The Democratic Experiment: New Directions in American Political History

By Meg Jacobs; William J. Novak et al. | Go to book overview

Chapter Eight
THE CASE FOR COURTS

LAW AND POLITICAL DEVELOPMENT IN THE
PROGRESSIVE ERA

Michael Willrich

What the past left to the home and to the church, we are com-
pelled more and more to commit to the law and to the courts.
The circumstances of city life and the modern feeling that law
is a product of conscious and determinate human will put
a larger burden upon the law, and hence upon the agencies that
administer the law, than either has been prepared to bear.

—Roscoe Pound, 1913

ACCORDING TO THE conventional historical wisdom, America’s modern administrative and welfare state grew up in spite of the courts. The dominant narrative of law and political development in the Progressive Era (1890–1919) portrays “the courts” as a monolith: a singularly conservative obstacle to progressive legislation enacted to bring industrial capitalism under the heel of a socially responsive interven- tionist state. This essay argues that to a large extent the modern adminis- trative and welfare state arose within the courts—but not the high-level state and federal appellate courts that historians typically study. In the three decades before the New Deal, the criminal courts of America’s in- dustrial cities were a fertile seedbed for progressive social policies and ambitious new forms of administrative social intervention. The national model was the Municipal Court of Chicago, a massive judicial bureau- cracy founded in 1906 to handle the hundreds of thousands of civil dis- putes and criminal cases that arose each year in the second-largest city of the world’s leading industrial nation. The incipient welfare state that emerged within such local judicial bodies did much more than we expect a welfare state to do—regulate working conditions and provide material aid to the poor. City courts with their enormous caseloads served as local laboratories for a more far-reaching effort to govern everyday life in a new urban-industrial society. The court-centered regime of urban social governance joined the ancient coercive power of the criminal law to mod-

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