Histories of criminal justice in the modern West are not so much studies of substantive doctrine as studies of the rise of the State. They begin with the Weberian assumption that the modern State achieved its authority by gaining a monopoly on the legitimate use of force and trace the development of those institutions of criminal justice – police, courts, and prisons – that the State used to maintain the order that Weber asserted an advanced capitalist economy required. But there are problems with that approach when applied to the United States. As many historians have demonstrated, it cannot engage the constitutional tension between state and federal power. Just as telling, it has no room for the claims of popular constitutionalism and popular sovereignty that echoed across the first century and a half of the constitutional era in the United States.

To avoid that problem the analysis that follows takes an alternative approach, which looks at the history of criminal justice between 1789 and 1939 from a different, less court centered point of view. Its perspective is suggested by Charles Tilly’s insight that “[b]anditry, piracy, gangland rivalry, policing and war making all belong on the same continuum.” While Tilly’s focus was on the degree to which the State could act like an extralegal, even criminal, enterprise, others have pushed his idea in the opposite direction, investigating extralegal actions that entailed activities normally associated with the State.