The Constitution and Public Policy in U.S. History

Necessities of State: Police, Sovereignty, and the Constitution

CHRISTOPHER TOMLINS Necessities of State: Police, Sovereignty, and the Constitution Over the last fifteen years, legal historians have been exploring conceptualizations of the state and state capacity as phenomena of police.1 In this essay, I offer a genealogy of police in nineteenth-century American constitutional law. I examine relationships among several distinct strands of development: domestic regulatory law, notably the commerce power; the law of indigenous peoples and immigrants; and the law of territorial acquisition.2 I show that in state and federal juridical discourse, police expresses unrestricted and undefined powers of governance rooted in a discourse of sovereign inheritance and state necessity, culminating in the increasingly pointed claim that as a nation-state the United States possesses limitless capacity “to do all acts and things which independent states may of right do.” At the Founding: Police and Popular Sovereignty Akhil Amar recently noted that “a general commitment to Enligh tenment values ... pulsated through the Constitution.”3 Amar explicates neither those values nor where, precisely, they pulsated, but if such values pulsate anywhere in the Constitution it is in the Preamble, “the foundation for all that followed.” The Preamble announces at the most foundational level possible a precise register of the people’s commitments: to replace the imperfect union among the states with a more perfect Union deriving from a self-governing “continental people”; to remedy injustice, disorder, and inequality by establishing justice, ensuring tranquillity, and pledging protection, commonality, and commonwealth for all and for posterity.4 So conceived, the Preamble proclaims human possibility— without limit. Discourses of governance as perfection, protection, and welfare—of improvement and security, happiness, and safety—are quintessentially JPH_04Christopher Tomlins.qxd 2/7/09 10:26 AM Page 47 48 NECESSITIES OF STATE discourses of police.5 Elsewhere I have argued that one may detect in the genealogy of police discourse an implication of democratized state capacity, “grounded in the older communitarian idiom of ‘peace and unitie’ or safety and happiness, but shaped by a developing consciousness of popular right.”6 This indeed is what Amar finds in the Preamble: the foundational embrace of popular sovereignty.7 Peel away the impulse to radical democratization, however, and police discourse becomes in its American incarnation a rather more conventional instantiation of successor state capacities. For in certain important regards, as in “domestic tranquility,” the words of the Preamble simply echo the imperial predecessor.8 In fact, continuity in discursive expression of police is a commonplace of postcolonial Anglophone governmentalities. The residual “peace, order and good government ” powers of Canada’s federal government are symptomatic .9 Mariana Valverde eloquently describes Canadian state formation as colonial governmentality “infolded” into a postcolonial successor state, which has used the POGG powers (so-called) “to promote what eighteenth century police science called ‘the general welfare.’”10 The Canadian example is in no sense unique. “Peace, order and good government” discourse turns up throughout the British imperium in the founding documents of colonies, in legislation bestowing “responsible” government upon colonies, in successor state constitutions , and in the discourse of postcolonial judiciaries. In Anglophone states of succession, “infolding” is pervasive. Police and Sovereignty: The States “Infolding” was decidedly a feature of American state succession. Ambition for “settled and quiet Government” was embedded in the discourse of Anglo-American colonizing from the moment of its first formal-legal expression in the first Virginia charter (1606).11 Ideologies of security and improvement are pervasive in European colonizing discourse.12 After independence , the same governmentalities were reinscribed in successor state constitutions as authority over the state’s internal police and echoed in the federal Preamble. In Commonwealth v. Alger (1851), Massachusetts Chief Justice Lemuel Shaw explained the state’s authority over its internal police through successive documentary conveyances of sovereignty from prior regimes of governance: the Charter of New England (1620), which had clothed colonial government with so much of the royal prerogative as was necessary to JPH_04Christopher Tomlins.qxd 2/7/09 10:26 AM Page 48 CHRISTOPHER TOMLINS 49 maintain and regulate the common law rights of subjects in the colony; the Provincial Charter (1691), which had reconfirmed those powers; and the Declaration of Independence (1776), which, acknowledged by the Treaty of Paris (1783), had vacated such powers of dominion and regulation that remained in the Crown after 1691.13 In Shaw’s genealogy, sovereignty was not created by constitutions but was reinvested. It already existed and in juridical contemplation could not...