THE PROPER SCOPE OF THE POLICE POWER
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.
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previously at Boston University, now at
Carmack Waterhouse Professor of Legal Theory Georgetown University Law Center
Notre Dame Law Review No. 79