William J. Novak’s The People’s Welfare: Law and Regulation in Nineteenth Century America explores the role of law in the early republic and how it defined public spaces and personal liberty.
Novak asks, “Why is this governmental regulatory practice so invisible in our traditional accounts of nineteenth-century American history? Why is it at all surprising to discover the pivotal role played by public law, regulation, order, discipline, and governance in early American society?” To answer it, Novak identifies several categories in which the law shaped nineteenth century Americans’ understanding of their world.
In his introduction, Novak writes, “This book argues that the storied history of liberty in the United States, with its vaunted rhetoric of unprecedented rights of property, contract, mobility, privacy, and bodily integrity, was built directly upon a strong and consistent willingness to employ the full, coercive, and regulatory powers of law and government.” Novak argues against the idea of limited governmental intervention into people’s lives during the nineteenth century as well as against the liberal myth that nineteenth century laws served primarily to promote private rights and, through that promotion, to expand capitalism. To counter this, Novak demonstrates the role of laws in directing every facet of public life: safety, economy, public space, morality, and health. Novak first examines how nineteenth century individual rights were secondary to social obligations. He posits, “If man was a social being, and if all individual rights and liberties were relative to the rights of others and the good of the whole, then governance and law were not peripheral, yet alone antithetical, to man’s nature.” This, coupled with his analysis of morality policing, demonstrates a Foucauldian discourse of power relationships. Novak writes, “Given the expectations and status hierarchies of antebellum America, unattached, single women were even more susceptible to morals policing.” Novak’s conclusion, “Only in morals regulation were due process concerns this lax and local voices this determinative,” demonstrates how the law served to reinforce the concept of social obligations trumping individualism and how the individual testimony could overrule the normal evidentiary procedures in order to police behavior and punish deviance.
Novak primarily argues against Louis Hartz’s 1955 book, The Liberal Tradition in America. Additionally, Novak argues against teleology, writing, “In place of the simple transition to liberal legalism, the well-regulated society intrudes as a wholly distinctive nineteenth-century legal-governmental regime that does not merely echo past nor anticipate future public practice.” He undermines his anti-teleological approach to a certain extent when he covers the shift away from the well-regulated society after the Civil War, what he calls “a belated casualty.” Even then, however, the effect is not immediate and fits into a larger pattern of change over time.
Novak’s analysis relies on a close reading of both local and state statutes related and case law as the two worked in conjunction to create the functioning body of law that governed the well-regulated society. He counters those who only examine legal statutes as missing the crucial component of jurisprudence where judges interpreted the laws and created precedents with lasting effects. ( )