The Evolving Police Power: Some Observations for a New Century

The conventional wisdom about the scope of state police powers goes like this: in the early days of the Republic, legitimate regulation existed only to prevent concrete harm to specified interests. Sometime around the previous turn of the century, the scope of state police powers expanded; states could regulate as they chose so long as they claimed to be working to promote the public safety, welfare, or morality. This article examines a number of recent state constitutional decisions having to do with sodomy, parenting, marriage, and procreation and argues that in deciding these cases the courts are returning to the classic conception of state police power. This return explains the many decisions striking down laws against sodomy, possession of vibrators, etc. It also explains why these decisions have been less controversial than one might expect, especially given that they often come from conservative courts in conservative states.

In addition, this article suggests that the renewed concern for identifying legitimate governmental ends has important ramifications for the recently revived area of privileges or immunities under the federal Constitution.