On the “Police State” and the “Common Law State”
THE 1863 HOUSE OF LORDS arbitration of the St. Helen’s copper smoke dispute had a U.S. parallel four decades later, when the State of Georgia brought suit before the Supreme Court against air pollution from two Tennessee smelters.1 In a 1907 opinion written by Justice Holmes, the court unanimously issued an injunction requiring abatement of the smelters’ smoke.2 In a short concurring opinion, Justice Harlan offered the following rationale: “Georgia is entitled to the relief sought, not because it is a State, but because it is a party which has established its right to such relief by proof.”3 In this, Harlan departed from Justice Holmes’s interpretation of the nature of Georgia’s claim and the source of its authority to intervene. “The case has been argued largely as if it were one between two private parties; but it is not,” Justice Holmes wrote, explaining that “[t]his is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”4 For Holmes, unlike Harlan, the state has an independent and legitimate interest in seeking clean air, and as such its ability to act does not depend upon proof of injury to citizens’ property or other rights.
Yet in the end, it was not the state’s sovereign power as such, but rather proof of injury that served as the rationale for the court’s decree. Most likely in order to avert a dissent by Harlan, and perhaps by others on the court, Holmes’s opinion explicitly concluded: “we are satisfied by a preponderance of evidence that the sulphurous fumes cause and threaten damage on so considerable a scale to the forests and vegetable life, if not to health.”5 Why did the two justices go to the trouble of highlighting a seemingly theoretical disagreement with so little relevance to the case at hand? Their purposes are difficult to divine within the confines of this case alone. Instead, the exchange is better read as the continuation of an ongoing debate between justices Harlan and Holmes regarding the origin and scope of the state’s authority to regulate. This division had been most clearly expressed two years earlier in Lochner v. New York (1905).6
Justices Holmes and Harlan had written separate dissents in Lochner, splitting on the necessity of proof of harm to the validity of the state’s