The framers of the country chose the road less traveled when creating our government. Instead of consolidating power into one single government, the were incredibly intent on keeping power well distributed, with more power residing in the lower levels of government than the upper levels. There’s nothing inherently “good” or “bad” about this method. It’s merely the method they chose.
However, what makes this form of government worth fighting for are the theories upon which it was built.
1). Theory one: Human nature is selfish, ambitious and fundamentally corrupt. Because of this, it’s better to break power apart and let it fester and fight against itself than to allow it to consolidate. The French philosopher Montesquieu put it this way: “But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.“
2). Theory two: There is no “one size fits all” law. In a country the size of the United States, one centralized government could never conceivably regulate and make law “for the good of the people” effectively. Logically, if power is broken apart and distributed to smaller governments, the “general welfare” of the people is much more likely to be served because each of these smaller governments should know better how to serve their specific communities. “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” – James Madison, Federalist 45, 1788
Now, regardless of my thoughts and feelings or your thoughts and feelings on federalism, federalism is the system the Constitution establishes and unless that Constitution is changed to say something different, federalism is the system we must fight to preserve and protect (otherwise, we’re asking for arbitrary power). That being said, the theory of federalism has merit and should demand our respect beyond the simple need to follow the Constitution.
The U.S. Constitution gives broad powers to the federal government, powers that afford enough strength to keep order in the union of states but not enough power to tyrannize over the states. All of the relevant, day-to-day powers of government are left to state and local governments…again, with reason. State and local governments need to have power so that they can push back against the power of the federal government and vice-versa; but they also need to have power because state and local governments are presumably more connected to their specific communities and citizens and therefore they are much better equipped to tailor their governing to those specific needs.
Perhaps the most important of these exclusively state and local powers is the power to police.
Definitions: Policing Power?
Now, when I hear “the power to police”, I immediately think of the police. However, upon further research, I’ve discovered that the power to police does not necessarily imply the police.
Here’s the definition of the states’ policing power per the Supreme Court in a case called Berman v. Parker in 1954: ““[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power”; amended by the statement that “[a]n attempt to define [police power’s] reach or trace its outer limits is fruitless.”
According to Douglas C. Ligor of the RAND Corporation: “They [police powers] originate from the English common law system that colonists brought with them to America. When the Constitution was ratified in 1788, the states did not surrender their powers as a condition of entering into the union.”
In short, policing powers implies broad regulatory powers that allow for a government to provide for public safety, health, morality and the like–within the scope of the state’s constitution, while also not violating any of the specific rights protected under the federal constitution.
The United States federal government does not hold a general police power. It can only act, or make law, where the Constitution enumerates a power and the Constitution does not enumerate any policing power. This means that states hold all exclusive rights to policing power: the power that will most directly impact and affect citizens and their communities.
States deal with issues like but not limited to: family law (marriage, divorce, custody etc), public nudity, elections, education, public health, criminal law of any kind, licensing, morality, property laws, inheritance laws, commercial laws, banking laws, corporate laws, insurance, and the like.
Essentially, all significant and relevant law making is left to states, primarily as part of this policing power.
Applications: Policing Power
This quote from law.cornell.edu lays the state’s policing power out beautifully: “A state’s regulatory power, therefore, is incredibly broad and is limited predominantly by the state constitution, powers which the federal government holds exclusively, the Takings Clause and the incorporation of fundamental federal rights through the Fourteenth Amendment.”
State courts have interpreted the state’s policing power rather broadly. For instance, in 1850, the New Jersey Supreme Court, in a case called American Print Works v. Lawrence, held that ““a particular officer is authorized to destroy buildings where he shall judge it necessary to prevent the spread of a conflagration. . . [and that] it is a sufficient justification for the destruction of goods contained in such building, for which no compensation is provided.” Not many years later, the U.S. Supreme Court upheld a New Orleans law requiring slaughterhouses to “move to the outer skies of the city to maintain the cleanliness and health of the city” because this was a valid “police power”.
In other words, the policing power is rather broad and can certainly be used to abuse.
Ligor of the RAND Corporation puts it this way: “The Constitution only limits police powers when states exercise them in a manner that is unreasonable, arbitrary, or oppressive to rights and liberties protected by the Constitution itself. For example, a state may not authorize its law enforcement officers to go door to door to search homes or persons within the state without a warrant simply because it wishes to reduce crime rates. Nor may a state pass a law banning nighttime driving simply to reduce crash-related deaths or injuries.
However, courts have consistently upheld the constitutionality of states’ powers to quarantine and vaccinate individuals against their will for public health purposes, enforce curfews or other lockdown measures during emergencies, seize property without a warrant if exigent circumstances exist, and even declare martial law if necessary to maintain public order.”
This, of course, calls into question the powers of the courts. But, courts and their unconstitutional power aside, state governments must keep their policing powers within the scope and limitations of their own Constitutions. Something few have had a motivation to do since so few citizens are aware that state constitutions even exist.
I wanted to lay this foundation before digging deeper into the “police” at large. I gave y’all a solid overview of the office of the sheriff but there’s much more to law enforcement that I plan to explore. However, it’s critical that we first grab ahold of the theoretical foundations I laid out in this article.
As citizens, we must not only look at our federal government. State governments, local governments and city governments are the governments who’s laws, mandates and policies are most directly affecting our daily lives.
These laws, mandates, and policies must NOT be arbitrary–unattached to the Constitutions that confine them. But it is incumbent upon us to know the limitations of our state, local and city governments so that we have something to stand on when these “policing powers” become powers of a tyrant.
“It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.” – James Madison, Federalist 48, 1788
The Liberty Belle