Tocqueville did not stop with his observation about the lack of central power; he also argued that the individual state governments assumed that sovereign role. And histories of criminal law in the United States have followed Tocqueville. They begin from the premise that in the first century and a half of the constitutional order, from the implementation of the Constitution in 1789 to the rise of New Deal jurisprudence in 1939, the United States saw the emergence of a nationwide capitalist economy in the context of separate, local States. And so, instead of studying the development of a single, national system of criminal justice, those histories of criminal law in the United States look at the development of parallel, local systems of criminal law.

Because criminal justice was localized, the scope of the State in the United States was smaller, encompassing only the institutions of city, county, and state governments. Many have argued that that smaller scale was the system’s greatest strength, because it permitted a degree of popular participation unimaginable in a nation-state; the nineteenth-century American State was responsive to local ideas of justice and the concerns of the sovereign people. In this view of criminal justice in the United States, the local State maintained order by channeling disputes into the state court system, which ruled according to norms defined and applied by the people of the community.