This chapter describes the connection between state constitutions and the essential aims of regulatory governance in the American states, providing an overview of state constitutionalism and of the elements of state constitutional history as it relates to governmental structure and purpose. The basic theme of the chapter is that to understand the police power requires a fundamental understanding of the objectives of state constitutionalism. At a high level, state constitutions look to distribute effectively political power and balance democracy with the protection of individual rights. Even as fundamentally political documents, they are designed to succeed (although they occasionally fail). Likewise, the powers assigned to institutions of government are intended to facilitate constitutional success.

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.

Chapter Six begins by looking at how Americans of different racial and ethnic stripes think about politics and how these views have changed over time. This chapter looks not only at racial divisions in policy preferences but also at racial differences in public trust and confidence in institutions. Excerpts examine the echo chamber and skepticism over polling and the measurement of public opinion.

This chapter looks at how the police power has evolved in judicial interpretations and legislative enactments to the present day. It begins by exploring how the shifting approaches to regulatory governance more generally and also various state constitutional developments in the past two centuries affected thinking about the overall structure and purpose of state regulatory authority. It then turns to a number of critical areas in which the police power was used as a tool of protecting health, safety, welfare, and the common good. It begins with morals, a linchpin of traditional police power regulation, and then proceeds to discuss urban blight, occupational licensing, and public health emergencies

The outcomes that we should perhaps care most about are substantive representation and responsiveness, and in particular the extent to which policy matches the interests and preferences of different segments of the public. Here we systematically assess the link between individual preferences and aggregate policy outcomes and conclude that race, more than any other factor, determines who wins and who loses on policy. We also look at variation in responsiveness by time and across context to try to identify factors that lead to more equitable representation.

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.

Our concluding chapter examines race, civil society, and social movements. What do political actors do when the chain of democratic accountability and responsiveness is broken? How do we understand the origins of protest movements and more radical forms of political participation? How do ordinary citizens in a diverse democracy contest and claim power for the people and effect change?

How can institutions be “racist?” What additional challenges are posed when bias is produced and reproduced by everyday institutional practices? This chapter traces the historical evolution of institutional discrimination from Reconstruction to the present, highlighting explicit legal and implicit policy-level discrimination in the Jim Crow era, the New Deal, and historical immigration policy. It also provides more in-depth analysis of the role of race in the present-day housing market, in the criminal justice system, and in election administration.