Saturday, February 18, 2012

Liberty, Part XXXII

Thomas Cooley, on liberty and the police power, continued:

“The Police Power. — The authority to establish, for the intercourse of the several members of the body politic with each other, those rules of good conduct and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a corresponding enjoyment by others, is usually spoken of as the authority or power of police. This is a most comprehensive branch of sovereignty, extending as it does to every person, every public and private right, everything in the nature of property, every relation in the State, in society, and in private life. The use of the public highways is regulated under it; so are the public fisheries and mines if any, and so are all the occupations of life. The domestic relations are formed, regulated, sustained, and dissolved under the rules it prescribes: the age at which a child becomes emancipated, the terms under which he may be allowed to apprentice himself or be forced by the public authorities to do so, and the measure of independent action in the marriage relation, are all determined by its rules. These rules seldom raise any question of constitutional authority, but it is possible for them to be pushed to an extreme that shall deny just liberty.”

“Employment. — The general rule is that every person sui juris has a right to choose his own employment, and to devote his labor to any calling, or at his option to hire it out in the service of others. This is one of the first and highest of all civil rights, and any restrictions that discriminate against persons or classes are inadmissible. The right to reside in a country implies the right to labor there, and therefore if by treaty with a foreign country its people are given the liberty to reside in this, no State can have the right to forbid their employment, as this would be in conflict with the rights given by the treaty.

“Employments are nevertheless subject to control under the state power of police, and may be regulated in various ways, and to some extent restricted."

Again, I do not agree with everything that Cooley wrote, particularly concerning the police power, but I do think that what he wrote is informative and contributes something of value to a complete view of the nature and operation of the right to liberty.

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