing institutions to be made up of multiple principals, that is, of a mix of institutions, all working in a synthetic system. The basic point is that citizens will want – and let us go a step further and say ought to want – a system in place that is most likely to successfully aggregate these preferences and, in the case of those in the minority, ensure that their rights are protected against majority expropriation and oppression.
This principal-agent formulation has implications for federalism in a couple relevant senses: First, on occasion, citizens will be indifferent about states’ rights and local autonomy. Sure, they may have ideological preferences on the matter, but history suggests that these ideological preferences will give way to their policy preferences. This is illustrated in all its glory by the infamous Tea Party protest sign which read “keep the government’s hands off my Medicare.” Second, citizens will want their units of government to maintain sufficient authority and flexibility so as to carry out their will when they are tasked thusly. For the citizens, we can think about their strategies as a sort of political arbitrage. That is, citizens will use their knowledge about their own preferences, including their discount rates, and also knowledge about the governmental institutions which are in a position to facilitate or undermine these interests. Sub-national governments are engaging in a similar process of political arbitrage. And they do so not only as automatic aggregators of constituent preferences, but as institutional actors with their own interests. In making their decisions, they will often cooperate with the central government, and occasionally with other states or local governments in the horizontal context. Other times, however, their strategies will bring them into conflict with central authorities. And it is here when they are truly caught between two masters – the central government on the one hand and their citizen principals on the other. This dilemma is intrinsic in a federalist system, as our framers well understood.
Despite the risk of conflict and confrontation, these institutions of governance need and want the flexibility to act on behalf of their citizens and to maintain the discretion and the power to pursue objectives without unnecessary interference. Sub-national governments can be the conduit for the pursuit of discrete and general interests by citizens. As such, citizens have a strong interest in ensuring both a plurality of such governments and a reasonable assurance that they have appropriate authority and techniques to manage conflict. Furthermore, these subnational governments want and need legal protections in order to protect their prerogatives as institutions of governance. As Professor Ernest Young says about states: “The emphasis on the institutional interests of state governments is critical because virtually all the important benefits of federalism stem from the existence of the states as self-governing entities. States cannot function as checks on the power of the central government, or as laboratories of experimental regulation, if they lack the institutional ability to govern themselves in meaningful ways.”59
This idea of political arbitrage is a particularly resonant theme with regard to local governments, and this because of the intriguing fact that local governments can be formed in a more customized way, by contrast to the states, which exist in the form established at the time of their admission to the union and, under the Constitution, cannot be changed at the will of the federal government or the citizens writ large. Charles Tiebout pointed out many years ago that the size of local governments reflect the interests of citizens reflected in their choice to exit and enter and to create a geographically defined polity that advances their interests.
That citizens want the flexibility to implement their goals through the right kind of institutional mechanisms may explain the steadily growing use of special-purpose governments. Like municipalities, special-purpose governments are creatures of the state; but, unlike municipalities, they are truly customized creatures. They are more like a robot than like Frankenstein’s monster, the latter of which resembles a human being of sorts, and the former need not be human in any discernible way, shape, or form. More to the point, the special-purpose governments enable states to circumvent the limits of local governments and to accomplish goals that might otherwise be frustrated by localities. Local citizens can and will often look toward quasi-governmental institutions, such as common interest developments, in order to create mechanisms for implementing their preferences and, more radically, to retreat from the public sphere. These sorts of customized institutions threaten to upend or at least problematize the traditional conception of localism by giving citizens the opportunity to create a governance strategy that is more carefully tailored to their specific policy interests and concerns.
While these institutions are not immune from governmental action or influence, they are intriguing devices to drive decision-making from the government to smaller institutions over which local citizens have comparatively greater control. Note that a comprehensive theory of localism, and perhaps even of federalism, requires attention to these structures, and also to how they connect to the police power.
Still to consider, even if just briefly here, is how best to negotiate matters of constitutional conflict. Both federalism and localism provide the frameworks within which these issues are negotiated, both in the political process and courts. For those who might be called “new process federalists,” the focus on political processes requires some additional attention on the dynamics of relations among governments and, also, on what motivates public officials and, further, how they take these motivations into the venue of discrete institutions of governance. Jessica Bulman-Pozen and Dean Gerken shrewdly capture the point that federalism can capture this interinstitutional struggle. Here I quote:
Federalism divides power and offers a structure for substantive views to compete. It does not specify what the recipients of divided power should use it for, nor does it equate particular views with one level of government or the other. Claims that political actors undermine federalism by marshaling arguments for state power in an opportunistic way and treating federalism as a convenient arrangement through which to pursue policy agendas indict our Founders as well as contemporary politicians. More deeply, such claims overlook the significance of federalism in establishing loci of political conflict, whether this conflict is driven by state institutional interests, partisanship, or something else.60
Policymaking need not be a zero-sum game. However, even though collaboration may be the modal choice, governments will want to protect their discretion to engage in political arbitrage. Moreover, conflict will happen. That is in the nature of politics, where there is heterogeneity in policy preferences and the intensity of such preferences. Therefore, there will be instances in which the interests at stake mean that the assertion of local power will provide benefits captured at, say, the local level and, by such capturing, unavailable to officials at other levels of government. To think about this in more theoretical terms, some local officials may be relentless budget maximizers; others may be good Burkeans.61 The view that these governance institutions pursue their own objectives, pursuits which come into conflict with other levels of government, accommodates the myriad incentives and motivations that emerge from citizen preferences, however forged and articulated.
The police power functions in a dynamic environment in which our various political and legal institutions act and react with one another in order to safeguard their interests and realize their objectives. This need not be a Hobbesian war of all, ratcheted up from the individual to the institutional level. It may be overlain with a scrupulous commitment to collaboration and the means and mechanisms to sustain this collaboration. The principal point of this discussion, however, is that an assessment of federalism that captures the dynamic between the state and local governments exercising vigorous authority under the police power can become enmeshed in some vexing inter-governmental struggles; likewise, the competition for impact and influence between state and national governments can have a similar valence. As to matters of good governing and its facilitation, we should remember Ronald Reagan’s statement about the former Soviet Union: Trust, but verify.
Constitutionalism as a They, Not an It
The state police power, as we have discussed throughout the book, is nested in our schemes of state constitutionalism. It is from those constitutions that the power is derived; and the overall purpose and function of the police power is to implement objectives that are instantiated in these state constitutions, principally the promotion of the general welfare and complementary goals, including the protection of health, safety, and public morals. Moreover, the structural limits on the exercise of this power are found in the implicit instruction that the government act in a fashion neither arbitrary nor with animus, and overall with a public purpose. These have been fashioned in our analysis as state constitutional objectives. However, it would be incomplete to dwell on state constitutionalism without describing further how our state constitutionalism is embedded in our American constitutional framework and mission. Constitutions are, after all, the fundamental law of states that are part of a nation of United States.
Short of painting a complete and coherent picture of state constitutions as part of the project of American constitutionalism, an ambition beyond the scope of this book, two general observations are relevant to this particular project. First, the state constitutions are fashioned as instruments of particular state objectives and while there are common elements across the fifty states – elements whose commonality permit us to speak about state constitutionalism as a coherent concept – it is important to acknowledge and understand the particularities that might ground a particular approach to regulatory power and to private rights (among other aspects of that state’s constitution). Constitutions are thus a “they” in their diversity and their functions. To be sure, they are tied together by the fact that there is a US Constitution that will provide a general framework of governance and of rights within which these separate state constitutions function. This is made clear only in the brute fact of supremacy as established in the US Constitution, but also in Article IV’s requirement that the United States “guarantee to every State in this Union a Republican form of government.”62 Through this important provision, however erratically enforced as a matter of constitutional doctrine, the US Constitution makes clear that it has a stake not only in the results of state political and legal processes, but in the nature of the process itself. This principle, more than any other, ties together state constitutions in a common bond, one that directs them to organize their lawmaking and law-implementing institutions to facilitate the goals that benefit republican governance. This is not to say that the US Constitution expresses a particular view about the content and scope of the police power, but that it does express to states a commitment to safeguard republican governance and the goals that such a system of governance entails.
Second, it is important to see American constitutionalism as safeguarding, through structure and practice, overarching goals of a polity that is represented by both national governments and by their own state and local governments. This idea is communicated by specific constitutional principles and doctrines, including federalism and also the post-incorporation, post-Reconstruction conception of ordered liberty emerging from our constitutional rights we enjoy as free citizens, regardless of our location. Up to now, we have focused especially on the way that the police serves the goal of state constitutional project. We need not miss in such a focus, however, the deep and broad ways in which the state constitutions work constructively to facilitate omnibus goals of the American constitutional object. To make this more concrete, think of the idea of regulation designed to protect public health. Health of citizens is a broad goal, one by any measure central to the well-being of free citizens and from which most other goals and obligations arise. Political officials and commentators have gone further in saying that health is a human right, a positive right that should be protected by governments at all levels. But we need not go that far to make at least the point that the pursuit of public health, though embedded in the state police power and the state government’s obligation under this power to protect public health. Addressing the predicament of violence crime can also be understood as raising not only local goals, but national objectives. How can We the People benefit as citizens of our extended republic if we fear for our safety in our communities? There are many other examples we could conjure up to illustrate the idea that the state police power facilitates goals that span state borders, and, viewed more broadly, that the state constitutions are not only charters of fundamental law within the confines of the state, but are embedded in a more general constitutional rubric. Although conversations about constitutional theory and constitutional law often neglect to give due to state constitutions, we can recognize as we reflect more deeply on the matter that constitutions are a “they” that make up what is ultimately a common discourse, a national agenda, and a set of evolving objectives in whose service the many powers vested in national, state, and local governments remain.
American constitutionalism is a they not an it in that we fulfill our constitutional ideals by creating and improving mechanisms by which governmental institutions at all levels perform the essential functions of protecting public health, safety, and morals, and advancing the common good. The allocation of responsibility – how and to whom – is a complex and contestable matter of dynamic politics and ultimately of democracy. But the core principle is that we are all in this together and, further, that our fifty-one constitutions work in synergy, to enable the right institutions to protect our interests and goals. This is a principle of American constitutionalism that transcends one location or a narrow, one-size-fits-all conception of the general welfare. Moreover, this idea of a dynamic American constitutionalism, one that pedigrees the US Constitution as the fulcrum of our collective national constitutional objectives, while also acknowledging that the prerogatives of states to exercise reserved powers is reflected in our ideas of American federalism. Ultimately, therefore, constitutional federalism has a deep stake in the successful use of the police power in the American states.
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