The Police Power: Patriarchy and the Foundations of American Government

The Police Power: Patriarchy and the Foundations of American Government

The Police Power: Patriarchy and the Foundations of American Government

The Police Power: Patriarchy and the Foundations of American Government

Excerpt

Among the powers of government none is greater than the power to police, and none less circumscribed. For centuries, it has been a commonplace of American legal and political discourse that the police power “is, and must be from its very nature, incapable of any very exact definition or limitation.” Upon the police power, “the most essential, the most insistent, and always one of the least limitable of the powers of government,” hinges nothing less than “the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property.” As such “[i]t extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property,” and underlies a vast expanse of legislation and regulation at all levels of governance, from the national government through the states and down to the smallest municipalities.

This book explores the origins of this most expansive, and most amorphous, of governmental powers with a particular focus on its most awesome manifestation, the law of crime and punishment. The results of this genealogical investigation then are used to set the framework for a critical analysis of the police power in general, and the criminal law in particular.

The concept of police entered American political and legal discourse in the late eighteenth century. Many of the early state constitutions contained references to “the internal police” of a state. A decade later, at the federal constitutional convention, James Wilson insisted on the preservation of state governments “in full vigor,” for the sake not only of “the freedom of the peo-

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