The Proper Scope of the Police Power
Randy E. Barnett
Georgetown University Law Center
August 21, 2003
Notre Dame Law Review, Vol. 79
When it comes to identifying the powers of the federal government, we know where to look. Article I of the Constitution provides a list. When it comes to the power of states over their people, the issue has always been shrouded in doubt. For, though the Constitution provides a list of specific limitations on state powers along with an enumeration of certain rights, it appears to be silent on the question of the proper scope of what is called the police power of states.
In this article, I will contend that the Constitution is not really silent on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic.
This account will require me to briefly review the method of interpretation I advocate - original meaning originalism - and its limits. These limits require that interpretation of original meaning be implemented by means of constitutional constructions that enhance the legitimacy of the Constitution without violating the original meaning established by interpretation. I then examine the original meaning of the provision that provides the limit on state power: the Fourteenth Amendment. Finally I offer the construction of the scope of the police power of states that is consistent with that limitation: the police power of states includes the power to prohibit wrongful and to regulate rightful conduct of individuals.
Number of Pages in PDF File: 61
Keywords: constitution, constitutional law, police power, state power, Fourteenth Amendment, Privileges or Immunities Clause, Ninth Amendment
Date posted: August 21, 2003