The Evolution Of The Concept Of Police Power In American Law

Police power comes from judicial practice,not a purely theoretical framework,but a power in the real world.The concept of police power has endured in the judicial practice of the United States for more than 200 years,and the extension of the concept changed all the time.In order to clarify the source of police power,it is necessary to pay attention to the evolution of the concept in a diachronic manner.There are two implied lines in the development of the concept of police power in American law.One is how to distinguish the power between the federal and states in terms of the federalism;and the other is how far the police power can enter the realm of civil rights from the perspective of power-rights.Following the two implied lines,the police power can be constructed into both forward and reverse directions.The forward interpretation takes power-right as the implied line,and explains the boundary between the government power represented by the police power and the civil rights according to the elements of power;the reverse interpretation takes the federal system as the implied line,and explores the police power through the relationship between the police power and other powers,for clarifying the boundaries between the federal and state power.Of course,the two implied lines are not completely independent and occasionally overlap each other.The concept of police power in Chinese law is different from American law,but it does not prevent us from learning from the doctrine of police power in American law.In addition to the Introduction and Conclusion,this dissertation is divided into 5 Chapters:The Introduction expounds the starting point of the study on the concept of police power in American law,the basis and significance of the study,the main content and structure of the study,the domestic and foreign status quo of the study and the research methods.Chapter 1 illustrates how the concept of police was introduced into the United States.Describe the process of the concept of police from France to Scotland and then entered into England.The concept of police in Scotland has gone through general internal administration,regulation based-economic,and modern municipal policing.The concept of police in England based on the public police of Blackstone.Colonization and knowledge dissemination made the concept of police quickly take root in the United States,and also gave birth to the concept of police in American law,which is often accompanied by sovereignty.Chapter 2 explores the synthesis process of the concept from police to police power.The state court defined the locality of the concept of police,and distinguished the police regulation from the taxation and eminent domain.The Supreme Court finally synthesized the concept of police power in federal cases,and found the police power belongs to the states.The synthesis of the concept of police power is related to the independent revolution,federalism and the courts as the coordinating body of the government.Chapter 3 defines the scope of police power in different periods.After the birth of the concept of police power,its scope has undergone a process of expansion,contraction,and re-expansion during the Industrial Revolution,Lochner era,New Deal,and the contemporary era.Its scope from the broad definition of state sovereignty to the narrow concept of promoting public health,public safety and public morality,and then back to the broad concept of promoting the regulation of public health,public safety,public morality and general welfare,which was almost equal to the concept of residual sovereignty of the states in the late 19th century.Chapter 4 explores the police power doctrine.As the relationship between the federal government and the state government as the implied line,we can identify the close relationship among tax power,commerce power,eminent domain,general regulatory power and police power.By the purpose standard and rationality standard distinguish the police power and tax power.Distinguish the police power and the commerce power according to the purpose standard and relation standard.By the degree standard distinguish the police power and eminent domain.Distinguish the police power and general regulatory power according to the source,scope and form of the power.Taking power-right as another implied line,through subject,ends,relation and restriction to judge the constitutionality of the police power.In terms of subject,the states,counties and cities can exercise police power,except of federal.Counties and cities according to Dillon Rule and Home Rule.The ends intend to explain the scope of restraining nuisance,public health,public safety,public morality and general welfare,and to clarify the purpose range of police power.Relation intends to determine whether there is a reasonable relation between the means and purpose of exercising police power.Limitation intends to explain that the exercise of police power shall not infringe upon basic rights and the preemption.Chapter 5 constructs the Chinese significance of the concept of police power.In China,it is necessary to reintroduce the substantial concept of police power.The police power belongs to the legislature at the level of power division.We can learn from the police power to shape the limits of the Central People’s Government’s creative legislation,the limits of the local legislation and the limits of the powers of the National People’s Congress.On the level of rights restriction,police power is the legitimate basis for the power to intervene in the field of private rights,and a useful tool to analyze the restrictions of property rights.