>>> Item number 425, dated 95/10/08 15:21:46 -- ALL
Date: Sun, 8 Oct 1995 15:21:46 -0500 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Regulation
From: Simpson_Patrick@seo.state.nm.us
It may be difficult to track just how regulated life was in a specific time period. I suggest investigating the volume of federal regulations as one method of quantification. However, that may prove unsatisfactory because it wasn't until the packed Roosevelt court that the Leviathan State was officially made constitutional. And regulation can be so informal that it does not appear in the form of a statutory structure. One interesting way that an author in a state bar publication (cannot be more specific than that) guaged the presence of law in the old US west was the number of lawyers per capita. It was apparently quite high during the gold rush/land rush years. It should not be too much trouble to quantify that, assuming you believe in the assumption that more lawyers around means more regulation of society.
Patrick Simpson
Santa Fe
From: Paul Finkelman <pfinkelm@kentlaw.edu>
what would you mean by regulation? Regulation of what: Police power is a pretty big area. Paul FInkelman
Paul Finkelman
Chicago-Kent College of Law
565 West Adams Street
Chicago, Illinois 60661-3691
From: etb2@midway.uchicago.edu
My adviser is Bill Novak, so I was happy to see your mention of him on h-law. You may want to note that his dissertation is re-written and in press now.
I can't claim to be doing research that's comprehensive about litigation over regulation. However, in my diss on water conflicts in downtown and the urban fringe of Chicago 1820-1920, I'm finding mention of public commissions - they're more governing bodies than regulatory bodies - named as litigants. Parties challenge their authority to condemn land, assess taxes for improvements, or make improvements in a certain way. The first two kinds of cases challenge the regulatory agencies's authority, and the latter treat them as any other private party. Highway, river improvement, canal, parks, and drainage commissioners appear in this way (but the latter two appear after the Civil War).
It is true that Chicago forced polluting industry out of the city limits before the CW, and claimed (in the statute) to enforce certain offal disposal regulations along the lengths of two rivers draining into the city, but arising outside the city limits. I hope to find challenges to this strange statute!
In the Chicago City Council ordinances there are often stipulations of fines and prohibitions, and these are much more common after the CW. I presume (a dangerous thing to do), that many of these violations and enforcements occurred outside the courts, that either they were unenforced, or that violators paid the fines. I would very much like to find a comprehensive source to describe these actions, but I have not - it would allow a much more mundane and fuller picture of the popular reception of regulation, than reflected in litigation.
My interest in regulation arises from an interest in its efficacy at resolving conflicts between neighbors, where the real source of the conflict is much bigger than the two litigants. Water conflicts fall in this category, since water doesn't respect property boundaries, but of course other kinds of public goods also ooze around litigants.
Betsy Mendelsohn
History Dept. student
Univ of Chicago
etb2@kimbark.uchicago.edu
>>> Item number 426, dated 95/10/08 15:44:38 -- ALL
Date: Sun, 8 Oct 1995 15:44:38 -0500 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Leviathans and other Regulatory Bodies
>FROM: Chris Waldrep (cfcrw@uxa.ecn.bgu.edu)
I'd like to respond to all three of the people who answered by post regarding regulations.
First, I wonder how many scholars really regard the federal regulatory apparatus as "leviathan." My query has to do with the antebellum era. when very little regulation came from the federal government but the states regulated a lot. My suspicion is that when folks complain about "leviathan" that they are imagining a golden age of laissez faire when no regulation of any kind occurred. I vividly recall a student in my class talking about the evils of federal regulation. He looked quite crestfallen when we discussed the extensive nature of state regulation.
Paul Finkelman seems unclear on what I mean by regulation. I'm for that. My research in Mississippi suggests an upswing in regulation in the antebellum era. Slaughterhouses, railroads, mill dams, and slave owners all felt the sting of regulating grand jurors. They did not always use the term "nuisance" but I think all the subjects of this indicting could be said to have created a nuisance in some way. Butchers threw their waste in the streets, railroads blocked roads, mill dams created stagnant ponds, and slave owners set their slaves loose on the community. In every case the grand jurors indicted to protect the whole from the few. I would call that police power. I have no doubt such activity reflects local conditions, but I also believe it reflects national thinking. Robert Lively's old, 1950s review article suggests as much. See Robert Lively, "The American System," Business History Review 29 (March 1955): 81-96.
Perhaps I should have fully cited the Novak dissertation, but I assumed anyone could find it with his name. Here it is: William Joseph Novak, "Salus Populi: The Roots of Regulation in America, 1787-1873," (Ph.D. diss., Brandeis, 1991). I look forward to seeing it as a book.
Finally, I can only advise Betsy to go to the grand jury files if such material exists in Chicago. That's what I've been using in Mississippi. Although she seems to have found local administrative agencies similar to the fedeal agencies Patrick Simpson called leviathan. I guess Chicago had its own pesky leviathan.
Chris Waldrep
cfcrw@uxa.ecn.bgu.edu
H-Law
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>>> Item number 433, dated 95/10/10 10:01:51 -- ALL
Date: Tue, 10 Oct 1995 10:01:51 -0500 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Leviathan
From: jbryant@UBmail.ubalt.edu
I would guess that just as the political structures varied from state to state, so too would the level of "regulation." I wonder, though, what sort of regulations are we talking about here? Do you mean economic regulation, a la Horwitz in Vol. I of TRANSFORMATION OF AMERICAN LAW? Do you mean social regulation, personal regulation etc.?
In antebellum Georgia you can find substantial local regulation below the state level. Most such regulation was created and implemented by County Inferior Courts, and ranged from railroad regulation to prohibitions of hunting on Sunday. These can sometimes be found in local newspapers, but a far better source are the minutes of the Courts themselves.
In Mississippi, as I am sure Chris knows, there were Boards of Police as well as local courts that issued regulations. In BECOMING SOUTHERN Christopher Morris argues that such bodies implemented very little regulation before the 1840s and 50s, and thus that the "regulatory state" was a development of the late Antebellum period. Here in Maryland, however, there are substantial examples of local economic and social regulation extending back through the colonial period, and in Georgia "regulation" seems to exist in substantial ammounts before the 1840s.
Some regulation in Georgia was carried out by "local laws" passed in the Georgia General Assembly. Regulation was also accomplished through incorporation statutes for banks, railroads, mills, etc. (which usually had regulatory restrictions) At the State level the General Assembly was very concerned with controling railroads, perhaps because the State owned a railroad itself. These regulations prohibited freight train travel on Sundays, made Railraods liable for damages to livestock and crops along their routes etc.
A whole host of state laws established regulatory structures for ports, navigatable waterways and endless other things. To suggest that American business operated without substantial regulatory constraint before the New Deal is a pipe dream. I find it instructive to point out to students that the Supreme Court in the SLAUGHTERHOUSE CASES finds New Orleans' regulation of businesses unremarkable. In fact, one can characterize the conflict over national regulation at the end of the 19th and the begining of the 20th centuries as a result of corporate enterprise expanding so as to encounter conflicting local and state regulations, a situation finally rationalized by national regulations.
Perhaps the most stringent regulations at both the state and local level concerned slaves. These are usually well known, and we tend to categorize them as the law of slavery, but they also functioned as economic, social, and personal regulations.
Jonathan M. Bryant
University of Baltimore
jbryant@ubmail.ubalt.edu
From: DBERNSTE@WPGATE.GMU.EDU
How about the following federal rules and regulations that did not exist before the 20th Century:
Some of these things existed at the state level. Some existed in reverse,
like discriminatory legislation instead of civil rights legislation. But many
of them did not exist at all.
Many of the state regulations that historians discuss in arguing that
states were Leviathans themselves amount to regulations on nuisances.
i don't know of any proponents of laissez-faire who object to laws that
truly protect nuisances as defined by common law, such banning the
release of large amounts of pollutants into public waterways.
Moreover, even if states regulated a great deal, part of the attraction of pre 20th Century American federalism is that for most purposes, state regulation was the only regulation that affected ones life. So if your state regulated something important to you, you could just move to the next state. Citizens could vote with their feet if a particular state was too arbitrary or oppressive. The U.S. government has become a Leviathan not only because of the amount of regulation, but because it is inescapable without moving to another country. Meanwhile, states are less cautious about regulating in their own spheres because state regulations are generally minor compared to federal regulations, so most people would not vote with their feet based on state regulation (although California and New York business are doing so). Give me 50 quasi-autonomous states over one federal government any time.
>>> Item number 438, dated 95/10/10 19:19:38 -- ALL
Date: Tue, 10 Oct 1995 19:19:38 -0500 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Leviathan
From: Jonathan Lurie <jlurie@andromeda.rutgers.edu>
At the risk of going against the grain (pun intended,) let me suggest that you not forget private regulatory activities tolerated, if not encouraged by the legal order. This is especially true concerning the rise of commoditiy exchanges or mercantile exchanges during the civil war era and thereafter. What rules they enacted for dealing with their members can indeed be described as a sort of market regulation. Any one interested has the option (2nd pun intended) of checking my long out of print (I am sure) book on the Chicago Board of Trade as a study in private regulation.
From: Ariela Julie Gross <ariela@leland.Stanford.EDU>
No immigration laws before the 20th Century? How about the Chinese Exclusion Act?
From: Paul Finkelman <pfinkelm@kentlaw.edu>
It would be nice to know who DBERNSTE is: aren't we supposed to sign our names to these things?
In any event, it is nice that he/she limited the right of movement to "citizens" since millions of slaves had no such rights, a function of the autonomous states he so loves; and after the Civil War of course there were restrictions on the movement of black citizens in the South. What about the Fugitive Slave laws for a federal restriction; DBERNSTE seems to want to pick and choose.
DBERNSTE should consider the inability of the fed. government to shut down the KKK and other terrorist organizations before praising localism.
As for the litiny; it is not very accurate.
4. Immigration restrictions (isn't that amazing?)
Amazing and incorrect. All southern states (as well as a few northern, although only Indiana and Illinois) limited the migration and immigration of blacks before the civil war (the virtues of state autonomy?) the federal government prohibited the immigration of free blacks before 1875; the Chinese Exclusion act of 1882 prohibited Chinese immigratioan; the Alien Acts of 1798 made immigration far more difficult for many Europeans.
6. Firearms statutes. All states that I know of had some firearms regulations during this period; The federal government prohibited blacks from serving in the militias, thus denying them their 2nd amendment rights to be part of a well regulated militia, and of course have firearms supplied by the government for that purpose. Aand of course the South severely regulated the access of firearms for blacks before the Civil War and did so informally (with the help of the police) after the civil war.
>9. The entire civil rights superstructure. DBERNSTe is right here; so instead we had slavery, the federal fugitive slave laws, race discrimination at the federal and state level. But, why are you so happy with such a regime?
>10. Pornography legislation
Take a look at the Comstock Act.
It strikes me that we had a great deal of federal regulation, mostly directed against blacks, Indians, Asians, and other minorities; The good old days were wonderful, weren't they?
Paul Finkelman
Chicago-Kent College of Law
565 West Adams Street
Chicago, Illinois 60661-3691
office: 312-906-5219
fax: 312-906-5280
e-mail: pfinkelm@kentlaw.edu
>>> Item number 439, dated 95/10/11 15:32:13 -- ALL
Date: Wed, 11 Oct 1995 15:32:13 -0500 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Leviathan -Reply
From: DBERNSTE@WPGATE.GMU.EDU
Let me apologize in advance for the bandwith, and for accidentally neglecting to sign my last posting.
(1) Immigration
You wrote: Amazing and incorrect. All southern states (as well as a
few northern, although only Indiana and Illinois) limited the migration and
immigration of blacks before the civil war (the virtues of state
autonomy?) the federal government prohibited the immigration of free
blacks before 1875; the Chinese Exclusion act of 1882 prohibited
Chinese immigratioan; the Alien Acts of 1798 made immigration far more
difficult for many Europeans
I respond: After I sent my e-mail, it occurred to me that the Chinese
Exclusion Act was an exception, although it was also a reflection of
some of the trends (e.g., politically-active unionism) that would come to
fruition during the New Deal. I wasn't aware that free Blacks were
prohibited from immigrating to the antebellum US. There is no question
that as far as Blacks (and Indians) were concerned, the U.S.
government was a Leviathan until at least the Civil War. In any event,
the rest of the world was allowed to immigrate freely to the United States
until the 1920s, with no restrictions on the absolute or relative numbers.
Still pretty amazing.
2. Firearms statutes. You wrote: All states that I know of had some
firearms regulations during this period; The federal government prohibited
blacks from serving in the militias, thus denying them their 2nd
amendment rights to be part of a well regulated militia, and of course
have firearms supplied by the government for that purpose. Aand of
course the South severely regulated the access of firearms for blacks
before the
Civil War and did so informally (with the help of the police) after the civil
war.
I respond: I did make it clear that my list referred to federal, not state
regulations, and that some, but not all, of the regulations did not exist at
the state level either. The restrictions on Blacks serving on militias were
federal restrictions, though I am not sure I would call it a "firearms
regulation." In fact, ownership of firearms by Blacks in the South, when
allowed, helped them protect themselves from rampaging whites. (See
Diamond and Cottrol, Georgetown Law Journal). This was not prohibited
by federal statute.
>9. The entire civil rights superstructure. DBERNSTe is right here; so
instead we had slavery, the federal fugitive slave laws, race
discrimination at the federal and state level. But, why are you so happy
with such a regime?
I respond: I explicitly pointed out that in place of civil rights laws, we had
state-sponsored racism, and I can only say that it is tendentious at best
to accuse me of being "happy" with 19th Century government in that
respect. Also, one certainly does not need to have the entire modern
civil rights superstructure to abolish slavery, fugitive slave laws, etc.
As you may recall, the discussion I responded to related to whether the U.S. government can fairly be called a Leviathan. A government that can tell you who to hire, fire, learn with, learn from, eat with, lodge with, rent to, rent from, sell to, associate with, etc., in all the myriad ways that the federal government currently does, may be doing the right thing from a moral point of view. But having that power is certainly evidence of Leviathan.
On a related point, the federalist structure of the U.S. did protect Blacks, at least after the Civil War when they were free to migrate. Blacks were in fact able to migrate in large numbers from the Jim Crow South to the less discriminatory North. This not only benefited the Blacks who left, but those who stayed, who could plausibly threaten to join the emigration wage, thereby depleting the labor supply and raising its price. This is why, for example, southern states resorted to emigrant agent laws to discourage Black migration--to defeat federalism. We are fortunate in this country that federalism lasted as long as it did. Had the federal government been as powerful during, say, the Wilson Administration as it is now, the full power of the federal government would have been used against instead of in favor of Blacks. Note that the time of the Wilson Administration was exactly the time that South Africa established its first national apartheid laws, which limited Black migration, inter alia. Had the federal government had 1990s power in the 1910s, given public sentiment at the time the U.S. may very well have had similar laws.
You wrote:
It strikes me that we had a great deal of federal regulation, mostly
directed against blacks, Indians, Asians, and other minorities; The good
old days were wonderful, weren't they?
I respond: I never said the "good old days" were wonderful, or even
good. On the other hand, I don't see how the lot of the Chinese, Blacks,
or Indians would have improved in the 19th Century if the Federal
Government had been more powerful, since there was little national
sentiment favoring any of these groups, and much opposed.
I did say that as a matter of general political preference I prefer 50
semi-autonomous states with a weak federal government to weak states
with a strong federal government. I should add that this holds true as
long as there is free migration. That way if one or several states are
oppressive, I can always leave. Indeed, all I need is one tolerant state
out of 50 and I will be O.K.
This applies to minorities as well as to anyone else (and as a member of
a group 1/3 of which was destroyed this century by genocide, I am
particularly sensitive to this point). A strong U.S. government can
enforce discrimination or enforce civil rights legislation. I can't say that I
know which one our government will be doing 100 or even 50 years
from now. Given that ignorance as to the future, I think it is better
not to put all of my eggs in one national government basket.
The process of consolidating 48 semi-sovereign jurisdictions into a
powerful U.S. Government in the late 19th and 20th Century arguably
resulted in important civil rights legislation (I think cause and effect here
is at best fortuitous). The process of consolidating many
semi-sovereign German states into a unitary state arguably resulted in
the Holocaust. Let's not confuse the fact that many of us like the policies
of the U.S. government since the New Deal with the idea that strong
central governments inherently do good things.
I'm getting long-winded here, but a strong, central state, such as the current U.S. government can do evil or good, and small jurisdictions within a weak state can do evil or good. But it is also true that it is much easier to evade the authority of a small jurisdiction within a weak central state, than it is to evade the authority of a strong central state. If the experience of my ancestors has taught me anything, it is that the more potential escape routes are available, the better.
I will, by the way, be at the ASLH meeting if any wants to discuss this more casually.
David Bernstein
dbernste@wpgate.gmu.edu
Assistant Professor
George Mason University School of Law
>>> Item number 417, dated 95/10/04 16:04:54 -- ALL
Date: Wed, 4 Oct 1995 16:04:54 -0500 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Regulation/Police Power
Has any one studied the rate of regulation in antebellum America? It's my belief that the number of such cases increased, especially in the 1840s and 1850s, but I'm not sure there's been a study that counts the number of such cases.
William Novak has written an excellent dissertation, which I highly recommend, but his evidence is pretty much if not entirely from treatises, published speeches, and the like. My question is directed toward the actual number of cases.
Chris Waldrep
cfcrw@uxa.ecn.bgu.edu
>>> Item number 429, dated 95/10/09 08:45:01 -- ALL
Date: Mon, 9 Oct 1995 08:45:01 -0500 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@MSU.EDU> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Re: Leviathans and other Regulatory Bodies
From: Paul Finkelman <pfinkelm@kentlaw.edu>
I thought the leviathan remark made little or no sense; reminded me of the folks who think FDR is a four letter word; Seems to me there was lots of regulation, federal and state before 1930; I was just curious as to the scope of Chris's question.
As for number of lawyers; that would prove little; after all, most lawyers then and now do not deal with "regulation" as we know it; in gold rush california I would assume most lawyers were doing land and mining work; perhaps setting up a railroad or bank now and then.
One key for Chris might be the level of incorporations passed by state legislatures in the 19th century before there were general incorporation acts; but that is not really regulation. As for mill dam acts etc. they begin in the colonial period; if I recall colonial Mass. regulated wages and hours; the price of goods; and of course what to do on Sunday. Weights and measures were always regulated. And so it went.
Leviathan state? It is still not here in any meaningful way; the person who thinks it is should look at labor law in Germany; or indeed check into a hotel in europe.
Paul Finkelman
Paul Finkelman
Chicago-Kent College of Law
565 West Adams Street
Chicago, Illinois 60661-3691
office: 312-906-5219
fax: 312-906-5280
e-mail: pfinkelm@kentlaw.edu