ࡱ> 2417 QbjbjUU **7|7|Ql $$$$$$$$$S sB$$$$$B $$W $$$ $ | $ 71m@< m0 CONSTITUTIONAL LAW A TEXTBOOK BY BERNARD SCHWARTZ Library of Congress card # 74-183411 231 Police Power When we speak of the reserved powers of the states, we refer primarily to the police power. Reference to that power appears at an early date in Supreme Court decisions.15 In its earliest concep- tion, the police power is synonymous with the powers of internal sovereignty. Chief Justices Marshall and Taney both equated the police power with the sovereign powers of government.1 II Brown v. Board of Education, 14. Id. at 18. 347 U.S. 483 (1954), 349 U.S. 294 15. The first use of the term ap-(1955). pears in Brown v. Maryland, 12 12. For the text of one such inter- Wheat. 419, 443 (U.S. 1827)position resolution, see Schwartz, A 16. See Gibbons v Ogden, ()Basic History of the U.S. Supreme Wheat. I, zo8 (U.S. 1824); License Court 153 ('968). Cases, 5 How. 504, 583 (U.S. 1827). 13. 358 U.S. I (1958) Sec. 231 Police Power 43 Though the police power was thus stated as tantamount to the power to govern, its scope was not as far-reaching as we might imagine. This was true because the power to govern was itself, until the present century, conceived of in negative terms. This meant that the police power, too, was largely a negative power. When the main task of government was to keep the ring and maintain fair play while private interests asserted themselves freely, the scope of the police power was necessarily limited. As it first developed in American law, the police power was anchored in the limitations that the courts had imposed upon individual rights. These limitations were embodied in the common-law maxim, sic utere tuo ut alienum non laedas.l7 The maxim supported the police power, giving the legislature authority to define the manner in which one might use his own property so as not to injure others.la Looked at as the power to give effect to the sic utere tuo maxim, the police power becomes a power to keep society free from noxious exercises of private rights, with the legislature competent to declare what shall be deemed noxious and how it shall be regulated, and to prohibit any other than such regulated exercise of the right involved. Whatever differences of opinion there may be on the exact boundaries of the police power, there is no doubt that it extends to protection of health, and to preservation of good order and public morals.ls At a minimum then, the police power can be defined as the governmental power to prescribe regulations to protect public health, safety, and morals.zo The basic maxim of the power is that every individual must submit to such restraints in the exercise of his rights as may be required to reduce the danger of abuse of those rights.21 Looked at in this manner, the police power may be paraphrased as society's natural right of self-defense.ze The police power has been anything but static. Originally, it may have beenconcerned only with preservation of public health, safety, and morals."" But that was the case only because those Were the primary social interests to be vindicated under the essentially negative theory of government that then prevailed. In our own day, '7 Use your own property in such Husen, 95 U.S. 465, 471 (1878). a manner as not to injure that of 21. See Freund, The Police Power another. 6 (1904). I8.Commonwealth v. Alger, 7 22. McGuire v. Chicago, B. & Q. Gush. 53, 06 (Mass. 1851) R. Co., 108 N.W. got, 907 (Iowa I9 Beer Co. v. Massachusetts, 97 1906). U.S. 25, 33 (1878). 23.Miller v. Board of Public 20. See Barbier v. Connolly, 113 Works, 234 Pac. 381, 383 (Gal. U.S. 27, 31 (1885); Railroad Co. v. I925) 44 T/le Federal Sysrern [Ch. two the narrow conception has given way to one that requires government to assume an affirmative duty to eliminate the excesses and injustices that are the concomitants of an unrestrained industrial economy. Xs government has come to be conceived of in positive terms, the same has come to be trite of the police power. In this sense, the police power has been an expansive power, changing to meet new conceptions of the governmental role. What was a century ago regarded as an improper exercise of the police power may now, because of these changes, be recognized as legitimate.24 One can state what has just been said from the point of view of the social interests secured by the police power. In the beginning, the social interests were essentially public health, safety, and morals. more recently, it has been seen that the interests to be vindicated by government are broader than those in health, safety, and morals alone. The Constitution itself has articulated a wider notion of the social interests that government should further. In stating the purposes to be served by government it included, in addition to the traditional ends of security and justice, to "promote the general Welfare."25 Toward the end of the nineteenth century, the judges returned to the conception of the general welfare as the basic social interest that could be vindicated by the police power. They did this by expanding the traditional formula defining the objects of the police power- "Public health, safety and morals"--by interpolating the words "public welfare." The broader meaning thus given to the police power has never been departed from. In a leading case, the Supreme Court has said that, while public health, safety, and morals may be the traditional test, they merely illustrate the scope of the police power and do not delimit it.26 'I'he police power is no longer contined to any narrow category.27 Instead, it may be exerted to further the public welfare--a concept as vast as the good of society itself.'" Under the expanded conception, the police power means the general power to preserve and promote the public welfare, even at the expense of private rights.29 It may be exerted for the general well-being, apart from any question of health, safety, or morals."" 24. Ibid. 29. Geneva v. Geneva Telephone 25 Constitution, Preamble. Co., 62 N.Y.Supp. 172, '75 (N.Y. 26. Berman v. Parker, 348 U.S. 1899). 26, 32 (1954)- 30 Nashville, C. & St. L. Ry. v. 27.Day-Brite Lighting v. ILlis- Waiters, 294 U.S. 405, 429 ('935); souri, 342 U.S. 421, 424 (1952) Chicago, B. & Q. R. Co. v. Illinois, 28.See Noble State Bank v. zoo U.S. 561, 592 (1906) Haskell, 219 U.S. 104 111 (1911). Sec. 241 Federal Police Power 45 The police power today is but another name for the governmental authority to further the welfare of society that is the basic end of all government.31 56[\nqQCJ H*CJ 5CJ \!"6[\no2s 9 ` Qpq/p%j]"#b[99:{-p0V"\~OPQ(&P/ =!"#$% i0@0 Normal_HmH sH tH <A@< Default Paragraph FontQ* !"6[\no2s9`  p q / p %j]"#b[9:{-p0V"\~OPS000000000000000000000000000000000000000000000000000000000000000000000000000000000000Q9QQMM--pp00VV""\\S--pp00VV""\\Swdd2C:\WINDOWS\TEMP\AutoRecovery save of Document1.asdwdd7C:\My Documents\42 The Federal System police powers.docwddgC:\WINDOWS\Application Data\Microsoft\Word\AutoRecovery save of 42 the federal system police powers.asdwddgC:\WINDOWS\Application Data\Microsoft\Word\AutoRecovery save of 42 the federal system police powers.asdwddgC:\WINDOWS\Application Data\Microsoft\Word\AutoRecovery save of 42 the federal system police powers.asdwddgC:\WINDOWS\Application Data\Microsoft\Word\AutoRecovery save of 42 the federal system police powers.asdwddgC:\WINDOWS\Application Data\Microsoft\Word\AutoRecovery save of 42 the federal system police powers.asdwddgC:\WINDOWS\Application Data\Microsoft\Word\AutoRecovery save of 42 the federal system police powers.asdwdd;E:\websites\TRAFFIC\42 the federal system police powers.docS@hQ0@UnknownGTimes New Roman5Symbol3& Arial"1h73<&73<& .!202Q/42 The Federal System [Chwddwdd Oh+'0t  0 < HT\dl042 The Federal System [Ch2 TwddddNormalFwdd2dMicrosoft Word 9.0e@F#@se@@se@ ՜.+,0 hp|  wdd.  042 The Federal System [Ch Title  "#$%&'(*+,-./03Root EntryJF\H FRm@51Table **mJWordDocument 0T`H**JSummaryInformationQi(!DocumentSummaryInformation8[HZH8JJ) CompObj