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The Supreme Sovereignty of the State: A Genealogy of Police in American Constitutional Law, from the Founding Era to Lochner

  • Location: The Seminar, History Department, The Johns Hopkins University, Baltimore, MD
  • Research area: Legal history

May 2007, Christopher L. Tomlins

For some time, albeit inconsistently and (until recently) without much interaction, legal and political theorists, historians, sociologists and others have been pursuing the study of “police.” This scholarship has now begun to show signs of coalescing around the broad, though disputed, theme of a “new” police science. This essay is one of a series of interventions I have made in the development of current Anglophone research on police. In it I attempt to chart the genealogy of police in American constitutional law. I conclude that during the nineteenth century, police gained expression in state and federal juridical discourse (1) as an appreciation of unrestricted and undefined powers of governance (police powers) claimed by the states and routinely exercised in local, municipal and state governance long before they were officially “noticed” and described in state constitutional/appellate decisions; and (2) as an increasingly hardened acknowledgement that the federal nation-state exercised similarly undefined capacities, variously named “political,” or “plenary,” or the power “to do all acts and things which independent states may of right do.” In both cases, the genealogy of police leads one less to constitutions than through them, to the prior conceptualization of sovereignty and to accompanying discourses of sovereign inheritance, state succession and state necessity. The construction of this genealogy requires drawing together several distinct strands of development not routinely brought into conjunction: domestic regulatory law at state and federal levels, notably the commerce power; constitutional doctrine with regard to indigenous peoples and immigrants; aspects of international law; and the law of continental and transoceanic expansion. The essay uses this genealogy to reflect upon certain of the dynamics of constitutional argumentation and decision-making during the so-called “Lochner” era. I conclude that nineteenth century police discourses of sovereign capacity comported with the reality of the United States as post-colonial successor to a colonizing metropolitan state

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