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Subject Area: Law
Topic: The American Revolution and Constitution

§ 216.: Police power generally resides in the States.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 216.

Police power generally resides in the States.—

But this discussion concerning the true construction of the tenth amendment of the United States constitution only affects the location of those phases of police power, which are denied by the constitution to the States, and which are neither granted nor prohibited to the United States, as in the case of making anything else besides gold and silver legal tender in the payment of private and public debts, or in the purchase of foreign territory, and the like; and the question in such cases is not, whether the power to do these things resides in the Federal or State government, but whether the power can be exercised at all. In all ordinary cases of police powers, the meaning and legal effect of the tenth amendment is clear, viz.: that unless the exercise of a particular police power is granted to the United States government, expressly or by necessary implication, the power resides in the State government, and may be exercised by it, unless the State constitution prohibits its exercise. It may, therefore, be stated as a general proposition that with the few exceptions, which are mentioned in the succeeding sections, the police power in the United States is located in the States. The State is intrusted with the duty of enacting and maintaining all those internal regulations which are necessary for the preservation and the prevention of injury to the rights of others. The United States government cannot exercise this power, except in those cases in which the power of regulation is granted to the general government, expressly or by necessary implication. For example, it was held unconstitutional for Congress to declare it to be a misdemeanor for any one to mix naptha and illuminating oils, and offer the adulterated article for sale, or to prohibit the sale of petroleum that is inflammable at a less than the given temperature. This was a police regulation that could only be established by the States.1

So, also, it has been held to be unconstitutional for Congress to undertake to regulate the equal rights of citizens to make use of the public conveyances, hotels and places of amusement. In order to give full effect to the fourteenth amendment, which prohibited the States from passing or enforcing any law, which denied to any person within its jurisdiction the equal protection of the laws, Congress passed an act which declared that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land and water, theaters and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to the citizens of every race and color, regardless of any previous condition of servitude.1 The ordinary police regulation of employments and professions is most certainly within the powers of the State governments. Independently of the fourteenth amendment to the national constitution, it would not be within the power of Congress to enact a law, which provided for the compulsory formation of business relations, for such regulations fall within the ordinary police power of the State. The fourteenth amendment merely prohibits a State from passing or enforcing any law, which denied to any person equality before the law. If a State should not deem it proper to provide that the hotels of the State shall be open for the reception and entertainment of all persons who may apply, Congress cannot supply the deficiency by an enactment of its own; for in such a case there has been no violation of the fourteenth amendment. The amendment is violated only when the States attempt by legislation to establish an inequality in respect to the enjoyment of any rights or privileges. It has, therefore, been held by the United States Supreme Court that the civil rights bill, the act of 1875 just mentioned, is unconstitutional because it invades the police jurisdiction of the States.2

In the Civil Rights Case,1 the court says: The Fourteenth Amendment, “does not invest Congress with power to legislate upon subjects that are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by the power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect.”

It must be remembered that, in this discussion, reference is made only to the division of the police powers of the government between the general and State governments, as they are to be exercised within the boundaries of the States, which compose the Union. There is no such division of the police power in the territories, which have not been admitted to the statehood, in the District of Columbia, or in the foreign possessions of the United States. Over these, the power of Congress is supreme, limited only by the provisions of the United States constitution. It has been recently held that the police power of Congress over the District of Columbia is similar to the police power of the States over their respective territory, with only those modifications which the provisions of the Federal constitution have imposed.2

[1]United States v. De Witt, 9 Wall. 41; Patterson v. Commonwealth, 11 Bush, 311; s. c. 97 U. S. 501.

[1]Laws of 1875, ch. 114.

[2]Civil Right’s Cases, 109 U. S. 3. See Ex parte Yarborough, 110 U. S. 651.

[1]109 U. S. 3.

[2]Lansburgh v. District of Columbia, 11 App. D. C. 512.