Police Power Query

[Earl Maltz]

With due respect, I think that Paul's account is improbable.  Without 
question, the Southern justices were aware that cases such as Miln had 
implications for the ability of the slave states to control the ingress of 
free African-Americans, as well as the interstate slave trade.  But there 
was no need to invent the concept of the police power to create the 
necessary legal regime.  One could, as the majority opinion did in Miln, 
simply take the view that the movement of people was not commerce--thereby 
perforce leaving the states free to deal with such movement as they 
wished.  Alternatively, one could argue (as I believe that Wayne did in The 
Passenger Cases) that the movement of slaves and free blacks was simply 
different from other problems for constitutional purposes.

At 01:28 PM 8/17/2005 -0500, Paul wrote:
>That's my story, and I'm sticking to it;  the Taney Court invented the 
>police powers doctrine to reassure the South that it could control its 
>"domestic instiutions" as southerns quaintly referred to slavery.  This 
>was also connected to the black seamen's laws in the southern coastal 
>states.  Attorneys in Miln discussed the need of South Carolina to be able 
>to prevent the entry into their prots of free blacks sailors from the US 
>and the British Empire.
>
>Paul Finkelman
>
>Bob Sheridan wrote:
>>You might find "The United States Supreme Court, The Pursuit of Justice," 
>>edited by Christopher Tomlins (Houghton Mifflin, 2005) of interest.  The 
>>article on the Taney Court by one Paul Finkelman has it that the doctrine 
>>was newly invented in New York v. Miln (1837) "to allow states to 
>>regulate aspects of interstate and international commerce carried on 
>>within their own jurisdictions, as long as Congress had not regulated the 
>>activity."  There are other references in articles on later courts as the 
>>likes of Holmes deals with the police power.
>>rs
>>John Parry wrote:
>>
>>>I'm looking for good discussions of the state "police power" to protect 
>>>health, safety, and welfare.  In particular, I am looking for treatments 
>>>that have a strong historical component -- that is, what the police 
>>>power has meant at different times (and in particular, has the 
>>>conception of what a state legitimately might want to regulate morphed 
>>>or expanded in any way?).
>>>
>>>Any suggestions?  On or off list replies are fine by me.
>>>
>>>(and now, back to the Iraqi constitution . . . long may it reign)
>>>
>>>********************************************
>>>John T. Parry
>>>Visiting Professor, Lewis & Clark Law School
>>>Associate Professor, University of Pittsburgh School of Law
>>>503-768-6888
>>>parry at lclark.edu <mailto:parry at lclark.edu>
>>>*********************************************
>>>
>>>
>>>------------------------------------------------------------------------
>>>
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>
>
>--
>Paul Finkelman
>Chapman Distinguished Professor
>University of Tulsa College of Law
>3120 East 4th Place
>Tulsa, Oklahoma  74104-2499
>
>918-631-3706 (office)
>918-631-2194 (fax)
>
>paul-finkelman at utulsa.edu
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
>private.  Anyone can subscribe to the list and read messages that are 
>posted; people can read the Web archives; and list members can (rightly or 
>wrongly) forward the messages to others.