Police power (United States constitutional law)

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In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.[1] Under the Tenth Amendment to the United States Constitution, the powers not specifically delegated to the Federal Government are reserved to the states or to the people. This implies that the Federal Government does not possess all possible powers, because some of these are reserved to the State governments, and others are reserved to the people.

Police power is exercised by the legislative and executive branches of the various states through the enactment and enforcement of laws. States have the power to compel obedience to these laws through whatever measures they see fit, provided these measures do not infringe upon any of the rights protected by the United States Constitution or in the various state constitutions, and are not unreasonably arbitrary or oppressive. Methods of enforcement can include legal sanctions, physical means, and other forms of coercion and inducement. Controversies over the exercise of police power can arise when its exercise by the federal government conflicts with the rights of the states, or when its exercise by federal or state authorities conflicts with individual rights and freedoms.


The authority for use of police power under American Constitutional law has its roots in English and European common law traditions.[2] Even more fundamentally, use of police power draws on two (Latin) principles, sic utere tuo ut alienum non laedas ("use that which is yours so as not to injure others"), and salus populi suprema lex esto ("the health of the people shall be the supreme law"), to justify restriction of individual liberties in order to protect the general welfare.[2] The concept of police power in America was further expanded in a series of notable court cases in the late-nineteenth and early-twentieth centuries, including the landmark 1851 Massachusetts Supreme Judicial Court case Commonwealth v. Alger, and the 1905 Supreme Court case Jacobson v. Massachusetts.


Due the nebulous definition of the police power, restrictions on its use are few and far between. In Commonwealth v. Alger, Chief Justice Lemuel Shaw wrote that “It is much easier to perceive and realize the existence and sources of [the police power] than to mark its boundaries, or prescribe limits to exercise.”[2] However, according to historian Michael Willrich, "Shaw recognized certain constitutional restraints on police power, but they were few. Laws must apply equally to all under like circumstances... government interferences with individual rights must be 'reasonable' -- they must have a clear relation to some legitimate legislative purpose. Beyond those outer limits... most courts stayed out of the way of police power."[3] Later court cases have expanded somewhat on these restrictions by limiting the ability of states to infringe upon implied constitutional rights and by demanding a stricter standard of reasonability, but regulation of police power remains fairly minimal.[4]

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.

Because Congress is limited to those powers expressly granted to it in the Constitution, the Federal government, unlike the states, does not have a general police power. Some exceptions to this rule include laws regarding Federal property and the military. The Federal government was also granted broad police powers under certain conditions by the Interstate Commerce Act of 1887 and the commerce clause of the Constitution as it has been interpreted since the New Deal. In recent years, the federal government has also expanded substantially into traditionally local issues, like education and healthcare, using its vast resources and enforcement power to supersede those of the states. These interventions are justified by the commerce clause and by the ability of the federal government to attach conditions to federal grants to states.[5]

Basis of United States Land Use Planning Authority[edit]

The police power is the basis for land-use planning authority in the United States. This authority is usually delegated by state governments to local governments, including counties and states. It is these local governments that most frequently exercise police power in land use planning matters. The regulation of land use based on police power is distinct from the taking or private property by the government through the power of eminent domain. If the regulation of land use is done under the authority of the police power, the private property owner isn't typically entitled to compensation as they would be if property was taken under the power of eminent domain. The court decision in the case Commonwealth v. Alger was related to land use planning and dealt with the construction of a wharf on privately owned tidelands around Boston Harbor. [6]

See also[edit]


  1. ^ "Police Power". Encyclopædia Britannica. Retrieved 2007-02-08. 
  2. ^ a b c Willrich, Michael (2012). Pox. New York: Penguin. p. 301. ISBN 978-0-14-312078-0. 
  3. ^ Willrich, Michael (2012). Pox. New York: Penguin. p. 302. ISBN 978-0-14-312078-0. 
  4. ^ Galva, Jorge E., Christopher Atchinson, and Samuel Levey. "Public Health Strategy and the Police Powers of the State." Public Health Reports 120.1 (2005): 20-27. National Center for Biotechnology Information. Web. 18 Feb. 2014.
  5. ^ Galva, Jorge E., Christopher Atchinson, and Samuel Levey. "Public Health Strategy and the Police Powers of the State." Public Health Reports 120.1 (2005): 20-27. National Center for Biotechnology Information. Web. 18 Feb. 2014.
  6. ^ Understanding the Law of Zoning and Land Use Controls, Barlow Burke, Lexisnexis, Chapter 1, Published 2002