The Judicialization of Police

Abstract

This article contends that the origins of judicial review under the United States Constitution lay not in the common law, nor in “judicial duty,” natural law, popular sovereignty, or written constitutions, but rather in police powers handed down from the monarchial tradition conceived as a constituted government’s inherent prerogative of self-preservation. Nationalists at the Federal Convention in 1787 wanted to give Congress such a prerogative in the form of an unqualified preemptive negative on state legislation. They did not succeed. Yet with the adoption of the Supremacy Clause, the superintending police powers originally embodied in the congressional negative devolved on the judicial department and, ultimately, the Supreme Court. Questions remained whether the Court could in fact exercise such powers consistent with Article III’s jurisdictional limitations and, later, the Eleventh Amendment’s bar on state suability. With these questions in mind, the analysis devotes special attention to the first case in which the Supreme Court struck down a state law under the Supremacy Clause: Ware v. Hylton (1796). The article concludes, however, that the judicialization of police at the American founding would find its most potent historical expression in the Court’s prospective remedial powers over state enforcement officials first reserved by the Marshall Court and later confirmed in Ex Parte Young (1908).