State Constitutions & General Police Powers

[Howard Gillman]

Bobby asks:  "So is the reason their constitutional systems grant them general police powers--denied to the Federal Constitution--that state constitutions contain provisions granting general police powers?"  The key textual difference is between granting a body "the legislative power" and granted it "those legislative powers herein granted."  The former makes the power "general."  That power is, obviously, subject to whatever other constitutional restrictions are imposed.  Moreover, as John Noble alluded to, there used to be a robust jurisprudence that limited "the legislative power" so that it could only be used "for the general health, safety and welfare of the people of the state, and not in service of private or predominantly local interests."  In part this sentiment was captured in specific language governing takings or the taxing power, but more fundamentally, this limit was seen as a characteristic and essential feature of the legislative power -- that it's purpose was

 to serve the general welfare (and was thus limited by that fundamental purpose).  The Lochner era was pretty much the story of the struggle over judicial enforcement of this "public purpose" jurisprudence.

Howard Gillman
Professor of Political Science, History, and Law
Associate Vice Provost for Research Advancement (Social Sciences)
University of Southern California
Bovard Administration Building, Room 300
Los Angeles, CA 90089-4019
(213) 740-6709, gillman at usc.edu 
http://www.usc.edu/politicalscience/gillman

----- Original Message -----
From: "J. Noble" <jfnbl at earthlink.com>
Date: Saturday, January 21, 2006 6:19 pm
Subject: Re: State Constitutions & General Police Powers
To: RJLipkin at aol.com, CONLAWPROF at lists.ucla.edu

> It sounds almost quaint, but there was once a respectable view of 
> state legislatures' "general police powers" as meaningfully 
> limited 
> by constitutional prescriptions or restrictions requiring that it 
> be 
> exercised only for the general health, safety and welfare of the 
> people of the state, and not in service of private or 
> predominantly 
> local interests. It is sometimes reflected in state constitutional 
> provisions explicitly prohibiting the dedication of public 
> property 
> to private use (e.g. to prevent statehouse cronyism in Springfield 
> behind the exercise of eminent domain in Moline for the benefit of 
> the railroad industry); or prohibiting the use of general tax 
> revenues for parochial public works projects (taxing the residents 
> of 
> El Paso to pay for street lights in Abiline). In this conception, 
> local governments retained a significant measure of political 
> authority vis-a-vis the state on the premise that political 
> authority 
> is best allocated as locally as it can be exercised effectively; 
> and 
> on the rationale that political authority, at both the state and 
> federal level, is by grant of the People, who surrendered their 
> local 
> political authority, like their individual autonomy, only as far 
> as 
> was necessary or practical. The Michigan constitution, for 
> example, 
> expressly prohibits state interference with municipal authority to 
> regulate use of the cities' public rights-of-way by utilities. The 
> Colorado constitution includes a provision requiring the approval 
> of 
> local franchises by referendum.
> 
> The idea that reserved local authority, together with the Commerce 
> Clause, brackets state legislative authority fell to the 
> prevailing 
> view of local governments as creatures of the state, which is 
> memorialized in Dillon's Rule, and which arose from the notion 
> that 
> local governments were more susceptible to corrupt influences and 
> less amenable to judicial oversight than state governments. For 
> more, 
> see Barron, D., The Promise of Cooley's City: Traces of Local 
> Constitutionalism, 147 U.Pa.L.Rev. 487 (January, 1999).
> 
> John Noble
> 
> At 4:33 PM -0500 1/21/06, RJLipkin at aol.com wrote:
> >         One way we contrast (in class) the federal government 
> and 
> >state government is that the Constitution limits the former to 
> >enumerated powers while the latter has generalized police powers. 
> >But states have constitutions also. So is the reason their 
> >constitutional systems grant them general police powers--denied 
> to 
> >the Federal Constitution--that state constitutions contain 
> >provisions granting general police powers? In other words, if 
> both 
> >federal and state governments have constitutions why is there a 
> >distinction between the former being a limited government while 
> the 
> >latter having general police powers?
> >
> >         A corollary question: In state constitutional cases, do 
> >courts first determine whether the state government has the 
> >authority, according to the state constitution, to legislate in a 
> >particular manner?
> >
> >Bobby
> >
> >Robert Justin Lipkin
> >Professor of Law
> >Widener University School of Law
> >Delaware
> >
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