The conservation of private rights is attained by the imposition of a wholesome restraint upon their exercise, such a restraint as will prevent the infliction of injury upon others in the enjoyment of them.… The power of the government to impose this restraint is called Police Power.1
—CHRISTOPHER TIEDEMAN
IF THE PRESUMPTION of Liberty were adopted, how could state laws be shown to be proper? Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes determining their proper limits one of the most challenging and vexatious issues in constitutional theory. Answering this question will require a reliance on many of the concepts and distinctions we have examined in previous chapters, so I begin with a brief review of the terrain we have crossed to reach this point.
We have seen how a written constitution is used to “lock in” certain rights and procedures so they are not easily changed by majority or minority factions. Lock-in requires that the original meaning of these provisions be maintained until the writing is amended. If this original meaning creates a lawmaking process that is good enough to produce laws that are binding in conscience, then the original scheme is legitimate. The Necessary and Proper Clause dictates that a federal law must be both necessary and proper. According to the original meaning of “proper,” reinforced by the Tenth Amendment, a federal law must be a means to the achievement of an object or power enumerated in the text. Most of the enumerated powers are inoffensive to the background rights or liberties retained by the people. Even the one power that most often is relied upon to justify legislation affecting liberty, the commerce power, interpreted according to its original meaning, is consistent with the rights retained by the people.
Because the states are not restricted by a similar enumeration of powers, ascertaining the propriety of state laws is a more difficult endeavor. Nor are the contours of their powers written in the Constitution. This does not mean that state lawmaking powers are unlimited. First, they are constrained by their own written constitutions, and by some additional prohibitions contained in the original Constitution. Before the Civil War, however, unless a state law violated one of these expressed prohibitions, it could not be challenged in federal court. In 1833, the Supreme Court, in Barron v. Mayor of Baltimore,2 held that the Bill of Rights applied only to the federal government and did not constrain the states (notwithstanding that the text of some of the first ten amendments contains no such limitation). Thus, at the founding period and for decades thereafter, the propriety of state laws received minimal federal scrutiny.3
Upon passage of the Fourteenth Amendment, however, the constitutional structure changed. States were now prohibited from abridging any of the “privileges or immunities” of their citizens, a phrase that included the background natural rights of the people along with other rights and privileges of citizenship expressly created by the Constitution. In addition, states could not deprive persons of life, liberty, or property without due process of law or deny them the equal protection of the laws. Federal courts were now required to assess whether states had violated any of these prohibitions.
Although the Privileges or Immunities Clause was largely gutted by the conventional interpretation of The Slaughter-House Cases,4 there are signs that it is not yet a dead letter.5 Moreover, after Slaughter-House, the courts began using the Due Process and Equal Protection Clauses to provide much the same constraint on state power that was originally intended to result from the Privileges or Immunities Clause, albeit with less textual justification. The “absolute” protection against laws that violate the privileges or immunities of all citizens has been shifted to the Due Process Clause, although not to the degree warranted by the original meaning of the Privileges or Immunities Clause. Likewise, the protection against laws that discriminated against a particular class of citizens was shifted to the Equal Protection Clause, the original purpose of which was to require the state judiciary and executive branch officials to apply and enforce laws equally.
Owing to the Fourteenth Amendment, therefore, state governments no longer can claim a plenary power to restrict the liberties of the people subject only to their constitutions and any express restrictions in the original Constitution. Rather, any state abridgment of the privileges or immunities should be subject to challenge in federal court. When state legislatures restrict the liberties of the people, they are no more entitled to be the judge in their own case than is Congress. The exercise of liberty by the citizen should not be restricted unless the state can show, to the satisfaction of an independent tribunal of justice, that such a restriction is both necessary and proper.
However, because there is no list of enumerated powers the original meaning of which can be used to distinguish proper from improper exercises of power, determining the necessity and propriety of state laws is problematic. Indeed, there is nothing in the Constitution that speaks to the issue of the proper scope of state powers. The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” While this provision establishes that federal powers are limited to those that are enumerated, it does not say whether any other power is in the hands of the states or the people. As Justice Thomas has correctly observed, “With this careful last phrase, the Amendment avoids taking any position on the division of power between state governments and the people of the States.”6 To answer that question we must look elsewhere.
Originally, the obvious place to look was state constitutions to see what powers a particular state had been granted,7 but as was already mentioned, the passage of the Fourteenth Amendment complicated this by forbidding states to improperly violate the privileges or immunities of its own citizens even where permitted by their constitutions. In the absence of a written enumeration of state powers in the U.S. Constitution, we have no original meaning to apply to the problem at hand and so are thrown back upon the technique of constitutional construction. How are we to construe the propriety of state power in the absence of an express enumeration? The traditional term for appropriate state power is the “police power” and, as we shall see, to understand this concept requires an understanding of and respect for natural rights.
The idea that the states possess a power of “police” existed at the time of the framing. The phrase “internal police” was used seven times by delegates to refer to the power of state governments; once this power was referred to as “their police.” The issue of the police power of states arose when the Convention was still considering making a general grant of power to the national government, but wished to ensure that the “[National Legislature should] not … interfere with the governments of the individual States in any matters of internal police, [in] which the general welfare of the United States is not concerned.”8 In The Federalist, Hamilton employs the term “domestic police” twice in essays denying that the national government was a threat to state power.9
The term “police” was rarely used in the state ratification conventions. On two occasions in New York it was used to refer to the power of states. John Williams insisted that “[t]he constitution should be so formed as not to swallow up the state governments: the general government ought to be confined to certain national objects; and the states should retain such powers as concern their own internal police.”10 Hamilton contended that there might be more force in this type of objection, “[w]ere the laws of the Union to new-model the internal police of any state; were they to alter, or abrogate at a blow, the whole of its civil and criminal institutions; were they to penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.…”11 Elsewhere, the term was used during the debate over the powers of Congress to control the national capital. In Pennsylvania, it was proposed that the Constitution be amended so that the powers of Congress “be qualified by a proviso that such right of legislation extend only to such regulations as respect the police and good order thereof.”12 The term “police” was also used in the same manner several times in the Virginia convention.
Only slight elaboration is added by St. George Tucker in his treatise on the Constitution: “The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.”13 In none of these uses, however, is the scope of this power made clear. What, then, did it mean?
In one sense, the term is almost completely open-ended. Samuel Johnson defined “police” as “[t]he regulation and government of a city or country, so far as regards the inhabitants.” Apart from reinforcing the distinction discussed in chapter 11 between “regulate” and “govern,” this definition adds only the idea that the police power is a power over individuals (as opposed to a power over subsidiary governmental units). It adds little to an understanding of the scope of the power to regulate and govern individuals. The same can be said about the early Supreme Court opinions by John Marshall distinguishing the “regulations of interstate commerce” from “police power regulations.” As Laurence Tribe has noted, “these labels appear to have been largely conclusory; whatever their internal coherence or their predictive value for those who used them, they reveal little of the analysis underlying the decisions in which they played a role.”14
The absence of an articulated theory of “police power” reflected the lack of any need for such a theory so long as federal courts had little responsibility for protecting the rights of citizens from being violated by their state governments. With the enactment of the Fourteenth Amendment in 1868, however, a theory was required and such a theory was swiftly produced. In that same year the first edition of Thomas M. Cooley’s A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the United States of the American Union was published.15 Cooley, then a justice on the Michigan Supreme Court and the Jay Professor of Law at the University of Michigan, sought to address the question of “conflict between national and State authority” as well as the question of “whether the State exceeds its just powers in dealing with the property and restraining the actions of individuals.”16 The answers to these questions turned on the content of the police power, which he defined in light of previous judicial opinions as follows:
The police of a State, in a comprehensive sense, embraces its system of internal regulation, by which it is sought not only to preserve the public order and to prevent offences against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.17
The last part of this definition can be conceptualized as the power of a state to protect the rights of each of its citizens from being violated by any other person in society and to permit the exercise of one’s rights in such a manner as to prevent such exercise from intruding upon the like rights of others. Whereas the protection afforded common-law rights by adjudication occurs after they have been violated, police power regulations seek to facilitate the exercise of these rights and prevent their infringement before the fact.18 Whereas damage actions compensate for past violations of rights, the police power regulations permit laws to prevent rights violations from occurring. As we saw with Champion v. Ames, it is consistent with this conception of police power to acknowledge that “Congress may establish police regulations, as well as the States; confining their operation to the subjects over which it is given control by the Constitution.”19
There is no enumeration or list of specific state powers for much the same reason the founders thought rights could not be comprehensively listed. Just as all the ways that liberty may be exercised rightfully cannot be enumerated in advance, neither can all the specific ways that people may transgress upon the rights of others:
It would be quite impossible to enumerate all the instances in which this power is or may be exercised, because the various cases in which the exercise by one individual of his rights may conflict with a similar exercise by others, or may be detrimental to the public order or safety, are infinite in number and in variety.20
Like the modern doctrine that views content-neutral “time, place, and manner” regulations of speech to be consistent with the First Amendment, the police power permits the states the authority “to make extensive and varied regulations as to the time, place, and circumstances in and under which parties shall assert, enjoy, or exercise their rights, without coming into conflict with any of those constitutional principles which are established for the protection of private rights or private property.”21
Cooley’s conception of the police power descended from the same Lockean political theory on which the rest of the Constitution was based. In the prepolitical “state of nature” people are in possession of all their natural rights, including the right to execute or enforce their rights against other persons. “[I]n the state of Nature,” wrote Locke, “every one has the Executive Power of the Law of Nature.”22 However, in such a state, it can be objected that “it is unreasonable for Men to be Judges in their own Cases, that Self-love will make Men partial to themselves and their Friends. And on the other side, that Ill Nature, Passion and Revenge will carry them too far in punishing others.”23 For this reason, “nothing but Confusion and Disorder will follow,” and government is needed “to restrain the partiality and violence of Men.”24
Locke readily allowed “that Civil Government is the proper Remedy for the Inconveniences of the State of Nature, which must certainly be Great, where Men may be Judges in their own Case, since ’tis easily to be imagined, that he who was so unjust as to do his Brother an Injury, will scarce be so just as to condemn himself for it.”25 For this reason, “the Community government comes to be Umpire, by settled standing Rules, indifferent, and the same to all Parties; and by Men having Authority from the Community, for the execution of those Rules, decides all the differences that may happen between any Members of that Society, concerning any matter of right; and punishes those Offences which any Member hath committed against the Society, with such Penalties as the Law has established.”26 For Locke, an impartial judiciary applying a common law defines “civil society” :
Those who are united into one Body, and have a common establish’d Law and Judicature to appeal to, with Authority to decide Controversies between them, and punish Offenders, are in Civil Society one with another: but those who have no such common Appeal, I mean on Earth, are still in the state of Nature, each being, where there is no other, Judge for himself, and Executioner; which is, as I have before shew’d it, the perfect state of Nature.27
Thus, according to Lockean political theory, the first duty of government is to provide standing general rules for the equal protection of the rights retained by each person, and these rights, in turn, provide the baseline against which to assess the propriety of government actions and the justice of positive rules of law. But Locke also cautioned those who saw government as the solution to the inconveniences of the state of nature that these inconveniences did not justify a Leviathan with unlimited power of the sort advocated by Hobbes:
… Absolute Monarchs are but Men; and if Government is to be the Remedy of those Evils, which necessarily follow from Mens being Judges in their own Cases, and the State of Nature is therefore not to be endured, I desire to know what kind of Government that is, and how much better it is than the State of Nature, where one Man, commanding a multitude, has the Liberty to be Judge in his own Case, and may do to all his Subjects whatever he pleases, without the least liberty to any one to question or controle those who Execute his Pleasure? And in whatsoever he doth, whether led by Reason, Mistake or Passion, must be submitted to?28
From this Locke concluded that the state of nature with no government is preferable to an “absolute” or unlimited government, because at least in the state of nature, “Men are not bound to submit to the unjust will of another: And if he that judges, judges amiss in his own, or any other Case, he is answerable for it to the rest of Mankind.”29
The propriety of the laws made by the legislature is dictated by the rationale for yielding the lawmaking power to the government. “… Men, when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislative, as the good of the Society shall require.”30 This “good of society,” however, is no open-ended grant of power simply to do good; it is defined and limited by the rights retained by the people when they surrender their powers of enforcement, and this is what makes it a genuine common good or good for everyone, not merely a segment or faction of society. “[I]t being only with an intention in every one the better to preserve himself his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse), the power of the Society, or Legislative constituted by them, can never be suppos’d to extend farther than the common good.”31 And to secure this “common good,” the legislature “is obliged to secure every ones Property by providing against those three defects … that made the State of Nature so unsafe and uneasie.”32
These three defects are (1) “the want of an establish’d, settled, known Law, received and allowed by common consent to be the Standard of Right and Wrong, and the common measure to decide all Controversies between them” (§ 124); (2) the want of “a known and indifferent Judge, with Authority to determine all differences according to the established Law” (§ 125); and (3) the want of the “Power to back and support the Sentence when right, and to give it due Execution” (§ 126). Therefore, “whoever has the legislative or Supream Power of any Common-wealth, is bound to govern by establish’d Standing Laws, promulgated and known to the People, and not by Extemporary Decrees; by indifferent and upright Judges, who are to decide Controversies by those Laws; And to imploy the force of the Community at home, only in the Execution of such Laws.…”33
According to Lockean political theory, then, because people form government to secure their rights of liberty and property more effectively than they can secure them on their own, the executive or police power must be limited to the advancement of the common good, which is accomplished by protecting those same retained rights. In this way, Lockean theory provides both a powerful rationale for and an important limit upon the powers of government that is reflected in the police power doctrine. The police power is the legitimate authority of states to regulate rightful and prohibit wrongful acts. As Hamilton explained in Federalist 17, “[t]he administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a [national] jurisdiction.”34
Because the original meaning of the Fourteenth Amendment makes it necessary to distinguish legitimate from illegitimate exercises of state power, it requires the construction of some such doctrine as the police power of the states. No judicially created construction of state power, however, can properly grant state governments a completely plenary power limited only by whatever express prohibitions may exist in its constitution or in Article I, Section 10 of the U.S. Constitution. Granting so unlimited a power would conflict with the original meaning of the Privileges or Immunities, the Due Process, and the Equal Protection Clauses of the Fourteenth Amendment. In this manner, the original meaning of the text dictates some constructions of state power and excludes others.
Unsurprisingly, the Lockean theory of the police power adopted by Cooley and others to identify when states violate the injunctions of the Fourteenth Amendment is generally consistent with the conception of natural rights to which the framers of the Constitution and Fourteenth Amendment adhered. Natural rights define the boundary or space within which people are at liberty to do as they please provided their actions do not interfere with the rightful actions of others operating within their own boundaries or spaces. Just as it is proper to prohibit wrongful or rightsviolating conduct, proper police power regulations specify the manner in which persons may exercise their liberties so as to prevent them from accidentally interfering with the rights of others.
After Cooley, the leading nineteenth-century theorist of the police power was Professor Christopher Tiedeman. In his 1886 Treatise on the Limitations of Police Power in the United States, he repeatedly relied on the power to prevent rights violations to identify reasonable—and therefore constitutional—exercises of the police power. To explain the police power and its limits he began with the concept of natural rights.
The private rights of the individual, apart from a few statutory rights, which when compared with the whole body of private rights are insignificant in number, do not rest upon the mandate of municipal law as a source. They belong to man in a state of nature; they are natural rights, rights recognized and existing in the law of reason.35
Like Locke, Tiedeman defines the legitimate purpose of government as the protection of these rights. “The object of government is to impose that degree of restraint upon human actions, which is necessary to the uniform and reasonable conservation and enjoyment of private rights. Government and municipal law protect and develop, rather than create, private rights.”36 Government protects and develops these rights by preventing people from violating the rights of others. “The conservation of private rights is attained by the imposition of a wholesome restraint upon their exercise, such a restraint as will prevent the infliction of injury upon others in the enjoyment of them.… The power of the government to impose this restraint is called POLICE POWER.”37
While the Lockean theory of the police power, as developed by Cooley, Tiedeman, and others, was generally consistent with the background rights retained by the people, this power was sometimes construed more broadly than was proper. In particular, the police power was typically construed to empower states to protect, not only the “health and safety” of the general public, but its “morals” as well. For example, in the 1887 case of Mugler v. Kansas, Justice Harlan, the author of the opinion in Champion v. Ames, rejected a Fourteenth Amendment challenge to the prohibition of manufacturing and selling of alcohol on the ground that “It cannot be supposed that the states intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community.”38 By this rationale, courts upheld the power of states to prohibit gambling, the consumption of alcohol, prostitution, doing business on the Sabbath, and other types of activities that did not violate the rights of others.
Some of these expansions were recognized by leading police power theorists as improper even at the time. Christopher Tiedeman, for example, contended that legislation prohibiting gambling “would be open to serious constitutional objections. Gambling or betting of any kind is a vice and not a trespass, and inasmuch as the parties are willing victims of the evil effects, there is nothing that calls for public regulation.”39 According to this view, “[n]o law can make vice a crime, unless it becomes by its consequence a trespass upon the rights of the public.”40 For Tiedeman, the protection of rights is the measure of proper police power regulations.
Twelve Tiedeman discusses at some length why temperance laws were not only bad policy, but also beyond the state’s police power. “[N]o trade can be subjected to police regulation of any kind,” wrote Tiedeman, “unless its prosecution involves some harm or injury to the public or to third persons, and in any case the regulation cannot extend beyond the evil which is to be restrained.”41 Moreover, “no trade can be prohibited altogether, unless the evil is inherent in the character of the trade, so that the trade, however conducted, and whatever may be the character of the person engaged in it, must necessarily produce injury upon the public or upon individual third persons.”42
After a lengthy examination of the effects of the use and sale of alcohol, Tiedeman concluded that prohibition was not constitutionally justified under these principles of the police power. “[T]he liquor trade can not … be prohibited entirely, unless its prosecution is essentially and necessarily injurious to the public. Even the prohibition of saloons, that is, where intoxicating liquor is sold and served, to be drunk on the premises, cannot be justified on these grounds.”43 Although the courts of his day rejected this view, Tiedeman contended that it was “the duty of a constitutional jurist to press his views of constitutional law upon the attention of the legal world, even though they place him in opposition to the current of authority.”44
What Tiedeman could not justify was the prohibition of the liquor trade on private property. In contrast, when a state is acting as an owner of property, such as its own offices and buildings, or as the guardian of public spaces such as streets and parks, it may properly constrain conduct there, such as public fornication or intoxication. Immoral actions like these, though permitted behind closed doors, can wrongfully interfere with the use and enjoyment of the public sphere by reasonable members of the community and their children. Provided such restrictions on freedom were shown to be necessary to this end—and not violative of some other constitutional prohibition45—these sorts of protection of “public morals” would be within the Lockean construction of the police power of the states identified here.
On the other hand, were the state allowed the power to prohibit any purely private activity on the sole ground that a majority of the legislature deems it to be immoral, there would be no limit on state power since no court could review the rationality of such a judgment. As between the legislature and a citizen, the legislature would improperly be the judge in its own case. Imposing so unlimited a power on nonconsenting citizens would be an illegitimate construction of state power that would violate the original meaning of the Fourteenth Amendment.
How can a proper regulation of rightful activity be distinguished from an improper abridgment of the private rights of the people? As with the federal laws, the key is whether state laws are a pretext for purposes other than the prevention of future or rectification of past rights violations. One sign that a law is pretextual is when it benefits a particular group rather than the general public. This type of inquiry was emphasized and developed by the courts during the Reconstruction and Progressive Eras.
Building on the Lockean idea of the “common good,” courts examined whether a particular law benefited every person in the community as a whole or whether it instead was implemented for the benefit of a majority or minority faction (what today would be called a “special interest” group). As was stated by Justice Bradley in his Slaughter-House dissent: “[F]undamental rights … can only be interfered with … by lawful regulations necessary or proper for the mutual good of all.”46 The paradigm of a law that exceeded the police power to regulate rightful or prohibit wrongful conduct was a law that, in the words of Justice Samuel Chase in Calder v. Bull, “takes property from A. and gives it to B”47 or from group A to group B.
“An exercise of legislative powers would be considered valid,” explains Howard Gillman, “only if it could reasonably be justified as contributing to the general welfare. The adjudicative task was to give meaning to this standard.”48 Gillman has shown how great effort was expended by federal and state courts throughout the Progressive Era to develop sophisticated doctrines by which special interest legislation could be distinguished from general interest legislation that served a common good.
Specifically, it came to be determined, first, that laws that singled out specific groups or classes for special treatment would withstand constitutional scrutiny only if they could be justified as really related to the welfare of the community as a whole … and were not seen as corrupt attempts to use the powers of government to advance purely “private” interests; and second, that acts that interfered with an individual’s property or market liberty would be considered legitimate so long as they were not designed to advance the interests of just certain groups or classes.49
This project actually originated in state courts decades before the enactment of the Fourteenth Amendment, when interest groups began organizing to obtain special benefits from early state legislatures.50 Policing the vast array of legislative initiatives consistently from statute to statute was not always easy in a system in which a Supreme Court composed of nine justices oversaw numerous lower federal and state courts comprising innumerable judges. Gillman demonstrates that, despite the difficulties of such an inquiry, these efforts were remarkably coherent and also consistent with the political principles of the founding generation.
Gillman’s important work has two major themes. The first is that “Lochner-Era police powers jurisprudence” was both coherent and continuous with the underlying principles of the founding. This makes the New Deal rejection of this constitutional jurisprudence a revolution, not a restoration. After this revolution, unless a right deemed by the Court to be fundamental is violated, “Congress need not justify intervention itself, … need not justify intervening to favor some participants in the economy over others, … [and] need not justify its choice of favorites.”51 And neither must the states.
Gillman’s second theme is that the animating principle of the “Lochner Era” was an aversion to class legislation, not an adherence to “laissez-faire.” “But ‘public purpose’ as a limit on the powers of government did not mean ‘laissez-faire’; it meant by and large, class-neutral legislation—legislation that did not impose special burdens or benefits on certain market competitors.”52 Although Gillman’s evidence shows that resistance to class-based legislation was undoubtedly a touchstone by which reasonable regulation was distinguished from arbitrary interference with liberty, I have two small quarrels with this last claim.
Because Gillman misunderstands “laissez-faire,” he is rejecting a straw man. Laissez-faire was never a claim that liberty could not be regulated. The writings of Cooley and Tiedeman testify to this. Therefore, finding that “reasonable” regulations on liberty were upheld is no evidence that courts were rejecting laissez-faire as a political end. Courts that are completely committed to laissez-faire would still uphold reasonable regulations of liberty.
Gillman also underestimates the degree to which the resistance to class-based legislation was seen as a means to the protection of natural rights, rather than an end in itself. That is, the identification of class-based legislation could well have been thought to be a workable standard or doctrine by which infringements on natural rights could be detected and corrected. Although Gillman never really disputes this last point, his continued refrain about the rejection of laissez-faire in favor of an aversion to class-based legislation sets up an opposition that goes beyond his evidence.
We can sum up this analysis of the police power of states as follows: A Presumption of Liberty puts the burden upon states to justify any interference with liberty as both necessary and proper. Because the nature of state powers differs from federal power, the assessment of propriety will differ as well. The Fourteenth Amendment does not bar states from prohibiting wrongful exercises of freedom. There is no privilege to violate the rights of others, nor any immunity from liability should one do so. In nearly all instances, the Constitution leaves the general power to prohibit wrongful conduct where it was before its ratification: in the hands of states. It does, however, give Congress the power to prohibit and set the punishment for certain identifiable offenses, such as treason and piracy. The powers that came to be called the “police power” of the state are far from being inconsistent with the rights retained by the people. To the contrary, the protection of individual rights is at the core of a state’s police power.
A state may also justify its laws by showing that it is merely regulating liberty in a way that protects the rights of others. The Fourteenth Amendment bars states from “abridging” or violating the privileges or immunities of citizenship. It does not bar them from subjecting these privileges to publicly accessible “standing rules” of law, provided that such rules are also shown to be necessary to protect the rights that everyone possesses. In this manner, although the Fourteenth Amendment bars the abridgment of liberty and permits liberty-restricting laws to be challenged in federal court, it does not prevent legislatures from reasonably regulating the exercise of private rights.
Finally, in addition to prohibiting wrongful and regulating rightful private behavior that may injure the rights of others, the state may also manage government-controlled public space so as to enable members of the public to enjoy its use, and may restrict the use of its own property—provided these regulations and restrictions do not improperly violate other constitutional prohibitions on state power.
The Supreme Court’s decision in Lawrence v. Texas53 striking down a statute criminalizing homosexual “sodomy” illustrates these principles. In Lawrence, the government’s sole justification for the statute was that the legislature found this conduct to be “immoral.” The protection of “morals” is the most dubious aspect of the traditional construction of the police power—although typically this power was used to prohibit conduct that took place in public places where it could interfere with the use and enjoyment of public property by other citizens. Only very rarely was the power to protect “morals” used to reach wholly private conduct. In other words, the traditional police power would more accurately be defined as giving states power to protect the “health, safety, and public morals” of the populace.54
A police power to reach purely private “immoral” acts could always be asserted by a legislature whenever it decides to prohibit any form of conduct. By providing no judicially enforceable limit whatsoever on the police power of states, such a construction would violate the original meaning of the Fourteenth Amendment. Because it would permit legislatures to abridge the privileges or immunities of citizens, and because it appears nowhere in the text of the Constitution, such a claim of power is illegitimate.
It is significant, therefore, that the Court in Lawrence found this exercise of power to be improper. The actions banned neither harmed others nor took place in the public sphere where government must balance competing uses by different citizens. Justice Kennedy’s opinion in Lawrence is especially noteworthy because it protects liberty, rather than privacy, without any discussion of whether that liberty was “fundamental.” Having identified the conduct as liberty (not license), it then placed the burden on the government to justify its restriction. In this way, Lawrence can be viewed as escaping the Footnote Four-Plus framework described in chapter 9, and employing in its place a Presumption of Liberty.55
1 Christopher Tiedeman, Treatise on the Limitations of Police Power in the United States (St. Louis, Mo.: F. H. Thomas, 1886), 1–2.
2 32 U.S. (7 Pet.) 243 (1833).
3 Though, as will be noted below, state court judges began to scrutinize the propriety of state legislation under the “law of the land” provisions in state constitutions to ensure that such legislation served the general public, as opposed to a faction or special interest. See Gillman, The Constitution Besieged, 45–60.
4 Though, as was discussed in chapter 8, this interpretation may have exaggerated the degree to which the majority opinion in The Slaughter-House Cases undercut the application of the Bill of Rights to the states. See Newsom, “Setting Incorporationism Straight.”
5 See Saenz v. Roe, 526 U.S. 489 (1999) (Justice Stevens) (grounding the unenumerated right to travel in the Privileges or Immunities Clause).
6 United States Term Limits v. Thornton, 514 U.S. 779, 848 (1995) (Justice Thomas dissenting).
7 See ibid. (“It is up to the people of each State to determine which ‘reserved’ powers their state government may exercise”).
8 “Journal of the Convention,” Farrand, Records, 2:21 (July 17, 1787) (from resolution proposed to the convention).
9 See Federalist 17, 118 (Hamilton) (“The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition”). See Federalist 34, 309 (Hamilton) (referring to “expenses arising from those institutions which are relative to the mere domestic police of a state”).
10 Elliot, Debates, 2:241.
11 Ibid., 267.
12 Ibid., 545.
13 Tucker, in appendix of Blackstone’s Commentaries, 1:315–6. Notice also Tucker’s statement that the right to arms forbids disarming the people—this is an equivalent to the individual right of assembly—and his use of the term “prohibition” to denote what the right to keep and bear arms bars.
14 Laurence H. Tribe, American Constitutional Law, 3d ed. (New York: Foundation Press, 2000), 1047.
15 Thomas M. Cooley, A Treatise on Constitutional Limitations Which Rest Upon the Legislative Power of the United States of the American Union (Boston: Little, Brown, 1868).
16 Ibid., 572.
17 Ibid.
18 I refer to “police power regulation” because, in Lockean theory, adjudication is also an exercise of the police power.
19 Ibid., 586.
20 Ibid., 594. Ironically, modern judicial conservatives extol the open-ended police power, while shunning unenumerated rights because they are too uncertain. See, e.g., Bork, The Tempting of America, 44–45 (“The better view of state legislative power is that … it encompasses the power to make any enactment whatever that is not forbidden by a provision of a constitution”).
21 Ibid., 597.
22 Locke, Two Treatises, 316.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid., 367.
27 Ibid.
28 Ibid., 316–17.
29 Ibid., 317.
30 Ibid., 398.
31 Ibid.
32 Ibid.
33 Ibid., 399.
34 Federalist 17, 118 (Hamilton).
35 Tiedeman, Treatise on the Police Power, 1.
36 Ibid.
37 Ibid., 1–2 (capitals in original).
38 Mugler v. Kansas, 123 U.S. 623, 664 (1887) (emphasis added). In Mugler Harlan explained why judicial review was essential to cabin the police power. “If … a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution” (ibid., 661).
39 Tiedeman, Treatise on the Police Power, 260.
40 Ibid., 291. Tiedeman also thought that “when they pursue gambling as a business, and set up a gambling house, like all others who make a trade of vice, they may be prohibited and subjected to severe penalties” (ibid.; emphasis added). An explicit rationale for this distinction is not provided, but most likely it stems from Tiedeman’s conception of “public harm.” While private vice, of itself, works no necessary harm to the general public, Tiedeman appears to have thought that the business of supplying such vices does. He seems not to have understood that the legal suppression of such private business created enormous harm to the general public.
41 Ibid., 301.
42 Ibid., 301–2 (emphasis added).
43 Ibid., 307.
44 Ibid., 311. Thus I believe it is wrong to claim that “Cooley and Tiedeman, with the characteristic dogmatism of treatise writers, asserted that their views were ‘the law.’ ” Paul Brest, Sanford Levinson, Akhil Reed Amar, and J. M Balkin, Processes of Constitutional Decisionmaking: Cases and Materials (New York: Aspen Law & Business, 2000), 350. While Cooley hewed closely to precedent, Tiedeman was a bit more normative though he stated clearly where his views differed with the cases. As a result, Tiedeman’s thesis was somewhat more radical than Cooley’s. Of course, both attempted to synthesize “the law” and in so doing emphasized some authorities while de-emphasizing others.
45 Laws that improperly discriminate against some class of citizens, for example, would still be barred by the original meaning of the Privileges or Immunities Clause, or by the modern interpretation of the Equal Protection Clause.
46 83 U.S. 36, 116.
47 3 U.S. 386, 388 (1798).
48 See Gillman, The Constitution Besieged, 49.
49 Ibid., 49–50.
50 See ibid., 45–60.
51 Martin Shapiro, “The Supreme Court’s ‘Return’ to Economic Regulation,” in Karen Orren and Stephen Skowronek, eds., Studies in American Political Development (New Haven: Yale University Press 1986), 134.
52 Gillman, The Constitution Beseiged, 55.
53 123 S. Ct. 2472 (2003).
54 See Randy E. Barnett, “The Police Power,” Notre Dame Law Review 79 (forthcoming). See also Brief of the Institute for Justice as Amicus Curiae in Support of Petitioners, submitted in Lawrence v. Texas.
55 See Barnett, “Justice Kennedy’s Libertarian Revolution.”