The New Police Science: The Police Power in Domestic and International Governance by Markus D. Dubber

Author:Markus D. Dubber [Dubber, Markus D.]
Language: eng
Format: epub
ISBN: 9780804753920
Goodreads: 1785133
Publisher: Stanford University Press
Published: 2006-10-11T00:00:00+00:00

6

Police Power and Commerce Power

That vagrancy laws are an exercise of the police power was clear to the Supreme Court more than a century before Papachristou v. Jacksonville.1 In fact, the Court’s leading case dealing with vagrancy—rather than with vagueness—is not Papachristou, as is generally supposed, but the 1837 case of New York v. Miln, which upheld a state immigration statute requiring captains to post bond for the human cargo they unloaded onto the shores of New York City.2 Miln addressed vagrancy laws only indirectly, as one manifestation of the state’s power to police its dominion. Yet, perhaps better than any other case, Miln places vagrancy within a larger system of police, and of people police in particular, directed toward the elimination of threats to the state from within and without. Miln thus also exposes the connection between the control of internal human threats, through vagrancy, and those external to the family of the state, through immigration control.

While the Miln Court found it “difficult to define … a subject so diversified and multifarious” as the scope of the state’s power to police, it did specify its objects, “the persons and things within her territorial limits.” The Court also offered various illustrations of the power, including the right to punish those “obnoxious to the law”3 and “to guard, by anticipation, against the commission of an offence against its laws.”4

The challenged statute provided another illustration. It aimed to prevent human contamination of the body politic, much like the vagrancy statute upheld by the Maine Supreme Court in In re Nott three years before:

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