By: Donald F. Walter, Jr.
12/8/03

Part 2: An Overview of the Conflict between the States’ Police Power and Personal Liberties

• Part 1: A Brief History of MMA
• Part 2: Conflict of State Power and Personal Liberties
• Part 3: A Defense of MMA

Since the ratification of the United States Constitution in 1787, it has been understood that the federal nature of the government set forth by the Constitution effectively created a system of dual sovereignty. This implies that both the national, and state governments have powers that are peculiarly their own, and that can not be exercised by the other sphere of government. Since the powers granted to the federal government are enumerated within the Constitution itself, the federal nature of the American form of government grants the remaining powers to the state governments . Among the powers that are held by the state governments is the so called “police power.” This power grants the states the right to police their citizenry in the interest of their health, safety, welfare and morality.

The origin of the concept of the police power, as it is exercised by the state governments of the United States, can be found in the writings of John Locke. John Locke, whose political philosophy heavily influenced the Founders of the United States of America, believed that the reason why mankind entered into societies from its original state of nature was to ensure that the individual people could enjoy “their properties in peace and safety .” In order to escape the state of nature, the people entered into a “social contract,” which formed societies, which in turn required governments to be fully functioning political entities that would best be able to protect the property of their citizenries while preserving peace and safety. As part of this preservation of property in a peaceful and safe environment, the governments of these societies had to be able to act in the interest of self-preservation. To Locke, self-preservation included defending the people’s health, welfare, safety and morality . In the United States, the defense of these interests would later come to be called the police powers. Morality was a particularly key component for democratic societies, in Locke’s view. In democratic societies, the people are sovereign, and therefore, they must be up to the task of governing themselves. It is Locke’s view that in order for rule to be legitimate, or “good,” it must be virtuous . This is evidenced by Locke’s statement that:

“…the golden age (though before vain ambition, and amor sceleratus habendi, evil concupiscence had corrupted men’s minds into a mistake of true power and honour) had more virtue, and consequently better governors, as well as less vicious subjects… ”

So it would therefore stand to reason that since the people are sovereign in democratic societies, in order to assure that the society is governed as well as it can be, the people must remain virtuous. This justifies the state policing its citizenry in the interest of keeping the morality and the virtuous nature of the society intact.

A history of this need to defend the morality and the safety of the people can be found in American jurisprudence. These values, particularly the standard set of moral values that can be found in American culture have come to be known as “the American way of life.” The so-called “American way of life” can be loosely defined as the morals and values that are commonly accepted to be part of the overall culture of America. These things include monogamous marriages, children’s rights, and certain standards of decency and obscenity. The first major case that provides for the defense of the “American way of life” in the history of American jurisprudence is the case of Reynolds v. United States (1878). Reynolds was a Mormon man who claimed that he had a religious duty to commit polygamy, even though this was outlawed by a federal statute. The Supreme Court ruled against Mr. Reynolds, and in the opinion of the Court, Chief Justice Waite stated,

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

This is the first such defense of the “American way of life,” or defense of any such moral standard. The tradition of defending the American moral standard in jurisprudence continued in the case of Gitlow v. New York (1925). Benjamin Gitlow, the appellant in this case, and a member of an American Communist organization, was indicted and convicted of “criminal anarchy.” This case came to light as part of the “Red Scare,” which was an intense fear of Communism spreading to the United States during the 1920s and 1930s. Gitlow held that the statute ran contrary to the due process clause of the 14th Amendment. In the opinion of the Court, Justice Stanford held that though the First Amendment protects the freedom of speech and press as fundamental rights and liberties, these rights are not absolute and can be abridged in the interest of preserving the government or cultural identity of the United States .

The cases of Gitlow v. New York (1925), and Reynolds v. United States (1878) both serve to preserve the “American way of life,” or at least conditions that provide for a healthy democracy in the United States, but they do not stand alone in American history. Another example of the states using their police powers can be found in the case of state required vaccines. As reaffirmed in the 1905 case of Jacobson v. United States, the individual state governments can require that students be fully vaccinated prior to enrolling in public schools, as vaccinations are viewed as necessary to ensure the health and safety of its citizenry . The issue of the prohibition of child pornography, as presented in the case of New York v. Ferber (1982) is another example of a state using its police powers to promote the morality of the citizenry, and preserving the “American way of life.” In the Court’s opinion, Justice White stated that “It is evident that a state’s interest in ‘safeguarding the physical and psychological well being of a minor’ is ‘compelling.’” The Supreme Court case of Federal Communications Commission v. Pacifica Foundation (1978), Justice Stevens authored the opinion, in which he set out “time, manner, and place” regulations, which sought to limit the accessibility to patently obscene content, and to prevent people from being accidentally exposed to such material in the interest of protecting America’s moral fiber.

Even as the pendulum of American jurisprudence began to swing toward allowing more personal liberties, often at the expense of the states’ police powers, the rights of the states to police the citizenry in the interest of the citizenry’s health, safety, welfare and morality are not forgotten. The police powers of the states’ have actually found a champion in recent years in the form of Justice Antonin Scalia. Justice Scalia’s dissenting opinions in the cases of Romer v. Evans (1996), and Lawrence v. Texas (2003), and his concurring opinions in Barnes v. Glen Theatre, Inc. (1991), and Cruzan v. Director of the Missouri Department of Health (1990) serve to provide valid defenses of the police powers. In Romer, a case concerning discrimination against homosexual persons in Colorado, Justice Scalia states clearly that the states have a right to defend traditional moral values. In his dissent in Romer, Scalia states:

“The constitutional amendment before us here is not the manifestation of “a bare [desire] to harm” homosexuals, but is rather a modest attempt by seemingly tolerant Coloradoans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”

The case of Lawrence v. Texas (2003) concerned the constitutionality of a Texas statute that made homosexual sodomy a criminal offense. Justice Scalia’s dissent vigorously defended the Texas statute. As part of his opinion, he stated that “the Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’- the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” This statement clearly shows that the right of the states to act to preserve a certain moral standard in the interest of self-preservation is still alive and well in the minds of some judicial officials, but these two cases do not stand alone as dissents by a justice on the fringe. Justice Scalia offered a similar argument in Barnes v. Glen Theater, Inc. (1991), in which the Court ruled that nude “go-go” dancers in an Indiana adult bookstore were violating an Indiana law that stated that their display was indecent, and a misdemeanor. In his concurrence, Justice Scalia states that “Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral.” In Cruzan v. Director of Missouri Department of Health (1990), a case concerning the so-called “right to die,” and the discontinuation of life-sustaining procedures, Justice Scalia continued his strong trend of defending the police powers. He offered a concurring opinion which stated that the Court has no business deciding cases involving the “right to die,” as it is a moral issue that the people should decide through their legislatures, not something that should be left up to the Court.

Though there seems to be a plethora of convincing arguments and jurisprudence that supports the states’ police powers, there is also a great deal of weight granted to the other side of this debate. The tradition of the protection of personal rights and liberties can, ironically, also be traced back to the philosophy of John Locke. Locke believed that the principal purpose for the creation of societies, and consequently governments, was to preserve the property of its citizens. In his Second Treatise on Government, Locke states that

“the great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the state of Nature there are many things wanting.”

This provides that the public exists solely to serve the private. It was Locke’s belief that the best form of government is the one that protects the rights and properties of its citizens as much as possible, all while infringing upon these things as little as possible. Since it is widely held that Locke was the most influential philosopher to the Founders of the United States of America, his ideals carried over to the United States Constitution. This is evidenced in the strong value that is placed on personal rights and liberties in American culture. Many Americans are quick to point out that America is “a free country,” or are equally as swift in the invocation of their First Amendment rights when confronted with someone trying to limit their actions or speech.

American jurisprudence lends itself to this love of personal liberties as well. This can be most easily seen in the post-1960s era of Supreme Court jurisprudence, with the most notable of these cases being Roe v. Wade (1973). This case challenging Texas’ abortion laws that made it a crime to “procure an abortion” is considered a landmark case not only in the issue of abortion, but in the area of personal liberties in general. In the Court’s opinion, as delivered by Justice Blackmun, the Court recognizes that American citizens are entitled to a right of personal privacy under the First, Fourth, Fifth, Ninth and 14th Amendments, as previously affirmed in the case of Griswold v. Connecticut (1965) . This case also establishes a key limitation on the personal liberties of the citizenry. In Justice Blackmun’s opinion, he states that:

“It is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved.”

This limit of harm to another citizens, or to one’s self would seem to indicate that though personal liberties carry a great deal of weight and significance, they are still subordinate to the police powers, which provide for the health, safety and morality of the citizenry. This, though, would change over time.

Another significant case in the history of personal liberties jurisprudence in the United States is that of Bowers v. Hardwick (1986). This case concerned an adult male who had been charged with violating Georgia’s sodomy law by committing a sexual act with another adult male in his bedroom. The Court reversed the lower court’s decision that the law was in violation of the respondent’s fundamental rights to privacy and intimate association. Justice White delivered the Court’s opinion in this case. In the majority opinion, Justice White held that no right exists under the Constitution which grants homosexuals the right to engage in sodomy, even though it is consensual and conducted in private. He claimed that victimless crimes do not escape punishment, as consensual sodomy would represent a victimless crime, as both parties were consenting adults. White made a further claim that other activities, such as adultery and incest are conducted in privacy, between consenting adults, but they are still illegal. This is because the law is based on “notions of morality,” according to White. This decision seemed to confirm that individual liberties were completely subordinate to state police powers when the action harmed the public safety, welfare or morality. This would later be reversed by the case of Lawrence v. Texas in 2003. The Lawrence case directly overturned the Bowers decision. In the Court’s opinion in Lawrence, Justice Kennedy made the point that “freedom extends beyond spatial bounds,” and that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” Justice Kennedy’s opinion makes it clear that the people of the United States should be free to choose and pursue their preferred way of life. This decision also made it clear that mere appeals to morality were not enough to restrict a person’s liberties, and that the only clear outer boundary to personal liberties would be the harming of a non-consenting party. This was of particular importance, as homosexuality is widely held to be immoral, and is a controversial topic among many Americans, particularly those of strongly conservative religious convictions.

Though Lawrence is a landmark case, it is not the first case to state that mere moral appeals are not enough to limit personal liberties. The first case to hold this position is the case of Stanley v. Georgia (1969). In Stanley, the Supreme Court reversed a lower court conviction for knowing “possession of obscene material.” Justice Marshall delivered the Court’s opinion, which stated that the First Amendment “prohibits making the private possession of obscene material a crime.” Justice Marshall went on to state that the mere fact that the materials were considered ‘obscene’ was not enough of a justification to invade the personal rights of citizens that possess them. In this decision, Marshall makes the bold claim that the state is not interested in what is morally right (a concept that would later be expounded in Lawrence) by stating that:

>“Yet in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment.”

This was a bold statement for the time, but it set the precedent for later decisions, such as Lawrence, and Romer v. Evans (1996). Though Romer was previously mentioned for Justice Scalia’s defense of the police powers in his dissenting opinion, Romer is also significant in that it expanded personal liberties by declaring that a Colorado state constitutional amendment was discriminatory against homosexuals. This decision disregards the fact that the amendment is fair, as homosexuality is widely considered immoral. Justice Kennedy, in the Court’s opinion, states that:

“If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a [bare] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

Justice Kennedy’s defense of the personal liberties of homosexuals clearly neglects the issue of morality, other than to say that homosexuals are an “unpopular group” politically.

He was only afforded the opportunity to neglect the moral issue that Justice Scalia so readily introduces in his dissent in the same case because of the controversial tradition of jurisprudence that was established in Stanley v. Georgia.

When analyzed separately, the tradition of jurisprudence that results in the protection of the police powers of the states, and the tradition of jurisprudence that defends and expands the personal liberties of the citizens would seem to come from entirely different judicial systems, but the two must be reconciled. It is apparent that in the eyes of the Supreme Court, the issue of morality has become a non-issue, with the only exceptions being Justice Scalia’s dissents in Romer and Lawrence, and his concurrences in Barnes and Cruzan, and the Court’s “time, place and manner” restrictions placed on obscene materials in 1978’s FCC v. Pacifica Foundation. With the exception of Justices Scalia and Thomas, who joined Scalia in his opinions in the aforementioned cases, the present Court seems to concur that the four legs of the police powers have been reduced to three by eliminating the concern for morality, and that the three remaining legs have been diminished from what they once were. The present Court, and as a result recent trends in American jurisprudence, tend to side with personal liberties over police powers in almost every conceivable instance. As a result, personal liberties have expanded greatly in the past two decades, at the expense of the police powers, but it must be determined whether these issues should be left up to the courts to decide.

In Justice Scalia’s aforementioned dissent in the case of Cruzan v. Director, Missouri Department of Health, Justice Scalia stated that these controversial issues of morality and safety should be decided by the legislatures. This idea is the ideal solution to the controversial issues that involve concerns that fall under the four legs of the police powers. This would best coincide with the American system of democratic republicanism. The United States of America was founded on the principles of a democratic republicanism, which means that elected officials would represent the people that elected them in the passing of legislation and enacting of laws. This allows for the greatest amount of accountability in the law making process, since elected officials have to be reelected at the end of their terms, and if an elected official acts in a manner that is displeasing to his or her constituency, they will lose that election. Also, these elected officials directly represent the American people. Neither of these two things is true of the judiciary. Supreme Court Justices are not elected officials, so they do not directly represent the people of the United States, and they also serve a life term, which means that they can not be held accountable, except through impeachment, which is a difficult process to undertake. Also, the Supreme Court was not intended to make law. Rather, the Supreme Court was intended only to review laws and aid in the interpretation of the Constitution and laws of the United States. Therefore, it should not be up to the Supreme Court to determine what is in the best interest of the people of the individual states of the United States and their safety, morality and welfare. The issues that fall under the police powers of the individual states should be determined and decided upon by the elected officials of the individual state legislatures, and not left up to nine un-elected officials that are in no way directly accountable to the people whom these laws would affect.

Read Part III. A Defense of Mixed Martial Arts

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