At least two historic American statesmen attempted to insert the guarantee of internal police power to the states in both the Constitution and Articles of Confederation. Connecticut delegate Roger Sherman to the Federal Convention tried several times to prevent federal interference with any state’s “Internal Police.” On his final attempt, the motion failed bigtime by an 8-3 vote.
What is Internal Police, why was its retention by the states not made explicit at the convention, and what effect could such a clause have had on American governance two hundred years later?
Under Internal Police, a government has the power to make laws necessary for the health, morals, and welfare of the populace. It includes power to protect the rights of citizens from abuse by other citizens. In the revolutionary era, there was no question the states had this power. Rhode Island for instance, after declaring independence on May 4th 1776, instructed its Continental Congress delegates to promote establishment of a confederacy that secured its Internal Police.
John Dickinson authored the first draft of the Articles of Confederation. One clause provided each state would retain and enjoy “as much of its present Laws, Rights , and Customs, as it may think fit, and reserves to itself the sole and exclusive Regulation and Government of its Internal Police. . . “ This clause did not make the final cut.
Why the pushback? James Madison’s notes from the federal convention are sketchy at best, but it is safe to say that due to some wild state legislation from 1776 to 1787, and repeated refusals to execute their duties under the Articles of Confederation, the governments of the young state republics were generally not well-respected.
The fear at the time of the federal convention was that given the chance, the states would come to dominate the new government as they had the old. Securing Internal Police power in plain language as Mr. Sherman wished to do, would provide an opportunity to once again foil legitimate federal functions. Gouverneur Morris (PA) expressed it best: “The Internal Police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected.”
Well, it is a shame this clause did not make the final cut. Perhaps our 1930s Congress would not have attempted to eviscerate the concept of enumerated powers. Perhaps scotus would have balked at abusing the innocuous Commerce Clause to expand federal power if they had to face a simple and plainly written clause, “that no State shall without its consent be affected in its Internal Police.”
The more I read and study our founding principles, the more I am convinced there is a distinct, legitimate, yet unknowable universe of available powers that conform to the free government ideals of our Founders. Consistent with free government, power is to be exercised by local, state, or national governments. The question is which unit of government shall exercise them? Despite the unfortunate absence of state retention of Internal Police powers in our Constitution, nothing in the Constitution explicitly or implicitly punted it to the new federal government design of 1787. The Police Power remains with the states.
It’s a horrid shame that we, as a nation, have been insufficiently covetous of liberty.
There is one mechanism through which we can reclaim our losses and restore free government.
Please join Convention of States. Sign our COS Petition.