The Historical Background of the Police Power

53 Pages Posted: 9 Apr 2014

See all articles by Santiago Legarre

Santiago Legarre

Universidad Catolica Argentina; Notre Dame Law School

Date Written: 2006


This paper is an inquiry into the historical background of one of the most misunderstood concepts of American constitutional law: the police power. It takes us into the history of the term (and the concept) ‘police’, a very slippery English noun. Section I shows how the idea of police was shaped in the eighteenth century by Pufendorf, Blackstone, Vattel, and Adam Smith, among others. Section II explains the meaning and scope of ‘police’ and argues that the doctrine of police is better understood in the context of an analogy between king (and kingdom) and father (and family). Section III sets out the philosophical underpinnings of the idea of police, arguing that it makes best sense when viewed in light of the classical tradition according to which politics is part of a wider concern for ethics. Section IV examines the development of police in the United States, focusing on the early stages of its constitutional history. Section V argues that from police there emerged naturally the police power, and explores the earlier formulations of the latter in the case law of the United States Supreme Court. Section VI attempts to prove that there remain broad and narrow definitions of the police power in American constitutional law, and explains each of them. Ultimately this article shows the interconnection of an important eighteenth-century concept (police) and a key notion of American constitutional law (the police power). The main conclusions are that understanding police throws light on the development of the police power, and that the mysteries which surround the latter vanish, or at least diminish, when one grasps that the term was original used to designate the sovereignty of the states, one of the cornerstones of American federalism.

Keywords: Police, Police Power, Federalism

JEL Classification: K10

Suggested Citation

Legarre, Santiago, The Historical Background of the Police Power (2006). University of Pennsylvania Journal of Constitutional Law, Vol. 9, p. 745, 2006-2007, Notre Dame Legal Studies Paper No. 1413, Available at SSRN:

Santiago Legarre (Contact Author)

Universidad Catolica Argentina ( email )


Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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