'The Power to Govern Men and Things': Patriarchal Origins of the Police Power in American Law

Abstract

This article explores the genealogy of the most expansive, and yet least scrutinized, of governmental powers: the police power. The power to police, as "the power to govern men and things," is invoked in support of a vast expanse of legislation and regulation at all levels of governance, from the national government through the states and down to the smallest municipalities, including American criminal law in its entirety. At the same time it is a commonplace of American constitutional law that the police power "is, and must be from its very nature, incapable of any very exact definition or limitation."

"The Power to Govern Men and Things" argues that the essential limitlessness of the police power reflects its origins in the householder's patriarchal authority over his household, including "men" (animate household resources such as wives, children, servants, slaves, and animals) and "things" (inanimate resources such as buildings, tools, and land). In the words of Blackstone's much-quoted definition, the power to police is the power of the "pater patriae" to maintain "the domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners: and to be decent, industrious, and inoffensive in their respective stations."

Keywords: criminal law, legal theory, political theory, legal history, police power, police science

JEL Classification: K14, K30, B10