The Supreme Court majority has limited the EPA’s ability to regulate greenhouse gasses in a major blow against the regulatory state. Regulations concerning the environment, labor, health, food safety, and water safety, among others, are all now at risk. Yet, just a week before, the same judges declared government can regulate the bodies of people who become pregnant and force them to give birth.
This seeming paradox of freedom for corporations and repression for citizens is actually not new in American history.
The birth of the regulatory or administrative state is usually dated to the Progressive Era and New Deal. Scholar Susan J. Pearson pushes it back further, noting “Dispossession of Native Americans created the Indian Office, one of the first federal administrative agencies; the Fugitive Slave Act created some of the first administrative courts; the Freedmen’s Bureau was the first federal ‘welfare’ agency; provision of veteran’s benefits created the template for the gendered welfare state and its control and surveillance of women’s sexuality.”
In the decades before the turn into the twentieth century, laissez-faire ruled. But this libertarian ideology wasn’t totalizing. There was, in fact, a “tremendous flurry” of state regulation at every layer of government. Before 1897, for instance, the “states and the federal government had the authority to enact regulations as long as they could be justified as necessary to protect the public’s health and welfare.”
Of course, somebody had to define what was meant by protection. Demands for such regulation came from organized citizens and the politicians they elected. Who advocated for what mattered. “Far from distinguishing between public and private interests,” Pearson argues, regulation reached “deep into the most intimate spheres of social and personal life in order to shape a social order around Protestant morals and hierarchies of race and gender.”
“If we turn our eyes from the arenas usually privileged in stories of statebuilding—social welfare provision and labor regulation—and look to the regulation of morals, sexuality, marriage, and race relations, then the postbellum years appear as an era of expanded government.”
The state being built “was based less on equal protection or individual rights” than on the policing of morality. The nation’s abandonment of Reconstruction and equal citizenship for the formerly enslaved and their descendants was mirrored in a postbellum vision of the Civil War as a triumph against sin, not slavery. Other aspects of sin—drinking, obscenity, non-observation of the Sabbath—needed a super vice-squad alliance of the state and moral reformers to combat it.