A New Birth of Regulation: The State of the State after the Civil War

When they talk about the years between the Civil War and World War I, historians tell two stories that move on parallel—and largely regional—tracks. The first takes place in the South and centers on civil and political rights and race: it is the story of Reconstruction and Jim Crow. In this narrative, a triumphant, expanded national government emerged from the war and committed itself, through civil rights acts and constitutional amendments, to enforcing free labor, national citizenship, and civil and political equality. Freedmen and women embraced such ideals eagerly and saw both local politics and the national government as critical to the creation of freedom on the ground in the South. However, this was a short-lived phenomenon. The federal government withdrew troops from the South, its commitment to civil and political equality shriveled up, and Democratic state legislatures set about creating de jure segregation and disfranchising the African American electorate. For a federal commitment to civil and political rights, African Americans would have to wait nearly a century.

The second narrative is set in the North and centers on political economy: it is the story of Gilded Age laissez-faire and progressivism. In this story, the end of slavery meant that free labor—and with it, the ideological commitment to both the autonomous individual and to liberty of contract—was now hegemonic. The economic liberalism of the radical Republicans hardened into the laissez-faire ideology of the Gilded Age. As corporate capitalism seized the nation in its grip, a new breed of “liberal” Republicans, claims Eric Foner, “retreated not only from the Civil War’s broad assertion of nationalism and egalitarianism, but from democracy itself.”¹ This intellectual and political reorientation rested on the belief that individual freedom was expressed in contract, plain and simple. Such reasoning found its apogee in the U.S. Supreme Court’s 1905 Lochner v. New York decision, which struck down a state law regulating the hours of bakers. For “modern liberalism”—effective regulation, coherent social provision, and a positive commitment to the state as an instrument—working-class Americans would have to wait until the Progressive Era (if not the New Deal).

In recent years, some historians have attempted to make the parallel tracks intersect. Scholars such as Heather Cox Richardson have reminded us that the same Republicans who were willing to abandon freedpeople to the Democratically-controlled South were doing so as a part of a larger rejection of an activist state. If the government was going to act as the steward of African American civil rights and protect freedpeople from violence and economic injustice, Republicans might also have to admit that the state had a role to play in mitigating the harshest effects of industrial capitalism. And as free labor ideology gelled into liberty of contract, that was not an attractive proposition.² From this perspective, the two main narratives intersect at their declensionist endpoint. Between Lochner and the federal government’s blind eye toward the ostensibly race-neutral laws that disfranchised black male voters in the South and segregated public accommodations, the liberal commitment to individual rights and equal protection were, by the end of the nineteenth century, formal rather than substantive and allowed little positive role for the state in redressing the realities of white supremacy and class inequality. However much the waging of the war and its aftermath might have amplified the American state, such narratives portray these changes as temporary and tepid—both Reconstruction and regulatory legislation foundered on the same shoal: laissez-faire.

But uniting the racial and class politics of the late nineteenth century under the banner of laissez-faire obscures as much as it explains. For one thing, it allows us to ignore the tremendous flurry of state activity that followed on the heels of the Civil War. During the last third of the nineteenth century, local governments established health and safety standards in building construction, created municipal health organizations, installed sewer systems, and increased public ownership of utilities. And state legislatures were even busier. Not only did they continue their...