Citation

Reynolds GH, Kopel DB. Hastings Constit. Law Q. 2000; 27(3): 511-538.

Copyright

(Copyright © 2000, University of California, Hastings College of the Law)

DOI

unavailable

PMID

unavailable

Abstract

A review of state and federal courts decisions on the scope of state police powers suggests that the shift from the more restrictive sic utere principle to the more open salus populi principle may be reversing, with courts -- at least in cases involving sex and marriage -- taking a much more skeptical view of government objectives and justifications.

The conventional wisdom about the scope of state police powers goes like this: in the early days of the Republic, state regulation was limited by the common law principle of sic utere tuo ut alienum non laedas (you should use what is yours so as not to harm what is others'), implying that legitimate regulation existed only to prevent concrete harm to specified interests. Sometime around the (previous) turn of the century, the story continues, the principle changed from the old sic utere to the new principle of salus populi est suprema lex (the good of the public is the supreme law), suggesting that states could regulate as they chose so long as they claimed to be working to promote the public safety, welfare, or morality.

Like all such conventional wisdom, this approach is somewhat simplistic. But it captures a large grain of truth. The range of activity that courts, and legal scholars, view as within the scope of legitimate regulation is considerably larger than it was previously.