The Right Thing in the Wrong Place? Unstable Dicta and Aesthetics’ Gradual Incursion into the Traditional Police Power Justifications

*J.D., University of Virginia School of Law, 2025. I am grateful to Professors Cynthia L. Nicoletti and Julia D. Mahoney, whose fascinating course on the history of police power regulation inspired this Note. Thank you also to the wonderful editors of the Virginia Law Review for their diligent work, and to Amy B. Vanderveer, Mackenzie L. Kubick, and Maya E. McCollum for their steadfast support, encouragement, and friendship. And of course, to my family, a simple thank you will never suffice.Show More

Aesthetic regulation is fast becoming a pervasive feature of many cities’ and states’ zoning regimes. While aesthetics are often used in conjunction with other justifications for zoning—itself an exercise of the well-recognized but somewhat nebulously defined police power—the constitutional basis for aesthetics’ use as the sole justification for zoning decisions has not been closely examined by courts or academics. Over the past seventy years, the Supreme Court has steadily bolstered the legitimacy of solely aesthetic zoning by suggesting that it should be included among the other traditional police power justifications. Though most of the cases falling within this doctrinal trend look to dicta from the well-known Berman v. Parker for support, their approaches have largely failed to critically engage with the Berman Court’s justifications for aesthetic regulation. Current scholarship also takes the genesis of this doctrine for granted, appearing more interested in examining the conflicts that arise when aesthetic regulation brushes up against other areas of the law, such as the First Amendment’s guarantee of free expression or the disproportionate impacts that aesthetic regulation and restrictive zoning have on certain communities, than in examining the doctrine’s origins. This Note attempts to probe the instability of this growing doctrine’s foundations by examining solely aesthetic regulation’s complicated historicity and constitutionality. Ultimately, this Note suggests that recent trends indicate a new willingness by the Supreme Court to reexamine troubled dicta and tackle head-on the question of whether aesthetics may stand on their own as a legitimate justification for exercises of the police power.

Introduction

This Note discusses aesthetic regulation’s entry into the traditional justifications for exercises of the police power, which include the health, safety, morals, and general welfare of the populace.¹ 1.See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power asthe 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 William Blackstone, Commentaries *162.Show More Though it is not contested that aesthetics may be part of a valid justification for regulatory exercises of the police power, especially when combined with one of the traditional justifications just listed, a more difficult question arises when one asks whether aesthetics alone may serve as a valid justification for exercises of this power, such as zoning.

As the slightly oxymoronic “gradual incursion” may suggest,² 2.Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)).Show More the history of aesthetics’ entry into the pantheon of police powers was a convoluted one—at least before now-famous dicta in Berman v. Parker abruptly ushered aesthetics into the company of its police power predecessors.³ 3.To be discussed in greater depth in Part II, these dicta in context state that[t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)).Show More While widespread acceptance of this dicta over the past seventy years has led to steadily increasing support for aesthetics alone as a valid justification for exercises of the police power,⁴ 4.See discussion infra Section II.C; infra Part III.Show More this Note examines how the Supreme Court’s treatment of this question has scarcely yielded definitive answers, and how largely uncritical interpretations of this dicta and the history behind it have produced a doctrine that is troubled and persistent in equal measure. In other words, this Note explores how aesthetic zoning—a sly cousin to the traditional justifications for exercises of the police power, developed largely through dicta rather than on its own merits—could be aptly described as a “right thing in the wrong place.”⁵ 5.Euclid, 272 U.S. at 388.Show More

Property rights were never absolutely free from government regulation, even before much of the doctrine concerning police powers had fully developed. Rather than being hyper-focused on the triumph of the individual over the encroaching powers of the State, early American states often subordinated individual rights to the pursuit of the common welfare.⁶ 6.See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)).Show More Two common law maxims, salus populi suprema est lex (“the welfare of the people is the supreme law”) and sic utere tuo ut alienum non laedas (“use your own right so as to not injure the right of others”), were pillars of American jurists’ vision of a well-regulated society and promoted a multitude of government restrictions on property rights.⁷ 7.See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996).Show More The Supreme Court recognized the common law tradition of police power regulation as early as 1824 when Chief Justice Marshall declared that “[t]he right to use all property, must be subject to modification by municipal law. Sic utere tuo ut alienum non l[a]edas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour.”⁸ 8.Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824).Show More Other cases from this period also recognized limitations on property rights and offered sweeping, absolute statements in support of such regulation. For example, an early Massachusetts case stated that

[a]ll property in this commonwealth . . . [is] held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment . . . as the legislature . . . may think necessary and expedient.⁹ 9.Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supranote 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”).Show More

The police power has long been thought of as a living, evolving concept, unburdened by strict rules or specific criteria.¹⁰ 10.See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“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.”); see alsoDouglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”).Show More Indeed, in Village of Euclid v. Ambler Realty Co., the Court stated that “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.”¹¹ 11.272 U.S. 365, 387 (1926).Show More Thus, neither the brief, pre-twentieth-century review above, nor the more in-depth historical review to follow in Part II, is meant to suggest that even if aesthetics alone were historically a suspect candidate for the police power, they can never be a valid justification. Rather, the question is whether aesthetics, either alone or in combination with the other traditional justifications for exercises of the police power, are properly included in the category of “the general welfare” considering the latter’s broad judicial recognition at the time the doctrine was first being formed. Put differently, are aesthetics—then or now—a compelling enough contribution to the people’s welfare to justify diminutions in property rights?

Despite extensive study of the practical consequences of urban renewal programs and aesthetic regulation,¹² 12.See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges).Show More and strong scholarly censure of the Supreme Court’s interpretation of the Fifth Amendment’s “Public Use” Clause to justify economic regulation and urban renewal programs in decisions like Berman and Hawaii Housing Authority v. Midkiff,¹³ 13.For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, seeRichard A. Epstein, Takings: Private Property and the Power of EminentDomain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)).Show More few authors have turned their attention specifically toward aesthetic regulation’s suspect historicity and constitutionality. This Note attempts to fill that analytical gap by examining the development of aesthetic regulation within the police powers doctrine from the pre-Berman era to the present, post-Berman age. It proceeds in four parts: Part I provides a brief grounding in the real-world impacts that aesthetic regulation has on the ongoing housing availability and affordability crisis as a form of restrictive zoning. Part II examines the development of aesthetics as a possible addition to the traditional police power justifications, dividing the inquiry into three distinct periods. The first period, discussed in Section II.A, focuses on early doctrinal trends in what this author terms the “pre-Berman period.” It posits that although courts initially found aesthetically motivated regulation inimical to proper exercises of the police power, the Supreme Court became comfortable accepting post hoc aesthetic justifications for exercises of the police power when the highest court of a state would do so. This tentative comfort was far from universally accepted, however, as other courts during this time insisted that exercises of the police power were to be reserved for necessitous circumstances, holding that such necessity did not include cities’ desire to regulate property to achieve aesthetic goals.

The second period, discussed in Section II.B, focuses on two decisions that ushered aesthetics further into the family of police power justifications, Euclid¹⁴ 14.272 U.S. at 388.Show More and Berman.¹⁵ 15.348 U.S. 26, 33 (1954).Show More While these cases have been used by the Supreme Court to justify the constitutionality of aesthetic regulation and to hint at the possible constitutionality of purely aesthetic zoning (though such a case has not yet reached the Court), a close reading of Euclid and Berman suggests that aesthetic zoning was to be used in only a very narrow set of circumstances. Section II.C discusses Berman’s progeny and examines how extensively its dicta have been distorted as more cases involving aesthetic regulation have reached the Court. Part III briefly discusses trends at the state level toward an acceptance of aesthetic and purely aesthetic regulation. Finally, Part IV examines recent trends in the Supreme Court that may suggest an awakening to the faltering legal foundations of aesthetics as a valid police power justification.

1.  See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as

   the 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 William Blackstone, Commentaries *162. ↑

2.  Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)). ↑
3.  To be discussed in greater depth in Part II, these dicta in context state that

   [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

   Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)). ↑

4.  See discussion infra Section II.C; infra Part III. ↑
5.  Euclid, 272 U.S. at 388. ↑
6.  See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)). ↑
7.  See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996). ↑
8.  Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824). ↑
9.  Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”). ↑
10.  See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“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.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”). ↑
11.  272 U.S. 365, 387 (1926). ↑
12.  See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges). ↑
13.  For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent
    

    Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property

    136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)). ↑

14.  272 U.S. at 388. ↑

15.  348 U.S. 26, 33 (1954). ↑