The Peoples Welfare: Law and Regulation in Nineteenth-Century America (Studies in Legal History)

The People's Welfare: Law and Regulation in Nineteenth-Century America
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More options. Find it at other libraries via WorldCat Limited preview. Bibliography Includes bibliographical references p. Summary This study refutes the vision of the USA's stateless past by documenting America's long history of government regulation in the areas of public safety and health, political economy and property, and morality.

Challenging the myth of individualism, the author explores the commitment to public duty. Critics hark back to a time before the state intervened so directly in citizens' lives. In The People's Welfare, William Novak refutes this vision of a stateless past by documenting America's long history of government regulation in the areas of public safety, political economy, public property, morality, and public health.

Challenging the myth of American individualism, Novak recovers a distinctive nineteenth-century commitment to shared obligations and public duties in a well-regulated society. Novak explores the by-laws, ordinances, statutes, and common law restrictions that regulated almost every aspect of America's society and economy, including fire regulations, inspection and licensing rules, fair marketplace laws, the moral policing of prostitution and drunkenness, and health and sanitary codes.

Committed to animal welfare, they strove to prevent pain and suffering. Contemporary animal rights activists, by contrast, believe that animals possess the right to exist free from human use and consumption. Consequently, current activists and their scholarly associates often miss the historical significance of earlier eras of activism. A growing historiography, however, demonstrates the centrality of animal protection to major American transformations such as Protestant revivalism and reform, the growth of science and technology, the rise of modern liberalism, child protectionism, and the development of American ideologies of benevolence.

Animal protection entered the American colonial record in December , when the Massachusetts General Court enacted its comprehensive legal code, the "Body of Liberties. Beginning in the s, animal protectionists saw the safeguarding of children and animals as equally important, as both were vulnerable creatures in need of protection. Transnational Protestant revivalism and social reform in the early nineteenth century fueled the expansion of animal protectionism. In Great Britain, evangelicals and abolitionists spearheaded the earliest animal protection laws and organized societies , which became a blueprint for dozens of new anticruelty laws in America.

Social reformers and ministers became attentive to the status of animals during the Second Great Awakening — Embracing a new theology of free moral agency and human perfectibility, American ministers such as Charles Grandison Finney included animal mercy in their exegeses on upright Christian conduct.

New transportation networks and communications technologies broadcast animal protection to far-flung audiences through classroom readers, Sunday school pamphlets, and fiction. Antebellum abolitionists and temperance activists treated animal welfare as a barometer for human morality. Antislavery newspapers and novels, most famously Uncle Tom's Cabin , stressed the incidence of animal abuse among slaveholders and animal kindness among abolitionists.

Temperance advocates likewise believed that inebriates were cruel to their families and their horses. The Bands of Hope, a children's group, stressed animal kindness as a moral complement to sobriety. Antebellum activism and cultural thought created a foundation for a new social movement after the Civil War. The abolition of slavery and the horror of battle—documented in thousands of wartime photographs of dead soldiers and horses—brought suffering and human rights to a national audience, therefore catalyzing a national movement.

Animal protectionists believed that creaturely kindness was a marker of advanced civilization, which could rectify a fractured nation and world. The penultimate moment for a new movement arrived on April 10, , when the New York Legislature incorporated a groundbreaking state animal protection society vested with policing powers to prosecute abuse.

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Days later, they spearheaded a powerful new state anticruelty law, which they amended in to prohibit additional forms of cruelty, including blood sports and abandonment. Bergh and his officers policed the streets wearing uniforms and badges to enforce the law. In the Gilded Age, activists directed their attention to the plight of domestic laboring animals in an urban, muscle-powered world—especially horses. Further, they treat horses as historical agents rather than passive conduits for a history of human ideas about animals.

Animal protectionists also addressed the bleak system of livestock railroad transport from western rangelands to urban stockyards and slaughterhouses, culminating with the nation's first federal animal welfare legislation in , which mandated food, water, and rest stops every twenty-eight hours. They raided animal fights; they tried to end vivisection in laboratories and classrooms; and they routinely shot decrepit workhorses as a merciful end to suffering.

Animals were legally defined as property, but Bergh's watershed legislation recognized cruelty as an offense to the animal itself—irrespective of ownership. Pearson contends that this positive conception of rights drew animal protectionists into child protection in the s. Bergh's chief counsel, Elbridge Gerry, founded the New York Society for the Prevention of Cruelty to Children in after he secured the arrest and conviction of an abusive foster mother for felonious assault. Animal protectionists across the nation subsequently instituted amalgamated "humane societies," which safeguarded animals and children under a singular protective fold, positing that helpless "beasts and babes" had a right to protection because they could suffer.

Viewed within an existing system of subordinate relations, the right to protection did not confer an automatic right to equality. Nonetheless, humane activists established a historical precedent for future generations of animal rights activists because they placed animals on a legal continuum with vulnerable human beings. The majority of animal protectionists were affluent, nativeborn Euro-American Protestants. A new birth of freedom meant a new role for the federal government—launching its career as the protector of civil rights and as the engine both of economic growth and capitalist regulation.

A careful consideration of the Civil War and Reconstruction years raises serious questions about this interpretation, however. It is well known, for example, that Abraham Lincoln, upon election, did everything he could not to build a different governmental order.

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Slavery did not fall within federal jurisdiction; whether or not to have a slave system was a matter for states to decide. To make it a federal issue was to embark on creating a different governmental order; in or Lincoln had no appetite for a change of this magnitude. That is why he promised not to interfere with slavery in any of the secessionist states and why he pledged that those that rejoined the Union would retain their autonomy on the question of slavery.

The movement of northern armies into the slave states and the flight of African Americans from their plantations to unionist ranks created new facts on the ground. Union generals began refusing to return refugee slaves to their masters, as required by the Fugitive Slave Act, treating them instead as contraband—human property that Union armies could seize and hold indefinitely, if only to prevent these individuals from being returned to their legal owners and put to work in support roles in Confederate armies.

Congress strengthened the legal basis of these seizures by passing the Confiscation acts. And then some generals went even further, abolishing slavery in the secessionist states that fell under their formal command. This was done as much to sow chaos within Confederate territory as for humanitarian reasons. Lincoln formally sanctioned these army initiatives when he signed the Emancipation Proclamation in , which abolished slavery in every place under Confederate control after a brief grace period meant to give the states in question one more opportunity to rejoin the Union had passed.

The power that the federal government arrogated itself via the Emancipation Proclamation was vast; the Union now had the authority to abolish a critical element of economic and social life in the South. But this power was clearly understood to be a war power, which meant assuming it required no serious change in the Constitution. The radical expansion in such powers was expected to expire once the war ended and a central government limited in its powers restored.

Once again, facts on the ground undermined these intentions, this time because unionist slave states Kentucky and Delaware began declaring that they had no intention of abolishing slavery. Finding this stance intolerable, a large group of Republicans in Congress joined a campaign to move beyond war powers and to change the Constitution itself. The Thirteenth Amendment, ratified in , ushered in this change, for it removed slavery from the jurisdiction of the states; it both compelled Delaware and Kentucky to give up their slave systems and required any of the defeated Confederate states seeking to rejoin the Union after to do the same.

The Thirteenth Amendment dealt a severe setback to the autonomy of states and substantially enlarged the authority of the central government. In many accounts of the era, the Fourteenth Amendment is often regarded as an even more important amendment in terms of transferring power from the states to the federal government. It made citizenship the prerogative of the central government and barred individual states from passing laws that discriminated between groups of citizens on the basis of race and other ascriptive characteristics.

But ambiguous wording in key clauses left uncertain how radical a shift in power from the states to the federal government the amendment had authorized. The federal government had clearly acquired the power to confer citizenship. Had it also acquired the authority to define the rights associated with citizenship? Did it now have the power that it had never had before—to require the states to abide by the Bill of Rights and not pass legislation that would interfere with freedom of speech, freedom of assembly, freedom of religion, right to a fair and speedy trial, and so on?

Did it have the power to define new rights of its own invention and require the states to respect them? Or was the determination of rights still a decision to be left to the individual states? One could reasonably expect that the federal government would act both to define the rights of its citizens and to defend them.

This ambiguity about whether the content of rights would be determined by the federal government or by the individual states meant that different groups of Americans would interpret the Fourteenth Amendment in divergent ways and that the Supreme Court would be called on to adjudicate these disputes.

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Given the intensity of the disagreements, the stakes of the outcome, and the pressure brought to bear on the Court, it is perhaps not surprising that the Supreme Court did not speak with one voice on the proper division of power between the states and the central government. The clearest instance of the federal government taking it upon itself to define rights conferred by the Fourteenth Amendment has to do with corporate law, and in particular the steps taken by the Supreme Court to free private corporations from public regulation, much of which had been done by individual states across the first seven decades of the republic.

In the postbellum years, the Supreme Court elaborated a laissez-faire constitutionalism based on its reading of the Fourteenth Amendment.

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Because the Supreme Court deemed corporations to be persons in the eyes of the law, corporations themselves possessed this liberty of contract and were protected by the Fourteenth Amendment in the exercise of this liberty. This was a clear case of the Supreme Court using the authority of the Fourteenth Amendment to define a new right and to require all governments—the central government, and the governments of states, counties, and municipalities—to respect it.

New powers that the central government had assumed as a result of the Fourteenth Amendment—namely the power to confer liberty of contract on persons and to protect this liberty from encroachment by government at every level—gave capitalist development a major boost. If one wants to locate a transformation in Civil War and Reconstruction developments, here it is.

But this is far from the whole postbellum story.

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States themselves were also growing and acting vigorously at this time. They passed thousands of laws to challenge laissez-faire and the autonomy of corporations. Public health and safety became abiding concerns during the late nineteenth century, as states sought to improve living conditions in cities and to stamp out drinking, gambling, pornography, and other vices. In the s and s, states established a wide variety of institutions, ranging from labor bureaus, fish commissions, and liquor licensing agencies to universities, charities, hospitals, insane asylums, and health boards—few of which had existed prior to the Civil War.

The Supreme Court legitimated this late-nineteenth-century surge in the scope and vigor of state governance by reinvigorating the notion that states possessed broad powers to act for the general welfare. This was the essence of the police power doctrine elaborated in the early nineteenth century to give states extraordinary governing authority.

The Supreme Court had determined that the Fourteenth Amendment did not preclude states from exercising this power; nor was the Supreme Court willing to declare at this time that the Fourteenth Amendment had bound states to the Bill of Rights and thus to require the former states to write laws in consonance with the latter the Bill of Rights.

Here we see a demonstration of the Court deferring to the states and granting them permission to define the content of the rights and the duties expected of citizens.

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The People's Welfare: Law and Regulation in Nineteenth-Century America ( Studies in Legal History) [William J. Novak] on *FREE* shipping on . Editorial Reviews. From Library Journal. Novak (history, Univ. of Chicago) has produced an The People's Welfare: Law and Regulation in Nineteenth-Century America (Studies in Legal History) - Kindle edition by William J. Novak. Download.

Even those Supreme Court justices thought to be the architects of laissez-faire constitutionalism wrote opinions in the s that protected the police power of the states.