How the Fourteenth Amendment Limits State Police Powers

State and local governments are constitutionally obligated to ensure public safety. But, the Constitution imposes limits on this power through provisions like the Fifth and Fourteenth Amendments.

Public health regulations cannot violate a person's constitutional rights. However, the public health powers granted to the states are broad. Governors can order quarantines during a public health emergency or direct people to stay in their homes if there are exceptions for food and other necessities. They can also impose curfews in the name of public health. There is even a Supreme Court precedent for vaccine mandates.

In this article, we examine:

• Who is the decision-maker in matters of public safety, states or the federal government?
• The limits placed on police power by the Fourteenth Amendment
• The evolution of Supreme Court jurisprudence related to state police powers

Is Public Safety a Federal or State Power?

Under the Constitution’s separation of powers and the Tenth Amendment, any powers not explicitly granted to the federal government belong to the states. The Constitution limits the federal government’s powers to things that affect the country as a whole, such as:

• Foreign policy
• Controlling currency
• Waging war

Therefore, state and local governments are generally tasked with protecting public safety, public health, and the general well-being of residents. In this context, these responsibilities are known as state “police powers.”

States use police power to maintain things like:

• Hospitals
• Emergency services (law enforcement, fire, etc.)
• Infrastructure (bridges, state highways, sewers, electrical grids, etc.)

Under their reserved powers, state legislatures can also create laws to promote public safety. In Penn Central Transp. Co. v. City of New York (1978), the Supreme Court held that police power even includes preserving historic landmarks. State and local governments can use land-use restrictions to “enhance the quality of life by preserving the character and desirable aesthetic features of the city.”

The federal government has limited police powers. In United States v. Lopez (1995), the Supreme Court ruled that the Constitution “withhold[s] from Congress a plenary police power.”

However, state powers are also not absolute. The Fifth Amendment provides that:

“No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment technically only applies to actions by the federal government. However, enacting the Fourteenth Amendment in 1866 expanded these protections to the states.

The Crucial Role of the Fourteenth Amendment

The Supreme Court has extended most of the Bill of Rights to state action via the Fourteenth Amendment. This is known as the selective incorporation doctrine.

The Fourteenth Amendment extends due process protections to actions by state governments. The due process clause of the Fourteenth Amendment reads:

“...nor shall any State deprive any person of life, liberty, or property, without due process of law;”

State police power cases also sometimes touch on the equal protection clause of the Fourteenth Amendment, which states:

“[nor shall any State] deny to any person within its jurisdiction the equal protection of the laws.”

However, it took the Supreme Court a few decades to determine how best to apply the Fourteenth Amendment to the states. As we discuss below, the Court initially gave states extraordinarily broad police powers. But, over time, it became clear that a more nuanced approach was needed.

Due Process Rights

The Fifth and Fourteenth Amendments refer to due process as a singular idea. But the modern approach to due process breaks it down into two distinct protections:

• Procedural due process
• Substantive due process

Procedural due process refers to processes the government must follow when making decisions that could burden individual liberties. For example, procedural due process generally requires adequate notice and an opportunity for a hearing before a person can lose financial assistance from their state government.

Substantive due process is less concrete. It hinges on the proposition that fundamental rights are not specifically outlined in the Constitution. The Supreme Court has used this idea to protect civil rights, which it views as so closely tied to life, liberty, and property that they should be subject to strict scrutiny. Substantive due process helped form the basis of Supreme Court decisions to protect:

• Interracial marriage
• Access to contraception
• Same-sex marriage
• Abortion access

Efforts to overturn state laws on the grounds of substantive due process initially struggled to gain momentum. The Supreme Court's rulings in the aftermath of the Fourteenth Amendment's ratification suggest that the justices were reluctant to challenge state legislatures.

Supreme Court Cases on Police Power

In the Slaughterhouse Cases (1872), the Court adopted an extremely narrow view of both the due process clause and the privileges and immunities clause. The privileges and immunities clause of the Fourteenth Amendment states:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”

The dispute stemmed from a Louisiana law granting one private company in New Orleans a monopoly on slaughterhouse work. The state claimed the law was necessary to combat the public health crisis of cholera caused by contaminated water.

The Supreme Court quickly dismissed the due process claim put forth by a group of more than 400 butchers. The butchers argued that the state-granted monopoly took away their right to work in their desired trade.

However, the Supreme Court dismissed this argument. The majority concluded that under no interpretation of the due process clause, the restriction on the butcher trade could be viewed as a deprivation of property.

Justice Bradley disagreed, writing in his dissent:

“In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law.”

However, it would be another ten years before the Court began to limit state police power.

In Munn v. Illinois (1877), the Court held that states could regulate the use of private property "when such regulation becomes necessary for the public good." The 7-2 majority posited that state statutes were valid until clearly shown to be otherwise:  

"For our purposes we must assume that, if a state of facts could exist that would justify such a legislation, it actually did exist when the statute now under consideration was passed."  

Justice Field dissented. In his view, the state’s duty to protect the “peace, good order, morals, and health of the community,” was broad enough. He argued that states should only be able to control the use and possession of property “as may be necessary for the protection of the rights of others.”

Shifting Standards

Writing for the majority in Hurtado v. California (1884), Justice Mathews signaled a shift in the Court’s approach to police power. He noted that due process in the United States differed from English common law. Under the U.S. Constitution, due process applies to legislative acts and the executive and judicial branches. Furthermore, the Court wrote:

“Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law...the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights."  

Three years later, in Mugler v. Kansas, the Court rolled back the assumption laid out in Munn. “It does not at all follow,” Justice Harlan wrote, “that every statute enacted ostensibly for the promotion of [public health, morals, or safety] is to be accepted as a legitimate exertion of the police powers of the state.”

The decision in Mugler created an implied reasonableness standard for police power cases. Rather than assuming the state had a good reason to enact a given statute, the Court indicated it would invalidate state laws that were not adequately tied to public health, morals, or safety.

Subsequent decisions kept an economic focus on substantive due process. State laws were scrutinized if they interfered with property rights or the “freedom of contract.” The Court’s reasoning echoed laissez-faire economics, which advocates for as little government interference in the market as possible.

Lochner v. New York

In Lochner v. New York (1905), the Court held that a state law limiting the working hours of bakery employees was unconstitutional. The New York labor law restricted bakery workers to shifts of no more than ten hours a day and no more than 60 hours per week.

New York State argued the restriction was justified to protect bakers’ health. It provided medical testimony showing that bakers had shorter life expectancies and were prone to eye, lung, and bronchial passage issues.

The majority reasoned that there were aspects of the bakers’ work environment the state legislature could reasonably regulate, such as “furnishing proper wash rooms” and providing adequate drainage. However, the Court found that the restriction on working hours was not a true health measure. It was a labor regulation and, therefore, outside the state’s police powers.

Justice Harlan dissented, arguing that the Court had overstepped. In his view, medical evidence in the case was enough to make it the legislature’s problem to solve.

“No evils arising from such legislation could be more far-reaching,” he wrote, “than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives.”

Modern Rule

Following the Great Depression, policies like the New Deal brought greater government involvement in the economy. And the Court responded by taking a more hands-off approach.

In Williamson v. Lee Optical Co. (1955), the Court upheld an Oklahoma law that only allowed licensed optometrists and ophthalmologists to fit or replace optical lenses. The opinion by Justice Douglas notes:

“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”

In 1978, the Court further clarified the modern rule in Duke Power Co. v. Carolina Environmental Study Group. Under Duke, burdens on economic rights will generally stand unless the legislation is proven to be arbitrary or irrational.

As previously stated, non-economic rights receive more robust protection. Legislation impacting fundamental civil liberties, such as the right to marry, requires thorough scrutiny.

The exercise of state police power must withstand strict scrutiny when it affects religious rights. However, a compelling state interest is not required if the law is “neutral and of general applicability.” In Church of Lukumi Babalu Aye v. City of Hialeah, the Court unanimously held that a city ordinance banning ritual animal sacrifice violated the First Amendment because it singled out the religious practices of one faith (Santeria).

The Court found that the city had a legitimate interest in protecting public health and preventing animal cruelty. However, the ordinance was not crafted narrowly tailored to achieve its purpose. For example, the Court pointed out that the city could have regulated the disposal of organic waste or implemented rules on the general treatment of animals.

COVID-19 Restrictions

The novel coronavirus pandemic presented complex issues of public health and safety. In a flurry of cases, the Supreme Court weighed the states’ power to combat an unprecedented public health crisis against other constitutional guarantees, such as freedom of religion. In Roman Catholic Diocese v. Cuomo, the Court sided with religious leaders.

In October 2020, New York Governor Andrew Cuomo issued an executive order limiting attendance at religious services and other “non-essential” gatherings. The state’s Department of Health identified areas where the risk of spreading COVID-19 was especially high (red zones), moderate (orange zones), and relatively low (yellow zones). No more than 10 people could gather in houses of worship in red zones and no more than 25 in orange zones.

The Roman Catholic Diocese of Brooklyn and Agudath Israel of America sued to block the order's enforcement. They argued that it infringed on religious rights under the First Amendment’s free exercise clause.

In a 5-4 decision, the Court granted injunctive relief, barring the governor from enforcing Executive Order 202.68. The per curiam opinion notes that the order singled out houses of worship “for especially harsh treatment.”

For example, an essential business like a grocery store could admit as many customers as it wished in an orange zone. However, a church or synagogue in the same neighborhood could only accept 25 patrons.

In his concurrence, Justice Neil Gorsuch wrote:

“The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces...That is exactly the kind of discrimination the First Amendment forbids.”