STATE POLICE POWER

The police power of the states is one of the most important concepts in American constitutional history; yet, like privacy or freedom of contract, its historic significance derives from usage and application, not from the language of the Constitution itself. Nowhere in the Constitution does the term appear.

In his Commentaries on the Laws of England (1769) william blackstone provided a definition of public police as "the due regulation and domestic order of the kingdom, whereby the inhabitants of the State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." Some of the early American treatises quoted this definition, but in fact it serves badly as a guide to constitutional doctrine and governmental realities in the United States in the 1790s or the early nineteenth century. Nor was the Supreme Court much more effective in providing guidance as to the substance and limits of the police power. Chief Justice john marshall verged perilously near outright tautology in gibbons v. odgen (1824), when he referred to the police power of the states as "that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general [national] government," and as the "acknowledged power of a State to regulate its police, its domestic trade, and to govern its own citizens." Left entirely open, of course, was the matter of what indeed had not been "surrendered" in the way of state powers as well as the matter of what was "acknowledged" as a legitimate part of residual state sovereignty in light of the Constitution. The Court itself, clearly, would acknowledge positive powers and define the terms of "surrender." As late as 1847, in his opinion in the license cases, Chief Justice roger b. taney was referring to the state police power in terms that hardly improved upon Marshall's, so far as specificity was concerned, but that at least had a more positive (if not to say sweeping) rhetorical thrust: that power was, Taney declared, "nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions." Not until the post-civil war years, when fourteenth amendment litigation paraded state regulatory laws before the Supreme Court for review, did the Court begin to grapple more tellingly with the problem of definition. Even in contemporary times, however, fitting the police power into the constellation of constitutional ideas has remained one of the Court's most perplexing concerns. There was as much critical acumen as despair in Justice william o. douglas's plaint, in Berman v. Parker (1954), that "an attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts." In the last analysis, Douglas contended, "the definition is essentially the product of legislative determinations.…"

The Marshall and Taney approach to definition of the police power was sufficient, in a sense, because it sought only to place some sort of label on the powers that remained with the states once the Court had determined the legitimate reach of the contract clause and of the commerce clause; the police power was what the states had left when such determinations had been made. From the standpoint of state lawmakers, however, the approach of the two great Chief Justices was not at all sufficient. First, it did not make even the most basic conceptual distinctions among the fundamental types of governmental power; and so defining the police power as coextensive with sovereignty meant that police subsumed the powers of taxation and eminent domain. Second, the Marshall-Taney approach did not come to grips with power and its legitimate reach in a positive sense. What were the sources of state authority in its exercise of sovereign power? On what basis could a state court, for example, weigh the legitimacy of a regulatory law (even if clearly not beyond the bounds set by federal contract clause and commerce clause rules) against state constitutional limitations such as those prohibiting takings without just compensation ?

It fell to one of the nation's greatest state judges, Chief Justice lemuel shaw of Massachusetts, to produce a doctrinal exposition on the police power that would establish the framework for subsequent adjudication and debate. Shaw's formulation was set forth in Commonwealth v. Alger (1851), in which the Massachusetts high court upheld as a proper exercise of "the police power" (so explicitly called) a statute that forbade construction of any wharf in specified areas of Boston harbor. Shaw's great achievement was twofold. He broke out of the cul de sac to which Marshall and Taney had driven, addressing the legitimacy of the police power in terms liberated from boundaries set by commerce and contract clause doctrine; and he offered a jurisprudential foundation for positive governmental action.

Shaw conceded at the outset that the police power challenged head-on any efforts to tame it and bring it within bounds. Yet, while it was "not easy to mark its boundaries, or prescribe limits to its exercise," the police power must be acknowledged as superior in some reasoned way to private rights and claims. It was so, Shaw contended, as "a settled principle, growing out of the nature of well-ordered civil society." And so he turned to the task of giving substance to what the Supreme Court had lately termed "the police power belonging to the states, in virtue of their general sovereignty" (Justice joseph story in prigg v. pennsylvania, 1842). One of the foundations of that power was the common law rule sic utere tuo ut alienum non laedas (use your own property in such manner as not to injure that of another). Historically, the rule had been invoked to justify private nuisance and public nuisance actions alike; in either way, however, it had been used in essentially defensive modes. Shaw linked the sic utere concept with a positive obligation of government to impose a system of reasonable restraints on private property uses. "Rights of property," he contended, are properly subject "to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient." As Leonard W. Levy, the biographer of Shaw, has shown, Shaw thus advanced doctrine well beyond the old common law framework; although Shaw held out the possibility of judicial overturning of laws that were not "reasonable" and violated private vested rights, he stressed the propriety of the legislature's acting when necessary and expedient to impose restraints for the public good.

But Shaw also undertook to define a related, yet in some measure conceptually distinct, foundation for the police power: the concept of "rights of the public." Thus Shaw insisted on the "expediency and necessity of defining and securing the rights of the public," and elsewhere on "the acknowledged public right." Even acts not necessarily punishable by common law might properly be declared illegal by regulatory legislation, Shaw wrote, "for the sake of having a definitive, known and authoritative rule which all can understand and obey." Thus, from the Shaw court in 1851, American police power doctrine emerged in its essentials. As in an earlier decision in 1837 (Commonwealth v. Blackington), Shaw asserted the legislature's power to act for the public good to be "the general rule," whereas restraint of the legislature should be the "specific exception."

The next step in elaboration of police power doctrine was the specification of positive purposes, more detailed than the public good or "rights of the public" broadly stated, for which the power would justify regulatory legislation. Early efforts at specification along these lines, before Shaw reformulated the whole issue, had tended simply to codify the common law categories of behavior and property uses constituting nuisance. (Such, for example, is what one finds in Chancellor james kent'sCommentaries.) Here again, the arsenal of the common law held an instrument potentially powerful—the principle salus populi suprema lex (the welfare of the people is the supreme law), which in the seventeenth and eighteenth centuries in England had often been invoked to assert the plenary powers of Parliament restricted only by accumulated constitutional liberties. In an influential Vermont decision, handed down three years after Shaw's great effort, Chief Justice Isaac Redfield declared that "the general comfort, health, and prosperity of the State" warranted state regulatory powers on the same basis of power as "re-sides in the British parliament, except where they are restrained by written constitutions" (Thorpe v. Rutland Railroad, 1855).

In some other state courts, judges proved reluctant to endorse wholly such broad definitions of legitimate intervention; yet even these more conservative jurists, while looking for principles on which to support judicial review, contributed to specification of the bases of positive authority. Thus one of the Michigan judges in People v. Jackson & Co. (1861) contended that powers "which can only be justified on [the] specific ground" of the police power or general legislative power must be "clearly necessary to the safety, comfort and well being of society." This line of reasoning was reflected in the 1877 decision of the Supreme Court in boston beer co. v. massachusetts, in which Justice joseph p. bradley stated for the Court that a prohibition statute against sale of alcoholic beverages did not violate the rights of a brewery company, for clearly such legislation was warranted under the police power: "However difficult it may be to render a satisfactory definition of it," Bradley wrote, "there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals."

Two other doctrinal arguments found their way into antebellum state jurisprudence on the police power. The first, which was rooted in the notion that the power was part of the residuary sovereignty and of legislative authority comparable to that of Parliament, was that the police power was inalienable. That is, states could not bargain away their power—and obligation—to look after the public interest. (See inalienable police power.) The second, a pragmatic strain that would doubtless frighten those who believed that vested rights in property deserved more rigid protection, was the view that the police power needed to be consonant with the changing character and needs of the society. This latter, expansive view of the police power found vivid expression in decisions of the 1850s upholding new regulations which permitted railroads to use the public streets to gain access to urban centers. How the imperatives of material progress inspired this expansive doctrine was illustrated in the language of an Illinois decision in 1859 (Moses v. Railroad) declaring that to deny a railroad the use of public streets, "no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age."

Although the antebellum state courts had provided them with a doctrinal foundation for expanded regulatory initiatives, the state legislatures in fact were slow to extend the range or increase the intensity of regulation. Still, grist for judicial mills was provided by laws that were challenged in the long-established areas of state intervention—that is, in such matters as the regulation of streams to protect navigation and fisheries, marketing regulations and standards, laws requiring the fencing-in of livestock, rudimentary safety legislation (especially against fire dangers), and the control of operations on public works such as bridges, highways, and canals. In the late 1840s and the 1850s, police-power measures proliferated as both the regulation of railroad operations and prohibition of alcoholic beverages became common. Astute lawyers were quick to resist expansive claims for the police power, especially when they limited the freedom that powerful economic interests enjoyed in the use of their property. Prior to 1833, challenges to the police power were often based on the Fifth Amendment as well as on comparable provisions of the state constitutions; but the decision of barron v. baltimore cut off that line of defense for propertied interests. Still, lawyers continued to rely on the due process provisions of state constitutions; and they contended regularly that regulations took away the value of private property without just compensation—in other words, that the regulations effectively were "takings" and amounted to inverse condemnation. Despite the doctrinal contribution of Chief Justice Shaw and others in the 1850s, moreover, lawyers resorted commonly to the view that only uses of property that were actionable under the common law (as noxious uses, nuisances, or trespasses) could be reached by state regulations. In few cases did courts respond favorably to such arguments. Still, the intellectual and to some degree political groundwork was thereby laid for future attacks on the police power.

Adoption of the Fourteenth Amendment gave new impetus and hope to defenders of private property, who presented arguments in the courts that the privileges and immunities clause and the due process clause alike afforded new protections against interventions under the police power. Simultaneously with adoption of the amendment, in 1868, came publication of thomas m. cooley's treatise, Constitutional Limitations, in its first edition. Of basic importance to Cooley's view of the limitations that ought to confine the power of state legislatures was his premise that the "due bounds of legislative power" were not set alone by "express constitutional provisions." The implied limitations that he believed ought to apply all hinged on a generalized "due process" concept. Due process, he contended, forbade enactment of what he termed "class legislation" (laws imposing burdens or granting privileges to specific groups or interests that were arbitrarily singled out instead of being "reasonably" classified). Moreover, his generous definition of due process would forbid laws that were "arbitrary and unusual [in] nature," and as such "unknown to the law of the land." The champions of laissez-faire, if given reason for optimism by the Fourteenth Amendment and the views in Cooley's treatise, were provided with a source of unbounded joy by publication in 1886 of christopher g. tiedeman'sLimitations of the Police Power in the United States. Tiedeman's great contribution was his attempt to turn the clock back altogether, to negate the principal contribution the Shaw Court had made in Alger, by resurrecting wholesale the doctrine that the old common law limits also constituted the proper limits of the positive police power. In effect, Tiedeman attempted to fuse the concept of due process, in the Constitution, with the traditional common law limits of sic utere. By the late 1870s, the Supreme Court itself had become divided on the crucial question: how far could state regulation go in limiting the actions of private persons and corporations in the marketplace?

The subsequent battle was not confined to the courts; it extended to the legislatures and the political hustings. Indeed, the question of regulatory power was at the very vortex of the storm in both national and state politics for three-quarters of a century. Three issues were involved in the debates. The first was whether specific types of regulatory actions by government abridged, unconstitutionally, what came to be called freedom of contract. The second was whether the courts or, instead, the legislatures were supreme in determining whether specific regulations were constitutionally permissible. Finally, there was the issue of what standards the courts should apply generally—if indeed the judicial branch had the power to review specific regulatory measures—to distinguish constitutional measures from those that were unconstitutional. All these issues centered on the rights of property.

Supreme Court doctrine continued to echo pre-Civil War formulations, even expanding them (rhetorically, at least) at the height of conservative, property-minded influence on the Court. Thus in Barbier v. Connolly (1884) Justice stephen j. field declared that neither the Fourteenth Amendment nor any other "was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and to add to its wealth and prosperity." Going as far, but in terms perhaps even more open-ended and expansive, Justice john marshall harlan asserted in Chicago, Burlington & Quincy Railway v. Commissioners (1906) that the legitimate police power of the state "embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety." Despite such assertions of legitimacy for regulatory power, virtually every new or proposed regulation threatening to impose costs or restraints on private interests met with resistance in the state legislatures and the courts. Regulation varied in scope and effectiveness, from one state to another. The latitude and potential for diversity within the legal system offered by federalism was never more apparent. Nonetheless, the emergent industrial order, the rapid growth of population and absorption of millions of immigrants, urbanization, and the social dislocations that attended the acceleration of technological change and the growth of large-scale firms with enormous leverage over their employees and markets all served to focus political and legislative attention on expansion of the states' regulatory activities. Soon the courts were crowded with cases challenging regulative innovations.

The threshold question, of course, was whether legislative discretion should be permitted or whether the courts should impose constitutional standards that went to questions of substance such as "reasonableness." Before the Civil War, "due process" had been understood as referring to procedural requirements (right to a fair hearing, specification of procedural steps and forms, notice, and the like). In the 1870s, counsel in both the slaughterhouse cases of 1873 and Munn v. Illinois and the other granger cases of 1877 argued that state regulatory legislation should be overturned on grounds of "due process" deprivation now defined as deprivation of substantive rights in violation of the Fourteenth Amendment. However, the right to regulate private interests, the Court declared in Munn, is one "which may be abused," to be sure; but "for protection against abuses by legislatures the people must resort to the polls, not to the courts."

Within a short time, though, the Court reversed itself and began to review state legislation under the police power with a view toward deciding whether "abuse" had occurred. Expansion of the concepts of substantive due process and freedom of contract, in the hands of a Court whose personnel and social philosophy had changed radically by the 1890s, brought the Court into the business of acting regularly as censor of legislation on substantive grounds. Despite the continued ascendancy in national politics of Republican and conservative-Democratic regimes that resisted pressures for sweeping social-reform legislation, still a flood of new state legislation came forth in such areas as municipal public health, franchise law affecting public utilities, factory and mining safety, maximum hours, child labor, building codes, and railroad safety and operating practices. Neither the state courts nor the Supreme Court lacked for opportunities to play the role of censor and apply the new substantive due process reading of the Fourteenth Amendment.

Thus the courts turned to the last of the great questions regarding constitutional definition of the police power and its limits in the post-Civil War era: the question of standards or formulae for determining constitutionality. One of those standards emerged early in the period—ironically, in Munn v. Illinois, in which the new Fourteenth Amendment claims were decisively rejected by the Court. In deciding the case, however, the Court set forth the new principle of affectation with a public interest, asserting that warehouses and railroad companies were subject to regulation because they were virtual monopolies. They were comparable to bridges and ferries, long held by the common law to be a special category of business dedicated to service to the public, standing athwart essential lines of commerce and travel. Citizens were compelled, in effect, to resort to them; hence they were classified by the Court as being in the regulable category. The "affectation" doctrine was a Trojan horse. If there was a line to be drawn between businesses regulable because of their essential character—that is, because the public was compelled to use them for vital activities—then on the other side of that line were types of business immune from regulation. Such was the logic of Munn. In later years, the Court struck down a great variety of state regulatory laws on the grounds they were aimed at businesses not affected with a public interest. Indeed, not until 1934 in nebbia v. new york did the Court finally abandon the affectation distinction, ruling that a state could properly regulate any economic interest. "It is clear," the Court declared, "that there is no closed class or category of businesses affected with a public interest."

"Freedom of contract" similarly served as a standard for the Court to strike down regulatory legislation. Thus in lochner v. new york (1905) and adkins v. children ' s hospital (1923), as well as in other decisions, the Court invalidated various state laws that regulated the terms of industrial employment. Like the "affectation" standard, however, the freedom of contract formulation as a restriction on the police power was destined to be discarded in the course of the New Deal period of the Court's history.

Other limitations on state exercise of the police power proved to be more enduring. They are, in part, the limitations rooted in the older, antebellum concept of due process as a procedural concept, reinforced by the terms of the equal protection clause of the Fourteenth Amendment. Not only the Supreme Court but also the state courts—both in periods when many courts were inclined to invalidate social-reform legislation on the grounds of freedom of contract and in periods when they were more inclined to be deferential to legislatures—have contributed to the formulation of continuing restraints on the police power. Thoroughly accepted in American constitutional law, in recent decades, is Justice oliver wendell holmes's warning, in Noble State Bank v. Haskell (1911), that regulatory legislation by its definition will "more or less limit the liberty of the individual or … diminish property to a certain extent"—but government would be paralyzed if such limitations should regularly fall afoul of constitutional objections. Yet Holmes himself conceded in his opinion in the controversial case of Pennsylvania CoalCompany v. Mahon (1922) when the Court invalidated a Pennsylvania law curbing mining companies' property rights in an effort to save urban structures from collapsing, that there must be some definable "limits" to the police power: "While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Thus a line must be drawn between the police power, which permits diminution of property or liberty, and the power of eminent domain, which authorizes a taking only for a public purpose and on payment of adequate compensation.

To this specific consideration of when regulation encroaches on the realm of eminent domain taking, the Supreme Court and state courts have welded the more traditional procedural concerns. Exemplary of the latter was the doctrine of the Tennessee high court in Vanzant v. Waddel (1829) to the effect that to be valid a regulation must be "a general public law, equally binding upon every member of the community … under similar circumstances." Chief Justice Shaw of Massachusetts elaborated the theme in decisions upholding forfeiture of property deemed unwholesome or a public nuisance, but requiring trial by jury and judicial process. So long as the legislature established a precise statutory rule, applied it evenhandedly, and provided traditional procedural safeguards, the Shaw court would uphold police power regulation. Later, from the Supreme Court opinion in mugler v. kansas (1887), came the formulation that to be valid a police power regulation must have a "real or substantial relation" to public health, morals, safety, and welfare; and in 1936 (Treigle v. Homestead Association) the Court also declared that a regulation must be enacted "for an end which is in fact public and the means adopted must be reasonably adapted to the accomplishment of that end." These considerations of due process, too, have survived even though the restraining concepts to which they were once wedded—the "affectation" idea, and substantive due process concepts such as judicial determination of reasonableness—have largely been stripped from them.

In recent times, and particularly since the expansion of the positive state in the New Deal era, constitutional challenges to the police power have come to a focus on the question of how much administrative discretion ought to be allowed to state regulatory agencies. Agricultural marketing commissions, fish and game control agencies, mining-safety authorities, factory inspection boards, fireand building-code enforcement agencies, air and water pollution control boards, and other regulatory agencies of government have been held to standards of administrative due process. Their substantive powers of regulation, however, have been generally upheld broadly by state and federal courts.

Emblematic of modern police power issues in the law is the history of land-use zoning. Even prior to the decision in 1926 of euclid v. ambler realty, in which the Supreme Court upheld zoning that excluded industrial use, several of the states' appellate courts had validated such legislation. In each instance, they rejected claims that property owners had suffered from an effective "taking," hence ought to be compensated. As the Supreme Court itself noted in Euclid, such regulations a half century earlier "probably would have been rejected as arbitrary and oppressive"; now they were found necessary and valid because they were consonant with the magnitude of emergent industrial and urban problems. As the California Supreme Court declared in Miller v. Board of Public Works (1925), widely cited in other cases involving expansion of administrative discretion: "The police power, as such, is not confined within the narrow circumspection of precedents, resting upon past conditions which do not cover and control present-day conditions.… [It] is elastic and, in keeping with the growth of knowledge and the belief in the popular mind in the need for its application, capable of expansion.…"

The presumption of constitutionality against claims based on due process was explicitly stated in opinions of the Supreme Court again in the 1930s, echoing the majority's views in Munn. In Nebbia, for example, the Court not only laid to rest "affectation with a public interest" as a limitation on the police power; it also held that a regulation should be accorded "every possible presumption … in favor of its validity … unless palpably in excess of legislative power." When the Court upheld a statute regulating prices charged by employment agencies, in olsen v. nebraska (1941), it couched its holding in terms that made its new posture unmistakable: "We are not concerned," wrote Justice William O. Douglas, "with the wisdom, need, or appropriateness of the legislation.… There is no necessity for the state to demonstrate before us that evils persist." In ferguson v. skrupa (1963) the Court refused to strike down a state law that prohibited anyone from engaging in the business of debt-adjusting except as incidental to the practice of law. Justice hugo l. black, writing for the Court, acknowledged that good arguments doubtless could be made for the social utility of the activity thus restricted. But he concluded that though the regulation might be "wise or unwise," this substantive issue was not the Court's concern; it belonged to the state legislature. In Agins v. Tiburon (1980) a municipal zoning ordinance severely limited development of open-space lands; the Court again upheld a sweeping use of the police power and turned away due process arguments against the ordinance. So long as even a greatly reduced use of the land was permitted, the Court ruled, claims that "justice and fairness" had been denied would not be upheld. Although the Court still imposed commerce power limitations on the states' regulatory activities, by the 1980s it seemed that the presumption of constitutionality against due process, contract clause, and inverse condemnation claims was firmly entrenched.

A decision ostensibly on a narrow technical point yet vitally important for expansion of discretionary power's real-life effectiveness was Morrissette v. United States (1951). In this decision the Court reaffirmed state court rulings dating back to pre-Civil War years that when criminal penalties are used to enforce police power regulations regarding "public health, safety and welfare," the state is not constitutionally required to prove criminal intent, as in ordinary criminal cases.

In response to the emergence of the modern state police power, there has been abundant scholarly debate and legal controversy regarding its impact on private economic rights. Some have welcomed the enlarged regulatory power and administrative discretion, declaring them to be indispensable in the complex world of modern economic and social change. These same features of the modern police power have been condemned heatedly by others, however, as unfair in their application. That eminent domain takings, which do require compensation, and actions under the police power, which do not, are on a continuous spectrum of state power has long been recognized. Numerous scholarly formulations have been offered to distinguish the two powers. The classic distinction was given in ernst freund's great treatise, The Police Power: Public Policy and Constitutional Rights, published in 1904. Freund contended that "the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful." Modern critics of the expanded police power and the positive state deplore restrictions upon uses of property that impose costs upon a private owner in order to benefit the public, rather than to prevent harm to the public; thus, the person prevented from building on his or her land where it stands in the flight path of an airport's runway is said by these critics to be harmed unfairly, forced in effect to bear alone the cost of a public benefit.

There are some, indeed, who take a hard-line position on the police power by arguing that virtually all restraints—but certainly those that deprive private property owners of what previously had been "reasonable expectations" of use and profit from regulated property—ought to be accompanied by reasonable compensation. Only the narrowest sort of regulation, based on common law nuisance and sic utere doctrine, would be exempt as these property-minded conservatives formulate their theory. The possibility that paralysis of the regulatory process might be caused by the sheer volume of government compensation payments required by this theory is a source of satisfaction rather than dismay to the most doctrinaire proponents of this view. Posed against it, and in favor of a definition of police power broad in its terms and consonant with recent decisions, is a theory that when government undertakes the role of "enterpriser" (creating parks, building highways, sponsoring urban renewal projects) it ought to compensate owners whose property is taken or damaged; but in its role as "arbiter" of contending social interests, as Joseph Sax has written, its actions for regulation of private uses of property should require no compensation. Other commentators, taking a middle position, urge that courts should give fresh recognition to considerations of "fairness" in these matters—for example, guarding against the possibility of a property owner's becoming the victim of more or less systematic deprivation, and also distinguishing degrees of harm and damage to the private owners affected by a state action. These commentators also urge that administrators and legislators should be aware of "demoralization costs" when no effort is made to ameliorate the suffering of those hit hardest by regulatory activities.

The conflict between claims of the public under the police power and the claims of private property thus constitutes one major area of constitutional adjudication and current debate. Another area, no less turbulent and controversial, is the conflict between the police power and personal freedoms. Virtually all confrontations between persons and the state on matters of separation of church and state, or discrimination based on sex or religion or race are confrontations involving the police power. The whole corpus of constitutional doctrine based on the bill of rights and on the Fourteenth Amendment, in this area, together with such federal statutes as the various civil rights acts, serve as a comprehensive set of limitations upon exercise of the state police power. The states remain free, however, to impose a higher standard in regard to constitutional liberties than is required by prevailing Supreme Court doctrine based on the federal Constitution.

As the uses of the federal regulatory powers have expanded, especially since 1933, there has been increasing need for the courts to examine the question of preemption—that is, the supersession of state laws when federal regulation has occupied a given policy area. In cases such as parker v. brown in 1943, and Florida Avocado Growers v. Paul twenty years later, the Supreme Court has upheld state marketing regulations affecting agricultural products even though both federal antitrust regulation and federal farm policies presented serious preemption questions. In the fields of labor law and transportation regulation, however, the Court has been more inclined to curb the scope of state activity in fields regulated by federal statutes and administrative regulations. Since the mid-1960s, a wave of consumer-oriented, industrial safety, and environmental legislation enacted by Congress has brought national power into regulatory areas previously occupied largely by state law. These initiatives have occasioned considerable litigation centering on preemption and congressional intent. In a few instances, the new federal statutes specifically authorize imposition of higher regulatory standards by individual states; other statutes have provided for federal preemption after a specified period, in states that do not meet certain minimum standards of regulation and enforcement.

The complexities of the preemption issue in modern constitutional law concerning the state police power are emblematic of the differences between government intervention in the present day and intervention on the modest scale of the eighteenth and nineteenth centuries. In 1836 Justice Joseph Story summarized the limited functions of the state in his day: to protect the persons and property of citizens from harm, to guard personal rights; to establish courts of justice and enforce laws against crimes, to enforce contracts, and to encourage moral behavior. These functions, together with state promotion of economic development, were justified because they were "conducive to the strength and the happiness of the people." What Story could not anticipate—and what is at the core of the modern constitutional history of the state police power—is the enormous expansion of regulatory activity and the accompanying shift toward enlarged administrative discretion in the modern state. Recent decisions and treatises are no longer much concerned with issues concerning the legitimacy of the police power as such issues were defined in Field's and Cooley's day, or even in the early years of the New Deal. Nonetheless, changing values as to equality, fairness, and rights of the public—and, to an increasing degree in the 1980s, a revival of issues concerning efficiency criteria and the wisdom of regulatory policies—continue to be expressed both in policy debates and in scholarly dialogue on the place of the state police power in the constitutional system.

Harry N. Scheiber
(1986)

Bibliography

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