The Inscrutable (yet Irrepressible) State Police Power
The central source of state regulatory power under the state constitutional system is the police power. This is the power given to the state legislature to regulate in the service of the health, safety, and welfare of the citizenry. The police power is commonly viewed as an essential power, one that grows out of our constitutional tradition and therefore need not be established through an explicit textual warrant. Indeed, the concept of the police power emerges out of the basic principle that state constitutions as documents of limit, not of grant. It is no coincidence that the classic exegeses on the police power are from the Progressive era and its environs. Thomas Cooley, Ernst Freund, and Charles Tiedeman provide perspectives on state police power that stress the broad themes of ambitious state regulatory power. These normative arguments navigate around a Lochnerera jurisprudence that aims to limit state power, principally through substantive due process constraints. The “victory,” so called, comes out of the New Deal and while the attention is lavished on the reconfiguration of national legislative power in the post-1930’s period, the end of the Lochner era brings with it a doctrinal and (for the most part) normative acknowledgment that state regulatory power is capacious and relentless.
With this acknowledgment, the scholarly literature on state police power has largely withered away. There are precious few deep analyses, either doctrinally or normatively, about the state police power in the past century. The police power is hard-wired into our state constitutional tradition and state legislation enacted under the rubric of the police power is ubiquitous. However, the police power is seldom part of our constitutional conversation. It remains inscrutable, and, in any case, is little scrutinized.
