During this time of extraordinary powers being exercised by federal, state, and local officials, it’s good to refresh ourselves on founding principles.
We sometimes hear about a concept called “the inherent powers of government.” These refer to what are commonly called “police powers.” Such inherent police powers refer to the power of a government to enact laws that protect the “health, safety, morals, and welfare” of the citizenry.
The first thing to keep in mind is that this concept does not apply to the federal government. The Framers did not want to call into existence a national government that wielded inherent powers. Moreover, they knew that if they proposed that type of government to the American people, there was no reasonable possibility Americans would have approved the Constitution. In that case, the United States would have simply continued operating under the Article of Confederation, which was a type of governmental structure under which the federal government’s powers were so weak that it hadn’t even been given the power to tax.
Thus, to sell a new type of governmental system to the American people, the Framers knew that they had to guarantee people that this would not be the old type of European government that wielded “inherent powers” or the traditional “police powers” to take actions and enact laws to protect the “health, safety, morals, and welfare” of the citizenry.
The enumerated powers doctrine
So, how did the Framers handle this problem? The document that would call the federal government into existence — the Constitution — made it clear that the federal government’s powers would be limited to those enumerated in the document itself. If a power wasn’t enumerated, then it could not be wielded or exercised.
No inherent powers or police powers to protect the “health, safety, morals, and welfare” of the people. No powers except those that were enumerated in the Constitution.
Thus, when one is determining whether the federal government is legally permitted to wield and exercise such powers as engaging in state-sponsored assassinations, coups, torture, foreign aid, foreign interventions, travel restrictions, sanctions, embargoes, lockdowns, and mandatory curfews, all that one has to do is ascertain whether such powers are among the powers delegated to the federal government in the Constitution.
Police powers of the states
it was different with the states. This is where the traditional police powers were delegated. While the federal government’s powers were limited to those powers enumerated in the Constitution, the states wielded the traditional inherent powers that had characterized European governments throughout history.
This concept was confirmed in the Tenth Amendment to the Constitution, which affirms that all the powers not delegated to the federal government were retained by the states.
However, there was an exception: if the Constitution expressly prohibited the states from exercising a certain power, then the states were required to comply with that restriction. For example, the Constitution states that the states shall not impair the obligation of contracts. Thus, that is a power that the states cannot not wield or exercise.
Thus, in a theoretical sense, the states were empowered to do whatever they wanted, and there was nothing that the federal government, including the federal courts, could do about it. For example, suppose a state enacted a law requiring parents to send their children to church every Sunday. That law would have to stand. If someone sued in federal court to have the law declared unconstitutional, his suit would be summarily dismissed because the First Amendment applies only to the federal government, not the state governments.
State constitutions and the Fourteenth Amendment
There is, however, something else to consider. The states had their own constitutions, which oftentimes placed restrictions on the powers of the state governments. Thus, a state constitution could have a restriction that would be similar to the First Amendment but that would apply to the state itself. In that case, if the state enacted a compulsory church attendance law, a person could sue in state court to have the law declared unconstitutional under the state constitution.
There is something else to consider: The Fourteenth Amendment. Enacted in 1868, among other things it prohibited the states from depriving any person of life, liberty, and property without due process of law and from abridging the privileges and immunities of citizenship.
The Fourteenth Amendment serves as a severe restriction on the powers of states and localities. Over time, the U.S. Supreme Court held that the Fourteenth Amendment implicitly incorporated the rights enumerated within the Bill of Rights (which applied only to the federal government) and applied them to the states.
If a state enacted a law that deprived a person of his liberty without due process, the person could now sue in federal court and seek to have the law declared unconstitutional under the U.S. Constitution. In the same suit, he could also claim the law violated the state constitution as well.
Thus, in determining the legality of laws and actions of state and local governments, such as lockdowns, curfews, travel restrictions, business closures, mandatory vaccinations, and others, the presumption begins with the notion that such actions fall within the traditional European-like police powers of the state to regulate the “health, safety, morals, and welfare” of the citizenry.
But that’s not where the inquiry ends. It must then be determined whether the action or law violates the state constitution. If it does, then the action or law must be declared unconstitutional under the state constitution.
It must also be determined whether the action or law of the state or locality constitutes a deprivation of life, liberty, or property without due process of law and an abridgment of the privileges and immunities of citizenship. If it does, then it is illegal or invalid under our form of government.
My own belief is that the police powers of the states and localities should be limited to targeting, prosecuting, and punishing people who commit crimes of violence or fraud against others. The old European police-power doctrine relating to “health, morals, and welfare” have no place in a genuinely free society.