And so the history of criminal justice during the first 150 years of the constitutional era is not really a simple story of the rise of the State. Instead, it is an account of how three sovereigns – national, local, and popular – struggled to determine who could define and enforce justice. In the United States between 1789 and 1939, that history of criminal justice unfolded on four levels. At its most basic, it was a story of the changes and continuities revealed by comparing the Nettles and Cannon case at the beginning of the nineteenth century with the trial of McAllister a century later. Observers of one era would have understood the processes and recognized the participants of the other, yet they would have also noticed the significant differences of emphasis (the greater focus on the logic of law in the later period), of institutions (the role of the police and the medical examiner), and of evidence (the new approaches to expert witnesses).

At the same time, the history of criminal justice is a story of a struggle for sovereign power between the state and federal governments. That struggle began with a default, as Congress failed to act in the realm of criminal law at the beginning of the constitutional era, and ended with two assertions of federal authority, when the Supreme Court declared that it would permit far greater oversight of state court processes and Congress began to create the administrative state that would wrest power from state governments.