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75 Wash. L. Rev. 857 (2000)
The Myth of Property Absolutism and Modern Government: the Interaction of Police Power and Property Rights

handle is hein.journals/washlr75 and id is 873 raw text is: Copyright 0 2000 by Washington Law Review Association THE MYTH OF PROPERTY ABSOLUTISM AND MODERN GOVERNMENT: THE INTERACTION OF POLICE POWER AND PROPERTY RIGHTS Justice Philip A. Talmadge* Abstract. A new movement in America espousing a novel doctrine, property-rights absolutism, has gained some popular and political appeal. But the property rights absolutists tend to ignore the societal foundations of property, and especially de-emphasize the responsibilities property owners have to the community in which they live. They fail to consider properly the significance of the police power and its vital role in the American and Washington State constitutional systems. This Article debunks the newly minted mythology of the property-rights absolutists and places the police power and property rights in their proper historical perspective. The fundamental roles of government are to regulate public health and safety, maintain the peace, and provide for the general welfare. The authority to do these things is usually referred to as the police power.' The origin of the police power coincides with the dawn of government generally and certainly finds expression in Washington State's Constitution, enacted in 1889. Increasingly, however, the exercise of police power by state and local government has come under fire by those who assert that the exercise of Justice, Supreme Court of Washington; J.D., University of Washington, 1976; B.A. Yale University, 1973. Justice Talmadge has been a member of the court since 1995. He gratefully acknowledges the work of Bernard Friedman and Molly Terwilliger, without whom this Article would not have been possible. 1. The term police power made its first appearance in the U.S. Supreme Court in Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 443 (1827). The concept, however, is much older. Blackstone described the police power as follows: [T]he due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. 4 Blackstone's Commentaries 162 (St. George Tucker ed., Rothman Reprints, Inc. 1969) (1803). The term 'police power' connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of 'reasonableness,' this Court has generally refrained from announcing any specific criteria. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962). The Supreme Court of Washington has opined that the police power precedes constitutional government. It is probable that this power is the most exalted attribute of government, and, like the power of eminent domain, it existed before and independently of constitutions. Conger v. Pierce County, 116 Wash. 27, 35, 198 P. 377, 380 (1921).