From Tocqueville in the 1830s to scholars in the twenty-first century, most observers have found the state in the antebellum American republic elusive and complex. As any student of American history knows, the new nation that emerged from the Revolutionary War was not ruled by uniformed national officials. In place of a king the United States had popular sovereignty and the law; instead of strong central authorities it had federalism and local autonomy; lacking administrative bureaucracy, it relied on democratic party politics. In the Constitution, the new nation wrote a blueprint for government that called for separation rather than conglomeration of powers. It would prove remarkably successful in endowing the American state with both flexibility and durability, as Madison and other founders had desired.

The state in the early United States did not look like an entity approaching the Weberian ideal-type of the modern state: an organization capable of enforcing a successful monopoly of violence over a given territory, ruled through a legal-administrative order. But for all its apparent distinctiveness, the state in the early United States, no less than its counterparts in Europe and Asia, performed the fundamental tasks of any state: managing its population, economy, and territory. The history of how it did so suggests that the American state in the early nineteenth century was more substantial and energetic, especially at the national level, than many have suggested.

Scholarship on law and the economy often has a chicken-and-egg quality. Is law a tool wielded instrumentally to effect specific economic ends, or does it emerge functionally from particular economic needs? Most such writing addresses the nineteenth century, but it serves as a caution for earlier centuries, despite, or perhaps because of, the comparative paucity of work on law and the economy in the colonial period. What makes the caution necessary is that, notwithstanding a certain heuristic value, the dichotomy misleads and oversimplifies. It could hardly be otherwise, given the pervasiveness in society of both law and economy. Things legal and things economic are everywhere any moderately perceptive historian looks, by their very profusion interacting in complex ways. Moreover, one cannot talk of law and economy in the seventeenth and eighteenth centuries as though each was a single, unitary construct. There were many laws – or, perhaps more helpfully, many legalities – and many economies, as diverse and diversified as we now know British North America itself to have been. The task at hand is to sort out the myriad strands and see if they can be woven into a coherent story or set of stories about law and the economy in the seventeenth and eighteenth centuries.

The paradigmatic function of a national immigration regime is to defend a territorial inside from a territorial outside. Access to and presence within this territorial inside are determined on the basis of whether one is a “citizen” or an “alien,” where both terms are understood in their formal legal sense. All of the activities we associate with the contemporary U.S. immigration regime – exclusion and deportation, entry checkpoints, border patrols, detention centers, and the like – make sense in these terms.

Liberal American theorists have provided powerful moral justifications for this defense of the territorial inside from the territorial outside on the ground that it is only in this way that the coherence of a national community on the inside can be preserved and fostered. In this rendering, the coherence of the national community may not take the form of an oppressive Blut und Boden nationalism. Rather, the territorial inside must be a homogeneous space of rights enjoyed by all insiders. Although most of these insiders will be citizens, resident immigrants will be treated fairly and given a reasonable opportunity to become citizens. The very coherence of the territorial inside as a homogeneous space of rights justifies immigration restriction. Outsiders – who are imagined as citizens of other countries – have no morally binding claim to be admitted to the inside.

This theoretical rendering of the activities of the national immigration regime is the product of recent history. For the first century of the United States’ existence as a nation (from the American Revolution until the 1870s), a national immigration regime that regulated individuals’ access to, and presence within, national territory on the basis of their national citizenship simply did not exist.

Anyone vaguely familiar with the career of American criminal justice in the twentieth century knows this story does not have a happy ending. A liberal democracy that incarcerates more of its people per capita than any other nation on the planet cannot take pride in its crime policies; nor have those policies, like a revolver in the nightstand, made Americans feel particularly secure. Criminal justice – like crime itself – is often assumed to be an intractable social problem, timeless and impervious to reform. Who among us can imagine modern society without the prison? But criminal justice is inescapably the product of history. The historical trajectory of American criminal justice no longer seems as certain or progressive as it once did. When American criminology was still in its infancy as a scientific discipline, around the turn of the twentieth century, practitioners told the story of punishment in uniformly whiggish terms: a steady march toward ever more humane, modern methods. The past century in criminal justice now looks far otherwise: a record of abrupt shifts, stark continuities, and stunning reversals.

The twentieth century opened with a dramatic transformation in the ideas and institutions of American criminal justice. The United States was in the throes of industrial expansion, an era of rapid urbanization and mass immigration that had already turned a predominantly agrarian country into the world’s most productive industrial economy. To regulate the harshest human consequences of industrial capitalism, social reformers, lawmakers, and innovative government officials began to put together the pieces of an administrative-welfare state.

The history of American federalism in the twentieth century falls into three distinct periods. The era of post-Reconstruction federalism, which began in the late nineteenth century, ended in the years after 1929 when a shattering series of domestic and international crises combined with the innovative presidency of Franklin D. Roosevelt to reorient the nation’s laws, politics, and institutions. The resulting “New Deal Order” lasted for almost five decades before crumbling in the century’s last quarter when massive social, cultural, economic, and political changes combined with the dramatizing presidency of Ronald Reagan to begin reorienting the system once again. At century’s end, the nature and course of that emerging era remained unsettled.

THE NATURE AND DYNAMICS OF AMERICAN FEDERALISM

With a de facto default rule favoring decentralization, American federalism is a governmental system based on the existence of independent political power at both state and national levels. Its essence lies, first, in the institutional tensions that the Constitution structured between the two levels of government, and second, in the complex processes of decision making that the Constitution established to maintain satisfactory relations between the two levels. Those processes were complex because they involved, on the national side, three distinct and counterpoised branches of government and, on the state side, a growing multitude of equal, independent, and often conflicting governing units. In theory, and sometimes in practice, national power served to foster economic integration and efficiency, facilitate the development and enforcement of desirable uniform standards, enable the people to deal effectively with problems national and international in scope, protect the security and general welfare of the nation as a whole, and safeguard liberty by checking the potential tyranny of local majorities.

Was empire-building an animating objective of the U.S. government in its early years? Was the Constitution enacted to achieve mercantilist purposes? Were early federal government policies mercantilist? In the early twenty-first century, scholars have been answering these questions with a resounding “yes.” Their answers suggest that American colonialism of the late nineteenth century and the record of U.S. military interventions abroad since then are a continuation of values held since the founding.

The scholarship contending that the federal government in the Founding Era was by nature mercantilist (or “neo-mercantilist”) and imperial, however, is imprecise and anecdotal. Moreover, it raises complex historical questions that scholars have not addressed. Why would a nation of colonies that fought a revolution against an imperial power immediately adopt the core values of the mercantilist government it had rejected? How “radical” could the Revolution have been if the framers of the U.S. Constitution viewed empire-building as a primary objective? More broadly, if that were indeed the objective, why did the United States avoid the European race for colonies in Africa, Asia, and the Middle East for most of the nineteenth century?

Here, I provide a detailed history of British mercantilism and explain why its core principles were rejected by American political leaders in the Founding Era. Part I follows Adam Smith’s Wealth of Nations in defining “mercantilism” as the policies in force during British imperial history in the seventeenth and eighteenth centuries. According to this definition, mercantilism comprises several interrelated positions: first, a commitment to the belief that political power and national strength are achieved by government regulations that improve the home country’s balance of trade;

The overall trajectory of American legal theory during the twentieth century was as follows. At the outset, a formalist faith gripped the judiciary and the law schools. Resistance to that vision among judges, lawyers, and law teachers gradually increased, ultimately finding full expression in the legal realist movement of the 1920s and 1930s. The realist wave ebbed in the 1940s, but left behind a host of new questions concerning the nature and scope of judicial discretion, the role of “policy” in lawmaking and legal interpretation, the appropriate relationship between public and private power, which branches of government should be entrusted with which legal issues, and, most broadly, the meaning and feasibility of “the rule of law.” After World War II, a new orthodoxy emerged, offering answers to those questions that seemed convincing to most legal scholars and lawmakers. Beginning in the 1960s, that new faith – dubbed by its successors, “process theory” – in turn came under attack, not from a single direction but from many angles simultaneously. The attackers, marching under the banners of “law and economics,” “law and society,” “Kantian liberalism,” “republicanism,” “critical legal studies,” and “feminist legal theory,” offered radically different visions of the nature and purposes of law. Each group attracted many adherents, but none swept the field. The net result is that, in the early twenty-first century, legal discourse in the United States consists of a cacophonous combination of issues and arguments originally developed by rival movements, some now defunct and others still with us.

As the last federal troops departed the South in the late 1870s, hundreds were sent west to repress a strike by the workers on Jay Gould’s newly consolidated railway lines. The “Southern question,” a Virginia newspaper observed, had been put to rest. Now, the “trust question” and “the relation of labor and capital” would dominate the nation’s politics. The dislocations and discontent produced by new national corporations, national markets, and burgeoning industrial centers brought forth a welter of new legislative responses and new uses of state power, including experiments in administrative state-building at both state and national levels. Not only nation-spanning railroads and manufacturing firms but also mass immigration from abroad and increasingly bitter inequalities and class conflict at home presented new challenges that made America’s pre-Civil War traditions of local self-government and Jacksonian laissez-faire seem inadequate and antiquated.

When Europeans spoke of the “statelessness” of nineteenth-century America, they had in mind the absence of a powerful central administration and of a national “state elite” to run it. “Administration” and “bureaucracy” were foreign-sounding terms. They seemed antithetical to the American system of government, which had been born in revolt against just such a modern state. Instead, antebellum America possessed a small, unassuming national government, which left most tasks to state lawmakers, local officials, and the courts. The leaders of bar and bench were, in Tocqueville’s famous phrase, America’s “high political class”; they were the rough equivalent of Europe’s administrative state elites. Common law judges hammered out and administered a remarkable portion of the important rules of social and economic life.

Law has a peculiar tendency to normalize social relations that are in fact culturally distinct in different societies and eras. There is no better example of this tendency than domestic relations. Following common law norms, legal historians have largely portrayed a particular domestic order as peculiarly unchanging, indeed as private and ideally inviolate. In an abstract sense domestic order may thus seem to be outside the law. The law’s very success in normalizing family relations has obscured its own agency in shaping them, rendering its own role in historical and cultural change mysterious.

In England and its colonies in the early modern period, the law – both common and statute – regulated domestic order in many and profound ways. That regulation was also the subject of intense dispute. Laws defining domestic order circumscribed many people’s lives from birth through death, shaping their status and mandating appropriate behavior – for women and children; for workers, servants, and slaves; and indeed for husbands, fathers, and masters. Relationships, particularly the status of “dependent” groups, usually thought of as static throughout the colonial and early national periods of American history, and in early modern Britain too, were recreated over the course of the eighteenth century through common law justifications of a particular domestic order. These acts of creation occurred during a period of dramatic struggle over the basis of authority, not only over abstract political authority but over the rules that should govern the household and indeed over the very definitions of household and domestic.

The Civil War and Reconstruction utterly transformed American society. Historians argue over the nature and extent of the changes wrought during the period, but there is little disagreement over the importance of the period as such: if nothing else, the sheer volume of scholarship establishes that point. Textbooks and college-level survey courses usually break with the Civil War and Reconstruction, which provide either the ending for the first half or the beginning of the second half. Books debating the causes of the war and its implications line the library shelves and are fully represented in virtually every historical subfield: party politics, ideology, religion, the economy, slavery, race and ethnicity, the status of women, class, the West, the South, religion, nationalism and state formation, as well as law and the Constitution. Other historical issues dating from the American Revolution to the present are linked to this period as well – historians look back to the nation’s founding for the war’s roots and then trace its effects into the present.

Rather than focusing on the war years or their immediate aftermath, legal historians have tended to concentrate on matters linked to it, before and after. Particular emphasis has been given to the perceived limits of the U.S. Constitution in diffusing the issues that led up to war and to the changes that occurred in federal law afterward, although a considerable body of work examines the legal implications of policy changes in the Union during the war as well. The first group of professional historians to consider these issues had been raised in the bitter aftermath of the war, and their work reflected that background.

This chapter deals with two broad topics. One is the “legal profession,” the formal institutions and organizations through which associations of lawyers seek and exercise state authority to regulate training for and admission to their guilds, to enforce their rules against members, and to protect their privileges against outsiders. The other and much broader topic is that of lawyers themselves, the people and occupational groups who make up to the profession, their work and social roles and their social standing, economic condition, and political influence. In the United States all lawyers have since the Revolution formally belonged to a single, unified profession, licensed by the states where they practice. There are no official ranks or specialties of lawyers, such as the English distinction between barristers (trial lawyers) and solicitors; the French among avocats, avoués, conseils juridiques, and notaires; or the German between the private profession of advocate and the public professions of civil servant, prosecutor, and judge, each calling for a different training, examination and career path. But in reality the legal profession is many, not one: a collection of occupational groups that work at very diverse practice tasks, enjoy very different levels of status and income, and play very different roles in the economy, politics, and society.

The period from 1870 to 1920 was a time of profound challenge for the American legal system. During these years, an indecisively connected country of small producers became a centralized industrial nation, and a legal system devoted to regulating the affairs of independent farmers and businessmen and their few employees had to adapt to the increasingly complex relations entailed in the finance and operation of large corporate enterprises. The dimensions of the project are indicated by the growth in railroading, the defining industry of the age. At the start of the Civil War, the United States contained 30,626 miles of railroad track; in 1916, the year when track mileage reached its historical apogee, there were 254,251 miles. Roughly 60 percent of this increase had come before the turn of the century. In 1870, the railroads employed 160,000 workers, by 1900 this figure was 1,040,000, and by 1920 it would rise to 2,236,000. Growth was comparable in construction, mining, and manufacturing. With more employees came more workers’ collective actions. By the outbreak of World War I, the number of yearly strikes nationally had increased by a multiple of five; in the interim, major labor-business confrontations were directly linked to several crucial political events – passage of the Interstate Commerce Act, for instance, and the presidential election of 1896.

To celebrate the ratification of the new Federal Constitution, Federalist Francis Hopkinson composed “The Raising: A New Song for Federal Mechanics.” In one verse he exhorted America’s artisans to rally to the Constitution’s standard. In Hopkinson’s musical ode, citizens mustered with their tools, not muskets.

Hopkinson also helped stage Philadelphia’s elaborate procession in honor of the Constitution. As many as 5,000 marchers representing the city’s many trades, professions, and different religious denominations assembled to demonstrate their support. Similar but less elaborate parades and celebrations occurred in other cities and towns. These carefully staged rituals were designed to symbolize harmony and promote consensus in the wake of the sometimes bitter ratification debates. Although these public displays of consensus never managed to obliterate fully the lingering traces of Anti-Federalist antagonism and suspicion, the rapid acceptance of the Constitution was nothing short of remarkable given the rancor of the ratification process. Even in Rhode Island, a strongly Anti-Federalist state that would not ratify the Constitution for almost two years, the new language of American constitutionalism permeated public discourse. Thus, one commentator observed that in Rhode Island “every friend of liberty” was “putting on the appearance of Federalism.”

While it has been the convention among historians to use the term “prison reformers” to describe the loose coalition of penologists, social philanthropists, and administrators who undertook the reconstruction of imprisonment in most Northern states between 1896 and 1919, it is more accurate to say that the prisons were reformed as much by convicts, guards, wardens, labor organizers, manufacturers, workingmen, and political leaders as by these so-called reformers. Indeed, along with the usual penologists and prison administrators, these people were the coauthors of the rituals, rules, and routines of the modern American prison. Just like Benjamin Rush, Thomas Eddy, and others who, a century earlier, had met with considerable resistance in their endeavors to realize the strange new punishment of confinement to hard labor, the administrators who undertook to reinvent prisons along state-use lines in the early Progressive Era (c. 1896–1913) encountered stiff criticism and persistent attempts to subvert or modify their reform measures, both within and beyond the prison walls. Inside the prison, the efforts of administrators to erect a new order upon the ruins of the old sparked fresh forms of resistance and a series of confrontations among convicts, guards, wardens, and administrators over the appropriate means and ends of the new penal order.

In the early 1910s, the mounting internal crises of New York's prisons fused with the escalating struggle over the structure and purpose of government to produce a highly combustible alloy. That alloy exploded at Sing Sing in the summer of 1913. When Sing Sing's convicts threw their inedible rations through the windows of their cellblock, they catapulted the internal crisis of imprisonment over the walls of the institution and into the public sphere. Conscious of the presence of the press just beyond the prison walls, the defenestration of the “bastille” amounted to a disciplined, if spontaneous, protest against the conditions of imprisonment. Making emissaries of the reporters, prisoners effectively broadcasted an ultimatum to the prison bureaucrats, state legislators, New York's Governor, William Sulzer, and the free citizens of New York: Prisoners would not cooperate with a regime that had been progressively malnourishing, overcrowding, and sickening them. The act of breaking hundreds of windows with missiles of bread so stale it could shatter thick glass rudely punctuated the prisoners' point: The state would have to provide its convicts with edible food and ameliorate living conditions at Sing Sing or face collective, and quite possibly spectacular, acts of defiance.

In the fall of 1913, the defenders of progressive statecraft engineered a remarkable opportunity to reverse their losses and advance their cause when an ordinary laborer by the name of Tom Brown was committed to the New York State Prison at Auburn. On its face, Brown's incarceration was routine: Upon entering the administration building, he was allocated a prisoner number – #33,333X – which the Prison Clerk recorded, together with details of his conviction, in the prison Admissions Ledger. Brown then answered questions put to him by one of the prison medical orderlies. The orderly noted on an index card that the new prisoner was a widower, laborer, and father of four, with a high school education. Prison officials then prepared Brown's person for incarceration: A convict–barber trimmed his hair and shaved off his thick moustache, an office clerk took his finger prints, and the Bertillon clerk examined, photographed, and measured his body, noting that the new prisoner's distinguishing features included a large scar and six small tattoos on his left bicep. Brown then exchanged his civilian attire for prison shoes, underwear, and the standard-issue coarse gray uniform.