SOVERERIGNTY may be defined as the ultimate
justification for the application of coercive force by
the organized state to individuals residing within the
territorial perimeters of that political unit or linked
to it by virtue of birth, allegiance, contract or
The state's commands divide into three major
categories of power: taxation, eminent domain, and
Taxation connotes the power of government to extract
coerced or involuntary contributions of in come or
property from residents or subjects for the support of
the state and its undertakings.3
Eminent domain marks the attribute or power of a
sovereign state to appropriate private property to
particular uses against the owners' consent in order to
promote public welfare (usually after application of
procedural "due process" and the payment of "just"
compensation, at least in the United
Because the ordinary citizen encounters these two
types of normative rules on a regular basis, individuals
generally possess at least a vague comprehension of the
exercise of government force in these arenas. Few, if
any, persons escape 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 restriction, and right-of-way displacements work
their gentle magic on the countryside.
Dissimilarly, the police power lurks pervasively in
the background, quite as real and more intense than its
companion powers, but less well recognized by the persons
affected by its scope. Nevertheless, 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
theoretical base for all regulatory restrictions on
personal liberty. This essay proposes to isolate and
analyze the concept of police power, hopefully pointing
the way to a limitation upon the scope of state
Police Power Defined
Unlike many essential postulates difficult to
articulate but relatively easy to define by example,
police power poses quite the converse problem: it may be
defined with relative ease and general agreement; only
the application remains difficult by virtue of the
open-textured nature of the tenet. Without applying the
appellation "police power," Chief Justice Roger Taney
spoke of that aspect of sovereignty in Charles River
Bridge v. Warren Bridge, when he upheld the power of the
state of Massachusetts to erect a competing bridge across
the Charles River to the detriment of a pre-existing
. . . But the object and end of all government is to
promote the happiness and prosperity of the community by
which it is established; and it can never be assumed,
that the government intended to diminish its power of
accomplishing the end for which it was created ....
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 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 regulate commerce within its own limits, in every
case it exercises the same power; that is to say, the
power of sovereignty, the power to govern men and things
within the limits of its dominion. 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 sovereignty to control men
and things under which authority the state may, within
constitutional limitations, prohibit all things hurtful
to the comfort, safety, and welfare of society and
prescribe regulations to promote the public health,
morals, safety, and order, and to add to the general
public convenience, prosperity and
The Meaning and Sweep of Police Power
Police power, a most elastic term,9 inheres
in the concept of Sovereignty 10 independent
of the existence of any doctrine of
emergency.11 Sovereignty provides the ultimate
justification for the general exercise of governmental
coercion, while the police power represents the specific
concept verifying and validating application of that
force to myriad special instances. The revenue power of
taxation 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 sledgehammer, pummeling the
subjects into an orderly, if restricted, pattern of
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
Constitution does limit the powers of the national
government in certain specific particulars. In practice,
the Federal government possesses an inherent police power
rendering such an implied limitation quite
unreal.12 Doubtless the Framers of the Federal
Constitution intended to limit such police powers by
means of the largely forgotten Ninth Amendment:
Rights Retained by People. The enumeration in the
Constitution of certain rights, shall not be construed to
deny or disparage others retained by the
Two centuries of judicial review and legislative
encroachment have transmuted the Ninth Amendment into a
In this stance, the eminent jurist, Joseph Story, can
accurately report that all property and all vested
individual rights are subject to such police regulations
as the legislature (government in the law-making sense)
may establish with a view to protect the
community.15 Professor Willis illustrates 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
. . . There are two main requirements 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 interest in personal liberty, and (2) there must
be, as a means for the accomplishment of this end,
something which bears a substantial relation
The Location of Police Powers in a Federal
The term "police power," referring to an inherent and
largely disguised body of authority, does not appear in
the United States Constitution nor in most state
... 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 reservation in
the Constitution, being founded on the duty of the state
to protect its citizens and provide for the safety and
good order of society.18
It seems likely, however, that the reserved powers
mentioned in the Tenth Amendment to the United States
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 United States by the Constitution, nor
prohibited by it to the States, are reserved to the
States respectively, or to the people.19
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 government
under the American Constitutional system proves largely
illusory. History from 1789 tells a continuing tale of a
national government once strictly limited, so limited in
fact that many believed the Bill of Rights to be
unnecessary, 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 welfare clause.22 Few would
contest the fact that the powers usurped under the
concept of "general welfare" or "necessary and proper"
pretexts partake of a Federal police power.23
Indeed, the language both of the Constitution and of the
individual legislation or decision justifying each
particular infringement upon personal liberty, coincides
with the general test of police powers: those sovereign
powers designed to promote public order, health, safety,
morals and the general welfare of society. The draftsmen
of the Federal Constitution made relatively few mistakes,
considering the general imprecision of language and the
inborn human surge for power, but the three clauses
mentioned stand out as grievous errors, permitting easy
sanction for increased restraint 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 freedom and
creativity. While the Federal police power lay largely
dormant during the first century of the
Constitution,24 one cannot surmise that the
police power concept drowsed: the individual states
flexed their authority in myriad ways, through licensing
acts, internal improvements and regulatory laws.
From the outset, the two competing governmental
structures collided in sporadic conflict. Normally, state
licensing, franchise, and regulatory laws conflicted with
Federal application of the interstate commerce
clause.25 During the post-Civil War and
post-World War eras of substantive due process concepts,
constitutional restrictions inhibited the exercise of the
police power by the states but in no way eradicated or
infringed upon the concept itself.26 With the
advent of increased social and economic legislation
following the Great Depression of 1929, both state and
Federal use of police powers have vastly increased with a
concomitant loss of individual liberty.
Police Powers: Model and Reality
The imaginary model of limited government in the
American Federal system deviates from reality. The
deflection from truth occurs primarily as a result of the
concept of police power.
The model envisions a Federal government possessing
only those powers inherent in sovereign nations. Each
state government is assumed to act in a like limited
capacity, the limitations flowing both from the National
and the particular state constitutions. All powers not
specifically delegated to the state or the Federal
government dwell in the individual acting human being.
Man is free to do anything not prohibited 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 fundamental
Contrast reality. The government of the United States
exercises all powers specifically granted to it by the
Constitution and all powers implied from that document.
It also exercises a National police power - the "right"
to provide for order, health, safety, morals and welfare
- inherent in sovereignty.27 The National
government, in theory, cannot contravene the individual
rights protected 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 latter must give way unless the law can
be deemed "arbitrary, capricious, or
unreasonable."28 (Obviously, the phrase
"public interest" constitutes a mere euphemism for the
personal interests of the dominant person or group;
governments, societies, communities, and other
non-personal organizations do not possess "interests.")
At the same time, the individual states appear as the
Federal government in microcosm with one important
distinction: while the Federal government purports,
however fallaciously, to be a government of limited
powers, the states do not, for they contain the elastic
police powers, the great reserve powers of each
state.30 In legal theory, the states possess
all of the ordinary legislative powers exercised by the
British Parliament at the time of the American Revolution
except as restricted by state and Federal
A Suggested Analysis of Police Power
To harmonize with the fundamental creed of maximum
individual liberty and limited powers 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 sovereignty
33 and the fundamental postulate of
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 punishment.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 suggested in the preceding
paragraph) upon creative human action, much less
countenance harsh and oppressive legislation. Man should
remain free to develop his creative abilities through
free action sans prior restraints; the certainty of
punitive reaction adequately deters the initiation of
force and fraud, with less loss of liberty than prior
Prior restraint involves its own species of danger,
the danger of internal oppression. In final analysis,
regulations impose the subjective value judgments of one
individual or group upon other individuals or groups who
may possess widely differing subjective values. One who
exerts prior restraint may misapprehend the existence of
danger or misconstrue the efficacious means of averting
whatever risk exists; the individual human actor can
better assess both hazard and means of avoidance since
the lawmaker is cut from the same bolt and possesses no
onmi-competence. Prior restraint encourages men holding
power, for good reasons or ill, to oppress their
neighbors. Limitations and diffusion of power tend to
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
government.38 In fact, the Supreme Court of
the United States once declared that the principle of
police power corresponds to the individual's right of
Measured by these three tests, the doctrine of police
power suggested here satisfies the standard. It is
necessary, if men are to live together in society, that
aggressors be deterred from initiating force against
peaceable inhabitants. Laws which prohibit the initiation
of force and fraud and which punish transgressions are
publicly necessary in this regard. Orderly living does
require a control 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 extended to the breadth and
depth currently fashionable, police powers as defined
prove too much. A single necessity exists: that man 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
assumes, 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 derive 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 situation; I only know that liberty will produce
a result more nearly in accord with the desires of the
myriad human beings affected by, and interested in, the
problem and its resolution. The "public necessity"
argument implicitly decries one method of
problem-solving-the freedom way - and, thereby, engages
in circular reasoning where the premise becomes the
Moreover, no government and no state possesses any
"rights," including the right to self-preservation. 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 itself in power but to
secure the inalienable rights of individuals residing in
that territory to life, liberty and
property.40 Once a government fails in this
task, it becomes useless. At any time, the citizens in a
territorial unit may correct or alter the form of
government in order to better accomplish 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 existing state. Not
just governments may change; no warrant exists to
preclude residents of a given territory 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
social and economic conditions by alleviating aggressive
restraints upon creative 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 Benthamite utilitarian dictum, so resonant
in sound, can be peeled to expose a fallacious core. Good
may only be determined by each individual for himself; it
is a subjective 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 determine the "greatest
good for the greatest number." Any hedonistic calculus
presupposing a legislator competent to make this
determination in an objective manner betrays the breeding
ground for incipient dictatorship.
The police power today exists in a broad spectrum. A
legal encyclopedia 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 powers of
government, and that the police power is the broadest in
scope of any field of governmental activity. Within the
realm of police power the legislature may act in any
manner not forbidden by the Constitution expressly or by
necessary implication. It extends 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
reasonableness 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 reasonableness 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
constitutionally valid .44
It remains to review in cursory fashion the objects to
which the police power is often directed: public safety,
health, order, morals, and welfare. No purpose would be
served to produce a lengthy litany of those choking laws
ratified 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 "inadvisable" to set limits
upon police powers, preferring a flexible norm and a
case-by-case analysis,45 recognizing that each
and every such regulation speaks as a prohibition upon
human choice.46 Nevertheless, in each category
lurks the very real danger of the use of police powers to
curb creative endeavor beyond the proper scope of state
Thus, in the name of public safety, states have
enacted statutes prohibiting "dangerous" businesses and
structures, not cognizant of the fact that voluntary
action may assume risks concurrent with the values
In the name of public health, legislators fluoridate
community water supply, in spite of evidence of
detrimental effect upon human health and the ready
availability of fluoride from other sources for private
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
indecency, adultery, prostitution and "immorality,"
matters much better left to the decision of adult
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 application of police powers destroys
human liberty and nurtures tyranny.
Richard Weaver once observed, "Ideas have
consequences." The idea of police powers produces the
consequence of slavery. These broad powers act as the
state's sledgehammer, crimping free action and chilling
personal creative endeavor.
At the time of the original
publication, Mr. Foley, was a partner in Souther,
Spaulding, Kinsey, Williamson & Schwabe, and
practiced law in Portland, Oregon.
1 See Foley, Ridgway K., Jr., "A Defense of
Sovereignty: The Territorial Imperative" (unpublished
2 Willis, Hugh Evander, Constitutional Law of the
United States (The Principia Press, Bloomington, Indiana
3 See Attorney General v. City of Eau Claire, 37 Wis
400, 438; Linnell v. State Dept. of Finance, 21 Cal Rptr
785, 798, 203 Cal App 2d 465 (1962) for other realistic
4 For similar definitions, see Jeffress 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
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).
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, Constitutional Law
ß 174; State of Washington v. MamLock, 58 Wash 631,
109 P 47 (1910).
9 State v. Wisconsin Telephone Co,, 169 Wis 198, 172
NW 225, 226 (1919).
10 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
13 U.S. Constitution, Amendment IX.
14 See Foley, Ridgway K., Jr., "Under The Ninth
Amendment, What Rights Are Reserved To The People?"
15 11 Story (Joseph), Commentaries on the Constitution
of the United States (5th ed, Bigelow, Little Brown &
Company, Boston 1891) 700-701, ß 1954.
16 Willis, Note 2, op cit p. 716.
17 Ibid, p. 728.
18 16 CJS 893-894, Constitutional Law ß175a.
19 U.S. Constitution, Amendment X.
20 U.S. Constitution, Art. 1, ß 8 cl. 3.
21 U.S. Constitution, Art. 1, ß 8 cl. 18.
22 U.S. Constitution, Art. I, ß 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.
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, Ridgway 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 Freedom in the 19th Century United States
(U. of Wis. Press 1956) and Handler, Oscar and Mary, The
Dimensions of Liberty (Harv. U. Press 1961).
25 See Corwin, Edward S.. The Constitution 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.
27 16 CJS 906, Constitutional Law, 177.
28 Egan v. City of Miami, 178 So. 132 (Fla. 1938).
29 See Foley, Ridgway K., Jr., "Affected with a Public
Interest" (unpublished manuscript).
30 In Re Opinion of the Justices Alabama State
Federation of Labor v. McAdory 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)
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,
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.
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 Cir. 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); Alexander 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
40 Declaration of Independence of the United States of
41 People v. Sell, 310 Mich. 305, 17 N.W.2d 193, 196
42 See Foley, Ridgway K., Jr., "The Concept of Value
in Ethics and Economics" 25 Freeman (No. 2) 115 (February
43 16 CJS 898-899, Constitutional Law ß 175
44 Goldblatt v. Hempstead, 369 U.S. 590, 82 S. Ct.
987, 99,1, 8 L. Ed.2d 130 (1962).
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" measured 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, op. cit. 82
S. Ct. at 989.
Reprinted with permission
from The Freeman, a publication of The Foundation for
Economic Education, Inc., November, 1975, Vol. 25, No.