Part I: Subnational Actors, Narcotics, and the Scope of the States' Powers
VI. Securing Judicial Approval of a Stronger Police Power
the country. He defined the power as the authority to promote the “public welfare by restraining and regulating the use of liberty and property.” Freund’s conception of the police power
permitted a much broader set of legal restrictions on individual liberties.94
While Freund described the conceptual framework that underlay the expansion of the states’ police power, others quantified the results of that shift. Charles Warren, whose three- volume The Supreme Court in United States History would win the Pulitzer Price in 1923, penned an article for the Columbia Law Review in 1913 in which he considered then-recent claims that the Supreme Court had served as an obstacle to Progressive legislation. Warren found otherwise, noting that the Court had, since 1887, but rarely invalidated a state police action as overstepping legislative authority or for running afoul of the Fourteenth Amendment. He also noted the Court’s approval of Freund’s view of the police power. The Court’s deference to state authorities, its weakening of the Fourteenth Amendment, and the states’ gain in power all went hand-in-hand in Warren’s formulation.95 These forces resulted in states with newly broad authority to regulate within their borders.
94 Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan & Company, 1904), iii.
95 Charles Warren, “The Progressiveness of the United States Supreme Court,” Columbia Law Review 13, no. 4 (April 1913): 294-313, 310. The same question that animated Warren’s study would prove foundational to a large body of scholarship that debates whether and why the Supreme Court during this period invalidated state police power legislation. For scholarship suggesting the Court invalidated much state-level legislation that would have otherwise impeded the interests of American business, see Robert McCloskey, American Conservatism in the Age of Enterprise, 1865-1910: A Study of William Graham Sumner, Stephen J. Field, and Andrew Carnegie (Cambridge:
Harvard University Press, 1951); Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Ithaca: Cornell University Press, 1960); Frank R. Strong, Substantive Due Process of Law: A Dichotomy of Sense and Nonsense (Durham: Carolina Academic Press, 1986); and Owen M. Fiss, The Troubled Beginnings of the Modern State (New York: Macmillan, 1993). For arguments that the Court’s conservative justices acted not to support business but instead to promote earlier conceptions of liberty, see Michael Les Benedict,
“Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law
& History Review 3, no. 2 (Autumn 1985): 293-331; William E. Forbath, “The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,” Wisconsin Law Review (1985): 767-817; Cass R. Sunstein, “Lochner's Legacy,”
Columbia Law Review 87, no. 5 (June 1987): 873-919. For a study suggesting that the Court may not have invalidated state legislation to the degree scholars had previously argued, see Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (Westport, Conn.: Praeger, 2001).
As with the earlier Stockton ordinance, a Chinese defendant eventually challenged the possession law’s constitutionality. On July 16, 1910, authorities in Salinas arrested Yun Quong and charged him with having “in his possession a preparation of opium” without a written prescription.96 Yun was arrested in conjunction with investigations in Monterey and Santa Cruz counties by Board inspectors, with Inspector Fred Brown leading the charge. Brown’s
investigations were two-pronged: They included raids on opium dens as well as activities designed to trap local druggists selling drugs illicitly. Brown reported back to the Board that his raids on opium joints had proven “quite successful,” with several defendants having already pled guilty to the charges against them. Two weeks later, an attorney representing the Board in
several of its prosecutions appeared and confirmed Brown’s claim of successful raids and guilty pleas. The attorney also informed the Board of Yun’s challenge, however, reporting that “one of the Chinamen arrested in Salinas for having opium in his possession appealed.”97
The Board found itself enmeshed in a whirlwind of bad publicity surrounding its Monterey and Santa Cruz activities for reasons that had nothing to do with Yun. Local press soundly criticized its inspectors’ methods in gathering evidence against druggists. According to the Santa Cruz News, one inspector in Santa Cruz, “finding that a druggist did not keep a certain drug containing a poisonous substance, pleaded with him to send away for it to relieve his suffering.” Having done so, the druggist found himself “put under arrest by the man he had succored.” Another inspector visited a druggist and “pleaded” with him to sell “a small quantity of morphine,” claiming that he had “contracted disease while fighting for the flag in the
Philippines, and was at that moment in terrible pain.” The druggist refused, suspecting a trap, and “learned later that the same man had caused the arrest” of another doctor on “some such
96 Pet’r’s Writ of Habeus Corpus, 1-2, Ex parte Yun Quong, 159 Cal. 508 (1911).
97 Board of Pharmacy Minutes, July 26, 1910; August 8, 1910.
false claim.” The San Francisco Call condemned these practices and suggested the Board
“should have the decency to exercise some sort of supervision over its gumshoemen.” It recommended termination for any inspector caught making such representations to trap druggists.98 Tellingly, the paper raised no objection to the Board’s activities in investigating opium dens.
Before the state appellate court as well as in front of the California Supreme Court, Yun challenged the possession statute as beyond the state’s police power and an “encroachment upon individual rights or liberties … guaranteed by the organic law.”99 Yun’s attorneys claimed the right to possess what one wished to be one of the “fundamental rights of our people” and located the basis of that right both in natural and positive law.100 Guarantees in the state and national constitutions that protected against the deprivation of liberty and property guarded this right, they contended. Yun’s counsel also insisted that even absent such specific provisions, these rights were “inherent in every natural person” and did “not depend on constitutional grant” or
guarantee.101 They described the possession law, in other words, as running up against long-held notions of individual liberty that predated the U.S. and state constitutions.
Acknowledging that, in appropriate circumstances, the legislature may pass a law that infringes even upon a fundamental right, Yun’s attorneys described their client’s case as not
98 San Francisco Call, July 31, 1910 (citing Santa Cruz News). The Board’s president set off on a tour of Northern California cities to meet with newspaper editors and law enforcement officials to resolve questions about its inspectors’ methods. See Board of Pharmacy Minutes, Aug. 1, 1910; Board of Pharmacy Minutes, Aug. 1, 1910.
99 Pet’r’s Op. Br, 3, Ex parte Yun Quong, 159 Cal. 508 (1911); Resp’t’s Br., 4, Ex parte Yun Quong, 159 Cal. 508 (1911). He also argued that the statute violated the California Constitution on two additional grounds: (1) that its title did not sufficiently indicate its contents, and (2) that it granted to “physicians, dentists and veterinarian,
privileges and immunities withheld from other citizens.” See Pet’r’s Writ of Habeus Corpus, 2, Ex parte Yun Quong, 159 Cal. 508 (1911).
100 Pet’r’s Op. Br, 4, 12 Ex parte Yun Quong, 159 Cal. 508 (1911). In a sign of just how profound an expansion of state power the possession clause represented, Yun Quong’s attorneys expressed confidence that the court would not approve this exercise of the police power once it understood all the consequences that might follow. They explained to the court that it could not uphold the Poison Law amendment unless it was “prepared also to hold that it is competent for the Legislature to make it a criminal offense for one in the privacy of his own apartments to use opium; for in order to use it he must have it in his possession.”
101 Ibid., 5-6.
involving such circumstances. Their brief opened with authority that both invoked nuisance doctrine as the continuing limit of the state’s police power and also proclaimed “conservation”—
not “promotion”—“of the public welfare” to be the upper limit of legislative authority.102 They insisted that the opium statute was directed toward the individual possessor’s welfare and not the general welfare. “It is elementary,” they maintained, that the police power may only be invoked to preserve the “public welfare;” it “does not concern itself with the individual as a part of public society.” Yun’s attorneys then insisted that the mere possession of opium had “no relation
whatever to the protection” of the public welfare and was thus “not within the legitimate exercise of the police power.”103 In short, in addition to their arguments derived from state and federal constitutional guarantees and their exposition of individual liberties supported by natural law, Yun’s attorneys contended that the possession law impermissibly tried to advance individual, rather than the public’s, welfare.
The state’s attorneys also focused on California’s police power and indirectly referenced Freund’s more capacious view of that basis of authority. They argued that the court must answer two questions to resolve Yun’s case. First, was opium consumption a proper subject for the legislature to regulate or prohibit? Second, did the legislature choose a reasonable means for the
“suppression of this vice?” Taken together, the two questions reveal a take on the police power that would allow all reasonable legislative actions on subjects deserving of regulation. They suggest, in other words, a decided move toward a police power potent enough to support positivist legislation to promote the general welfare. To contend that the court must answer the
102 Pet’r’s Cl. Br., ii, 9-10 Ex parte Yun Quong, 159 Cal. 508 (1911) (emphasis in original omitted) (citing Commonwealth v. Campbell, 117 S.W. 383 (Ky. 1909)). In Campbell, the Kentucky Supreme Court held that “the police power—vague and wide and undefined as it is—has limits, and in matters such as that we have in hand its utmost frontier is marked by the maxim: “Sic utere tuo ut alienum non lædas.” Campbell, 117 S.W. at 387.
103 Pet’r’s Cl. Br., 9-11, Ex parte Yun Quong, 159 Cal. 508 (1911) (emphasis in original omitted). On a continuum with a strict application of nuisance doctrine on one end and promotion of the general welfare on the other, it may be that Yun’s attorney’s formulation of the police power—the power to conserve the public welfare—would fall somewhere in the middle. His attorneys did not, however, elaborate any further on their view of the power.
former question in the affirmative, the attorneys described the vast scope of domestic and international efforts to combat opium use, alleged a connection between opium use and crime, and called attention to the “moral degradation, poverty, and physical decay” the drug caused. As to the latter question, because the Poison Law permitted “every beneficial use of the drug” and criminalized only its “vice,” they maintained, the statute represented a “reasonable and
appropriate measure for the suppression and control of the opium evil.”104
Despite the protestations of the state’s attorneys, who maintained that the statute should not be understood as directed against California’s Chinese, the public and political association of opium with Chinese Californians proved the subtext of much of the appeal.105 That subtext occasionally spilled over into text. In particular, two of the state’s arguments relied on this association. First, in arguing that opium represented a vice dangerous enough to justify this exercise of power, the state tied the deteriorating effects of opium to its supposed Chinese source. They referenced, for example, the U.S.’s Philippine colony, where “the vice of opium smoking was rapidly spreading from the Chinese to the natives,” leading to “whole
communities” becoming “impoverished and rendered unfit for life in the islands.” Subsequent descriptions of opium users’ immorality, poverty, and feebleness, following discussions of efforts in China to end widespread use there, served to shore up the state’s case: The danger of
104 Resp’t’s Br., 5-10, Ex parte Yun Quong, 159 Cal. 508 (1911). The state’s attorneys analogized the Poison Law’s possession clause to a long list of possession regulation that courts had already approved. These included statutes forbidding the possession of lottery tickets, the possession of wild game out of season, and the possession of weapons, among others. Ibid., 27-44. Yun Quong’s counsel distinguished these statutes on two grounds. First, his attorneys argued, most of the other possession statutes also included a showing that the defendant intended to commit a crime with the object of concern. Second, in the instance of wild game, such was public property and therefore subject to reasonable restrictions on possession. Pet’r’s Cl. Br., 11-14, Ex parte Yun Quong, 159 Cal. 508 (1911).
105 Ibid. They wrote: “It must not be understood that the crusade against the opium habit is a local affair; or that the legislation before us is directed particularly against the Chinese. The opium problem is world-wide.”
unregulated opium use lay in the possibility that California would be unable to stave off the effects of this Chinese vice.106
Second, the state relied on authority that distinguished between alcohol and opium based on their relative familiarity among the white, native-born population. Citing a federal case from Oregon that explained why opium legislation lay within the state’s police power but alcohol regulation did not, the state’s attorneys focused attention on the “language of the court” in that case. The Oregon court described the possession of intoxicating liquors as outside the state’s authority on the ground that “the people of this country have been accustomed to the
manufacture and use of these for many generations.” The same court found opium restriction acceptable because the substance “had no such place in the “experience or habits of the people of this country.”107 The state may have framed this argument with Yun’s focus on personal
freedoms in mind. By noting smoking opium’s recent, Chinese introduction into the U.S., the state suggested no long-standing tradition of governmental non-intervention attached to the drug.
Only 24 years after Sic, the Court approved this new legislation.108 In so doing, it credited the state’s argument concerning the necessity of narcotics criminalization in terms that accepted its racial underpinnings. It also signaled its endorsement of the state’s proffered view of the police power. Adopting in its entirety the decision of the District Court of Appeal that heard the case below, the California Supreme Court agreed that the “unrestricted use of poisonous drugs would be the source of ill health, pauperism, misery and insanity,” and it called the prevention of such ends “among the objects of all enlightened government.”109 Promotion of the general welfare, under this view of the police power, came to sound more like an affirmative duty than a
106 Ibid., 6-9.
107 Ibid., 16 (citing Ex Parte Yung Jon, 28 F. 308 (D. Oregon 1886)).
108 Ex Parte Yun Quong, 159 Cal. at 508.
109 Ibid., 513 (citing lower court opinion of Justice Kerrigan).
basis of action. If the Court’s listing of fateful consequences of drug use arguably left ambiguous the particular group of narcotics users it had in mind, it continued: “Most of our citizens have no desire or occasion to use any of the prohibited narcotics.” In approving the amplified power of the state to regulate an area of private life held unreachable only two decades earlier, the presumed fact that the drugs’ users appeared not to be among “our citizens” proved determinative.110