This chapter begins the last section, a section that explores how the police power can be used to address modern social problems. We look at a number of these wicked problems, including housing, transportation, environmental degradation, and other predicaments, and connect our conception of the police power as described earlier in this book to the use of this power proactively to confront these especially difficult problems.

This chapter looks at the ways in which the police is defined and confined by internal standards of constitutional acceptability. Before we get to the matter of individual rights, we must ask the question of whether and to what extent the police power is being used in ways that are reasonable, not arbitrary, and not the product of animus or unacceptable influence. These internal structural considerations have been used to limit the scope of the power and, more to the point of this chapter, they have the potential of being used in a way that reconciles broad governmental power with the protection of citizen interests and liberty.

In this final chapter, we explore different techniques of regulatory intervention, including regulatory alternatives, taxes, behavioral nudges and such, that can be profitably used to tackle the wicked problems described in the previous chapter, and other problems that may emerge and persist in the modern U.S.

This chapter begins a new part, this focusing on structural considerations in the scope and exercise of the police power. Some of the critical issues involving the power involve who gets to exercise it, and upon what conditions. The separation of powers among departments of government is relevant here, and there have been concerns in courts when the state legislatures delegate the exercise of this power to governors and administrators. We discuss some of these controversies in this chapter. Moreover, we discuss the ways in which the police power has long been used by local governments to implement health, safety, and welfare objectives in their community. The relationship between state and local governments, often labelled “localism,” in order to capture the constitutional dimensions of this dynamic relationship, is a focal point of this chapter.

This chapter examines the origins of the police power in the American constitutional system. In the beginning, the framers of the early state constitutions were engaged in two struggles: how to create effective frameworks of government, and how to define the relationship between national and state government. The police power was one the key reserved powers the states possessed viz. the Tenth Amendment. This chapter illuminates how the state police power emerged and developed in the nineteenth century and, in particular, how it evolved from a notion of sic utere (righting specific wrongs) to salus populi (promoting the public good). It ends at the end of Reconstruction, with key cases illuminating the scope of state regulatory discretion under the police power.

This chapter considers the impact of expanding national power and the configuration of the federal government’s constitutional power in the exercise of the police power by state governments. It considers (and rejects) the claim of a national police power. It proceeds to discuss the ways in which the nature and scope of the police power does contribute to a dynamic federalism, thereby augmenting not supplanting federal power, all in the service of a successful and basically progressive approach to regulation and regulatory power generally.

Beginning after the end of Reconstruction, this chapter looks at the ways in which the police power emerged to facilitate an increasingly bold project of regulation. Key Supreme Court decisions supported the use of the police power to undertake and implement the objectives of a growing economy and a widening sphere of government. State power accompanied expanding national power and all levels of government tackled myriad persistent and new problems. In a case from the early twentieth century, for example, the Court upheld a vaccine requirement as a reasonable exercise of the public health authority of the state. Regulatory power was called into question by the Supreme Court’s Lochner-era decisions, but even this two-decades-long movement did not seriously threaten the ability of state governments to carry out ambitious regulatory agendas. Significantly, the Court put its imprimatur on the government’s zoning power in key cases from the late 1920s. And though the Court would message to the states that there were limits on how far they could go in restricting property rights, through doctrines such as “regulatory takings,” what emerged by the end of World War II was a robust conception of the state police power, one that gave government a wide sphere of action and authority to protect the general welfare.

This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

This chapter examines investment-related aspects of the energy–environment nexus. State actions against fossil fuel investments often have an environmental cause, raising the issue of policy space under the investment regime. The doctrine of ‘police powers’ provides grounds for qualifying some pro-environmental interventions as non-compensable non-expropriatory measures. In addition to seeking policy flexibilities, many States wish energy investors to voluntarily bear social responsibility on the environmental front. As a result, a number of IIAs provide for responsible business conduct, bringing some changes to the ‘investor vs. State’ asymmetry in the investment system. A surge in renewable energy ISDS cases in the last ten years is another noticeable trend. High upfront costs of renewable energy projects recoupable in a long run necessitate FIT or other long-term benefits to investors. But when the government suddenly cancels or cuts promised incentives, this frustrates investors’ legitimate expectations under IIAs but may also be welcomed under trade law as a way of getting rid of distortive subsidies. Thus, some discrepancy or tension between the trade and investment regimes can arise.

The chapter uses Adam Smiths wealth of nations to complicate simple laissez-faire notions of economic development. Adam Smith argued that public works were crucial for economic development. Since they wouldnt always be provided by private firms there would need to be some government involvement. However, Smith argued that government waste and debt would continue to be risks of infrastructure, so he argued that infrastructure should be governed by cost-internalizing principles. Also, Adam Smith argued for natural monopoly, which would be exempt from market forces, which provided the groundwork for the idea of public utilities.

The chapter provides an overview of the infrastucture concept and argues that it is both an economic and a political concept. It provides an overview of the interdisciplinary literature on infrastructure since the 1990s and situates the book in the debate about laissez-faire and the literature on the American state, taking the side of those who have argued in favor of deeper roots of the American state in the nineteenth century. It also provides chapter summaries and overviews.

This edited volume explores the nature of authoritarian policing, its transformation and resilience, and its rule of law implications. The discussion of the evolution of policing takes place in the context of the overall development of the police, their professionalization, institutional autonomy and neutrality, legality, and their credibility within the communities they manage and serve. What makes policing “democratic” is a contested concept and the definition varies depending on the level of abstraction and the particular focus of the inquiry. While regime type, which is itself a contested concept, the close nexus between the coercive power of the police and the state, it is never dispositive. Thus, the dichotomous categorization of authoritarian policing (AP) and democratic policing (DP), while useful as a starting point for comparative analysis, misses a large amount of nuance and often overlooks the plurality of either system, neglecting the fact that a police system can be authoritarian or democratic in multiple ways and in different aspects of policing. This volume rejects this simple binary view. It aims to untie and unpack the nexus between the police and the political system and to explore the plurality of both AP and DP.

Constitutional law is a problem-solving activity. All problems in constitutional law, without exception, can be analyzed in terms of one or more questions, and all constitutional law questions, without exception, fall into one of two distinct categories: Does the Constitution authorize this governmental action? and does the Constitution prohibit this governmental action? This twofold logic of inquiry into authorization and prohibition guides the constitutional lawyer’s analysis of the problem in a constitutional controversy and provides the intellectual skeleton for constitutional law argument and decision. This chapter will first discuss how the logic of inquiry is used, and then will explain how the two questions are the product of the way the written Constitution is worded and of certain background presuppositions about its purposes.

Chapter 5 examines the traditional Islamic rules on jurisdiction. Modern rules on the jurisdiction of domestic courts exist in the context of the system of States, whereas the historic Islamic rules on jurisdiction and the assumptions upon which they were based relate to a system which was premised upon an imperial ideal that approached core concepts of modern Private International Law from different vantage points. The manner and extent to which pre-modern substantive rules, coupled with an imperial imagination, have permeated into the modern domestic law of Muslim Family Law States differs between such states, but nonetheless reveals a shared problem that we suggest animates the ongoing debates around the 1980 Hague Abduction Convention. Policies of ‘Islamisation’ pursued in certain Muslim Family Law States have at various times sought to reintroduce selected interpretations of Islam into the areas of domestic law pertinent to the study. Thus, the process is not necessarily a linear one over time where the historic rules have become marginalised, but rather one where there is an ebb and flow over time – the extent of which differs between Muslim Family Law States.