Vol. 15 No.5 (May 2005), pp.439-443

THE POLICE POWER:  PATRIARCHY AND THE FOUNDATIONS OF AMERICAN GOVERNMENT, by Markus Dirk Dubber.  New York:  Columbia University Press, 2005.  288pp. Cloth. $50.00. ISBN:  0-231-13206-9.

Reviewed by Jack E. Call,  Department of Criminal Justice, Radford University.  Email: jcall@radford.edu .

This book, by Markus Dubber, delves at length into the historical foundations of THE POLICE POWER.  The book’s purpose is to put the police power concept into historical perspective so that the reader can understand the effect it has had on contemporary American criminal law.

The book is divided into four parts:  Part I – From Household Governance to Political Economy; Part II – American Police Power; Part III – Police, Law, Criminal Law; and Conclusion – Toward a Critical Analysis of Police and Punishment.  Part I consists of an extensive look at various historical forms of what Dubber calls “households.”  These households existed in both private and public forms.  Private forms included the ancient Greek family, the Roman paterfamilias, the medieval German mund, and medieval religious orders (especially monasteries).  In medieval times in England (and to some extent in colonial America), aspects of these private households began to acquire legal status.  Micro households (the family, lord/villein, master/servant) became absorbed into the macro household of the king/subject.

The head of the household (the “householder”) enjoyed great discretion.  His primary goal was to protect the interests of the household.  The general approach taken to the role of the householder was that his precise powers could not be specified because the exact nature of the problem with which he would be confronted could not be anticipated.  Consequently, the powers of the householder consisted of whatever was needed to solve the problems confronted by the household.  This power came to be referred to as “police power.”  The need for broad discretion in carrying out this power resulted in the general principle that if a challenged exercise of power was found to fall within the police power, the exercise of power was legal and proper.

Part I also explores the English variety of police power as expressed in Blackstone’s COMMENTARIES ON THE LAWS OF ENGLAND.  Since Blackstone’s COMMENTARIES are generally accepted as the most authoritative source on early English law, Dubber finds it instructive to examine his approach to police power, or what Blackstone referred to as “police offenses.”  There were nine such offenses—including three forms of vagrancy, “clandestine marriages” and bigamy, “nuisance offenses,” gambling, and violations of game laws.  Perhaps the most significant point made in this discussion is that, although these offenses stand out because of their vagueness, from the perspective of the police power, this is their primary virtue.  They are vague by design because the [*440] householder (now the state) cannot perform its functions without the broad discretion provided by these vague offenses.

As a law student, I can still recall reading for the first time the Supreme Court opinion in PAPACHRISTOU v. JACKSONVILLE (1972).  I remember reading the Jacksonville ordinance against “[r]ogues and vagabonds . . . persons who use juggling or unlawful games or plays, common drunkards, common night walkers . . . lewd, wanton and lascivious persons . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children,” and wondering how anyone could have thought that it made sense to pass such an ordinance.  While Dubber’s discussion of police power may not provide a convincing case for the existence of such statutes (something that was not his intent anyway), it does provide an historical explanation for their existence.

Part I also discusses some of the characteristics of the continental European approach to the police concept.  After emergence of the police concept, a movement toward the development of criminal codes also took place.  With this latter historical development came a need to differentiate between police offenses and crimes.  The distinction was said to be based on the existence of police offenses as a mechanism for preventing harm, with crimes serving the different function of punishing those persons whose behavior needed remedying.  Making the distinction is important because, as we have seen, determining that an exercise of authority is an exercise of the police power is tantamount to finding that the exercise of authority was lawful.  Dubber asserts that exercises of the police power are nearly always upheld by the courts.  The issue in these cases, he contends, is not whether the exercise of the police power is lawful but whether the power exercised is a police power.

On the other hand, criminal laws are subject to certain legal constraints.  Unfortunately, no legal system has ever been very successful at spelling out in a meaningful way the difference between police offenses and crimes.

Part II examines American Police Power.  It begins with a discussion of the basic tension posed by the police power in American society.  The police power is paternalistic and anti-democratic.  Its anti-democratic nature seems to make it inconsistent with a republican form of government grounded on the notion of self-government.   And yet, the early American governments seemed to accept that the police power was a desirable, almost inevitable aspect of any government.  The trick then was to control it.

One way to control it was through an educated citizenry.  This appears to have been part of Jefferson’s interest in higher education.  In an introduction to an education bill presented to the Virginia General Assembly by Governor [*441] Jefferson, he indicates that “experience hath shewn that . . . those entrusted with power have . . . perverted it into tyranny. . . [T]he most effectual means of preventing this would be, to illuminate . . . the minds of the people . . . that . . . they may . . . exert their natural powers to defeat its purposes” (p.92).

The courts were another logical source of control.  However, in the 19th century, the courts were anything but a source of control on the exercise of police power.  To the contrary, they were generally an instrument of its exercise.  The courts facilitated use of the police power through two primary means:  1) their continued use of and support for the common law offense of nuisance, and 2) their creation of other common law misdemeanor police offenses.

Two aspects of these offenses are noteworthy.  First, they included omissions, as well as commissions, within their purview.  This led to the second noteworthy aspect of police offenses, their frequent inclusion of status as an offense.  The reason for including omissions and statuses within the scope of police offenses is that the police power was designed to be preventive.  The inclusion of statuses in particular seems curious to the 21st century American mind, but an understanding of this history again helps explain another statute that I found puzzling as a law student – the California statute challenged in ROBINSON v. CALIFORNIA (1962) that made it a crime to be addicted to narcotics (a statute the Court found unconstitutional).

The courts also expanded upon the rationale justifying the police power.  In fact, it is in judicial opinions from state courts (not federal courts) in the 19th century that one finds the most thorough discussion of the need for police power.  The justification, in short, is preservation of society itself.  Police power extends to elimination of things (actions, animals, objects) that might pose a threat to the general welfare.  The courts viewed this principle as so self-apparent that they never saw a need to explain the basis for it.

Part III deals with the contemporary effects of the historical development of the police power.  The main harm caused by the historical treatment of the police power is the failure (largely by the courts) to deal explicitly with the justification for the power so that principled limits can be placed upon it.  In fact, the courts’ refusal to deal with the justification for the police power has gone so far that it is now common for courts to decide cases dealing with the scope of that power without ever acknowledging that the case raises police power questions.

The Supreme Court’s recent decision in KANSAS v. HENDRICKS (1997) is cited as a prime example.  In that case, the Court upheld the Kansas violent sexual predator law that permits the indefinite confinement for treatment of persons who have been convicted of a violent sex offense and who, because of mental abnormality, are likely to commit such an offense again.  This appears to be a classic case of police power at work.  The statute is not designed to punish a person who has committed a bad act but to remove a threat to society.  Yet the Court upheld the statute against [*442] due process and double jeopardy arguments without ever mentioning the police power.

The contrast with criminal procedure is striking.  The Supreme Court (and lower courts) has subjected issues relating to the procedure for determining a defendant’s guilt or innocence to agonizingly detailed treatment.  However, the criminal law has been subjected to relatively little of what Dubber calls “principled scrutiny.”

Dubber attributes the Supreme Court’s reluctance to examine the permissible scope of the police power to the unhappy fate of its decision in LOCHNER v. NEW YORK (1905).  The Court’s ruling that a New York statute prohibiting bakeries from working employees more than ten hours per day was unconstitutional was greatly criticized and was extremely unpopular.  In concluding that the statute improperly interfered with bakery owners’ due process right to engage in contracts of their own choosing, the Court found that the statute violated the concept of substantive due process.  The great public outcry against LOCHNER also attached to the concept of substantive due process.

This unpopularity of substantive due process reached its height in the 1930s—although Dubber spends surprisingly little time discussing the role of the New Deal Supreme Court cases.  After that point in time, the Court was loathe to raise the issue of substantive due process.  However, since the Court had also discussed the police power at length in these cases, the reluctance to raise the issue of substantive due process became a reluctance to discuss the police power as well.

Nevertheless, Dubber sees some hope for “principled scrutiny” of the police power in the future.  Surprisingly, he finds this hope in some recent state cases.  He focuses primarily on two decisions striking down sodomy statutes:  COMMONWEALTH v. BONADIO (Pennsylvania Supreme Court) and POWELL v. STATE (Georgia Supreme Court).  From these cases, he sees the possible emergence of a police power jurisprudence that would require that police power be exercised only to benefit the public as a whole.  Where such a statute infringes upon individuals’ freedom to engage in moral behavior of their own choosing, the statute would be unconstitutional unless the behavior prohibited can be shown to harm others (thereby incorporating John Stuart Mill’s “harm principle”).

It is interesting that these two “promising” cases both involve the constitutionality of sodomy statutes.  In the text of the book, Dubber makes no mention of the Supreme Court’s decision, LAWRENCE v. TEXAS (2003), striking down the Texas sodomy statute.  Initially, I presumed the book went to press before LAWRENCE was decided.  However, the index has two references to LAWRENCE in footnotes.  Although Dubber rightly observes (in the footnotes) that the LAWRENCE opinion makes no reference to the police power, it seems odd that the decision merits no mention or discussion in the text of the book.

As the discussion above suggests, this book is useful for at least two reasons:  1) It places in historical perspective some [*443] aspects of 20th century criminal law that are difficult to understand otherwise;  2)  It helps explain the relative inattention to limits on the criminal law (compared to criminal procedure).  However, this is a difficult book.  It is certainly not a book for undergraduate students, unless a professor has some sort of intellectual death wish.  Most graduate students would probably find it pretty tough sledding as well.  Because its focus is on a relatively narrow (albeit important) topic, it also is difficult to envision a typical course where it would fit in.  Even if one could find an appropriate course, however, the book’s level of difficulty discourages its use.

CASE REFERENCES:

COMMONWEALTH v. BONADIO, 490 PA. 91 (1980).

KANSAS v. HENDRICKS, 521 U.S. 346 (1997).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

PAPACHRISTOU v. JACKSONVILLE, 405 U.S. 156 (1972).

POWELL v. STATE, 270 Ga. 327 (1998).

ROBINSON v. CALIFORNIA, 370 U.S. 660 (1962).

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© Copyright 2005 by the author, Jack E. Call.