Police Power: Sovereignty's Sledgehammer; R. Foley, Jr.

2 Willis, Hugh Evander, Constitutional Law of the United States (The Principia Press, Bloomington, Indiana 1936) 224. Mr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon. come or property from residents or subjects for the support of the state and its undertakings. 3 Eminent domain m·arks the at tribute or power of a sovereign state to appropriate private prop erty to particular uses against the owners' consent in order to' pro mote public welfare (usually after application of procedural "due process" and the payment of "just" compensation, at least in the United States).4 Because the ordinary citizen en counters these two types of norm3 See Attorney General v. City of Eau Claire, 37 Wis 400, 438; Linnell v. State Dept. of Finance, 21 Cal Rptr 785, 788, 203 Cal App 2d 465 (1962) for other re alistic definitions. 4 For similar definitions, see J efJress v. Town of Greenville, 154 NC 490, 70 SE 919,921 (1911), Consumer's Gas Trust Co. v. Harless, 131 Ind 446, 450, 29 NE 1062 (1892); Briegel v. Briegel, 307 Pa 93, 160 A 581, 584 (1931).

677 678 THE FREEMAN November ative rules on a regular basis, in dividuals generally possess at least a vague comprehension of the exercise of government force in these ,arenas. Few, if any, per sons esc'ape entirely from the net of direct taxation flung like a blanket over the nation; April 15 serves as an annual reminder of this extensive power, as does the periodic withholding which siphons off portions of current income. While somewhat less widely used, the power of eminent domain touches most neighborhoods and inhabitants, at least indirectly, as urban renewal, land use restric tion, and right-of-way displace ments work their gentle magic on the countryside. Dissimilarly, the police power lurks pervasively in the back ground, quite as real. and more in tense than its companion powers, but less well recognized by the persons affected by its scope. Nev ertheless, the saturating nature and incredible fundamental depth and sway of the police power render it the most dangerous (if least well known) of governmental powers. Indeed, it forms the theo retical base for all regulatory re trictions on personal liberty. This essay proposes to isolate and ana lyze the concept of police power, hopefully pointing the way to a limitation upon the scope of state edicts.

Police Power Defined Unlike many essential postu lates difficult to articulate but relatively easy to define by ex ample, police pow'er poses quite the converse problem: it may be defined with relative ease and general agreement; only the ap plication remains difficult by vir tue of the open-textured nature of the tenet. Without applying the appellation "police pow'er," Chief Justice Roger Taney spoke of that aspect of sovereignty in Charles River Bridge v. Warren Bridge, when he upheld the power of the sta te of Massachusetts to erect a competing bridge across the Charles River to the detriment of a pre-existing charter: . . . But the object and end of all government is to promote the happi ness and prosperity of the community by which it is established; and it can never be assumed, that the govern ment intended to diminish its power of accomplishing the end for which it was created .... 5 In the following decade, the same jurist defined police powers in the Licensee Cases:6 ... But what are the police powers of a State? They are nothing more ,or less than the powers of government inherent in every sovereignty to the 5 11 Pet. 420, 12 U.S. 496,507 (1837).

6 Thurlow v. The Commonwealth of Massachusetts, etc. 5 How. 504, 583, 16 U.S. 513, 525 (1846).

1975 POLICE POWER: SOVEREIGNTY'S SLEDGEHAMMER 679 extent of its dominion. And whether a state passes a quarantine law, as a law to punish offenses, as to establish courts of justice, or requiring certain instruments to be recorded, as to reg ulate commerce within its own limits, in every case it exercises the same power; tha t is to say, the power of sovereignty, the power to govern men and things within the limits of its do minion. It is by virtue of this power that it legislates ... From these roots, the common definition of police power has evolved to the power to govern, 7 the power inherent in every sov ereignty to control men and things under which authority the state may, within constitutional limita tions, prohibit all things hurtful to the comfort, safety, and welfare of society and prescribe regula tions to promote the public health, morals, safety, and order, and to add to the general public conveni ence, prosperity and welfare. 8 The Meaning and Sweep of Police Power 'Police power, a most elastic term, 9 inheres in the concept of 7 Gray v. Reclamation District No.

1500,174 Cal 622, 163 P 1024, 1032 (1917). 8 See State v. Cromwell, 72 ND 565, 9 NW2d 914, 191 (1943); 16 CJS 889 f?onstitutional Law § 174; State of Wash~ 'tngton v. MamLock, 58 Wash 631 109 P 47 (1910). ' 9 State v. Wisconsin Telephone Co.. 169 Wis 198, 172 NW 225, 226 (1919). ' sovereignt yl0 independent of the existence of any doctrine of emer gency.ll Sovereignty provides the ultimate justification for the gen eral exercise of governmental co ercion, while the police power rep resents the spe'cificconcept verify ing and validating application of that force to myriad special in stances. The revenue power of tax ation and the land control power of eminent domain serve as the scalpels of sovereignty, slicing away bits of human liberty in the name of public necessity; police power is sovereignty's sledgeham mer, pummeling the subjects into an orderly, if restricted, pattern of conduct.

A common myth prevails to the effect that, in the United States of America, at least, the citizenry enjoys a limited government. In theory, the United States Con stitution does limit the powers of the national government in cer tain specific particulars. In prac tice, the Federal government pos sesses an inherent police power rendering such an implied limita tion quite unreal. 12 Doubtless the Framers of the Federal Constitu10 Allen B. Dumont Laboratories v. Carroll, 184 F2d 153, 156 (3rd Cir 1950). 11 In re North New Jersey Title Ins. Co., 120 NJ 148, 184 A 420 (1936). 12 Professor Willis refers to the lack of a Federal police power as a "common heresy," Willis, Note 2, op cit p. 226.

680 THE FREEMAN November tion intended. to limit such police powers by means of the largely forgotten Ninth Amendment: Rights RetU,Jined by People. The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.13 Two centuries of judicial review and legislative encroachment have transmuted the Ninth Amend ment into a virtual nullity.14 In this stance, the eminent jur ist, Joseph Story, C'an accurately report that all property land all vested individual rights are sub ject to such police regulations as the legislature (government in the lawmaking sense) may establish with a view to protect the com munity.15 Profes'Sor Willis illus trates both the sweep of the power and its inherent restrictions: . . . The police power is the legal capacity of sovereignty, as one of its governmental agents, to delimit the personal liberty of persons by means which bear a substantial relation to the end to be accomplished for the protection of the social interests which reasonably need protection .. .16 13 U.S. Constitution, Amendment IX.

14 See Foley, Ridgway K., Jr., "Under The Ninth Amendment, What Rights Are Reserved To The People?" (unpublished manuscript) . 15 II Story (Joseph), Commentaries on the Constitution of the United States (5th ed, Bigelow, Little Brown & Com pany, Boston 1891) 700-701, § 1954. 16 Willis, Note 2, op cit p. 716. . . . There are two main require ments for a proper exercise of the police power: (1) there must be a social interest to be protected which is more important than the social in terest in personal liberty, and (2) there must be, as a means for the ac complishment of this end, something which bears a substantial relation thereto. 17 The Location of Police Powers in a Federal System The term "police power," refer ring to an inherent and largely disguised body of authority, does not appear in the United States Constitution nor in most state charters: ... Although the basis of the police power lies in the Constitution which regards the public welfare, safety, and health of the citizens of the state, and although it may be given to the people of the state by the constitution, the power exists without any reserva tion in the Constitution, being found ed on the duty of the state to protect its citizens and provide for the safety and good order of society.1 8 It seems likely, however, that the reserved powers mentioned in the Tenth Amendment to the United State's Constitution refer, if not by name at least in substance, to state police powers: Powers reserved to states or people.

The powers not delegated to the 17 Ibid, p. 728. 18 16 CJS 893-894, Constitutional Law §175a.

1975 POLICE POWER: SOVEREIGNTY'S SLEDGEHAMMER 681 United States by the Constitution, nor prohibited by it to the States, are re served to the States respectively, or to the people.I 9 Reservation "to the People" has faded from view; residual powers now inhere in the state under the guise of police power. Thus, the concept of limited gov ernment under the American Con stitutional system proves largely illusory. History from 1789 tell'S a continuing tale of a national government once strictly limited, so limited in fact tha t many be lieved the Bill of Rights to be un necessary, grasping additional powers under the guise first of the interstate ,commerce clause 20 and the necessary and proper clauses 21 and later under the general wel fare clause. 22 Few would contest the fact that the powers usurped under the concept of "general wel fare" or "necessary and proper" pretexts partake of a Federal po lice power. 23 Indeed, the language both of the Consti tution and of the individual legislation or de cision justifying each particular infringement upon personal liher19 u.s. Constitution, Amendment X.

20 U.S. Constitution, Art. I,. § 8 cl. 3. 21 U.S. Constitution, Art. I, § 8 cl. 18. 22 U.S. Constitution, Art. I, § 8 cl. 1. 23 The history and the inherent error in the misuse of each of these clauses, viewed against the drapery of individual freedom, deserves separate treatment apart from this essay. ty, coincides with the general test of police powers: those sovereign powers designed to promote public order, health, s·afety, morals and the general welfare of society. The draftsmen of the Federal Consti tution made relatively few mis takes, considering the general im precision of language and the in born human surge for power, but the three clauses mentioned st,and out as grieivous errors, permitting easy sanction for increased re straint and reduced liberty. State Police Powers Concurrently with the growth of the Federal police power, the individual states enjoyed their own reserve of police powers fashioned to inhibit human free dom 'and creativity. While the Federal police power lay largely dormant during the first century of the Gonstitution,24 one cannot surmise that the police power con cept drowsed: the individual states flexed their authority in 24 The writer has attempted to dispel the quaint notion of laissez-faire in the nineteenth century by illustrating the number of laws, enacted by state, and federal governments, which encroached upon personal freedom. See Foley, Ridg way K., Jr., "Individual Liberty and The Rule of Law",. 21 Freeman (No.6) 357, 373 (June 1971). See also, Hurst, James William, Law and the Conditions of Free dom in the 19th Century United States (U. of Wis. Press 1956) and Handler, Oscar and Mary, The Dimensions of Lib erty (Harv. U. Press 1961).

682 THE FREEMAN November myriad ways, through licensing acts, internal improvements and regulatory laws. From the outset, the two com~ peting governmental structures collided in sporadic conflict. Nor mally, state licensing, franchise, and regulatory laws confl'icted with Federal application of the interstate commerce clause.25 Dur ing the post-Civil War and post World War eras of substantive due process concepts, constitutional restrictions inhibited the exercise of the police power hy the states but in no way eradicated or in fringed upon the concept itself. 26 With the advent of increased so cial and economic legislation fol lowing the Great Depression of 1929, both state and Federal use of police powers have vastly in creased with a concomitant loss of individual liberty. Police Powers: Model and Reality The imaginary model of limited government in the American Fed eral system deviates from re'ality.

The deflection from truth occurs primarily as a re'sult of the con cept of police power. The model envisions a Federal 25 See Corwin, Edward S., The Consti tution and What It Means Today (Chase and Ducat rev ed, Princeton University Press 1973) 56-57. 26 Compare, Willis, note 2, op. cit. p.728. government possessing only those powers inherent in sovereign na tions. Each state government is as sumed to a,ct in a like limited ca pacity, the limitations flowing both from the National and the particular state constitutions. All powers not specifically delegated to the state or the Federal govern ment dwell in the individual acting human being. Man is free to do anything not prohihited by state or Federal law, and neither state nor Federal law encroaches upon voluntary action, except in the specific areas reserved in writing to the government in the funda mental charters. Contrast reality. The govern ment of the United States exer cises all powers sp'ecifically granted to it by the Constitution and all powers implied from that document. It also exercises a Na tional police power - the "right"

to provide for order, health, safe ty, morals and welfiare - inher,ent in sovereignty.27 The National government, in theory, cannot con travene the individual rights pro tected by the Constitution but, when dealing with police powers, one must recall that where the interest of the public runs counter to that of the individual, the lat ter must give way unless the law can be deemed "arbitrary, capri27 16 CJS 906, Constitutional Law, § 177, 1975 POLICE POWER: SOVEREIGNTY'S SLEDGEHAMMER 683 cious, or unreasonable."28 (Obvi ously, the phrase "public interest" constitutes a mere euphemism fo~ the personal interests of the dom inant person or group; govern ments, societies, communities, and other non-personal organiz'ations do not possess "interests.") 29 At the same time, the individual states appear as the Federal gov ernment in microcosm with one important distinction: while the Federal government purports, however fallaciously, to be a gov ernment of limited powers, the states do not, for they contain the elastic police powers, the great re serve powers of e·a-ch state. 30 In legal theory, .the states posses's all of the ordinary legislative powers exercised by the British Parlia ment at the time of the American Revolution except ·as restricted by state and Federal constitutions 31 A Suggested Analysis of Police Power To harmonize with the funda mental creed of maximum indi vidual liberty and limited powers 28 Egan v'. City 0/ Miami, 178 So. 132 (Fla. 1938).

29 See FoleY,Ridgway K., Jr., "Aft'ected with a Public Interest" (unpublished manuscript) . 30 In Re Opinion of the Justices Ala bama State Federation of Labor v. Mc Adory 18 So.2d 810 (Ala. 1944), 22 So.2d 521 (Ala. 1945). 31 Burdick, Charles K., The Law of the American Constitution (G. P. Putnam's Sons, New York 1922) 559. of government, any analysis of police power should restrict that doctrine to the use of community force to settle disputes which the participants cannot resolve in a voluntary manner and to prevent, deter and punish the use of force and fraud. Such a doctrine accords with the proper use of law,32 the sound definition· of sovereignty33 and the fundamental postulate of Justice. 34 . Under the existing tenets of police power, the states may enact laws which are impolitic, harsh or aggressive without contravening the Constitution. 35 Police powers comprehend reasonable prevention (prior restraint) as well and pun ishment. 36 To the contrary, the state should govern under general principles of justice, leaving free action to individual men; in short, the law should tolerate no external restraints (beyond those sug gested in the preceding para graph) upon creative hum,an ac tion, much less countena,nce harsh and oppressive legislation. Man 32 Foley, Note 24, op. cit. passim.

33 Foley, Note 1, op. cit. 34 Foley, Ridgway K., Jr., "In Quest of Justice" 24 Freeman (No.5) 301, 302 (May, 1974). 35 Southern Bell Tel & Tel Co. v. Town of Calhoun, 287 Fed. 381, 386 (W.D. SC 1923). D'Amico v. Brock 122 Cal App2d 63, 264 P2d 120, 125 (1953). ( 36 See Jung v. City of Winona, 71 'F. Supp. 558 (D. Minn. 1947).

684 THE FREEMAN November should remain free to deve10p his creative abilitie's through free ac tion sans prior restraints; the cer tainty of punitive reaction ade quately deters the initiation of force and fraud, with less loss of liberty than prior restraint. Prior restraint involves its own species of danger, the danger of internal oppression. In final analy sis, regulations impose the sub jective value judgments of one in dividual or group upon other in dividuals or groups who may possess widely differing subjective values. One who exerts prior re straint may misapprehend the ex istence of danger or misconstrue the efficacious means of averting whatever risk exists; the individ ual human actor can better assess both hazard and means of avoid ance since the lawmaker is cut from the same bolt and possesses no omnicompetence. Prior re straint encourages men holding power, for good reasons or ill, to oppress their neighbors. Limita tions and diffusion of power tend to stimulate freedom.

American courts have discerned the basis for police powers in the doctrine of "public necessity"37 and have termed it an essential element in all orderly govern ment. 3S In fact, the Supreme Court of the United States once declared that the principle of po lice power corresponds to the individual's right of s·elf-preserva tion. 39 Measured by these three tests, the doctrine of police power sug gested here satisfies the standard. It is necessary, if men are to live together in society, that aggres sors be deterred from initiating force against peaceable inhabi tants. Laws which prohibit the in itiation of force and fraud and which punish transgressions are publicly necessary in this egard. Orderly living does require a con trol repository of community force to quell external invasion and internal strife and to settle disputes which appear voluntarily insoluble. Self-preservation of the residents depends upon protection from irrational and sinister men.

On the other hand, when ex tended to the breadth and depth currently fashionable, police pow ers as defined prove too much. A single necessity exists: that man 37 Lone Star Gas Co. v. City of Fort Worth, Tex, 15 F. Supp. 171, 176 (N.D. Tex. 1936), rev'd. other grounds 93 F.2d 584 (5th eire 1937), cert denied 304 U.S. 562, 58 S. Ct. 943, 82 L.Ed. 1529 (1938), reh. den., 304 U.S. 589, 58 S. Ct. 1844, 82 L. Ed. 1549 (1938); Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640, 647 (1954). 38 American Trust Co. v. McCallister, 136 Or. 338, 347, 299 P. 319 (1931); Alex ander Co. v. City of Owatonna, 272 Minn. 312, 24 N.W.2d 244, 250 (1946). 39 Panhandle Eastern Pipeline Co. v. State Highway Comm, 294 U.S. 613, 55 S. Ct. 563, 567, 79 L. Ed. 1090 (1935).

1975 POLICE POWER: SOVEREIGNTY'S SLEDGEHAMMER 685 be permitted to dwell in harmony, as free as possible to conduct his life without the introduction of force or fraud. Any imagined "public" necessity beyond this point assume's, without rational foundation, that the whole is greater than the sum of its parts, that the state exists beyond the meshing of its individual citizens. Again, orderly government only requires impediments to initiation of aggression and deceit and the administration of justice; no one can really contend that a bridge across turgid waters can only de rive from public funds. "Public necessity" and "orderly processes of government" conjure up visions of voluntary ineptitude to solve human problems. It is not my task to explain how freedom will work in a given situ ation; I only know that liberty will produce a result more nearly in accord with the desires of the myriad hum'an beings affected by, and interested in, the proble1m and its resolution. The "public neces sity" argument implicitly decries one method of problem-solving the freedom way - and, thereby, engages in circular reasoning where the premise becomes the conclusion.

Moreover, no government and no state possesses any "rights," including the right to self-preser vation. Only individuals possess rights; any belief that a state owns rights involves a much too organic view of government. The state exists not to perpetuate it self in power but to secure the inalienable rights of individuals residing in that territory to life, liberty 'and property.40 Once a gov ernment fails in this task, it be comes useless. At any time, the citizens in a territorial unit may correct or alter the form of gov ernment in order to better accomp lish the purposes of justice. Any "right" of state self-preservation would collide with the individual's rights to continued free existence and to change or replace an exist ing state. Not just governm.ents may change; no warrant exists to preclude residents of a given ter ritory from establishing a new state. Again, the current concept of police power envisions the use of government force to improve the social and economic conditions of the community at large, to bring about the greatest good for the greatest number of people.41 The state possesses only destructive not creative, force and energy. It can only improve ~oci~J and eco nomic conditions by alleviating aggressive restraints upon crea40 Declaration of Independence of the United States of America.

41 People v. Sell, 310 Mich. 305, 17 N.W.2d 193, 196 (1945).

686 THE FREEMAN November tive human action. It can assure the condition for improvement freedom for all mankind - but it cannot cause improvement. Furthermore, the state lacks potency to determine, much less effect, "the greatest good for the greatest number." This Bentham ite utilitarian d~ctum, so reson ant in sound, can be peeled to ex pose a fallacious core. Good may only be determined by each indi vidual for himself; it is a sub jective value judgment, one which cannot be made by Congress or a committee. 42 Only the individual human being, living his life from internal directions, can determine his "greatest good"; only the free actions of all persons can deter mine the "greatest good for the greatest number." Any hedonistic calculus presupposing a legislator competent to m'ake this determin ation in an objective manner be trays the breeding ground for in cipient dictatorship.

The police power today exists in a broad spectrum. A legal en cyclopedia accurately expresses the ambit: ... It has been said that the scope of the power is as broad as the public welfare or interest thereof, that it is one of the least limitable of the pow42 See Foley, Ridgway K., Jr., "The Concept of Value in Ethics and Econom ics" 25 Freeman (No.2) 115 (February 1975) . ers of government, and that the police power is the broadest in scope of any field of governmental activity. With in the realm of police power the legis lature may act in any manner not for bidden by the Constitution expressly or by necessary implication. It ex tends to all matters which concern the regulation and control of the internal affairs of the state, and almost the whole of the great body of municipal law which establishes and enforces the duties of citizens to each other is embraced within and known as the police power. A state in suppressing what it regards as a public evil may adopt any reasonable measures which it may deem necessary, and the rea sonableness of a police regulation is not necessarily what is best, but what is fairly appropriate under attendant circumstances .... 43 Adherence to this philosophy leads to ultimate sanction for any kind of restraint. The statist may argue that the rule of reasonable ness limits arbitrary exercise of authority. But who determines what is reasonable? The state, through its legislative or judicial apparatus - hardly comforting to the endangered citizen losing his liberty particularly in light of the judicial rule that presumes every exercise of police power to be consti tutionally valid.44 43 16 CJS 898-899, Constitutional Law § 175 b.

44 Goldblatt v. Hempstead, 369 U.S. 590, 82 S. Ct. 987, 99,1, 8 L. Ed.2d 130 (1962).

1975 POLICE POWER: SOVEREIGNTY'SSLEDGEHAMMER 687 It remains to review in cursory fashion the objects to which the police power is often directed: public safety, health, order, mor als, and welfare. No purpose would be served to produce a lengthy litany of those choking laws rati fied in the name of police power at some time or another; suffice it to say, the Supreme Court of the United States has found it "inad visable" to set limits upon police powers, preferring a flexible norm and a case-by-case analysis,45 rec ognizing -that each and every such regulation speaks as a prohibition upon human choice.46 Neverthe less, in e'ach category lurks the very real danger of the use of po lice powers to curb creative en deavor beyond the proper scope of state authority. Thus, in the name of public safety, states have enacted stat utes prohibiting "dangerous" busi nesses and structures, not cogni zant of the fact that voluntary action may assume risks concur rent with the values possessed.

In the name of public health, legislators fluoridate community 45 Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 102, 99 L. Ed. 27 (1954); Christian v. LaForge, 194 Or. 450, 460, 242 P.2d 797 (1952). A flexible rule amounts to no rule at all- '~justice" mea sured by the subjective values of those currently in power, or, in legal parlance, "by the length of the chancellor's foot." 46 Goldblatt v. Hempstead, supra, Note 44, Ope cit. 82 S. Ct. at 989. water supply, in spite of evidence of detrimental effect upon human health and the ready availability of fluoride from other sources for private administration. In the name of public order, the state may circumscribe or wholly proscribe gambling, drunkenness or public meetings; in fact, such repressions affect the free flow of ideas and action whether or not the majority agrees with the value of the action. In the name of public morals, the government penalizes inde cency, adultery, prostitution and "immorality," matters much bet ter left to the decision of adult participants.

In the name of public welfare, the state plunders some and gives to others, a most devastating kind of immorality undeserving of the name of charity. In each instance where the state exceeds its proper perimeters of preventing force and fraud and providing common justice, the ap plication of police powers destroys human liberty and nurtures tyr anny. Richard VVeaver once observed, "Ideas have consequences." The idea of police powers produces the consequence of slavery. These broad powers act as the state's sledgehamme'r, crimping free ac tion and chilling personal crea tive endeavor. , LARRY W. BARNER Engineering .e~a\is{(\ Regulation: t\\O ~ed' oet\lf 1be~ There are those who hail, in effect, the advent of state regula tion of the several professions as "the bright, shining day" of pub lic protection and professional re sponsibility, and they have held sway over the public consciousness for many years. Nevertheless, there are storm clouds building nearby, within the professions and without, and they threaten to eclipse, at least temporarily, regu lation's source of power. There a.re those, again within and without, who are urging the clouds on. I am one.