THE POLICE POWER: WHAT IS IT? WHAT'S ITS ORIGIN?

This exchange is from the Conlawprofs listserve and is on the subject of the police power, which is the biggie that you won't find in the express text of the Constitution but accounts for most of the state legislative enactments. 

Check the library for the state code and you'll see a wall of shelf-space, almost all police power in nature.  I'd always thought the police power was the one intentionally withheld from the national government when it was created by the thirteen original states in that meeting in Philadelphia in the summer of 1787.

The police power is said to be all of the powers inherent in government plus the power to regulate public health, safety, welfare, and morals, that's five in all. 

According to Paul Finkelman, who surely knows whereof he speaks, the police power was not invented until 1837 in a case called N.Y. v. Miln, as an exception to the commerce clause, the ulterior motive being Chief Justice Taney's desire to protect the South's institution of slavery, and slave-trading under the Commerce Clause.  Taney was the slave-owner from Maryland who wrote the Dred Scott decision, our contribution to the world of Nuremburg Law literature promoted by Hitler in Nazi Germany.

Here's the exchange, in which I've added boldface to call attention:

John Parry wrote:

I'm looking for good discussions of the state "police power" to protect health, safety, and welfare.  In particular, I am looking for treatments that have a strong historical component -- that is, what the police power has meant at different times (and in particular, has the conception of what a state legitimately might want to regulate morphed or expanded in any way?).

Bob Sheridan wrote:

You might find "The United States Supreme Court, The Pursuit of Justice," edited by Christopher Tomlins (Houghton Mifflin, 2005) of interest. 

The article on the Taney Court by one Paul Finkelman has it that the doctrine was newly invented in New York v. Miln (1837) "to allow states to regulate aspects of interstate and international commerce carried on within their own jurisdictions, as long as Congress had not regulated the activity."   

There are other references in articles on later courts as the likes of Holmes deals with the police power.

Paul Finkelman wrote:

That's my story, and I'm sticking to it; the Taney Court invented the police powers doctrine to reassure the South that it could control its "domestic instiutions" as southerns quaintly referred to slavery. 

This was also connected to the black seamen's laws in the southern coastal states. 

Attorneys in Miln discussed the need of South Carolina to be able to prevent the entry into their prots of free blacks sailors from the US and the British Empire.

Earl Maltz wrote:

With due respect, I think that Paul's account is improbable.  Without question, the Southern justices were aware that cases such as Miln had implications for the ability of the slave states to control the ingress of free African-Americans, as well as the interstate slave trade.  But there was no need to invent the concept of the police power to create the necessary legal regime.  One could, as the majority opinion did in Miln, simply take the view that the movement of people was not commerce--thereby perforce leaving the states free to deal with such movement as they wished.  Alternatively, one could argue (as I believe that Wayne did in The Passenger Cases) that the movement of slaves and free blacks was simply different from other problems for constitutional purposes.

Mark Tushnet wrote:

I'm not sure that I endorse Paul's account in its full force, but I think there's more to it than Earl suggests.  One way to suggest the point is to note the word "perforce" in Earl's posting.  That signals the position that state legislatures were authorized to do anything not prohibited them by the national or their own constitutions -- which is to say, that state legislatures had a general police power.  But I think that was at least contested in the early Republic, and that there was a substantial view that state legislatures had to point to some authority for what they did (much as the national government did). 

The question, I think, is, when did the particular powers state legislatures unquestionably have get reconceptualized as examples of a general police power?  And I think there's reason to believe that that happened around the time Paul identifies, and maybe for the reason he gives.

Earl Maltz wrote:

I understood Paul to be making the argument that the invention of the concept of the police power was necessary to protect Southern interests from a dormant commerce clause/federal power argument.  With respect to Mark's broader point, I suspect that the right to control one's borders would have been considered an inherent power of a sovereign (although I would have to consult Vattel or some similarly authoritative late 18th/early nineteenth century source to be sure).

Bob Sheridan wrote:

The news to me was that the police power began as an exception, in effect, to the commerce power.

The police power, as I understand it, is the power to regulate public health, safety, welfare and morals.  This I understood was a power not expressly delegated by the states to the  national government in framing the Constitution because those matters were well in hand among the states and was so broad, and thus reserved.  The states were attempting to set up an auxiliary government, not a competing one as in:  You do that and we'll do this.

Nevertheless, the ability to regulate welfare and morals, especially the latter, is the area where I'd most expect to see  a change in public attitude over time.  Today we react at least with concern over attempts to impose one among competing moralities, especially religious-based moralities, over another.  This seems to have occurred as a matter of course until when?  The First Amendment fights over authors such as James Joyce and Henry Miller?  Leading to the contraception issue in Griswold, and thence from there to Loving, Roe, and Lawrence?

Paul Finkelman wrote:

It is an exception to the Commerce Power when it is used to override what is otherwise "interstate" or "international" commerce. 

Everyone at the time understood that the "migration or importation" of persons was part of commerce and that the states could not interfere in foreign policy by regulating international commerce. 

Thus, in Miln the Court had to carve out an exception to allow NY (and by implication SC) to regulate international commerce.

Another professor wrote:

Incorporation decisions surely had a huge effect.  Then there was Harlan's opinion in Poe v. Ullman.  The "morals" leg is preposterous, but how many on the court are willing to say so?

So I re-read Poe v. Ullman (1961)

Poe v. Ullman was the predecessor to the famous Griswold v. Connecticut (1965) case on marital privacy, contraceptive aids and advice, and what doctors can tell patients.  The problem is that the court in 1961 ducked the issue by saying that the plaintiffs had no standing to obtain a declaratory judgment on the validity of the Connecticut statute prohibiting the sale of contraceptive aids or the giving of contraceptive advice.

This led to a ringing dissent by Justice Harlan in what I think is a masterpiece of legal writing that goes a long way to explaining the meaning of the police power and when it may be legitimately invoked by a state, such as Connecticut in this case.  See whether you agree.  Several years later in Griswold, the Court does an about face, with Justice William O. Douglas writing for the Court.

Prof. Tushnet provides the solution to my puzzlement about the origin of the police powers: 

How could they be first recognized in 1837 if they were intentionally with-held by the states from the newly founded central government (the U.S.A.) in 1787. 

They were always there, he says. 

They were simply "reconceptualized" in 1837 as the "police power" by Justice Taney.

Justice Taney is an example of a supremely talented legal thinker, what we might see as a consummate lawyer and a legal writer (as Attorney-General for Pres. Andrew Jackson, he wrote the famous Veto Message that killed the Second Bank of the United States, the one upheld in McCulloch v. Maryland by Justice Marshall, whom he later succeeded as Chief Justice in 1835).

Taney, however, was crippled morally, by today's lights, and by many of the lights of his own day, lights that were in the minority, by  his belief in the rightness of slavery and the alleged "inferiority of what was then called the so-called Negro race.  We don't even use the term "Negro race" or Negro" these days except when discussing history.

This business of what makes a good lawyer, and whether a lawyer who is legally talented but morally corrupt can be legitimately called a good lawyer, calls to mind a lawyer I litigated against.  He constantly pulled dirty tricks on the various lawyers in the case, was constantly caught, and constantly continued.  No one who dealt with him trusted him.  He was talented in many ways and then asked out loud, after the litigation concluded, why we couldn't be friends.  I didn't have the heart to tell him.  It wouldn't have done any good.  He couldn't help being a snake.

I knew another lawyer who had difficulty telling the truth.  He would lie with a straight face when the truth would serve the same purpose better.  After I learned what a pathological liar was, I figured he was the poster boy for it.

He also had a skirt problem, or what some women call a zipper problem.  No woman was safe near him, and a lot didn't want to be safe, either.  What I learned from him was that when a man tells you he's been married five times, you don't want to have anything to do with him, because his mind is not on any allegedly common endeavor you may have together.

Calls to mind the police power. 

The self-police power.