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Police power, term used in U.S. constitutional law to describe the permissible scope of state legislation. In spite of its importance, police power is not mentioned in the U.S. Constitution; the concept was created by the courts to reflect the conclusion that an approved law did not violate specific constitutional prohibitions—especially the Fourteenth Amendment’s provision that no state may “deprive any person of life, liberty or property without due process of law.”
During the decades immediately preceding 1937, while the U.S. Supreme Court was forcefully using the due process clause to outlaw social and economic controls, such as minimum wage and maximum hour laws, an important step in the court’s reasoning was a narrow definition of the police power. The freedom of labour to bargain was thought of as a liberty protected under the due process clause; an invasion of this liberty could be justified only by a proper exercise of the police power. The critical point in the court’s reasoning was the further assertion that the state’s police power existed only for certain limited objectives, which the court frequently described as the promotion of “health, safety, and morals.”
Under this formula much social and economic legislation could be outlawed. Limiting the hours of work might not directly affect health, except in unusual situations such as underground mines and smelters; through this approach the Supreme Court in 1905 invalidated New York’s 60-hour maximum workweek for bakers. The court similarly concluded that minimum wage legislation did not fit under any of the permitted headings of the police power. Even in cases in which the police power was said to extend to “health, safety, morals, and welfare,” the court’s early decisions indicated that it was physical, rather than economic or social, welfare that fell within the permissible scope for legislation.
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In 1937, in a decision upholding a Washington state minimum wage law, the Supreme Court sharply altered its approach to allow wide latitude for social and economic legislation; in the course of this development the court virtually abandoned the police power concept as a means of limiting legislative power. For example, in 1952 the courts upheld a state law that required that workers be paid for time spent going to the polls on election day; the court’s opinion declared that the police power “is not confined to a narrow category” but “extends to all the great public needs.” Although the validity of aesthetics as a goal of regulation was once in doubt, the court in 1954 sustained a program of urban development, declaring that the state may legislate to make the community “beautiful as well as healthy”; the goals of legislation may be “spiritual as well as physical, aesthetic as well as monetary.”
Although police power as a concept for limiting governmental objectives thus was virtually abandoned by the Supreme Court, state supreme courts in construing their own state constitutional provisions in many cases continued the earlier approach, which requires that legislation be justified under distinct and traditional headings.
Occasionally, police power has been invoked to sustain legislation. This has been true in dealing with laws that impair property value; for example, through zoning.
