The People's Welfare

1. 19th-Century America: A Well-Regulated Society, Not Laissez-Faire

This book argues that such a world never existed, that nineteenth-century America was home to powerful traditions of governance, police, and regulation that refuse to conform to our twentieth-century ideological and psychological imperatives.

Challenging myths. Contrary to popular belief, 19th-century America was not a land of minimal government, absolute private property, or laissez-faire economics. This pervasive "liberal mythology" obscures a rich history of active governance and extensive regulation. The idea of a "stateless" America, where economic decisions were unfettered and individual rights reigned supreme, is a historical fiction.

Ubiquitous regulation. From 1787 to 1877, a distinctive governmental tradition, focused on a "well-regulated society," dominated policymaking. This involved a plethora of local bylaws, ordinances, statutes, and common law restrictions that touched nearly every aspect of daily life. These laws were the work of mayors, common councils, state legislators, and powerful local judges, demonstrating a profound governmental aspiration and practice.

Beyond simple narratives. The notion of a "great transformation" from colonial folkways to modern liberalism, or the idea of American exceptionalism shedding European statism, fails to capture this reality. Instead, 19th-century America maintained strong traditions of governance, police, and regulation, often rooted in older European ideas, that actively shaped its social and economic landscape. The state was not absent; it was deeply embedded in the fabric of society.

2. The Common Law Vision: Public Welfare as Supreme Law

At the heart of the well-regulated society was a plethora of bylaws, ordinances, statutes, and common law restrictions regulating nearly every aspect of early American economy and society, from Sunday observance to the carting of offal.

Salus Populi. The foundational principle of 19th-century American governance was salus populi suprema lex est—the welfare of the people is the supreme law. This maxim meant that public interest was inherently superior to private interest, and government existed not merely to protect pre-existing private rights, but to actively further the welfare of the entire community. This was a public society, in ways hard to imagine today.

Beyond philosophy. This public-spirited tradition was less a product of abstract political philosophy and more deeply embedded in the practical realities of local institutions and common law. It represented a political moment driven by magistracy, where the collective good was a tangible, actionable goal. Any attempt to prioritize private interest over public welfare was seen as a perversion of republican ideals.

Law as king. In this common law polity, the boundaries between law and government were often indistinguishable. The terse constitutional framework was interpreted and filled in by established Anglo-American legal standards and practices. The rule of law, a distinctly public and social ideal, dominated thinking about governance, emphasizing public prerogatives and the duties of government amidst private adjudication.

3. Local Self-Government: The Foundation of American Governance

The very label “municipal law,” used throughout this period to represent the whole of human (as opposed to divine) rules, customs, and governmental contrivances, bespeaks the local origins and orientation of governance in the republic.

Decidedly local. Despite the federal Constitution, 19th-century American governance remained overwhelmingly local. Towns, local courts, common councils, and state legislatures were the primary institutions of authority, functioning much like their colonial and European predecessors. These local bodies were infinitely more important to daily regulation than the U.S. Statutes at Large.

Collective liberty. Local self-government implied more than just a particular level of authority; it embodied a substantive understanding of freedom and obligation. Liberty and autonomy were seen as collective attributes, achieved through social and political interaction within self-regulating communities. The independent law-making authority of these communities was fiercely defended as essential to popular sovereignty.

Rules for the whole. No community was considered truly free without the power to determine the rules by which it would be organized and regulated. This open-ended local regulatory power was a necessary attribute of popular sovereignty, ensuring that individuals conformed their behavior to local expectations. This vision had little to do with possessive individualism or laissez-faire, but rather with the collective right to establish a "good order of society."

4. Civil Liberty: Freedom Defined by Law, Not Absolute

Civil liberty consisted only in those freedoms consistent with the laws of the land.

Regulated freedom. In the 19th century, liberty was understood as a "relative term," not an absolute right to act solely in accordance with one's own judgment. Civil liberty meant freedom consistent with the laws of the land, always subject to the superior power of self-governing communities to legislate and regulate in the public interest. This perspective viewed freedom and regulation not as antithetical, but as complementary and mutually reinforcing.

Social duties. This concept of civil liberty was integral to local self-government, emphasizing social duties and public obligations over unrestrained individual rights. As legal theorists argued, a "right" was intimately connected to the moral obligations incumbent on social beings, enabling one to carry out duties to others in society. Rights were thus social, affirmative, and relative, rather than individual, defensive, and absolute.

Beyond individual will. Government and societies were established for the regulation of social intercourse and institutions, not to protect pre-existing private rights. This meant that individual actions were expected to conform to local rules and expectations, ensuring that one's liberty did not injure the equal enjoyment of others or the rights of the community. This framework provided the rationale for extensive public regulation of private conduct.

5. Public Safety: Property Rights Yield to Community Survival

We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.

Paramount concern. Public safety was the foremost duty of the polity, prioritizing the life and limb of the citizenry above all else. Catastrophic threats like urban fires galvanized immediate and forceful state action, demonstrating that no private right, including property, was absolute when the community's existence was at stake. The common law maxims sic utere tuo (use your own so as not to injure another) and salus populi were consistently invoked.

Fire as a catalyst. The pervasive threat of urban conflagrations, such as New York's Great Fire of 1835, led to extensive regulatory efforts. These included:

• Strict building codes (e.g., prohibiting wooden structures within "fire limits").
• Rigorous control over hazardous materials (e.g., gunpowder storage and transport).
• Mandatory citizen assistance in firefighting.
• Summary destruction of private property (e.g., blowing up buildings to create firebreaks) without compensation, justified by "overruling necessity."

No absolute rights. Courts consistently upheld these regulations, even when they involved the physical destruction of valuable private property. Such actions were deemed "necessary" for the people's welfare, not "takings" requiring compensation. This starkly contrasted with later constitutional interpretations, highlighting how 19th-century law comfortably sacrificed individual interests for collective survival.

6. Public Economy: Markets Shaped by Public Control, Not Just Profit

The great object of all laws is the general welfare.… There can be no rights inconsistent with this. If a man cannot be safely trusted with liquor or with arms, he has no right to them.

Economy as public concern. The 19th-century economy was not a self-regulating, private sphere, but a "public economy" deeply intertwined with public safety, morals, health, and welfare. Law and the state were not external interferences but central creators of economic relations, actively shaping commerce, trade, and production through extensive regulation. The goal was to ensure a "happy plenty" and prevent scarcity, fraud, and profiteering.

Extensive controls. State and local authorities implemented a wide array of economic regulations:

• Product Laws: Detailed specifications for manufacturing, packaging, and selling goods (e.g., fish, flour, wood), enforced by inspectors and measurers.
• Licensing: Required for numerous occupations and businesses (e.g., merchants, auctioneers, innkeepers, cartmen), treating them as privileges, not natural rights.
• Market Regulations: Strict rules for urban marketplaces, including designated selling times/places, prohibitions on "forestalling" (buying to resell at higher prices), and quality controls, all to ensure fair prices and wholesome provisions.

Beyond laissez-faire. These regulations reflected a society where profit maximization was subordinated to a larger public interest in fair dealing, honest labor, and the orderly exchange of necessities. Courts consistently upheld these measures, rejecting arguments of "vested rights" or "restraint of trade." The urban market house, with its myriad rules, stood as a powerful symbol of this well-ordered approach to economic life.

7. Public Ways: The Legal Construction of Shared Spaces

The Commonwealth here, as to the king in England, belongs the franchise of every highway as a trustee for the public; and streets … are as much highways as are rivers, railroads, canals, or public roads laid out by the authority of a municipal corporation.

Publicity asserted. The early American polity aggressively asserted control over infrastructure, transforming private lands into public properties like roads, rivers, and ports. This involved extinguishing pre-existing private rights and establishing the public's paramount interest in these vital arteries of transportation and communication. The doctrine of "implied dedication" allowed courts to infer public access from long-term use, often without compensation.

Policing public rights. Once established, public ways were rigorously policed against private intrusions and obstructions. The common law of public nuisance was a crucial tool, used to abate or even destroy private structures (e.g., distilleries, mills, wharves) that encroached on public rights of passage. This demonstrated that public rights were absolute, and private claims could not usurp what belonged to the community.

Expanding remedies. Courts developed powerful legal remedies to protect public property:

• Equity Injunctions: Used to prevent encroachments on public lands and waterways, even against important commercial enterprises.
• Damnum Absque Injuria: Private injuries resulting from public works (e.g., changing street grades, building canals) were often deemed uncompensable, as the public good outweighed individual losses.

These doctrines insulated public projects from private damage claims, reinforcing the state's power to define and uphold public rights in the nation's infrastructure.

8. Public Morality: Law's Role in Shaping Social Conduct

Morality in this tradition was not a private, individual, or discretionary matter. Rather, it was a responsibility of government and a quid pro quo of community membership.

Governmental duty. In 19th-century America, public morality was a primary object of police and a crucial obligation of local and state governments. The movement for the reformation of morals and manners, fueled by religious revivalism, actively sought to reorder communities through law. This involved extensive regulation of personal conduct, reflecting a belief that a "well-ordered state of society" depended on adherence to ethical standards.

Disorderly houses. The legal designation of a "disorderly house" was a powerful tool to enforce moral norms, opening private spaces to public intervention. These were places that subverted social practices and violated expectations of orderliness, often frequented by "persons old and young, male and female, black and white, by night and day." Such establishments, including gambling dens, theaters, and brothels, were routinely prosecuted as public nuisances.

Liquor and constitutional shifts. Early liquor regulations, like licensing, were easily upheld as legitimate police powers. However, the radical shift to statewide prohibition in the mid-19th century, exemplified by Maine Laws, triggered a new constitutional debate. While many state courts upheld prohibition under salus populi, some, like New York's in Wynehamer v. People, began to articulate a new "substantive due process" that prioritized absolute individual property rights over legislative theories of public good, marking a significant departure from the well-regulated society's ethos.

9. Public Health: State Power to Protect Collective Well-being

Public Health is Public Wealth.

Primary object of statecraft. Public health was a fundamental concern of 19th-century American governance, closely linked to the "welfare of the people." Disease was viewed as an economic and political problem requiring active state intervention. This led to the development of "medical police" and "sanitary jurisprudence," emphasizing the state's duty to protect and improve the population's health.

Extensive regulations. Local and state authorities implemented a wide range of public health measures:

• Quarantine: Maritime and landed quarantines imposed severe restrictions on commerce and personal liberty, including vessel detention, cargo destruction, forced isolation, and mandatory vaccinations.
• Noxious Trades: Businesses like slaughterhouses, tanneries, and rendering plants, deemed harmful to public health due to smoke, odors, and waste, were subject to injunctions, fines, and summary abatement.
• Boards of Health: These early administrative agencies were delegated broad discretionary powers to make rules, inspect premises, and abate nuisances, often acting with summary jurisdiction.

Beyond private interests. Despite significant interference with commerce, property, and personal liberty, courts consistently upheld these health regulations. The principle of salus populi justified aggressive public action, even the destruction of private property, without compensation. This demonstrated the paramount importance of collective health over individual rights, though the application of these powers often reflected existing social hierarchies of class, ethnicity, and race.

10. The Demise of the Well-Regulated Society: Rise of the Liberal State

What replaced the well-regulated society as a mode of law and governance was the American liberal state (a regime very much with us today). Its central attribute was the simultaneous pursuit of two seemingly antagonistic tendencies—the centralization of power and the individualization of subjects.

A new regime emerges. By the late 19th century, the well-regulated society began to erode, giving way to the "American liberal state." This transformation was driven by the Civil War, industrialization, and urbanization, which challenged traditional notions of local self-government, public spirit, and common law. The new regime was characterized by a fundamental shift in the balance between public power and private rights.

Centralization and individualization. The post-Civil War era saw a decisive upward shift in governmental power, with federal and state authorities consolidating their authority over matters previously handled locally. Concurrently, there was a radical reconstruction of individual rights, emphasizing inherent, natural, and absolute freedoms, often articulated through the Reconstruction Amendments. This created a paradox: a more powerful, centralized state alongside a more individualized citizenry.

Constitutional law ascendant. The common law, with its emphasis on local customs and communal obligations, was increasingly supplanted by a new "liberal constitutionalism." This new legal framework prioritized the separation of public power from private right, with the judiciary acting as the guardian of these boundaries. Concepts like "substantive due process" emerged as powerful checks on legislative authority, fundamentally reshaping the relationship between government and the individual in America.