Malcolm Rivera
The concept of police power in the United States is rooted in English and European common law traditions, with origins in two Latin principles: sic utere tuo ut alienum non laedas and salus populi suprema lex esto. The authority for the use of police power under American Constitutional law is delegated by state governments to local governments, including counties and municipalities. The US Constitution, which was signed on September 17, 1787, did not establish a police force as we know it today. However, the origins of modern-day policing can be traced back to the Slave Patrol, with the earliest formal slave patrol created in the Carolinas in the early 1700s. By the 1900s, local municipalities began to establish police departments to enforce local laws, including Jim Crow laws.
| Characteristics | Values |
|---|---|
| Date the constitution was written | 1787 |
| Police existence in towns | Yes, but not as we know them today. |
| Police existence in the US | Yes, but they were not common until the late 1880s. |
| Early US police | Slave patrols, night watchmen, sheriffs |
| UK police | The first use of the word "police" in UK government documents was in 1714. |
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What You'll Learn
- The origins of modern-day policing can be traced back to the Slave Patrol
- The US Constitution gives states inherent police power to protect public health and safety
- The Tenth Amendment outlines that powers not delegated to the US by the Constitution are reserved for the states
- The Fourteenth Amendment limits state police powers
- The authority for the use of police power is rooted in English and European common law traditions
The origins of modern-day policing can be traced back to the Slave Patrol
The concept of policing has existed in various forms throughout history, with early Babylonian, Chinese, Egyptian, Greek, and Roman societies possessing entities responsible for enforcing laws. However, the origins of modern-day policing in the United States, particularly in the South, can be traced back to "Slave Patrols."
The earliest formal slave patrols emerged in the Carolinas in the early 1700s, with the primary mission of suppressing slave uprisings, pursuing and capturing runaway slaves, and returning them to their owners. These patrols were government-sponsored forces that were well-organized and paid to patrol specific areas to prevent crimes and insurrection by slaves. They were known for using excessive force and terror to control and produce desired slave behavior. Slave patrols continued until the end of the Civil War and the passage of the 13th Amendment, after which they were replaced by militia-style groups that denied equal rights to freed slaves.
Following the Civil War, during Reconstruction, the development of professional police departments began in large cities in the East, such as in the East and Midwest, including the enforcement of Jim Crow laws. Local municipalities relied on the police to enforce these laws and exert excessive brutality on African Americans. The first deaths in America of Black men at the hands of law enforcement can be traced back to 1619, when the first slave ship landed in Point Comfort, Virginia.
While some critics claim that American policing directly descended from slave patrols, others argue that this is a false assertion. They suggest that American law enforcement, including sheriffs, town watches, constables, and police, emerged from distinctly English influences, and that slave patrols were just one form of law enforcement among many throughout history. However, it is undeniable that racism and a legacy of injustice have influenced policing in the United States, impacting the criminal justice system and contributing to racial disparities.
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The US Constitution gives states inherent police power to protect public health and safety
The concept of a police force as we know it today did not exist when the US Constitution was written. At the time, law enforcement was carried out by various officials, including town officers, temple police, and city watchmen. The US Constitution, however, gives states inherent "police power" to protect public health and safety. This power is broad and allows states to enact and enforce laws and regulations to protect their residents. This power is derived from the Tenth Amendment, which states that any powers not explicitly granted to the federal government belong to the states.
The Fourteenth Amendment's due process clause limits how much a state can impact a person's life, liberty, or property, and the Fifth and Fourteenth Amendments impose further limits on this power. State and local governments are constitutionally obligated to ensure public safety, but they must do so within the bounds of the Constitution and without violating individuals' rights.
The concept of police power in the United States has evolved over time and has been shaped by various court cases. While the term police power does not directly refer to the police force, it relates to the broad governmental regulatory power. This power allows states to pass laws and regulations to protect public health and safety and promote the general well-being of their residents. For example, during a public health emergency, governors can order quarantines or direct people to stay at home.
The use of police power draws on two Latin principles: "sic utere tuo ut alienum non laedas" (use what is yours without harming others) and "salus populi suprema lex esto" (the welfare of the people shall be the supreme law). These principles justify restricting individual liberties to protect the general welfare. While the definition of police power is nebulous, court cases have expanded on these restrictions, limiting states' ability to infringe upon implied constitutional rights.
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The Tenth Amendment outlines that powers not delegated to the US by the Constitution are reserved for the states
Policing in the US has a long and complex history, with the concept of police forces evolving over time and varying across different regions. In the years leading up to and following the writing of the Constitution, law enforcement in the US was quite different from what we see today.
In the colonial era, policing in America was largely informal and for-profit, with private individuals employed part-time to carry out law enforcement duties. Towns often relied on "night watches," where volunteers would sign up to look out for prostitution, gambling, and other crimes. Cities like Boston, New York, and Philadelphia had established night watches by the 18th century. However, this system was not very effective due to issues such as sleeping and drinking on duty, and the use of watch duty as a form of punishment.
Following the American Revolution and the drafting of the Constitution, the concept of police forces began to evolve. The first use of the word "police" in government documents in the United Kingdom was recorded in 1714 with the appointment of Commissioners of Police for Scotland. In 1797, Patrick Colquhoun established the Marine Police in London to prevent theft at the docks, marking an early example of a dedicated police force.
In the early 19th century, Glasgow, Scotland, established the City of Glasgow Police in 1800, followed by the formation of the Royal Irish Constabulary in 1822. By the late 1880s, all major U.S. cities had established police forces, driven by fears of labor-union organizers and large waves of immigrants. The move towards professionalism in policing continued into the 20th century, with local municipalities establishing police departments to enforce local laws, including Jim Crow laws, in the East and Midwest.
The Tenth Amendment has played a role in shaping the decentralized nature of policing in the US, with states and local governments retaining significant authority over law enforcement practices. This has resulted in variations in policing strategies, structures, and policies across different regions of the country.
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The Fourteenth Amendment limits state police powers
The concept of police forces has existed in various forms throughout history, dating back to ancient times. In ancient India, for instance, the Apastamba Dharmasutra mentions the appointment of officers and subordinates in towns and villages to maintain law and order. Similarly, the Talmud describes various local police officials in Jewish communities, with roles including supervising economic activity and maintaining order.
In the United States, the Constitution grants states inherent "police power" to protect public health and safety. This power is intentionally broad, allowing states to implement measures to safeguard their residents. However, the Fourteenth Amendment, ratified in 1868, serves as a crucial limitation on state police powers. The Fourteenth Amendment's due process clause ensures that state actions do not infringe upon individuals' fundamental rights to life, liberty, and property without due process of law. This amendment was a significant expansion of protections initially outlined in the Fifth Amendment, which applied only to the federal government.
The Fourteenth Amendment's equal protection clause further limits state police powers by guaranteeing that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This clause played a pivotal role in challenging Black Codes and Jim Crow laws, which legalized racial segregation and were enforced through police brutality against African Americans.
While the Fourteenth Amendment restricts state police powers, it does not negate them entirely. States retain the authority to enact and enforce laws that promote public safety, health, morals, convenience, and prosperity. For example, states can enforce measures to reduce fire hazards, such as regulations on gasoline storage and building construction. Additionally, the Supreme Court has upheld states' rights to prohibit combinations in restraint of trade and to regulate business prices.
In summary, while the Fourteenth Amendment acts as a check on state police powers, it also acknowledges the states' inherent authority to protect the well-being of their citizens. The amendment's due process and equal protection clauses ensure that state actions respect individuals' rights and treat all persons within their jurisdiction equally under the law.
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The authority for the use of police power is rooted in English and European common law traditions
The concept of police power is deeply rooted in English and European common law traditions. The term "police power" does not directly refer to the police officers responsible for maintaining public order, but instead, it represents the broad regulatory power of the government.
In the United States, police power is defined as the capacity of federal and state governments to regulate behaviour and enforce order within their territories. This power is exercised to ensure the health, safety, morals, and general welfare of the people. The Tenth Amendment to the US Constitution outlines the division of police power, stating that any powers not explicitly granted to the federal government are reserved for the states or the people. As such, police power is primarily held by state governments, while the federal government possesses limited police power in specific contexts, such as interstate commerce and conduct within US territories.
The authority for the use of police power in the US has been shaped by Supreme Court rulings and state court decisions. The Supreme Court case Berman v. Parker (1954) recognised the broad scope of police power, encompassing areas such as public safety, health, morality, peace, and law and order. The court acknowledged the difficulty of defining the precise limits of police power. In Commonwealth v. Alger, Chief Justice Lemuel Shaw acknowledged the existence of police power while also recognising the importance of constitutional restraints, such as equal application of laws and reasonable government interferences with individual rights.
The exercise of police power can be seen in cases like American Print Works v. Lawrence (1850), where a New Jersey Supreme Court decision authorised the destruction of buildings to prevent the spread of a fire, demonstrating the state's power to prioritise public health and safety. Similarly, in Abdow v. Attorney General (2014), the Supreme Court of Massachusetts affirmed the state's fundamental police power to regulate matters within its core authority, including the regulation of gambling.
While the specific term "police power" may not have been in use during the drafting of the US Constitution, the concept of law enforcement and the maintenance of order have certainly evolved from English and European traditions. The role of constables, watchmen, and night watchmen in England, the vigiles in ancient Rome, and the temple police mentioned in the Talmud all contribute to the historical development of police power.
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Frequently asked questions
No, the US Constitution was written in 1787 and towns did not have police forces at that time. The origins of modern-day policing can be traced back to "Slave Patrols" in the Carolinas in the early 1700s.
Slave Patrols were groups of people tasked with enforcing a system of terror and preventing slave uprisings. They had the power to pursue, apprehend, and return runaway slaves to their owners, and often used excessive force to control and produce desired slave behavior.
By the 1900s, local municipalities began to establish police departments to enforce local laws in the East and Midwest, including Jim Crow laws.
Police power refers to the authority given to state and local governments to protect public health, safety, and the general well-being of residents. This includes the power to regulate land-use planning and enforce laws.
