Alice Ristroph (Brooklyn Law School) has posted The Judicial Police Power, 71 Villanova Law Review 1 (2026) on SSRN. Here is the abstract:
According to the Supreme Court, “the police power” is a broad authority to govern that is inherent in (state) sovereignty. At one time, the source and scope of the police power was a central question of American constitutional scholarship, though scholars of the police power tended to focus on the parameters suggested by the adjective “police,” and not on the meaning of the term “power.” But it was the Court, not ordinary citizens or scholars, who invented the police power, and most who have looked closely at this power have simply reproduced the judicial conception. The Court’s own power to say what the police power is has gone relatively unnoticed, and thus unquestioned.
This Article examines the unification of police with power in constitutional doctrine with a more skeptical eye. If we attend to the particular conception of power that informs invocations of the police power—namely, a distinctively legal and justiciable power—then it becomes evident that the police power was constructed by courts in the nineteenth century to rationalize the courts’ own power of judicial review. Since then, the police power has been a device by which courts have asserted and defended a central judicial role in the resolution of fundamental questions of American politics. These questions include not just the issues of federalism and individual rights that are most commonly associated with police power doctrine, but also questions of legitimate violence embedded in the concepts of both police and power.
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