Starting Points: “State Police Powers and the Founders’ Constitutionalism”
A conversation between Vincent Phillip Muñoz and Alan Tarr
Muñoz: 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?
Tarr: 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)…
Vincent Phillip Muñoz is the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at The University of Notre Dame. He also serves as Director of Notre Dame’s Tocqueville Program for Inquiry into Religion and Public Life and the Potenziani Program in Constitutional Studies.
Dr. Muñoz writes and teaches across the fields of political philosophy, constitutional studies, and American politics. His research has focused on the theme of religious liberty and the American Constitution. His first book, God and the Founders: Madison, Washington, and Jefferson (Cambridge University Press, 2009), won the Hubert Morken Award from the American Political Science Association for the best publication on religion and politics in 2009 and 2010. His First Amendment church-state casebook, Religious Liberty and the American Supreme Court: The Essential Cases and Documents, was published in 2013 (Rowman & Littlefield, revised edition 2015) and is being used at Notre Dame and other leading universities.
Professor Muñoz is a JMC faculty partner.
Alan Tarr is Emeritus Professor of Political Science and Director of the Center for State Constitutional Studies at Rutgers University. He specializes in constitutional law, the judicial process, and political theory. Professor Tarr’s current research program focuses on American state constitutions, on judicial selection, and on federalism. He is the author of several books, most recently Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford University Press, 2012).
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