Police power
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Police power is the power of states to use physical force when necessary to coerce its subjects into obeying its laws. Thus, it is the most expansive power exercised by a government. There are several theories as to the source of police power, including inherent right, divine right, and delegation by compact of the power of self-defense.
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[edit] Origin of Police Power
There are three primary theories as to the origins of police power.
[edit] Inherent Right
Some legal theorists argue states having an "inherent" right to police power, meaning that it doesn't have to be explicitly written into any basic law or constitutional or other foundational document.
[edit] Divine Right
Historically, European monarchs considered police power to be bestowed on them by the Christian God. This was known as the Divine Right of Kings. In modern republican governments, the government's police power derives from the sovereignty of the people.
[edit] Delegation of Power of Self Defense
French Economist Frédéric Bastiat advanced the following democratic theory of police power in The Law[1]. The police power is essentially derives from the individual power of self-defense. If someone attacks you, you have a right to use force to resist, or detain this person. And as people come together by compact to form democratic forms of self-rule, it becomes practical for citizens to delegate this power to an external body, such as to a militia or police force.
[edit] Uses of Police Power
The most common use of police power over real property is for the adoption and enforcement of zoning regulations, building codes, environmental protection regulations, etc. by local, regional governments, national governments.
Other uses of the police power include public health regulations, vice laws, traffic laws, and family law. However, it is impossible to give a complete list of the uses of police power because a state can write any command or prohibition as a law and make people obey it, as long as such laws do not contradict constitutions or other laws with precedent.
[edit] Police power in the United States
Under the 10th Amendment to the United States Constitution, the powers prohibited from or not delegated to the Federal Government are reserved to the states respectively, or to the people. This implies that the states do not possess all possible powers, since some of these are reserved to the people. The powers reserved to the states by the Constitution, include all powers the states retained prior to 1789 (U.S. Term Limits v. Thornton). The framers of the U.S. Constitution believed that the states were empowered, like the British Parliament, with general authority to act on behalf of the welfare of their people, but unlike the British Parliament subject to the restrictions of written state and federal constitutions.
Police powers are, from the point of view of state courts, also restricted by state constitutions. The concept of police power is used by federal courts which do not have jurisdiction to interpret state constitutions: from the point of view of federal constitutional law, states have general police powers except where restricted by the federal Constitution.
The U.S. Supreme Court has often held that police powers are limited, even before reaching specific Constitutional provisions. One of many such statements:
- [Police] powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public.[1]
Cases such as Lawrence v. Texas suggest that intimate morals are no longer a legitimate subject of the police power except to the extent that health or safety are involved.
Because the Congress has limited powers granted in the Constitution, the Federal government does not have a general police power, as the states do. The exceptions are laws regarding Federal property and the military. On the other hand, Congress was granted by the New Deal Court a broad quasi-police authority from its power to regulate interstate commerce and raise and spend revenue.
[edit] See also
[edit] References
- ^ See The Law, by Frédéric Bastiat
