Common Regulation: Legal Origins of State Power in America

Modern, liberal constitutional scholars are obsessed with balancing private rights against public values. This balancing act presumes private rights and public values are each confined to their own spheres and intrinsically antagonistic. This antimony is portrayed as the way it should be, and always has been. Professor Novak's Article challenges this version of American constitutional history.

It argues that the modern, liberal version of constitutional law is only the most recent in a long line of competing constitutionalisms of the past. More specifically, it argues that the private rights-public values antimony, which is the hallmark of modern, liberal constitutionalism, is not grounded in early nineteenth-century American constitutionalism. Rather, early nineteenth-century constitutionalism actually refused to separate private rights from public values in favor of a "well-ordered" society, in which they were interwoven. Professor Novak's Article illuminates the "well-ordered" society as a coherent, alternative nineteenth-century constitutionalism and then proceeds to an examination of the nature of state power embedded in the nineteenth-century practice of "common regulation." Early American regulation, he argues, was not perceived as antagonistic to private rights, but rather as part and parcel of the promotion of public happiness in the "well-ordered" society.

The Article catalogues the traditions and doctrines that informed "common regulation," such as the sovereign prerogative and the common-law doctrine of overriding necessity. It concludes by noting that the reconstruction of historical alternatives to liberal constitutionalism highlights the social and political struggles underlying the balancing test and the public-private distinction in modern American law.