In 1963 the Italian historiographer Arnaldo Momigliano told an assembly of legal historians that they were gathered to celebrate “a historical event of some importance, the end of history of law as an autonomous branch of historical research.” At least in the historiography of ancient law, he said, “the elimination of history of law as independent history now seems to me to be settled.”

From the beginning of nationhood under the Constitution to the present day, the federal system of American government— what Madison termed “a novelty and a compound,” and what Hamilton declared was “necessarily a compromise of dissimilar interests and inclinations”—has been of profound importance in shaping the nation's economic order. Power has shifted over time between the national government and the constituent state governments; and these structural shifts have had an impact upon policy process and outcomes, as well as upon the economy's institutional framework. The study of federalism has long been, of course, a concern of scholarship in constitutional law, political science, and history. Moreover, historians of American politics have lavished much attention upon the great conflicts of interest groups, parties, and ideologies, from 1787 to the New Deal and after, over the basic question of the extent to which power ought to be centralized in our federal system. And yet no scholarly studies have been specifically devoted to the analysis of federalism as an institutional variable both influencing the development of enterprise in the private sector and influencing economicpolicy processes and the substance of public economic policy. This paper attempts such an analysis. Part I reviews the recent literature on law and economic history, and Part II considers some theoretical issues. Parts III and IV examine historic American federalism in relation to governmental institutions and power, public economic policies, and the dynamics of the economy's private sector.

In 1821 the Mississippi Supreme Court held that a white person could be indicted for the common law crime of murder when the victim was a slave: