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Police power
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Police power is the capacity of a state to regulate behaviours and enforce order within its territory, often framed in terms of public welfare, security, morality, and safety.[1] Police power is legally considered an inherent power, limited only by prohibitions specified in the constitution of a state, making it the most expansive authorized power exercised by a state.[citation needed]
The concept of police power (or simply "police") in English common law dates back at least four centuries[2] and roughly coincides with the breakdown of the feudal order in Europe and the development of towns and cities (polis).[3] The exercise of police power can be in the form of making laws, compelling obedience to those laws through physical means with the aim of removing liberty, legal sanctions, or other forms of coercion and inducements. Controversies over the exercise of police power, particularly the use of physical means, arise when it conflicts with the rights of sub-national states and individuals or civil liberties, such as the police power of American states for example, or police brutality.
In American legal history, police power has a particular significance for interpreting the constitutional division of power. Nineteenth-century Supreme Court rulings confirmed that the federal government had certain powers delegated by the constitution, but that all unspecified regulatory powers, or "police power," rested with the states. The concept was expanded in the New Deal era to grant police power to the federal government under the commerce clause of the constitution, extending it to the provision of services to enhance public welfare.[4] US courts now rely on a "balance of interests" doctrine to settle contests over police power.[5]
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There are three primary legal theories as to the metaphysical origins of police power.
Some legal theorists regard states as having an "inherent" right to police power, meaning that it doesn't have to be explicitly written into any basic law or constitutional or other foundational document.
Historically, European monarchs considered police power to be bestowed on them by the Christian God. This was known as the Divine Right of Kings.
French Economist Frédéric Bastiat advanced the following democratic theory of police power in his 1849 book, The Law.[6]: The police power is essentially derived from the individual power of self-defense. If someone attacks you, he argues, you have a right, given to you by God[7], to use force to resist, or detain this person, and as people come together by compact to form democratic forms of self-rule, it becomes practical for citizens to delegate this power to an external body, such as to a militia or police force.
The most common use of police power over real property is for the adoption and enforcement of zoning regulations, building codes, and environmental protection regulations, by local, regional, and national governments.
Other uses of the police power include public health regulations, vice laws, traffic laws, and family law. However, it is impossible to give a complete list of the uses of police power because a state can write any command or prohibition as a law and make people obey it, as long as such laws do not contradict constitutions or other laws with precedent.
Under the 10th Amendment to the United States Constitution, the powers prohibited from or not delegated to the Federal Government are reserved to the states respectively, or to the people. This implies that the states do not possess all possible powers, since some of these are reserved to the people. The powers reserved to the states by the Constitution, include all powers the states retained prior to 1789 (U.S. Term Limits, Inc. v. Thornton). The framers of the U.S. Constitution believed that the states were empowered, like the British Parliament, with general authority to act on behalf of the welfare of their people but, unlike the British Parliament, subject to the restrictions of written state and federal constitutions.
Police powers are, from the point of view of state courts, also restricted by state constitutions. The concept of police power is used by federal courts which do not have jurisdiction to interpret state constitutions: from the point of view of federal constitutional law, states have general police powers except where restricted by the federal Constitution.
The U.S. Supreme Court has often held that police powers are limited, even before reaching specific Constitutional provisions. One of many such statements:
- Police powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. [1]
Cases such as Lawrence v. Texas suggest that intimate morals are no longer a legitimate subject of the police power except to the extent that health or safety are involved.
Because the Congress has limited powers granted in the Constitution, the Federal government does not have a general police power, as the states do. The exceptions are laws regarding Federal property and the military. On the other hand, Congress was granted by the New Deal Court a broad quasi-police authority from its power to regulate interstate commerce and raise and spend revenue.
- ^ "Police Power". Encyclopedia Britannica. Retrieved on 2007-02-08.
- ^ "Police Power". Encyclopedia of Public Health. Answers.com. Retrieved on 2007-02-08.
- ^ Neocleous, Mark (2004). Fabricating Social Order: A Critical History of Police Power. London: Pluto Press, 1. ISBN 978-0-7453-1489-1.
- ^ "Police Power". Encyclopedia of American History. Answers.com. Retrieved on 2007-02-08.
- ^ "Police Power". Encyclopedia Britannica. Retrieved on 2007-02-08.
- ^ See The Law, by Frédéric Bastiat
- ^ The Law, Chapter 3
