POLICE POWER is the authority of government to regulate "health, safety, welfare, and morals." In U.S. constitutional law, it is the plenary power of government to regulate any matter affecting its citizens so long as it is not barred by the Constitution.
Derived from polis, Greek for city-state, "police" was a common eighteenth-century concept. Adam Smith lectured that police comprehended attention to roads, security, and "cheapness or plenty." In book four of his Commentaries on the Laws of England (4 vols., 1765–1769), William Blackstone defined public police and economy as "due regulation and domestic order of the kingdom," enforcing "the rules of propriety, good neighbourhood, and good manners." Samuel Johnson's Dictionary of the English Language (2 vols., 1755) defined police as "the regulation of a country or a city, so far as regards the inhabitants." Thus, Joseph Galloway's Plan of a Proposed Union between Great Britain and the Colonies (1774) specified that "each colony shall retain its present whatsoever."
The U.S. Constitution does not employ the term "police" but divides the powers of domestic regulation, delegating some to the central government, particularly in Article I, section 8, and reserving all others to the states in the Tenth Amendment. Still, in Federalist 34, Hamilton described the police of a nation-state to include support of its agencies and the encouragement of agriculture and manufactures.
John Marshall, the chief justice of the U.S. Supreme Court, described the power of a state to regulate gunpowder as a police power in Brown v. Maryland (1827). Yet Massachusetts chief justice Lemuel Shaw most influentially framed the definition of police power in Commonwealth v. Alger (1851) as a state power vested in the Legislature by the constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. This formula was widely adopted and encompassed arguments over governmental powers and their limits, past and future.
The U.S. Supreme Court expanded the doctrine throughout the nineteenth century into an inalienable power that the state could not divest, although the states could be flexible in its exercise. Likewise, the scope of the police power increased as states legislated over contracts, employment relationships, and the use of property. In 1911, Justice Oliver Wendell Holmes could declare "the police power extends to all the great public needs." New Deal courts and scholars expanded the police powers from regulation alone to include the governmental provision of services, particularly by the national government, using the commerce clause to underpin a federal police power.
Conflicts over the exercise of police power usually arise as arguments of limits on a state or the federal government, arising either from conflicts between that state and the national government or from limits protecting individual rights to property, contract, speech, or other civil rights. These limits may be either in state or federal constitutions. Notorious conflicts arose, initially, over the regulation of property and commerce. (Compare Dartmouth College v. Woodward , in which the U.S. Supreme Court ruled that states could not alter college charters, and Willson v. Black Bird Creek Marsh College, in which the Court determined that states may dam a navigable creek.) In the late 1800s labor laws were the source of contention (see Lochner v. New York , where the Supreme Court overturned state labor laws), while in the early twentieth century it was the powers of the regulatory state. (See Nebbia v. New York , allowing any state regulations as a "reasonable exertion of governmental authority" if not "arbitrary or discriminatory" and West Coast Hotel Co. v. Parrish , upholding state labor laws.) There are recurrent disputes over the definition and enforcement of civil rights. (Compare Dred Scott v. Sanford , where the Court ruled that state law defines slaves and citizens, with its Heart of Atlanta Motel v. United States  determination that Congress may ban racial discrimination in public accommodations, with Bowers v. Hardwick , where the Court declared that states may ban homosexual conduct.)
Cooley, Thomas M. A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union. 1871. 2 vols. Boston: Little, Brown, 1927.
Freund, Ernst. The Police Power: Public Policy and Constitutional Rights. Chicago: Callaghan and Company, 1904.
Novak, William J. The People's Welfare: Law and Regulation in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1996.
See alsoEminent Domain .
The authority conferred upon the states by thetenth amendmentto the U.S. Constitution and which the states delegate to their political subdivisions to enact measures to preserve and protect the safety, health, welfare, and morals of the community.
Police power describes the basic right of governments to make laws and regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution.
The right of states to make laws governing safety, health, welfare, and morals is derived from the Tenth Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people." State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties, cities, towns, villages, and large boroughs within the state.
Police power does not specifically refer to the right of state and local government to create police forces, although the police power does include that right. Police power is also used as the basis for enacting a variety of substantive laws in such areas as zoning, land use, fire and building codes, gambling, discrimination, parking, crime, licensing of professionals, liquor, motor vehicles, bicycles, nuisances, schooling, and sanitation.
If a law enacted pursuant to the police power does not promote the health, safety, or welfare of the community, it is likely to be an unconstitutional deprivation of life, liberty, or property. The most common challenge to a statute enacted pursuant to the police power is that it constitutes a taking. A taking occurs when the government deprives a person of property or directly interferes with or substantially disturbs a person's use and enjoyment of his or her property.
The case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994) illustrates how a state or local jurisdiction can exceed its police power. Mahony involved a zoning ordinance enacted by the township of Hampton in Pennsylvania. The ordinance prohibited a private party from operating a gas well in a residential district but allowed the operation of such wells by the government. Jack D. Mahony, a landowner who operated a gas well, objected to the ordinance, arguing that the disparate treatment of public and private operation of gas wells was arbitrary and not justified by any concerns related to the police power. Mahony noted that the state department of Environmental Regulation (DER) already regulated all gas wells in the state and that there was no factual basis for distinguishing between public and private wells.
The Supreme Court of Pennsylvania agreed with Mahony that the regulation by the DER was sufficient to secure the safety of the community. The court opined that if the township wished to further ensure gas well safety, it could require the posting of a bond with the township before granting a license to operate the well. Such a measure would ensure that the gas well was being operated by a financially secure person who would have the resources to keep the well in good repair. The court held that the total ban on private operation of gas wells in residential districts was unreasonable and that it bore no real and substantial relation to the health, safety, and welfare of the community. Therefore, the ordinance was an invalid exercise of the police power.
The police power is the general power of a government to legislate for the comfort, safety, health, morals, or welfare of the citizenry or the prosperity and good order of the community.
Dennis J. Mahoney