Opinions and Legal Insights

The Forgotten Power of States

A common, if implicit, assumption is that America’s experience with state-level governance parallels America’s experience with U.S. national governance. The minimal U.S. national government of the 19th century (ignoring the Civil War) is taken to suggest minimal activity in U.S. state governments during this period. Stephen Skowronek, for example, barely nods at state governments in claiming “it is the absence of a sense of the state that has been the great hallmark of American political culture.”

The traditional narrative, on both the left and the right, is that a great turn away from the statelessness of the 19th century occurred in the 20th century. A much more intrusive government rose as a result of the Progressive era and the New Deal, a trend that only accelerated after World War II.

This is true at the national level. But the myth of a stateless America in the 19th century, and earlier, can be sustained only at the cost of ignoring U.S. state governments and their vast and distinctive “police power.” From even before the start of the republic, states were actively involved in the lives of their citizens. This activity was not always wise or prudent, but a “minimal state” parallel to the early U.S. national government never existed in the U.S. states.

This point is of more than mere historical interest. Understanding this, first, introduces us to an older, more robust vocabulary of liberty. Liberty today is conceived on the left and the right almost exclusively as a sphere of individual activity protected against state intervention. This older American tradition, however, understands liberty not merely as the domain of private individual action, but also as the domain that appropriately includes governance by laws to which one has consented individually or through representatives. Like the self-imposed constraints of a private contract, these consented-to constraints are not contrary to liberty, but rather exemplify its very exercise. The American tradition manifestly includes collective action within its domain of liberty.

Secondly, much of the criticism of American constitutionalism advanced recently by conservative postliberals shares, and depends on, belief in a “myth of statelessness” (in William Novak’s phrase). In this reading, the failure of American liberalism, and of America, was built in from the founding. American government ricocheted from Lockean minimalism to Rawlsian maximialism (or, perhaps more accurately, to Rawlsian mini-maximalism), as a result of this failing. Modern America’s troubles, the argument goes, are merely the working out of failings hardwired into America’s politics and culture at the founding.

In truth, understanding what Tocqueville referred to as America’s “complex constitution”—the distinctive domains and content of U.S. national and state governments—belies the criticism. If American constitutionalism be understood correctly, the arguments of postliberals can be properly corrected to be a call to recover important aspects of American constitutionalism rather than as a call to replace it in toto. It is difficult to imagine what more power a government might exercise beyond the police powers exercised by U.S. states in the 19th century (and even after the ratification of the Fourteenth Amendment).

State Police Powers

While sounding like a reference to police officers, the “police” of a state refers to policies, particularly as adopted or authorized by the legislature. As Adam Smith discussed in his Lectures on Jurisprudence, “police . . . originally derived from the Greek πολιτεία [politeia], which properly signified the policy of civil government.” It is the set of “numerous and indefinite powers” that remain in the hands of state governments, as James Madison explained in The Federalist. As the Supreme Court explained in United States v. Lopez and other cases, even today, despite the 20th century expansion of the U.S. national government, only state governments hold police powers, the national government does not. And this is not the formalistic affirmation it is often taken to be: Even today, in excess of 90 to 95 percent of criminal and civil trials occur under state laws in state courts.

Since the 19th century and earlier, states exercised vast authority under their police powers. The police power is cited in thousands and thousands of court decisions. It authorizes the state to take whatever action it deems needed to advance the health, safety, welfare, and morality of the people. Using this power, states adopted regulations seeking to provide for public safety, public health, regulating markets, building and regulating roads, promoting morality, religion, schools and more.

Alexis de Tocqueville described how local governments applied state police powers when summarizing some of the “important administrative functions” of New England local governments in Democracy in America:

A constable is appointed to keep the peace, to watch the streets, and to forward the execution of the laws; the town-clerk records all the town votes, orders, grants, births, deaths, and marriages . . . the overseer of the poor performs the difficult task of superintending the action of the poor-laws; committee-men are appointed to attend to the schools and to public instruction; and the road-surveyors, who take care of the greater and lesser thoroughfares of the township . . . [A]mongst the municipal officers are to be found parish commissioners, who audit the expenses of public worship; different classes of inspectors, some of whom are to direct the citizens in case of fire; tithing-men, listers, haywards, chimney-viewers, fence-viewers to maintain the bounds of property, timber-measures, and sealers of weights and measures.

Similarly, his book on “law and regulation in nineteenth-century America,” William Novak reproduced a list from 1837 of powers the Illinois legislature provided to the city of Chicago. Noting only a few powers from that list: Chicago was provided the power to prevent and punish price gouging (“forestalling” and “regrating”), to prohibit gambling and liquor, to require the “owner or occupant” of any “grocery, cellar, tallow-chalder’s shop, soap factory, tanner, stable, barn, privy, sewer” or any other “nauseous house or place” to “cleanse, remove or abate” as “may be necessary for the health, comfort and convenience” of the city’s inhabitants. The state empowered the city to “regulate gauging, the place and manner of selling hay, of selling pickled and other fish, and of selling and measuring wood, lime, coal, and to appoint suitable persons to superintend and conduct the same.” The city would “regulate and license ferries,” “establish, make and regulate public pumps, wells, cisterns, and reservoirs, and to prevent the unnecessary waste of water.” The city could “abate and remove nuisances,” require landowners and residents to keep “snow, ice and dirt” off the sidewalks on their property, and even “prevent the rolling of hoops, playing at ball, or flying of kites, or any other amusement or practice having the tendency to annoy persons passing in the streets or on the sidewalks of said city.” And much, much more.

The point of noting these functions and regulatory scope is not that any particular exercise of a power on these lists was necessarily wise or necessary. Rather it shows the vast regulatory edifice authorized by state police powers from the earliest days of the republic. While there may have been a minimal national government presence for much of the 19th century, state and local governments were very much present in the lives of their citizens and residents. The 20th century obsession with national-level politics and history obscures the state government half of America’s “complex constitution,” a half that was never close to being “stateless.”

Additionally, as foreign to the 21st century American ear as the existence and exercise of these vast and indefinite state police powers in the 19th century might be, also perhaps suprising is that their exercise was understood actually to exemplify the exercise of liberty, not its constraint.

Collective Self-Government as Liberty

Part and parcel with the hyper-individualism of the 20th and 21st centuries, the modern American ear hears “liberty” in early American history in a distinctly individualistic key. And there certainly existed a commitment to individual liberty. But liberty at this time also naturally included the collective action of individuals acting in their corporate capacity as part of a political community, giving their “consent” to laws through their elected representatives.

It is difficult to pinpoint exactly when and why this corporate dimension of liberty evaporated from the American understanding. It might have resulted from the rise of hyper-individualism in American society. Concomitant with this social shift was a jurisprudential shift in the legal understanding of “liberty.”

This understanding of liberty existed from the start. Even before the start. Often ignored, for example, is that the list of complaints asserted by Americans against in the King in the Declaration of Independence begins with complaints of the King’s imposition on the exercise of the Americanscollective liberty—that is, preventing actions of corporate self-government through representative legislatures. Consider the list of the very first complaints the Continental Congress advanced against the King in the Declaration. These presumably are the leading criticisms of the King:

[1] He has refused his Assent to Laws, the most wholesome and necessary for the public good.

[2] He has forbidden his Governors to pass Laws of immediate and pressing importance . . .

[3] He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature . . .

[4] He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

[5] He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

[6] He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise . . .

[7] He . . . obstruct[ed] the Laws for Naturalization of Foreigners . . .

[8] He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

Item [5] almost certainly includes complaints regarding what modern Americans would recognize as individual rights. Yet it certainly also includes the collective right of consenting to the laws by which one is governed. By and large, however, the very first complaints against the King draw attention to his interferences with the collective self-government of Americans through their legislatures, and the enforcement of those legislatively-adopted laws through the judiciary.

Just as the binding law of a contractual agreement exemplifies the exercise of liberty between two individuals, exercise of the police power via the consent of republican self-government exemplified liberty in 19th century America and before. James Fenimore Cooper, for example, observed in the mid-1800s that:

[I]t is a common error to suppose that the nation which possesses . . . laws that impose the least personal restrictions is the freest.  . . .  [N]o country can properly be deemed free, unless the body of the nation possesses . . . the legal power to frame its laws according to its wants.

Critically, the individual and collective aspects of liberty are a both/and, not an either/or. To be sure, it would be as incorrect to read an overawing communitarianism into this period as it is to read an overawing individualism into this period.

Yet it is a both/and, not a narrow understanding of liberty as an exclusive domain of individual rights. Tocqueville accurately captures the both/and nature of the collective and individual interests:

If [the American] be a subject in all that concerns the mutual relations of citizens, he is free and responsible to God alone for all that concerns himself. Hence arises the maxim that every one is the best and the sole judge of his own private interest, and that society has no right to control a man’s actions, unless they are prejudicial to the common weal, or unless the common weal demands his co-operation.

To be sure, a part of traditional state police powers is that their exercise be “reasonable.” This was understood even before the adoption of the Fourteenth Amendment. The rise of substantive due process later in the 19th century only channeled this existing understanding, it did not create it. And even then, often forgotten is that even with heightened application of the doctrine of substantive due process under the Lochner Court, Federal courts nonetheless regularly sustained state legislation imposing on liberty and contract as constitutionally reasonable exercises of the state police powers. (“Reasonable” police regulations were basically those that could be understood as Kaldor-Hicks improvements, with the addition of a fit criteria as a component of reasonability. For example, funding a Kaldor-Hicks improvement with a racially discriminatory tax or regulation would not be constitutionally “reasonable.”)

It is difficult to pinpoint exactly when and why this corporate dimension of liberty evaporated from the American understanding. It might have resulted from the rise of hyper-individualism in American society. Concomitant with this social shift was a jurisprudential shift in the legal understanding of “liberty.” This shift can be seen in the move from the traditional legal understanding of liberty, in which “liberty” is defined in necessary opposition to “license,” to the anomic, modern understanding of liberty in which “at the heart of liberty is the right to define one’s own concept of existence, or meaning, or the university, and of the mystery of human life.” The old liberty/license dichotomy invites a corporate understanding of when and how liberty contributes to human flourishing and when actions cross the boundary into deleterious “license.”

This shift could also be related to the evolution of bureaucratic governance in both state and national governments: through the insulation of executive administration from democratic accountability since the rise of the merit system and the limiting of the role of elected executives in bureaucratic administration and governance. These all gave rise to a sense that Americans are ruled by a government over which they exercise no effective control; that we are subjects rather than citizens. These possible explanations are not mutually exclusive, and are not necessarily the only possible explanations.

The myth of America’s stateless past can be entertained only by ignoring the experience of the U.S. states and the exercise of their vast police powers. To be sure, the 20th century did press novel questions of state development, at both the state and the national level. Not least the consistency of American self-government with an executive bureaucracy insulated from direct electoral control as well as insulated from control of an elected executive. But that question differs from recognizing the exercise of state police powers long before the rise of the bureaucratic state, and the recognition that the exercise of those police powers represented the outworking of a collective dimension of American liberty rather than as an imposition on liberty.