- Regulation’s Hidden History
Listening to National Public Radio the other day I heard a gentleman from the Cato Institute argue that the interstate highway system should be privatized. Mixed in among his various economic and philosophical arguments were historical reassurances. We know that private highways can work, he insisted, because throughout the nineteenth century most highways in the United States were private. The would-be privatizer had invoked a potent historical image—that of the good old days when the government stayed out of peoples’ business and allowed them to engage in that most American of activities: making a profit.
Yet, as William J. Novak demonstrates in his excellent book, The People’s Welfare, this image is an illusion based on two “resilient myths about nineteenth-century America” (pp. 2–3). The first, which Novak calls “the myth of statelessness,” is the notion that government played a very small role in the lives of antebellum Americans: “the essence of nineteenth-century government was its absence” (p. 3). The second—“the myth of liberal individualism”—is that nineteenth-century political ideology was concerned primarily with protecting the private rights of individuals in a way that promoted market capitalism (p. 6). Novak rejects these myths, arguing instead that regulation was pervasive in nineteenth-century America. By examining the day-to-day activities of local officials, Novak demonstrates the existence of a “distinctive and powerful governmental tradition devoted in theory and practice” to “social and economic policy-making” (p. 1). At the center of this tradition was the notion of “the well-regulated society,” the idea that the government has an obligation to ensure the well-being of its citizens (p. 2).
Novak’s first step in exploring the administration of this well-regulated society is to examine its intellectual roots. He discovers a “fuzzy intellectual matrix” of political philosophers, legal theorists, and common law judges who expounded a theory of governance that was quite at odds with the [End Page 416] mythic liberal conception of the state (p. 26). These thinkers portrayed humans as profoundly social creatures who found happiness as part of a community. When viewed in this manner, individual rights became necessarily correlative—they existed only so long as they were not antagonistic to social interaction. Rights were seen as obligations to the community. “Civil liberty” meant the liberty to behave in a civil fashion, or, as Mark Hopkins, an instructor of “moral science” at Williams College put it in 1862: “A man has rights in order that he may do right” (p. 33).
In this intellectual environment a conception of government emerged that gave municipalities considerable power to regulate the lives of individuals. Thinkers rejected a conception of governmental power limited by individual rights. Instead public power was organized by common law principles, best summarized by two maxims: “sic utere tuo ut alienum non laedas (use your own so as not to injure another)” and, more importantly, “salus populi suprema lex est (the welfare of the people is the supreme law)” (p. 42). These two maxims were part of “an equation of well-regulated governance” that judges, legislators, and municipal officers used to justify intrusive government regulation of the property and morality of nineteenth-century Americans (p. 45).
Having laid this intellectual foundation, Novak then illustrates how the principles of salus populi and sic utere were used to regulate a wide variety of activities. In the five chapters that make up the heart of The People’s Welfare he explores public safety regulation, the regulation of the sale of goods, the regulation of roads, rivers, and ports, public morals regulation, and public health regulation. Each chapter follows a similar pattern. We first learn of the extraordinary powers that municipalities exercised. In particular Novak demonstrates how these powers consistently trumped individual rights. For example, municipal officials could destroy private property without recompense to prevent fires or diseases from spreading. They could place severe limitations on professional activities through licensing...