State Police Powers and the Founders’ Constitutionalism

Alan,

I just read this paragraph in this essay by David French:

“The states, by contrast, possess a general police power—an inherent authority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation.”

I don’t dispute French’s main point that state governments possess a general police power. But it seems to me that it is not right to say they possess this power “inherently” and that this inherent power is then “limited by both the state and federal Constitution.” French presents the matters as if the states have certain powers by virtue of being governments. But state governments have their powers—including, I presume, their general police powers—on account of their respective state constitutions. These state constitutions, I again presume (I have not read them all), grant “the legislative power” to the state legislature. I would think that it is in the vesting of legislative power (subject to limitations also found in the state constitution) that one finds the general police power.

I am missing something?

This issue is more complicated than you might suspect.

The general view among state constitutional scholars is that the power of state governments is plenary, with exceptions, and that state constitutions therefore do not grant power but rather allocate it among the various institutions of government and, in some instances, restrict it as in declarations of rights. One gets a sense of this in the Tenth Amendment, which says that all powers not granted to the Federal Government are reserved to the states or to the people of the states. State judges therefore typically hold that the state legislative power is plenary and that state legislatures need not point to a grant in the state constitution to legislate.  Note that what is plenary is the legislative power, so state executives typically require constitutional warrants for their actions. It also means that the power of state legislatures is plenary only when they are exercising the legislative power, not other powers (however defined). Note also that state electorates can limit and/or channel this plenary legislative power by imposing substantive limitations on state governments (found most frequently, though not exclusively, in state declarations/bills of rights) or by imposing procedural limitations on legislative action (e.g., requirements that the titles of bills reflect their contents) or by prohibiting certain types of legislation (e.g., “special” laws, laws pertaining to a single jurisdiction in the state).

Two complications: (1) some scholars have argued that the fact that the state legislative power is plenary does not mean that it is unlimited in the absence of express limitations—if one retains certain natural rights when one enters civil society, then state legislatures cannot invade those rights, because the power to do so was never given to government; (2) several states have adopted analogues to the federal Ninth Amendment in their declarations of rights, indicating the existence of un-enumerated rights, which potentially raises difficulties for the idea of a plenary legislative power.

This is very helpful. Here’s a follow-up question. You write: “The general view among state constitutional scholars is that the power of state governments is plenary, with exceptions, and that state constitutions therefore do not grant power . . . ”

If the state’s constitution does not grant power, where does the power come from? This gets to the heart of what I found wanting in French’s original article and his language of “inherent” power. In the social compact tradition–at least in the American political tradition that follows from the principles of the Declaration–there is no such thing as “inherent” governmental power or political power that does not flow from a sovereign act of the people. How do these scholars address this issue?

Regarding the existence of adequate political power to deal with emergencies, I would think a proper understanding would place it in the legislature, assuming that most state constitutions give the state legislature “the legislative power.”

When one leaves the state of nature, one gives up the legislative power to the government.  In a federal arrangement, one may allocate power among various governments, but there is no “leftover” power–it is either given to one government or another.  The power is not inherent but rather surrendered when one enters civil society.  The right to revolution, at least as I understand it, does not thrust one back into the state of nature but rather leads to taking back power from one set of rulers and transferring it to another.  

I agree, with one caveat. Are there not actually two steps in social compact theory, at least in Madison’s social compact theory?

1 – individuals leave the state of nature and form civil society, where majority rules

2 – the community forms a government/constitution to govern itself.

At step 1, all power (except that pertaining to inalienable rights) is transferred to the community.

At step 2, the government is granted powers by the people (now acting as a people), including the legislative power.

This process means that there are no “inherent” powers of government. All of government’s constitutional powers come from the people through a constitution. There is no legitimate governmental power that is not constitutional. I think this is consistent with what you wrote, but I don’t know that it is consistent with what French wrote in his article.

Are the two steps you identify sequential?  Or are they part of a single action?

Put differently, can we leave the state of nature without giving up wholly the legislative power that we possess in the state of nature?  Agreed, there are (I am channeling Locke here, not Madison, whose views on this I assume coincides with Locke’s but possibly do not) inalienable rights that civil society cannot invade, but aren’t those inalienable because (a) they do not impede the government’s attaining the ends for which it was established, and (b) because the protection of those rights is one (though not the only) reason for which government was established? A constitution, then, insofar as it protects rights beyond natural rights (e.g., the right to jury trial) or imposes limits on government, is making exceptions to the plenary power of the government, based on a prudential judgment that such exceptions do not interfere with the government serving the purposes for which it was created.  That judgment might be right or wrong, but constitutions usually specify how the people can make changes if the judgments are wrong. (The German Basic Law, however, includes non-amendable provisions/commitments. Not sure whether other constitutions do the same.)

I haven’t thought through what is at stake here in practice—does it really matter whether your formulation or mine is adopted?

Madison presents them as sequential, but the two steps could happen together, I suppose. I have not fully thought that point through.

I don’t know that there is a difference between us, but I keep on bumping into the same issue: Does a state government possess power or have a source of power other than from what is granted to it from the state (or federal) constitution? That is, is there any legitimate political power that is non-constitutional (or “inherent” to use French’s term)? I think you are answering “no.” But when you write: “A constitution, then, insofar as it protects rights beyond natural rights (e.g., the right to jury trial) or imposes limits on government is making exceptions to the plenary power of the government,” I am not sure if you are suggesting that there is a source of legitimate political power other than a constitution. To ask the same question in a different way: Does the plenary power of government come from the Constitution or some other source? If some other source, what is this other source?

I took one of your earlier responses to suggest that most state constitution scholars believe that a state’s plenary power comes from some other source, not a constitution (be it state or federal).

My understanding is that the act of leaving the state of nature is accomplished by agreeing to give up one’s right to legislate for oneself to an external authority (Leviathan?) with the power to legislate for you.  That authority is a government, and the surrender of the power to self-legislate, rather than the creation of a constitution, is where the power of government comes from.  The role of a constitution may be to identify the government to which the power of legislation is given, and it is certainly to establish how that power is structured and exercised, but it does not confer power.  Does that make sense?

Bob Williams, in his book The Law of American State Constitutions, quotes the prevailing view (I think correctly) as the following statement in a 1979 opinion of the Illinois Supreme Court:  “Under traditional constitutional theory, the basic sovereign power of the State resides in the legislature.  Therefore, there is no need to grant power to the legislature.  All that needs to be done is to pass such limitations as are desired on the legislature’s otherwise unlimited power.” 

I think I have a substantial disagreement with what I take is the standard view. Here is how I understand Madison’s theory, to elaborate on what I alluded to earlier:

1. The Original Compact – Formation of Civil Society

Individuals compact with one another (there is no government or legislature at this point) to form civil society. They are now one people. Majority rule governs. All parties to the compact (which is really a compact of families, not individuals) have an equal say.

2. Constitutional Compact

The members of the original compact form a government to govern themselves. The government receives its power (and note, all of its power) through the constitution. No legitimate power possessed by the government exists outside the constitution.

I agree with you when you say “the act of leaving the state of nature is accomplished by agreeing to give up one’s right to legislate for oneself to an external authority.” But that external authority is not a government, as you put it. That new authority is just the people acting in the collective capacity. Individuals do surrender the power to self-legislate, but that power goes to the community. It’s not quite right to say that “the surrender of the power to self-legislate. . . is where the power of government comes from.” At least that is not Madison and the Founders’ understanding. All governmental power comes from a constitution that is created by a people who have first formed themselves into a people.

In practice, what this means is that there are no “inherent” powers of government that a legislature (or executive) power can legitimately appeal to in a time of emergency. The only powers they have are found in constitutions (that is, the governments created by the people).

But when one leaves the state of nature, one surrenders fully the power to self-legislate.  The community, as you describe it, decides to whom that power will be given.  But does it have the decision as to how much power to legislate is given to government?  If so, then it can in theory withhold some of the power that has been surrendered.  If it can, then who exercises the power to legislate in areas where it has withheld the power?  My understanding is that the community can decide who exercises the power but not whether the power will be granted.

The Founders would not agree with this statement: “But when one leaves the state of nature, one surrenders fully the power to self-legislate.” Authority of “inalienable natural rights” is not surrendered.

You ask: “But does it have the decision as to how much power to legislate is given to government?  If so, then it can in theory withhold some of the power that has been surrendered.”

Yes, I believe this is true.  Don’t Constitutions do this in a way when they impose categorical limitations on constitutional powers?

You ask: “If it can, then who exercises the power to legislate in areas where it has withheld the power? My understanding is that the community can decide who exercises the power but not whether the power will be granted.”

Nobody exercises this authority and the community can certainly decide not to grant certain powers.  What is not granted to the government is reserved to the people in their capacity as one people. Some authority cannot be granted, i.e. authority over inalienable natural rights.  But plenary legislative power need not be granted.  Power not granted exists outside of the government.  This power/authority is what is exercised when the people amend their constitution.  A constitutional convention might be pursuant to the procedures set forth in a constitution, but the amending power itself does not come from the constitution.  That is why the power to amend cannot be limited (except by inalienable natural rights).  The unlimited character flows from the right of the people to alter or abolish their government, which itself flows from our underlying human equality (to take it to first principles).

I agree with your first correction—I mentioned natural rights as not given up in an earlier post, but was sloppy here.

If I understand our disagreement correctly, you are saying that the community in devising the constitution decides how much legislative power to grant the government, and I am saying (at least insofar as I am presenting the standard theory) that the government possesses and can exercise all legislative power not denied it by the constitution.  Are we simply getting to the same place by different routes, or are there real-world consequences that flow from the differences separating us?

We might be getting to the same place via different routes. But maybe not.

What I am saying is that government only possesses those powers granted to it in the constitution(s) that create it.  There is no extra-constitutional source of legal authority.  This will not much matter, I think, if a constitution grants to the government (be it the legislature or executive) sufficient authority to deal with emergency situations.  I presume this is true in most states that grant “the legislative power” to the state legislature.

Where it might matter, and matter significantly, is:

(1) in our understanding of government — admittedly, this may be of importance only to scholars (or perhaps just to me)

(2) in deciding what branch of government has authority to act in the case of emergency.  To take our immediate situation, if a governor declares an emergency and that all restaurants must close, we need to ask: where does this authority come from?  Can it be traced to a state constitutional provision or state legislation (assuming the power belongs to the legislature)?

What I perceive (perhaps incorrectly) is that our sloppy or incorrect thinking (I’m thinking of French’s “inherent” powers) leads us to believe that governors in their capacity as executives can do anything they deem necessary because of some sort of “inherent” governmental authority.  If constitutions don’t govern in times of emergency, we don’t live under the rule of law.

Three final things occurred to me when I read your statement that “government possesses only those powers granted to it in the constitution.”  First, relating to the U.S. Constitution, can one deduce powers from the Preamble, which specifies the ends for which the Constitution was created?  Or is one left with a constitution which posits ends but fails to award the powers necessary to achieve those ends?  This may be a Federalist #23 sort of issue, though I think one can find echoes of this in constitutional scholars as disparate as Sotirios Barber and Hadley Arkes.

Second, how does Lockean prerogative fit into this picture?

Third, the Supreme Court has long held that the federal government does not have the police power but that the states do.  I am not sure when that formulation originated.  But if the Court is correct, does that indicate a comprehensive state power to protect the health, safety, welfare, and morals of the state’s citizens?  Is that an inherent power argument or, at least, assertion?

Regarding your first point: “First, relating to the U.S. Constitution, can one deduce powers from the Preamble, which specifies the ends for which the Constitution was created?  Or is one left with a constitution which posits ends but fails to award the powers necessary to achieve those ends?”

It seems to me that one might turn to the Preamble to better interpret or construct the meaning and extent of specific constitutional provisions. But it wouldn’t make sense if the Preamble itself was taken as an independent grant of power.  If it were, all you would need is the Preamble and the government could do anything to “establish justice.”

Second, regarding Lockean prerogative:

Lockean prerogative does not fit into this picture.  Nor should it.  Lockean prerogative is extra-constitutional.

You write: “Third, the Supreme Court has long held that the federal government does not have the police power but that the states do.  I am not sure when that formulation originated. But if the Court is correct, does that indicate a comprehensive state power to protect the health, safety, welfare, and morals of the state’s citizens?  Is that an inherent power argument or, at least, assertion?”

I think you are correct about the Court and it would be good to find the cases that first articulate this thinking.  I think there is an error of inference.  That the national government is one of limited enumerated powers and does not possess “police powers” does not mean that the states have unenumerated powers, including the police powers.  States, too, only have those powers granted to them via a constitution (primarily the state constitutions but also the national constitution).  The actual powers given to state governments by their state’s constitutions may be more general, i.e. state legislatures may be vested with “the legislative power” and this may be from whence they derive police powers.  But the police powers of the states (to the extent that they have them) flow from powers delegated to them by the people in a constitution.