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Historical Inquiry and Legal Concepts

Over at the Faculty Lounge, historian Saul Cornell has a guest post criticizing my recent post.  In that post, I had criticized Richard Epstein’s freedom of speech interpretation based on a singular police power.  I said:

First, it is not clear that the police power concept was in existence as a concept in 1789.  They certainly limited rights by these types of considerations, but it is not at all clear that they had a understanding of those considerations as a singular police power.   More work needs to be done on when this concept emerged, but my sense is that it emerged in the first half of the 19th century.  Thus, the police power may make good sense as a matter of political theory, but not of originalist constitutional law, at least for the initial Constitution and Bill of Rights enacted in 1789-1791.  (The 14th Amendment may or may not be another matter.)

 Saul writes:

Rappaport is dead wrong about the history and his claim ought to raise a red flag about the entire “original methods” variant of originalism. Rappaport believes that we need some work on this topic. In fact, we have such a work, William Novak’s book, The People’s Welfare.  The first chapter of this important study deals with the origins of the police power and looks at a number of Founding era sources.

 Although the phrase “police power” was not all that common in the Founding era, the concept was frequently invoked.  The 1776 Pennsylvania Constitution affirms “III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.”   St George Tucker’s chair at William and Mary was in law and police.  Tucker’s Blackstone has a number of references discussing the regulation of “internal police.”   (first emphasis added)

When you say someone is dead wrong about something, you’d better be dead certain you are right.  Unfortunately, Saul isn’t.

My point, which appeared to have escaped Saul, is that the singular concept of a police power, which Epstein was invoking, did not appear to exist in 1789.  My point was not that the term “police” or “police power” did not exist.  It was rather about the existence of a singular legal concept of the police power.  I think my post was clear enough, since David Bernstein in the comments recognized it and pointed it out to Saul.

I wouldn’t be so annoyed about this, except that this is not the only time Saul engages in such overheated rhetoric.  His article in Dissent does the same thing.  I had always thought you should let your arguments do the talking, not your rhetoric.

Perhaps Saul believed that he was on solid ground, because he, a Ph.d in History, was instructing a mere law professor about history.   As he said, “Rappaport is dead wrong about the history.”  But what many historians who write about law fail to recognize is that the validity of their claims does not merely depend on simple history.  It requires an appreciation of legal concepts and legal distinctions – an appreciation that fails Saul here.

Historians who write about law frequently go on and on about “law office history.”  Even assuming that their complaint was correct (and that it did not also apply to the bias of historians about history, which we have seen plenty of), it would not excuse “history office law” – the failure of historians to understand and apply legal concepts.

I could go on about other distinctions that Saul fails to appreciate — between different types of new originalists, between errors of application and errors going to the theory — but that would only belabor the point.

Reader Discussion

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on March 19, 2012 at 09:29:02 am

Perhaps Mike can explain the difference between the Pennsylvania Constitution's affirmation of the right of the people to regulate their internal police and what he describes as "singular legal concept of the police power." The Pennsylvania provision clearly states a broad government power to legislate in areas relating to internal police.

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Saul Cornell
on March 19, 2012 at 17:49:07 pm

Richard Epstein in his scholarship has employed a singular police power. This power was certainly one of, if not the principal, doctrinal tools of the Lochner era court. Richard often asks whether a regulation conforms to the police power to regulate for the purpose of protecting the "health, safety, morals and welfare" of the people. Similarly, Christopher Tiedman in his influential legal treatise in 1886 wrote: “This police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State. . . . Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation.” In Richard’s analysis, this singular police power is applied to all government action and Richard was using the concept to analyze the First Amendment in the essay I was reacting to. My point was to question whether this singular analysis of government power was in existence in 1789.

“The right of the people to regulate their internal police” in Pennsylvania refers to the people's power to regulate in various ways. But there is no reason to believe it adopts Epstein’s libertarian analysis of the police power, which if it existed, came to exist much later.

You seem to believe that I am somehow arguing against government regulation here. That is not my point. I think, if one did the research, that Pennsylvanians probably had a broader understanding of the power of the police than Richard does, thereby allowing them to engage in more regulation. But apart from the leniency of the police power, I am not at all sure that they would have used a singular police power to analyze all rights. That is, they might have looked at free speech rights differently than property rights and both of those differently than the right to use guns.

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Mike Rappaport
on March 20, 2012 at 01:31:27 am

Pardon my ways gentlemen,

I scanned Saul Cornell's article linked above. While I'm off topic, in reading the words and depending on where, the Constitution reads not much different than reading today. Occasionally, if one transposes sentence clauses, the sentence reads more clearly.

The style is slightly different, but it reads the way it reads. Maybe my 120 years removed from New Hampshire mind still see the words as they are.

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Eric Hodgdon
on March 20, 2012 at 09:17:58 am

Speaking of research, I have a fairly comprehensive treatment of the origins of the police power in this article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=742712

See pages 473-498. It even talks about Epstein. This was my first article, and so has some flaws, but I think that this part holds up pretty well. There is an important difference, I think, between the existence of the police power and the constitutional concept of the police power. As Novak and others show, a fairly comprehensive regulatory power was recognized in early America. The term "police power" has its origins in Marshall court federalism cases. Shaw's use of the term in Alger is important because it links the broad conception of state power reflected in these federalism cases with the traditional state regulatory power.

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Ben Barros

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