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Freedom
of contract
and the
police
power

The nature of the police power

historically and philosophically incorrect. As Justice Holmes pointed out, however, in his dissenting opinion in the Adair case, the utilitarian liberty which has been read into the Fifth and Fourteenth Amendments is not altogether without qualification. "The liberty secured by the Constitution of the United States to every person within its jurisdiction," the majority of the Court declared in the Massachusetts compulsory vaccination case, decided in the same year as the New York Bakers' Case, "does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good." Although Justice Peckham dissented from the judgment of the Court in the compulsory vaccination case, he did not reject their opinion that there are limitations upon the liberty of the Fifth and Fourteenth Amendments. In the opinion which he wrote for the Court in the New York Bakers' Case he correctly indicated the nature of these limitations. "The State," he declared, "has power to prevent the individual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amend ment." The inquiry into the true meaning of the liberty of the due-process clauses is transformed, therefore, into an inquiry into the nature and extent of the police power.

The police power, as Justice Miller had pointed out in the Slaughterhouse Cases, is from its very nature not susceptible of any very exact definition or limitation. He quoted the eminent Chief Justice Shaw of Massachusetts to the effect that it is much easier to perceive and realize 1 Jacobson vs. Massachusetts, 197 U. S. II. 2 Lochner vs. New York, 198 U. S. 45, at p. 53.

the existence and sources of it than to mark its boundaries or prescribe limits to its exercise. But, he declared, "upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property." Then he quotes from the opinion of another eminent State judge: "It extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State; . . . and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State." A generation later the Supreme Court had made no further progress in its knowledge of the subject. Justice Harlan, who wrote a dissenting opinion in the New York Bakers' Case, in which two of his associates joined, began by saying: "While this Court has not attempted to mark the precise boundaries of what is called the police power of the State, the existence of the power has been uniformly recognized, both by the Federal and State courts. All the cases agree that this power extends at least to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizens of his own rights. But Justice Harlan could not go as far as Justice Holmes went, in his dissenting opinion in the same case, already quoted, in fixing the limits to the police power. In general, the courts have left the subject about where Justice Peckham left it in the opinion aiready cited, merely acknowledging the existence of certain powers, "somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the Court."

112

Freund, the most authoritative writer upon the police

1 The Slaughterhouse Cases, 16 Wall. 2 Lochner vs. New York, 198 U. S. 45,

36, at p. 62. at p. 65.

Freund's definition

of the

police

power

power, defines it as "the power of promoting the public welfare by restraining and regulating the use of liberty and property." He divides the public interests which call for regulation and restraint into two classes, the primary social interests, and economic interests of a secondary character. The exercise of the police power for the promotion of the primary social interests includes the protection of the public peace and security, of public safety and health, of public order and comfort, and of public morals. The economic interests of the people may be promoted under the police power by the prevention of fraud and oppression, by the regulation of corporations and trusts and of businesses "affected with a public interest," that is, the so-called public utilities, and by the restriction of the use of property in various ways as through conservation laws, fish and game laws, the regulation of the use of navigable waters, the grant of mill-dam privileges, etc. Under the head of the prevention of fraud and oppression falls the protection of creditors against their debtors and of debtors against their creditors, of laborers against their employers, of businessmen against unfair competition or combinations in restraint of trade, and of consumers against combinations between capital and labor. It is evident that the police power extends to the adjustment of most of the important conflicts of interest between different classes in the community which give vitality to modern politics. It is the principle power which may be invoked, not only in the struggle of classes, but also in the contests between national or religious groups in the modern state. It is the power above all others for the control of which the members of the state contend, in order to use the authority of the state to promote their special interests, whatever the nature of those interests may be.

Nothing more effectively insures domestic tranquillity 1 Ernst Freund, The Police Power, p. 1.

power and

tranquillity

in a state than the just exercise of the police power. That, The police in fact, is the key to the nature of the power. It is not the domestic power to promote the public welfare in every possible way, as Freund's definition might seem to suggest. The government of a state may render many substantial services to the people without utilizing the police power. Thus it may promote the general welfare by establishing churches, schools, hospitals, charitable institutions, highways and aids to navigation, post offices and post roads, and many other public utilities. This is the welfare power in the strict sense of the term. By means of the war power, the government may provide for the common defense against external force and violence. The police power is more exactly the power to insure domestic tranquillity. It is the power to accomplish the purpose which is put next after the establishment of justice among the great purposes of the people of the United States which are expressed in the Preamble to the Federal Constitution. It is a power which by its very nature must be invoked primarily in the interest of some particular class of people. It is primarily certain businessmen who are protected against other businessmen by laws against unfair competition. It is primarily certain laborers who are protected against other laborers by laws regulating conditions of employment. By pure food laws some of the people in their capacity of consumers are protected against others in their capacity of producers. But in the long run most businessmen are interested in maintaining definite limitations of some sort upon the methods of competition, and most laborers are interested in maintaining suitable restrictions upon the struggle for employment. And all kinds of persons are interested in the maintenance of the most favorable conditions for productive industry. In any case, the use of the power must be justified in the last analysis by the public interest in the

Final definition

of the police power

end which it serves. If the restraint serves the interest of a particular class exclusively, it is an abuse of power, which will disturb rather than insure domestic tranquillity.

It is not enough to define the police power as the power to accomplish one of the great purposes of the people of a modern commonwealth. It is the power to accomplish that purpose by certain means. The appropriate means were indicated by Freund. But it is not altogether satisfactory to say that under the police power domestic tranquillity is insured by restraining and regulating the use of liberty and property. Liberty, standing alone, is too ambiguous a term. By the use of liberty and property Freund meant the exercise of one's right to do as one pleases. This is substantially the same as the natural liberty of the eighteenth-century philosophers and poets and the realistic liberty of the nineteenth-century Utilitarians. It is not the political liberty of the "Founding Fathers." The police power may best be defined as the power of the state to insure domestic tranquillity by imposing restraints upon the conduct of its citizens and of other persons subject to its jurisdiction. If such restraints are never imposed except by just laws, the liberty of the people, as the "Founding Fathers" understood the term, will remain intact. It is when invoked for a purpose which is not truly public that the exercise of the police power abridges the political liberty of the people. The original function of the American judiciary under the due-process clauses of the Federal and State Constitutions was not to consider the wisdom or expediency of restraints imposed upon the conduct of particular individuals or classes under the police power. Under those clauses the courts were not concerned with political liberty in the philosophical sense of the term. Nor were they concerned with the whole body of juristic liberties. They were concerned with certain particular liberties, namely, personal security, personal liberty, and private

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