'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.
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.
[1]
Philosophical origins
There are three primary legal theories as to the metaphysical origins of police power.
Inherent Right
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.
Divine Right
Historic
Historically, European monarchs considered police power to be bestowed on them by the
Christian God. This was known as the
Divine Right of Kings.
Modern
In the United States in
2004, Rep.
Robert Aderholt(R) proposed a
law that would have made
Divine Right an official Federal policy. The law, known as the "
Constitution Restoration Act of 2004," would have prohibited the
Supreme Court of the United States from hearing cases involving state or Federal officials' "acknowledgement of God as the
sovereign source of law,
liberty, or
government."
[6]
Delegation of Power of Self Defense
French Economist
Frédéric Bastiat advanced the following democratic theory of police power in his 1849 book, ''
The Law''.
[7]: 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[8], 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.
Uses of Police Power
The most common use of police power over
real property is for the adoption and enforcement of
zoning regulations,
building codes, environmental protection regulations, etc. by
local,
regional governments,
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.
Police power in the United States
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.
See also
★
Law and order (politics)
★
Police
External links
★
Constitution Restoration Act of 2004
References
1. Police Power Encyclopedia Britannica
2. Police Power Encyclopedia of Public Health
3. Fabricating Social Order: A Critical History of Police Power, , Mark, Neocleous, Pluto Press, , ISBN 978-0-7453-1489-1
4. Police Power Encyclopedia of American History
5. Police Power Encyclopedia Britannica
6.
Legislation keeps God issues out of courts
7. See The Law, by Frédéric Bastiat
8. The Law, Chapter 3
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