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Fifteen Eighty Four

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30
Oct
2024

Good Governing

Daniel B. Rodriguez

The constitutions of the fifty states in the United States create by their authority as fundamental law the structure of government and the means and mechanisms of governance for state, local, and special purpose governments.  Moreover, it is within the constitutions – their design, their interpretation by courts, and ultimately in their performance – that we can unleash the potential of government to act in the best interests of state citizens, to further the common good and to safeguard property and liberty.  At the fulcrum of state constitutions lies the so-called “police power,” that is, the power of the state to protect the health, safety, and welfare of the people and also to regulate morals in order to realize aims and objectives central to the people’s will.  Although historically important as a centerpiece of constitutional architecture, the police power has been poorly understood over the nation’s history.  Is this a power limited to the protection of individuals from threats by others to their well-being – as it were, a public version of the classic common law assurance of sic utere tuo ut alienum non-laedes (basically, use your property so as to not injure others)? Or is it better understood as flowing from a salus populi (public welfare) rationale?  And does it, or should it, evolve over time, as the needs and wants of society changes? 

In Good Governing: The Police Power in the American States, I explore in depth and detail the police power as it has developed in the American legal system.  I look at the history from the late 18th century, into the 19th and 20th century, and examine some of the key elements and controversies over the police power that persist today.  The police power is essentially a constitutional power of governance, and so I situate the origins, structure, and potential of the power in a coherent theory of state constitutionalism.  It is only when we understand the contours and functions of state constitutions in our constitutional democracy that we can understand what role the police power fulfills in furthering the objectives of We the People.

Controversies that implicate directly the purpose and scope of the police power are ubiquitous, and even increasing as controversies over governmental action heighten.  For example, our use of zoning and other forms of land-use planning to structure our communities derives from the police power.  And in an era in which we face challenges of housing affordability and the effects of a growing homelessness crisis, questions of how best to use (or even whether to use) the police power to steer housing policy in a more fruitful direction come to the fore.  Likewise, the matter of public safety – how best to think about it, what are the government’s obligations to ensure our safety, and even what “safety” means in a world in which the threats that come from so many different directions – including, arguably, the threat of neglect in undertaking positive safety measures that are rational, effective, and just – is tied squarely to difficult debates about the police powers of government.  In sum, the various situations in which the government is tasked with tackling and helping to solve our most wicked problems (gun violence, environmental degradation, public health emergencies, wealth inequality, among other policy puzzles) require a close look at how our state constitutions configure public institutions and, likewise, how they empower these institutions to act and react.  Understanding the police power is essential to understand the proper role of government.

Good Governing ranges across a wide territory of topics, beginning with an explication of the relevant legal history, including various legal disputes in which the courts were required the define the scope of the police power and also its limits.  With this historical grounding laid out, it moves to an exploration of various structural considerations that are critical in understanding how state constitutional makers and also legislatures and other key state officials create guardrails to ensure that this awesome power in appropriately guided and cabined.  It is not enough to look at this constitutional power and ask “how much power is there?”  We need to ask, as with other governance mechanisms, “how precisely is it structured and in what circumstances can it be used or abused?”  In a chapter focused specifically on individual rights, I look at the ways in which courts have developed constraints to the exercise of these broad powers that protections that sound in rights language – think, for example, of individual liberty or equality rights or the protection of private property through limits on taking property without just compensation.  Using rights as the central mechanism to limit the government’s police power is a mixed bag, for reasons I explain.  We might be more successful, I suggest, with looking to internal constraints, to demands that the government act in ways that are reasonable, not arbitrary, and without animus.  In Good Governing, I integrate analyses that could be described as conventionally “legal” with a more explicitly “political” emphasis, in order to better understand the dynamic of public authority and legal discretion in the implementation of public policy.

In the last section of the book, I turn more directly to the basket of wicked problems that a reimagined police power could and should be charged with addressing.  The objective is not to dive deeply into diverse policy areas as much it is to tie together what we have learned about the nature, scope, and constructive potential of the police power as an essential constitutional principle to a normative focus on how the government might use this power as a tool of promoting good governance.  Ultimately, the book’s title, “Good Governing,” has a dual meaning:  The police power is best understood as a means of furthering the public good (understanding that democracy makes it rather likely that there will and should be vigorous disagreements about what exactly is this “good’ of which we speak), and also as a template for governing effectively, that is, “good” rather than “bad” performance by our public officials.

This book is, first and foremost, a work of normative constitutional theory, aiming to illuminate not only the police power as such, but also some deep themes in modern state constitutionalism.  But hopefully it is useful as well as a contribution to the eclectic, and multidisciplinary, debate over how the government can address problems that are especially vexing and resistant to traditional solutions.  Constitutions, be they federal or state or be they American or from other constitutional systems of government throughout the world, are not documents to be written, put under glass cases, and forever subject to our idolatry and our worship, but are, rather, coherent systems of democratic governance.  Good Governing comes at this thesis from the perspective of the neglected police power, and aims to enrich these enduring themes.

Good Governing by Daniel B. Rodriguez

About The Author

Daniel B. Rodriguez

Daniel B. Rodriguez is the Harold Washington Professor of Law at Northwestern Law School. In addition to Northwestern, Professor Rodriguez has held tenured positions at the Univers...

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