| This dissertation charts the intellectual, legal, and political underpinnings of state regulatory power in antebellum America. It argues that contrary to the dominant interpretations of American law (constitutionalism), political theory (liberalism), and economics (neo-classical market theory), public regulation (that is, the power of the state to restrict private liberty and property for the public welfare) colored all aspects of early American development. This study challenges lingering historical perceptions of an early nineteenth century devoid of positive state action by demonstrating the pervasiveness of a potent, affirmative regulatory power into the Gilded Age.; Central to my perspective is the presence of deeply-rooted, public legal persuasion in antebellum America that I call "the common law vision of a well-regulated society." It consisted of (a) an adherence to the common law as an experiential, flexible source of value and guidance; (b) an overriding concern with common rather than private goods and interests; and (c) a commitment to the commonwealth as the guarantor of public happiness and the general welfare. This law-based notion of salus populi (the people's welfare) undergirded a surfeit of antebellum public regulations governing everything from the practice of medicine to the selling of offal.; After sketching the theoretical and practical foundations of the well-regulated society, I trace its implementation and impact on American lives by examining three primary arenas of public policymaking: public safety, public property, and public economy. Through close case-studies of regulations regarding fires, highways and riverways, urban marketplaces, offensive trades, licensing, and the like, I argue that the well-regulated society was not merely a theoretical ideal but a practical reality.; The dissertation closes with an examination of the demise of "common regulation" and the rise of an alternative conception of regulatory power in the late nineteenth century. Born of the profound struggles of the Civil War and its aftermath, this vision was distinctly more constitutional, positivist, and instrumental. |
