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 lays out the perplexing neglect of the police power in contemporary discussions of constitutional governance and public law. It explains some of the reasons for this neglect, and turns to a set of reasons why a richer understanding of modern constitutional governance requires more scrupulous attention to the police power as a tool of regulatory policymaking.

Chapter 3 provides a review of democratic theory, moving from the “minimal conception” of democratic politics to democracy in its representative, constitutional, participatory, deliberative, and epistemic forms. The chapter offers a comparison of where America stands today among the world’s democracies and introduces the question of whether democracy carries the assumption of equality; it also reviews data on inequality throughout American history and on the more recent increase in inequality. We propose the idea that inequality is not extraneous to our democratic politics, but a direct result of it.

Chapter 13 surveys and assesses the different ways in which election laws and practices impact racial equality in the political process and the distribution of resources and power that stems from those elections. Topics include voter ID laws, felon disenfranchisement, and racial redistricting, as well as immigrant political incorporation and language access. Themed boxes include recent court cases on voter ID, specific voting rights cases, and noncitizen voting.

In Chapter 14, we examine policy debates and policy outcomes across a range of areas that tend to be viewed as core to a minority agenda or that could alternatively be framed as the social rights of citizenship. These include affirmative action, Obamacare, education, and welfare reform. We provide historical context on the race-targeted vs. universalism debate. Inserts examine the link between legal status and access to social services.

This chapter delves into mass criminalization and mass incarceration. It examines the role that race plays at each level of the criminal justice system from the initial decision of law enforcement officials to engage with members of the public through to the trial and sentencing phases. Throughout, we seek to understand and illustrate the impact of individual bias and structural discrimination. We then end by highlighting the enormous racial disparities that the system fosters and by considering several alternative avenues for reform.

Good Governing: The Police Power in the American States is a deep historical and legal analysis of state police power, examining its origins in the founding period of the American republic through the twentieth century. The book reveals how American police power was intended to be a broad, but not unlimited, charter of regulatory governance, designed to implement key constitutional objectives and advance the general welfare. It explores police power’s promise as a mechanism for implementing successful regulatory governance and tackling societal ills, while considering key structural issues like separation of powers and individual rights. This insightful book will shape understanding of the neglected state police power, a key part of constitutional governance in the United States. This title is also available as Open Access on Cambridge Core.

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.