CONSTITUTIONAL LAW--POLICE POWER, REGULATION, AND CONFISCATION

Authors

Abstract

Whether the power be taken away directly, or be deadened and atrophied in its action by adverse criticism and demagogic clamor, when the judiciary no longer feel at liberty to construe the provisions of the fundamental Law 'in the light of reason,' constitutional government, in the sense in which it has been understood for a century and a half, will be at an end, and the doctrine of the police power will have been swallowed up in the capacious maw of unrestrained democracy." 27 HARV. L. REV. 316. Mr. Wickersham penned this warning during the period when the swell of socialized state legislation, under the cloak of the police power, met the ready approval of the United States Supreme Court. Those vested interests, whose rights were encroached upon, probably felt that the police power was all that the spleen of Dr. Johnson expressed toward patriotism. Indeed, the views found in some of the opinions may have seemed to justify apprehension of actual confiscation under that indefinite power. See, in particular, Noble State Bank v. Haskell, 219 U. S. 104, 110, 111, and the dissenting opinion of Mr. Justice Holmes in Lochner v. New York, 198 U. S. 45, 76. Where the line would be drawn between the regulation of property rights and the taking thereof remained in doubt. In a recent decision the Supreme Court appears to have "pricked out'' a point beyond which the power to regulate cannot go.

Recommended Citation

CONSTITUTIONAL LAW--POLICE POWER, REGULATION, AND CONFISCATION, 21 Mich. L. Rev. 581 (1923).
Available at: https://repository.law.umich.edu/mlr/vol21/iss5/6