The People's Welfare: Law and Regulation in Nineteenth-Century America.

• Author: Scheiber, Harry N.

By William J. Novak. Chapel Hill, N.C.: University of North Carolina Press, 1996. Pp. x, 396. $55.00 (hardcover), $19.95(paper).

"Productivity was the central test and validating canon."(1) Thus did the late Willard Hurst, our leading historian of nineteenth-century law, characterize the criterion by which, from the 1830s to the 1870s, Wisconsin "confidently wielded authority over the waterways"(2) of the lumbering region that formed so vital a part of its economy. In this instance Hurst was referring specifically to statutes and decisions that affected the operations of a single state's extractive and processing industry, together with its use of the public waters. But the statement conveyed accurately enough the larger picture of American legal culture in the era, from the 1790s to the Civil War, a picture that Hurst provided in the masterful studies--both monographs and works of synthesis--through which he has profoundly influenced an entire generation of legal historians' research.(3) In The People's Welfare,(4) American historian William J. Novak pursues in great depth and with admirable originality one of the most important themes originally set forth by Hurst and a few other pioneers in the literature of American history:(5) how government "confidently wielded" authority through exercise of the police power, that is, how the state deployed regulatory power for the protection of the public's health, safety, morals, and welfare.(6)

Novak analyzes both how American jurists conceptualized the police power and how implementation patterns signaled the broader public philosophy concerning the legitimate reach and limitations of government's regulatory role. Following an extended analysis of the intellectual underpinnings of the police power in the common law and law of the early Republic, Novak devotes separate chapters to specific regulatory activities of the states. One chapter, for example, considers regulations enacted for purposes of public safety, giving detailed attention to how municipal governments regulated the storage and handling of gunpowder, an area of law in which the inherited doctrines of public nuisance were mobilized.(7) The "superior rights of the public," Novak finds, were asserted systematically in defense of the public safety: "Property rights were protected, but relatively, not absolutely."(8) Further, in this same context, Novak considers the response of the law to catastrophic urban fires such as the disaster New York City suffered in 1835, when the government relied upon traditional precepts of the law of necessity and demolished buildings purposefully to create a fire break. Although owners received compensation, payment was a matter of legislative discretion--and, as specified by statute, compensation was only for the buildings that were blown up or torn down, not for their contents.(9) The large doctrinal significance of the judicial actions was to reiterate the concept that injury to a property owner might be found to be damnum absque injuria (an injury without remedy).(10) Here again, Novak draws out the larger meaning for the definition of powers that the government might exercise when the safety of the public was at stake: "Houses, goods, occupations, trades, industries, manufactures, sales, exchanges, land uses, and the like were all subject to regular and harsh public limitations when the safety of the people was threatened by fire."(11)

Considering urban market regulations for purposes of assuring sanitary, quality, and weight standards, Novak notes that, years ago, historians successfully "exploded the `myth of laissez-faire' and demonstrated the myriad ways that law and active state governments furnished the necessary conditions for early American economic development."(12) Novak comments, however, that these earlier studies did not adequately recognize how law and institutions shaped the market: They tended, he claims, to treat the public- and private-market sectors as distinct, rather than as interpenetrated by public authority and especially regulatory power.(13) The author gives the impression that the idea of an active republican polity, shaping the institutions and profoundly influencing the dynamics of the private sector, is now to be unveiled as a new and marvelous discovery. As subsequent sections of this Book Review indicate, however, no matter how important the content of Professor Novak's message and how interesting the documentation he offers, this is not an "alternative story" that ought to come as a startling surprise.

For example, Novak's fourth chapter, titled "Public Ways: The Legal Construction of Public Space,"(14) presents the story of "the invention of public property"(15)--in the sense that the policing and general regulation of highways, other thoroughfares, and public squares, constituted an important expansion of state governments' regulatory activities and jurisdiction with ramifications for "the general conduct of economic and social life."(16) There is less that is new in this chapter than in the others, both with respect to the specific cases that are analyzed and with respect to the importance of this aspect of the law in the antebellum era. Nor can there be any quarrel, I would imagine, with Novak's reiteration of the contention advanced by others before him that the jurisprudence of regulatory law for waterways and other public ways became a fountainhead of public rights doctrines supportive of regulatory intervention.(17)

On the whole, however, Novak offers a great deal of information little known to students of the period. Sections of Novak's work dealing with the regulation of disorderly houses,(18) temperance law,(19) and several aspects of public health,(20) inevitably use some material from the existing literature. The author, however, introduces in these sections an important new theme: the movement of the post-Civil War period toward bureaucratization of control and, within the federal structure, the movement of governance "upward" from the local to the state level (and later, after 1877, the further advance of this movement to policy setting and direction of substantive implementation by the national government). At the same time, Novak argues, in the liquor prohibition field and later in other realms of law, "the die of a new constitutional regime was cast" and "[t]he terms of debate [were] decisively shifted" because the state courts for the first time were developing a doctrine of private rights that overrode the classical public rights tradition.(21) Here enters a familiar old friend: Wynehamer v. People,(22) in which the New York Court of Appeals overturned a liquor control law because it violated sacred rights of property. As Edward Corwin contended some eighty-five years ago when he made Knehamer the centerpiece of his argument on the pre-Civil War origins of substantive due process, this decision (almost unique in antebellum state jurisprudence) presaged what the courts would expand into a comprehensive charter for the protection of private rights after the adoption of the Fourteenth Amendment.(23) In Novak's framework, the importance of the New York decision is not merely what it presages but rather what it rejects: an entire system of law that he portrays as "a local, customary, and discretionary regime"(24)--the law of the well-ordered society in which regulation had enormous scope and dominance.

Indeed, Novak offers much of value in his intensive examination of several important aspects of regulation in American governance to 1877. Much of what Novak represents as his most valuable contribution to an understanding of basic historical interpretations and cultural aspects of American law, however, depends on the notion that a distorted view of the past has prevailed--presumably with scholars as a general matter, and certainly with respect to the public (which, he says, subscribes to the myth of a golden age of laissez faire). For example, Novak concludes by summarizing his by now oft-reiterated view that, contrary to conventional wisdom, the legal order before 1877 was heavily regulatory in character, with no clear separation of "market" from governmental order, and with a jurisprudential foundation in the common law rather than in constitutionalism.(25) Announcing his intention to write a successor volume that will deal with the modern (post-1877) liberal-constitutional state, Novak offers a look ahead by arguing that a paradigm shift occurred: The old common law tradition, described in this book, "was discarded, and a new law was invented."(26) Statism and individualism emerged side by side, both of them energized, paradoxically, by the same new constitutional jurisprudence.(27) The results: "an increasingly centralized, bureaucratized sovereign state; a sociocultural politics centered around an ever more thinly defined conception of the self; and a formal and instrumental approach to law and governance that privileges realistic and radically presentist formulations of interest and power over idealistic and historical visions of salus populi."(28)

This theme is not new, but Novak's occasionally strong statement of it is new and extreme. Previous historical writings have recognized very clearly first, that regulation shaped institutions and constrained private rights in antebellum America and second, that the legal doctrines that supported such interventions were developed in a rich matrix of common law, civil law, and constitutional jurisprudence. Those who are already well aware of this history in its broad outlines--an audience that will benefit from the way in which Novak now expands the base of documentation very impressively--will, I think, be surprised by the overarching claim Novak advances, namely, that "the deluge of restrictions on economic life passed by state and local authorities in this period suggests that `regulation' might supplant `the market' as a better metaphor for the age."(29)...