Short Circuit 367 | The Police Power

Often in old constitutional cases you see judges of yonder years invoking this mysterious substance called “the police power.” It’s something that has fallen out of a lot of our constitutional conversations, and unfortunately when it’s remembered today it’s often taken to mean “the government can do whatever it wants.” We take an episode to try and set things straight. Joining us is Professor Daniel B. Rodriguez of Northwestern, who has written a book to explain what the police power is, where it comes from, and why it—for better or for worse—allows our state and local governments to do a good many things, but not all things. The book is Good Governing: The Police Power in the American States. Dan points out that the police power, the states’ power to regulate for public health, safety, welfare (and perhaps morals), was traditionally not thought of as simply letting the government do whatever it wants minus constitutional rights. Instead, what the government did could exceed the police power without even getting to the question of rights. Over the years the police power has expanded in ways many of us can reasonably disagree about, Dan taking a more expansive view than many fans of IJ might. But whatever one’s thoughts on where the edges are, Dan persuasively argues we need to reassess where the police power has gone and where it’s going. On the podcast we particularly focus on zoning and occupational licensing as a couple areas needing rethinking, and cover much other ground. It you’ve ever wondered what’s the difference is between the police power and due process or where the states get their authority to regulate in the first place this is the wide-ranging episode—and book—for you. Click here for transcript. Good Governing (free download!) Good Governing (physical copy for purchase) Dan’s NYU Journal of Law & Liberty article