All too often federal judges wax lyrical about the state police power, and the ability of the states to proscribe individual liberty to achieve health, safety, morals, and welfare, in only the most general of terms. In the case of Robinson v. Crown Cork & Seal Company, Justice Don Willett of the Supreme Court of Texas, a friend of this blog, wrote a brilliant concurring opinion that explores the police power and liberty from a perspective we seldom see–from that of a state Supreme Court Justice. In this post, I will excerpt some of the best quotes, and expand on the broader themes. I encourage you to read the entire opinion. While there is a citation to Star Trek, the citations to Burke, Hume, Jefferson, and Madison are much cooler.

Every case that reaches this Court concerns real people buffeted by real problems in the real world. This dispute, however, possesses a transcendent quality, touching not only these parties but also building-block constitutional principles that belong to all Texans. In that sense, it affords a whetstone on which to sharpen our thinking on some bedrock notions of government and how the Texas Constitution assigns democratic responsibilities. More to the point, it teaches a vital lesson about diminished liberty stemming from government overreaching: The Legislature’s police power cannot go unpoliced.

Usually when I  see the word transcendent in judicial opinions, it is connected to dimensions of the transcendant type But in this case, it fits quite well. This opinion considers whether a law passed by the state legislature violates the retroactivity prohibition in the Texas Constitution. Retroactive laws are “are constitutionally permissible if they are a ‘valid exercise of the police power by the Legislature to safeguard the public safety and welfare.'” Thus, to resolve this question, Justice Willett considers whether this law was in fact a valid exercise of the police power.

I remember sitting in Con Law class as a 1L, and I asked my prof what the police power actually was? I received an unsatisfying answer, and was told it meant basically anything the state wanted (in contrast to the enumerated powers of the Federal Government). I wasn’t buying it then. After reading this opinion, I’m definitely not buying it.

In this case, the act passed by the legislatures seems to provide a special carveout that blocked certain types of asbestos suits against a specific company, effectively denying Barbara Robinson a remedy (rent seeking 101).

House Bill 4 was enacted against a backdrop of urgency, but with legislative police power, unfettered must never be unfretted. As litigants often discover, in the Legislature a deal is sometimes a raw deal. But unfair does not always equal unconstitutional; even vested rights can be impinged if lawmakers have a good- enough reason.

…

Nobody disputes “the authority of the Legislature to make reasoned adjustments in the legal system.”17 But lawmakers aiming to statutorily prescribe what is constitutionally proscribed must make a convincing case. As the Court carefully explains, the sparse record underlying chapter 149 falls short of what must be shown before someone is made to surrender a constitutional right.

Indeed, constitutional rights are not absolute. But, according to this opinion, the legislature better have a damn good reason (and not just a “rational basis” in the Lee Optical sense) before negating a constitutional liberty.

Following this discussion of Texas law, Justice Willettt goes meta. What is the relationship between the individual and the state?

Today’s case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation. Distilled down, it is also a case about how Texans govern themselves.

Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts for over a century. The broader issue of a citizen’s relationship with the State has confounded for centuries longer.

• From 1651, Leviathan: “For in a way beset with those that contend on one side for too great Liberty, and on the other side for too much Authority, ’tis hard to passe between the points of both unwounded.”18

Willett draws four principles from the police power.

First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.”

First, the police power, by its very nature, requires infringing the rights of the few to benefit the many. This resolves many collective action problems that would exist in its absence.

Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan21), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency. That is, there must exist a societal peril that makes collective action imperative: “The police power is founded in public necessity, and only public necessity can justify its exercise.”22

21 See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh . . .” to which Kirk replies, “the needs of the few.”

Second, the police power can only be exercised when there is a public necessity, and not merely when some urgency arises. A line from the Wrath of Khan in footnote 21 illustrates that principle nicely.

Third, whether the surrender of constitutional guarantees is necessary is a legislative call in terms of desirability but a judicial one in terms of constitutionality. The political branches decide if laws pass; courts decide if laws pass muster. The Capitol is the center of policymaking gravity, but the Constitution exerts the strongest pull, and police power must bow to constitutional commands: “as broad as [police power] may be, and as comprehensive as some legislation has sought to make it, still it is subsidiary and subordinate to the Constitution.”23

Third, the courts have an engaged role in its exercise of the judicial power to ascertain whether the negation of individual liberties is in fact necessary.

Fourth, because the Constitution claims our highest allegiance, a police-power action that burdens a guarantee like the Retroactivity Clause must make a convincing case.24 Finally, while police power naturally operates to abridge private rights, our Constitution, being inclined to freedom, requires that such encroachments be as slight as possible: “Private rights are never to be sacrificed to a greater extent than necessary.”25

Fourth, simply put, if the Legislature is going to infringe on a constitutional liberty, they need a very good reason, and can only do so when absolutely necessary. To quote Team America, Freedom isn’t Free.

Willett next wades into the topic of Judicial Review, and the role of the Courts. Adjudication must not decay into abdication, contra FN4 of Carolene Products.

If judicial review means anything, it is that judicial restraint does not allow everything. Yes, courts must respect democratically enacted decisions; popular sovereignty matters. But the Texas Constitution’s insistence on limited government also matters, and that vision of enumerated powers and personal liberty becomes quaint once courts (perhaps owing to an off-kilter grasp of “judicial activism”) decide the Legislature has limitless power to declare its actions justified by police power. At that constitutional tipping point, adjudication more resembles abdication.

The value of an engaged judiciary is to ensure that bounds on governmental power are preserved, and overreaching is cabined. While the cats are away, the mice will play, I suppose.

But we should steadfastly resist defining desperation down. Exceptions to constitutional guarantees are real but also rare, just like modern citations to Marbury v. Madison: “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”28

The “danger that liberty should be undervalued” necessarily implicates “the adjustment of theboundariesbetweenitandsocialcontrol.”29 There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands. If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable.

To be sure, constitutional analysis is nuanced and not prone to doctrinaire absolutes. It is easy to say the sovereign’s shield must never become a sledgehammer, but it is more difficult — and every bit as important — to discern the moment at which it threatens to become a switchblade, carving quietly yet critically away at cherished rights.

Next, in an ode to the Jeffersonian maxim that eternal vigilance is the price of liberty, Willet expresses a caution about the stated purposes of government actions.

Our Bill of Rights is not mere hortatory fluff; it is a purposeful check on government power. Everyday Texans, and the courts that serve them, must remain vigilant, lest we permit boundless police power, often couched in soaring prose, to abridge our Constitution’s enduring “principles of liberty and free government.”33 As Justice Brandeis warned in his now-celebrated Olmstead dissent: “Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent.”34

But is Willett second-guessing (the dreaded role Courts cannot do) the motivation of legislators? Nope.

FN37. To be sure, Members of the Texas Legislature have sworn to “preserve, protect, and defend the Constitution and laws of the United States and of this State,”36 and they doubtless believe their enactments honor basic constitutional guarantees. I never second-guess the Legislature’s motives and goodwill (and have never needed to); we are blessed with 181 lawmakers who serve Texas with full hearts.37 But where the Constitution is concerned, the judiciary’s role as referee [J.B. Not “umpire”]— confined yet consequential — must leaven big-heartedness with tough-mindedness.

Next, Willet avoids the Judicial Restraint/Judicial Activism quagmire, and adopts  the term “Judicial Engagement.” This is a term I have used before, and most popularly put forth by the Institute for Justice (see also David’s Hammer by Clint Bollick).

But an important point must be made: There is a profound difference between an activist judge and an engaged judge. I am honored to serve with none of the former and eight of the latter. Nothing in this concurrence should be distorted into criticism of either lawmakers who passed chapter 149 or judges who passed upon it. My cautions today about unconstrained police power are entirely forward- looking, speaking to what can happen if judges, while not activist are also not properly active, instead preferring to leave police power unpoliced, thus inviting the other branches to flex ever-broader powers. My concerns are less centered on this case than on future ones.

In summary:

Summing up: Judges are properly deferential to legislative judgments in most matters, but at some epochal point, when police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction. The Legislature’s policymaking power may be vast, but absent a convincing public-welfare showing, its police power cannot be allowed to uproot liberties enshrined in our Constitution.

This is just a taste. Please read the entire opinion.