Con Law 101
In which the basic American theory of law is explained painstakingly to our foreign friends, who say that the states are not sovereign:
The general police power is a legal concept relating to the core definition of sovereignty going back to the Civic Law (that is, Roman law). The general police power is a property of the crown of England was not inherited after the American Revolution not by the federal government, but by the individual states in their sovereign capacity.
Police Power is the plenary authority of government to regulate health, safety, welfare, and morals. In U.S. constitutional law, the federal government does not have this plenary power and the state governments do. This is not a topic where there is any debate, and not a single law case can be quoted to support the opposite opinion.
Adam Smith lectured that police comprehended attention to roads, security, and “cheapness or plenty.” William Blackstone defined public police and economy as “due regulation and domestic order of the kingdom,” enforcing “the rules of propriety, good neighbourhood, and good manners.”
Police power does not specifically refer to the right to create police forces, although the police power does include that right. Police power includes zoning, land use, fire and Building Codes, gambling, discrimination, parking, crime, licensing of professionals, licensing of liquor, licensing of motor vehicles, licensing of bicycles, the abatement of nuisances, the provision and regulation of schooling, and public sanitation.
Here are the landmark US Supreme Court cases that refer to the state police power:
Muller v. Oregon 208 u.s. 412 (1908)
Gitlow v. People 268 u.s. 652 (1925)
Village of Euclid v. Ambler Realty Co. 272 u.s. 365 (1926)
Erznoznik v. City of Jacksonville 422 u.s. 205 (1975)
Whalen v. Roe 429 u.s. 589 (1977)
Loretto v. Teleprompter Manhattan CATV Corp. 458 u.s. 419 (1982)
Nollan v. California Coastal Commission 483 u.s. 825 (1987)
Lucas v. South Carolina Coastal Council 505 u.s. 1003 (1992)
Maryland v. Wilson 519 u.s. 408 (1997)
United States v. Morrison 529 u.s. 598 (2000)
In all these cases the legal theory is assumed that the States hold the police power and the public trust: Muller concerns contracts, Ernozik concerns zoning, Gitlow public speech, and so on. The Federal government does not have and has never had the power to regulate these things — there is no national planning and zoning board, for example.
So I have listed several Supreme Court cases debating and defining the limits of state police power. Can a single case be quoted by anyone supporting the position that a general or plenary police power is held by the federal government and not by the states? Can any quote from Blackstone or any other respected jurist or justice to support the proposition that sovereignty does not consist of the police power as its core attribute?
The feudal legal theory is that sovereign power vests in the king and is lent to vassals. The US Constitutional theory is that the sovereign power vests in the states and is lent to the federation by the explicit written agreement of the states: look at the signatures at the bottom of the document.
You may, if you wish, use the word “sovereign” to mean something other than the legal and commonplace meaning, and make the argument that any sovereign who pledges one aspect of his sovereign power (the enumerated powers where the federal government preempts the law) to a federation has abdicated the power and become a vassal.
The argument has the advantage of being novel, similar to morphic field theory or orgone theory in the physical sciences. The argument is to jurists what orgone theory is to physicists: call it fringe jurism.
If you wish to argue that the federal government has oversteps its bounds in many places and imposes unduly on the sovereignty of the states, you will get no argument from me. But if you say that a state is not sovereign because they ceded the power to make treaties with foreign powers to the general government, the argument dismisses the one single fundamental legal theory of the nation, which is federal and constitutional government.
You are simply misstating the law, as much as if you said theft was legal, or said contract law does not require consent of the parties and an exchange of consideration.
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
