The Federal Convention and the States’ Police Power

The police power, aka internal police, is the capacity of the states to regulate behavior and enforce order for the betterment of the health, safety, morals, and general welfare of their citizens. As for public emergencies, statutes define the extent of police/executive authority and the public purposes they serve. While “police” isn’t found in the US Constitution, this power is natural to state sovereignty and predates the Constitution.

As is happening all across the country, people can and should publicly debate, argue and demonstrate at state capitols over the many excessive, counter-productive and Pyrrhic measures against the CCP virus. In my state, Florida, the legislature can shut down the governor’s emergency powers through a simple joint resolution. Since the law provides a check, a political solution to a political situation, it is best to keep the matter out of courtrooms.¹

At the 1787 Federal Convention, many delegates were uneasy with the starting point of debate, Madison’s Virginia Plan of government. Such was the national disgust with the states under the Articles of Confederation, the Virginia delegation, led by its governor, proposed a republican yet national form of government that potentially did away with state authority. Not only did the states not yet have their own institution (senate), Madison proposed congressional authority to veto any state law it disapproved.

North Carolina delegate Hugh Williamson did not dispute the need to reorient the forms of a new government to replace the Articles, but immediately inquired if Madison envisioned leaving any power at all, such as the police power, with the states. On this early day in the proceedings (June 8th), Williamson’s question was overwhelmed and tabled by the larger debate over the negative of state laws.

Weeks later, on July 17th, the day after the convention avoided dissolution when it acceded to equality of the states in the senate, delegates launched into figuring out the powers of the new government. It wasn’t easy. What was the logical reach of federal power? Roger Sherman of Connecticut motioned, “to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the Government of the individual States in any matters of internal police which respect the Govt. of such States only, and wherein the general welfare of the U. States is not concerned.”

But shouldn’t the Constitution deny some state police powers, like the printing of money and import/export taxation? An outspoken nationalist, Gouverneur Morris (Pennsylvania), not only thought so, but he played a large role in smoothing the demarcation between federal and state powers outlined in Article I Sections 8-10. On August 20th, Morris pressed for additional national authority at the expense of the states. Fortunately, the convention rejected his motion to assign general police powers to the federal “Secretary of Domestic Affairs.”

In contrast, a committee report the next day proposed to secure the states’ police power with a constitutional provision “to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such manner as shall not interfere with the governments of individual states in matters which respect only their internal police, or for which their individual authorities may be competent.” Regrettably, this clause did not pass.

Finally, on the second to last day of the convention, the same day George Mason motioned to amend Article V and add conventions of the states, Roger Sherman also proposed additional state protections from federal overreach.

From Madison’s notes, “Mr. Sherman expressed his fears that three fourths of the states might be brought to do things fatal to particular states, as abolishing them altogether or depriving them of their equality in the senate. He thought it reasonable that the proviso in favor of the states importing slaves should be extended so as to provide that no state should be affected in its internal police, or deprived of its equality in the senate.”

As we know, the sole provision that made the final cut was guaranteed state equality in the senate.

Sherman’s olive branch to southern sensitivity over slavery is underappreciated. What if the Constitution protected slavery as a police power residing in the states? Could the nation have avoided Civil War if the various compromises, admission of one slave for each free state, and scotus decisions of the 19th century were unnecessary because slavery was constitutionally outside federal reach?

In conclusion, every community eventually finds itself in extremis, in fear for its existence, and must take measures to ensure survival. Rome famously appointed dictators who served six-month terms at the pleasure of the senate. Similarly, states also provide for emergency powers, and since they did not relinquish their internal police to the new federal government, they retain such powers to this day, and they do so without violating the US Constitution.

1. In Florida, the governor can declare an emergency for up to sixty days and renew as he sees fit, subject to termination by joint resolution of the Florida legislature.