Guest Essayist: Danny de Gracia
Essay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 296-298 (Stop at “Importance of what Precedes”) of this edition of Democracy in America.
The Way We Were (And Could Be Again)
“The Americans have no neighbors and consequently no great wars, financial crisis, ravages, or conquest to fear; they need neither large taxes, nor a numerous army, nor great generals; they have almost nothing to dread from a scourge more terrible for republics than all those things put together – military glory.”
-Alexis de Tocqueville
The late Ronald Reagan after losing his party’s nomination for president in 1976, spoke of a time capsule that he had the opportunity to write a letter for that would be later opened for the American Tricentennial 100 years later in 2076.
“And suddenly it dawned on me, those who would read this letter a hundred years from now … will know whether we met our challenge,” Reagan explained. “Whether they will have the freedom that we have known up until now will depend on what we do here.”
Reagan then went on to say:
“Will they look back with appreciation, and say, ‘Thank God for those people in 1976 who headed off that loss of freedom? Who kept us now a hundred years later, free? Who kept our world from nuclear destruction? And if we fail, they probably won’t get to read the letter at all, because it spoke of individual freedom and they won’t be allowed to talk of that or read of it. This is our challenge and this is why we were here in this hall tonight. Better than we’ve ever done before, we’ve got to quit talking to each other and about each other and go out and communicate to the world that we may be fewer in numbers than we’ve ever been but we carry the message they’re waiting for. We must go forth from here united, determined, and what a great general said a few years ago is true: There is no substitute for victory, Mr. President.”
History both repeats and rhymes, and the challenge and battle that Reagan had spoke of for the soul and future of America is the same struggle that every American has been fighting since The Shot Heard Round The World on April 19, 1775 and maybe even earlier.
In the early decades of the United States of America, this country was a marvel to philosophers, historians, and political observers the world over, one of them being Alexis de Tocqueville. The Old World had its share of political revolutions and political experiments, and the search for a system of government that balanced the individual’s pursuit of happiness against society’s need for cohesion and order had been tried and failed numerous times over.
More often than not, the rulers of the Old World brought about political reform through palace intrigue, bloody revolutions, and military takeovers, often offering platitudes of liberty and freedom and justice to distressed citizens but ultimately never granting a system that allowed people the space to be human inside a government restrained enough to not be oppressive but still maintain the basic functions of a sovereign state without becoming a failed state. “Meet the new boss, same as the old boss” was the way that rulers and systems of government had come and gone for millennia up to the founding of the United States of America. Certainly, the Ancient Greeks had their experiment in democracy, but that was a system that was at best superficial and did not empower people to pursue and enjoy individual freedom in the way we today think of the revolutionary American statement that “all men are created equal.”
In fact, the lessons of the Peace of Westphalia treaty were still very much on the minds of European leaders at the time of the American Revolution. That treaty established the understanding that the lowest common denominator in the world system is not the individual, but the state itself, and that rulers have the right to be sovereign inside their national borders – a concept which, interestingly, lives on in the text of today’s United Nations charter.
This idea that the king is the state and the state is the king and everything and everyone under the king belongs to the king who is, like the ancient Pharaoh of Egypt, the morning and the evening star was upheld by the Peace of Westphalia. Many of the ancients, though they resented it, likely felt and understood this was a necessary evil.
The Bible gives us the story of Moses spending time collecting the Ten Commandments on a mountaintop, while his brother Aaron is left behind with the presumably millions of Israelites who had been rescued from Egypt’s bondage by divine deliverance. The people organized the equivalent of a democracy in the absence of Moses, pressured Aaron to build a golden calf as their national icon, and began to revel and cast off all restraint – that is, until Moses came back with the power of God to put them in their place.
This idea that if people are allowed to have their way, they’ll use it to do evil and wreak chaos on a national and even international scale has persisted throughout human history. The purpose of the king, who is either there because a “god” chose him or because he is the bloodiest, wisest, or richest person able to assemble and control the resources needed to maintain a state, is essentially under this line of thought to keep the citizens in line and to keep the neighboring countries in line as well.
When we read De Tocqueville’s “Democracy in America,” we can therefore see the European alarm and fascination that America, at least at the time, was a political unicorn. Here De Tocqueville finds Americans govern themselves, and don’t require a police state to keep them in line. Here the heads of state, local leaders, and public servants are anodyne, mostly agreeable individuals, who dare not step out of line, lest they face the wrath of the public. In short: Americans have a functioning democracy because they can handle it.
“To submit the provinces to the capital is therefore to put the destiny of the whole empire not only in the hands of a portion of the people, which is unjust, but also in the hands of the people acting by itself, which is very dangerous,” De Tocqueville wrote. “I already said before that I saw in the origin of the Americans, in what I called their point of departure, the first and the most efficacious of all the causes to which the current prosperity of the United States can be attributed. Americans had the chance of their birth working for them: their fathers had long since brought equality of conditions and of intelligence onto the soil they inhabited, from which the democratic republic would one day issue as from its natural source. This is still not all; with a republican social state, they willed to their descendants the most appropriate habits, ideas, and mores to make a republic flourish.”
One will likely read De Tocqueville in 2024 and, seeing the condition of the United States, easily say, “Ouch, he missed it, we missed it, and what a height we’ve fallen from.” The very things that allowed America to be a successful democracy at the time of Tocqueville’s writing of “Democracy in America” are the very things that are absent in today’s country.
Increasing urbanization by design means that people today are packed together in tight, uncomfortable, competitive built environments. This is the opposite of the pastoral, agrarian, mostly relaxed America that De Tocqueville wrote of with agreeable citizens and family structures that were personal, instructive, and a form of self-government.
Want to feel democracy has failed? Work in Downtown Honolulu, Hawaii and just try to leave your office for a 45-minute lunch break. Trust me, if you don’t get a traffic ticket for a simple mistake, get run over by a distracted driver, collide with a pedestrian disobeying the crosswalk signal, or get stuck in a traffic jam due to some wild accident for two hours, then you must have the very blessing of God Himself operating in your life. This is a daily experience which embitters citizens and makes individuals reliant on big government to fix, regulate, or control the increasingly out of control world around them. Here in Hawaii, we have no shortage of public “planners” yet the local chaos here is out of control.
Does democracy as a system of government work? Technically yes, technically no. It “works” if a majority of those voting are enlightened, altruistic, and at peace with themselves and others. It doesn’t work when they’re not. And that is why America, in 2024, is the exact opposite of what De Tocqueville described in “Democracy in America.”
Today? We’re fighting world wars no one wants to admit are world wars. Our young people are tearing apart college campuses and have a political divide that is night and day from their parents view of the world. Our government is bigger than it’s ever been before, but it can’t maintain order. We’re taxing people way beyond what drove the Founders to rebel, but every politician and bureaucrat says they need more money and can’t even cut the grass or keep the roads paved because there’s “no money for that.” And depending on which of the two major parties one subscribes or aligns with, one may see two totally different directions and purposes for the future of America.
Oh, if only we could go back to De Tocqueville’s time, when times were simpler. We can, in fact. Despite all of the disruption, decline, and major changes in history, America’s experiment is still at its core a system of inputs and outputs that when operated properly will work the way it was intended, for limited government, and maximum individual freedom.
De Tocqueville’s America at the time of his observation emphasized a connection to one’s family and to one’s community. When we are able to know each other and keep each other accountable, we can solve things by cooperation or by negotiation amongst ourselves. That is the beginnings of self-governance.
I often ask myself how many people would be out protesting in the streets or being vicious and disagreeable over abstract political ideas if they had someone back home who loved them and helped them and kept them grounded with supportive words and kind loyalty.
De Tocqueville also encountered an America that did not see or rely on national government as the source of their solutions. Today, we want a quote from the president and the speaker of the house and the senate majority leader on every little thing that happens in the world and what their plan is. When Americans took initiative and took action on the things they had within their personal sphere of reach, politicians were largely obsolete. Today, we take minimal responsibility for things and seek to be as un-accountable for our actions and others as possible. De Tocqueville’s America was proactive and ready to take charge. They had peace because they had initiative.
And most importantly, De Tocqueville saw an America that had traditions that clearly established lines between moral rights and wrongs. “In the United States, religion not only regulates mores, but extends its empire over intelligence,” he observed. Today, we have been encouraged to be narcissistic, avoidant, and mercenary in our actions. The concept of “your truth,” “your vibes,” or “your tribe” that has been promoted in recent years suggests a man or a woman can be an island who does whatever is right in their own eyes at any given time with no accountability to anything or anyone except their own gratification.
Multiplied to a population level, this kind of thinking is disastrous and results in exactly the kind of society we have that is at war with itself. There is a war against moral clarity in America today that brings out the worst, rather than the best, that democracy can offer.
“It is likely,” Benjamin Franklin said at the 1787 constitutional convention, “to be well-administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government.”
Take that not as a prophecy that cannot be avoided, but as a warning that must be heeded.
America is at a dangerous precipice in 2024. We are headed away from the enlightenment that De Tocqueville and others marveled at, and are going backwards in time to the traditions of upheaval, reactionary despotism, and ultimately, total decline. But we can turn back. It will take changing our communities, changing our cities, and most importantly, changing ourselves.
Danny de Gracia is a political scientist and internationally published author who lives in Hawaii. He is currently working on his second master’s degree in health policy at the University of Hawaii at Manoa.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.
Click here for the essay schedule with today’s essay and previously published essays hyperlinked.
Essay 42: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 9)
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Danny de Gracia Essay 42: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Danny de GraciaEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 296-298 (Stop at “Importance of what Precedes”) of this edition of Democracy in America.
The Way We Were (And Could Be Again)
“The Americans have no neighbors and consequently no great wars, financial crisis, ravages, or conquest to fear; they need neither large taxes, nor a numerous army, nor great generals; they have almost nothing to dread from a scourge more terrible for republics than all those things put together – military glory.”
-Alexis de Tocqueville
The late Ronald Reagan after losing his party’s nomination for president in 1976, spoke of a time capsule that he had the opportunity to write a letter for that would be later opened for the American Tricentennial 100 years later in 2076.
“And suddenly it dawned on me, those who would read this letter a hundred years from now … will know whether we met our challenge,” Reagan explained. “Whether they will have the freedom that we have known up until now will depend on what we do here.”
Reagan then went on to say:
“Will they look back with appreciation, and say, ‘Thank God for those people in 1976 who headed off that loss of freedom? Who kept us now a hundred years later, free? Who kept our world from nuclear destruction? And if we fail, they probably won’t get to read the letter at all, because it spoke of individual freedom and they won’t be allowed to talk of that or read of it. This is our challenge and this is why we were here in this hall tonight. Better than we’ve ever done before, we’ve got to quit talking to each other and about each other and go out and communicate to the world that we may be fewer in numbers than we’ve ever been but we carry the message they’re waiting for. We must go forth from here united, determined, and what a great general said a few years ago is true: There is no substitute for victory, Mr. President.”
History both repeats and rhymes, and the challenge and battle that Reagan had spoke of for the soul and future of America is the same struggle that every American has been fighting since The Shot Heard Round The World on April 19, 1775 and maybe even earlier.
In the early decades of the United States of America, this country was a marvel to philosophers, historians, and political observers the world over, one of them being Alexis de Tocqueville. The Old World had its share of political revolutions and political experiments, and the search for a system of government that balanced the individual’s pursuit of happiness against society’s need for cohesion and order had been tried and failed numerous times over.
More often than not, the rulers of the Old World brought about political reform through palace intrigue, bloody revolutions, and military takeovers, often offering platitudes of liberty and freedom and justice to distressed citizens but ultimately never granting a system that allowed people the space to be human inside a government restrained enough to not be oppressive but still maintain the basic functions of a sovereign state without becoming a failed state. “Meet the new boss, same as the old boss” was the way that rulers and systems of government had come and gone for millennia up to the founding of the United States of America. Certainly, the Ancient Greeks had their experiment in democracy, but that was a system that was at best superficial and did not empower people to pursue and enjoy individual freedom in the way we today think of the revolutionary American statement that “all men are created equal.”
In fact, the lessons of the Peace of Westphalia treaty were still very much on the minds of European leaders at the time of the American Revolution. That treaty established the understanding that the lowest common denominator in the world system is not the individual, but the state itself, and that rulers have the right to be sovereign inside their national borders – a concept which, interestingly, lives on in the text of today’s United Nations charter.
This idea that the king is the state and the state is the king and everything and everyone under the king belongs to the king who is, like the ancient Pharaoh of Egypt, the morning and the evening star was upheld by the Peace of Westphalia. Many of the ancients, though they resented it, likely felt and understood this was a necessary evil.
The Bible gives us the story of Moses spending time collecting the Ten Commandments on a mountaintop, while his brother Aaron is left behind with the presumably millions of Israelites who had been rescued from Egypt’s bondage by divine deliverance. The people organized the equivalent of a democracy in the absence of Moses, pressured Aaron to build a golden calf as their national icon, and began to revel and cast off all restraint – that is, until Moses came back with the power of God to put them in their place.
This idea that if people are allowed to have their way, they’ll use it to do evil and wreak chaos on a national and even international scale has persisted throughout human history. The purpose of the king, who is either there because a “god” chose him or because he is the bloodiest, wisest, or richest person able to assemble and control the resources needed to maintain a state, is essentially under this line of thought to keep the citizens in line and to keep the neighboring countries in line as well.
When we read De Tocqueville’s “Democracy in America,” we can therefore see the European alarm and fascination that America, at least at the time, was a political unicorn. Here De Tocqueville finds Americans govern themselves, and don’t require a police state to keep them in line. Here the heads of state, local leaders, and public servants are anodyne, mostly agreeable individuals, who dare not step out of line, lest they face the wrath of the public. In short: Americans have a functioning democracy because they can handle it.
“To submit the provinces to the capital is therefore to put the destiny of the whole empire not only in the hands of a portion of the people, which is unjust, but also in the hands of the people acting by itself, which is very dangerous,” De Tocqueville wrote. “I already said before that I saw in the origin of the Americans, in what I called their point of departure, the first and the most efficacious of all the causes to which the current prosperity of the United States can be attributed. Americans had the chance of their birth working for them: their fathers had long since brought equality of conditions and of intelligence onto the soil they inhabited, from which the democratic republic would one day issue as from its natural source. This is still not all; with a republican social state, they willed to their descendants the most appropriate habits, ideas, and mores to make a republic flourish.”
One will likely read De Tocqueville in 2024 and, seeing the condition of the United States, easily say, “Ouch, he missed it, we missed it, and what a height we’ve fallen from.” The very things that allowed America to be a successful democracy at the time of Tocqueville’s writing of “Democracy in America” are the very things that are absent in today’s country.
Increasing urbanization by design means that people today are packed together in tight, uncomfortable, competitive built environments. This is the opposite of the pastoral, agrarian, mostly relaxed America that De Tocqueville wrote of with agreeable citizens and family structures that were personal, instructive, and a form of self-government.
Want to feel democracy has failed? Work in Downtown Honolulu, Hawaii and just try to leave your office for a 45-minute lunch break. Trust me, if you don’t get a traffic ticket for a simple mistake, get run over by a distracted driver, collide with a pedestrian disobeying the crosswalk signal, or get stuck in a traffic jam due to some wild accident for two hours, then you must have the very blessing of God Himself operating in your life. This is a daily experience which embitters citizens and makes individuals reliant on big government to fix, regulate, or control the increasingly out of control world around them. Here in Hawaii, we have no shortage of public “planners” yet the local chaos here is out of control.
Does democracy as a system of government work? Technically yes, technically no. It “works” if a majority of those voting are enlightened, altruistic, and at peace with themselves and others. It doesn’t work when they’re not. And that is why America, in 2024, is the exact opposite of what De Tocqueville described in “Democracy in America.”
Today? We’re fighting world wars no one wants to admit are world wars. Our young people are tearing apart college campuses and have a political divide that is night and day from their parents view of the world. Our government is bigger than it’s ever been before, but it can’t maintain order. We’re taxing people way beyond what drove the Founders to rebel, but every politician and bureaucrat says they need more money and can’t even cut the grass or keep the roads paved because there’s “no money for that.” And depending on which of the two major parties one subscribes or aligns with, one may see two totally different directions and purposes for the future of America.
Oh, if only we could go back to De Tocqueville’s time, when times were simpler. We can, in fact. Despite all of the disruption, decline, and major changes in history, America’s experiment is still at its core a system of inputs and outputs that when operated properly will work the way it was intended, for limited government, and maximum individual freedom.
De Tocqueville’s America at the time of his observation emphasized a connection to one’s family and to one’s community. When we are able to know each other and keep each other accountable, we can solve things by cooperation or by negotiation amongst ourselves. That is the beginnings of self-governance.
I often ask myself how many people would be out protesting in the streets or being vicious and disagreeable over abstract political ideas if they had someone back home who loved them and helped them and kept them grounded with supportive words and kind loyalty.
De Tocqueville also encountered an America that did not see or rely on national government as the source of their solutions. Today, we want a quote from the president and the speaker of the house and the senate majority leader on every little thing that happens in the world and what their plan is. When Americans took initiative and took action on the things they had within their personal sphere of reach, politicians were largely obsolete. Today, we take minimal responsibility for things and seek to be as un-accountable for our actions and others as possible. De Tocqueville’s America was proactive and ready to take charge. They had peace because they had initiative.
And most importantly, De Tocqueville saw an America that had traditions that clearly established lines between moral rights and wrongs. “In the United States, religion not only regulates mores, but extends its empire over intelligence,” he observed. Today, we have been encouraged to be narcissistic, avoidant, and mercenary in our actions. The concept of “your truth,” “your vibes,” or “your tribe” that has been promoted in recent years suggests a man or a woman can be an island who does whatever is right in their own eyes at any given time with no accountability to anything or anyone except their own gratification.
Multiplied to a population level, this kind of thinking is disastrous and results in exactly the kind of society we have that is at war with itself. There is a war against moral clarity in America today that brings out the worst, rather than the best, that democracy can offer.
“It is likely,” Benjamin Franklin said at the 1787 constitutional convention, “to be well-administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government.”
Take that not as a prophecy that cannot be avoided, but as a warning that must be heeded.
America is at a dangerous precipice in 2024. We are headed away from the enlightenment that De Tocqueville and others marveled at, and are going backwards in time to the traditions of upheaval, reactionary despotism, and ultimately, total decline. But we can turn back. It will take changing our communities, changing our cities, and most importantly, changing ourselves.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.
Click here for the essay schedule with today’s essay and previously published essays hyperlinked.
Essay 41: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 8)
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Richard Epstein Essay 41: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Richard EpsteinEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 292 (Stop at “That the Laws”) – 295 of this edition of Democracy in America.
Causes Tending to Undermine a Democratic Republic
Commentary on de Tocqueville:
Vol. One, Part Two, Chapter Nine
It is widely acknowledged that Democracy in America, written in 1835 and 1840, is the greatest book on that topic—a period of America long gone and never to return. De Tocqueville offers an optimistic chapter describing the forces working to preserve a democratic republic. Conjoining those two words obscures the traditional philosophical opposition between republics and democracies. In so doing, De Tocqueville offers several explanations that, while accurate for his time, are as dead as a dodo bird in ours.
His first explanation is that “The Americans have no neighbors and consequently no great wars,” except, of course, with themselves (the Civil War of 1861-1865 was at the time the bloodiest and most sophisticated war fought anywhere in the world). We still have quiet borders with our northern and southern neighbors (putting aside the problem of illegal immigration). But today, new technologies that span oceans call for military interactions with countless nations, both friend and foe—China, Germany, Iran, Iraq, Israel, Japan, North Korea, Russia, Spain, Taiwan, Ukraine, the United Kingdom, and many others. Our current military budget, foreign policy, defense capabilities, intelligence sources, and foreign aid programs never crossed De Tocqueville’s mind. But to read him as a blind isolationist would draw exactly the wrong inference. Today, he would know that the question is not only whether to interact with these formidable world powers but also how to do so. Do we sign bilateral or multilateral treaties? Can we continue to follow a constitutional system that requires, except in emergencies, the Congress to declare war before the President as commander-in-chief can intervene in Kosovo or Libya? These all present tough issues. And if De Tocqueville was right to attack General Andrew Jackson when he ascended to the presidency, should we say the same about Dwight Eisenhower? Don’t blame De Tocqueville for not seeing the future. Don’t rely on him as if he did.
Second, De Tocqueville spoke of the advantages of having a small national capital, which prevents a disproportionate concentration of power at the center that would regrettably displace the “great assemblies” in small towns and reduce the key role of citizen participation in direct democracy. He even notes with evident uneasiness that cities like Philadelphia (then populated by 161,000 inhabitants) and New York (then 202,000) could be the source not only of disagreement but potentially of race riots.
Those days are gone forever. When De Tocqueville wrote, the population in the United States was under 15 million people, just before the new waves of immigration reached our shores. Today, the population of the United States is over 336 million people. New York City is close to 8 million, and Philadelphia has about 1.5 million. Those long-term population increases do not allow traditional institutions to scale up without some fundamental changes in their character. The town model cannot work, so some variation on the square/cube law takes over—any viable state must cube the size of its infrastructure in order to double the size of its operations. Town meetings are for school boards, not climate control or interstate transportation.
Yet more than size is at stake. For the first, roughly speaking, 125-150 years under the 1787 Constitution, the philosophy of government at the federal level changed radically. The classical liberal model that speaks of the control of force, fraud and monopoly was no longer at the fore. Now, a much broader conception of government power uses administrative expertise to implement complex regulatory schemes that are supposed to reflect informed democratic preferences. Woodrow Wilson’s administration ushered in the federal income tax, the Federal Reserve Board and the Federal Trade Commission, the expansion of antitrust laws, the direct election of Senators, and women’s suffrage. Together, these composed the first stage of expanding state power, followed by Franklin Roosevelt’s New Deal and Lyndon Johnson’s Great Society. These activities undercut the restrictions on state power imposed by the principles of separation of powers and checks and balances. The New Deal saw the rise of the alphabet agencies—the Agricultural Adjustment Administration, the National Labor Relations Board, the Civil Aeronautics Authority, the Interstate Commerce Commission, and many more. The Great Society added civil rights, health care, and environmental protection, bringing more power to Washington, which today may be somewhat curbed by the Roberts Court’s controversial attack on judicial deference to the expansive actions of the administrative state.
De Tocqueville may not have approved of all these changes had he foreseen them. But, if alive today, he would recognize that there is no turning back to the simpler world of 1835. And as the final irony, like De Tocqueville, we have no open spaces in which to move and hide. So our challenge in this brave new world is to maintain levels of freedom and prosperity that De Tocqueville could not have imagined—or understood.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.
Click here for the essay schedule with today’s essay and previously published essays hyperlinked.
Essay 40: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 7)
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 40: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 288 (Start at “How the Enlightenment”) – 292 (Stop at “That the Laws”) of this edition of Democracy in America.
De Tocqueville on American Education and Self-Government
In 1838, a young Abraham Lincoln addressed a young men’s lyceum debating society in Springfield, Illinois, on the topic of “The Perpetuation of Our Political Institutions.” Lincoln stated that mob rule and demagoguery were great threats to American self-government. He asserted that the way to preserve American political institutions was to restore reason and reverence for the laws as a “political religion” over the shifting and dangerous passions of human nature.
Publishing his masterpiece, Democracy in America, at the same time Lincoln spoke, De Tocqueville offered his own reflections on “the influence exerted by the enlightenment and the habits of the Americans on the maintenance of their political institutions.” In both cases—education and political habits—were formed primarily through experience rather than theory. The American people, he observed, were eminently a very practical people.
De Tocqueville thought that American education did not produce great literature or scientific inventions. Instead, Americans adapted the technology, “marvelously to the needs of the country.” They also sought education to learn “the doctrines and the proofs of [their] religion.” Finally, they gained familiarity with “the principal features of the constitution that governs” their country.
The main measure of American education might be found, in De Tocqueville’s view, in the thousand newspapers he says crisscrosses the republic. Americans demonstrated a commitment to the “utility of Enlightenment” rather than a desire to reproduce the Encyclopedie project of the French Enlightenment to classify all the world’s knowledge, for example.
Americans bring this practical education and knowledge even in the vast stretches of the western frontier. De Tocqueville stated that the American plunges “into the wilderness of the New World with his Bible, a hatchet, and newspapers.” Thus, they bring their version of enlightenment with them as they civilize what they considered a wilderness.
But, more than that, education cultivates the habits and mores of a self-governing people. De Tocqueville writes, “the instruction of the people serves powerfully to maintain a democratic republic.” Those virtues of citizenship, however, are acquired not through reading great political tracts but by the constant practice of self-governance.
De Tocqueville is astounded that Americans have an extremely strong sense of their rights. The American knows “what his rights are and what means he will use to exercise them.” The same could hardly have been said of peasants farming in Italy or serfs in imperial Russia.
Americans also acquire an understanding of the laws from reading newspapers and participating in the work of self-government. With a written Constitution and published laws, Americans were in a unique position of knowing the laws they lived under. De Tocqueville writes, “He has made himself familiar with the mechanisms of the laws.”
Lastly, and perhaps most importantly, Americans engaged in self-governance. Universal male suffrage meant that all white men could vote, which was truly exceptional in the first half of the nineteenth century. They voted in free elections, served on juries, held political office, served in local government jobs in their communities, and attended democratic town meetings.
“It is from participating in legislation that the American learns to know the laws, from governing that he instructs himself in the forms of government. The great work of society is accomplished daily before his eyes and so to speak in his hands.”
De Tocqueville noted that Americans carried “the habits of public life into private life.” That was perhaps one of the keys to the health of American democracy. They had democratic habits and virtues that animated a robust civil society of self-governing citizens who could manage their own affairs without the intrusive hand of government. And, self-government was rooted upon education forming the character of the American people.
Today, Americans generally have a strong instinctual sense of their constitutional rights. While they may not always get the exact particulars correct, they cherish the right to speak their minds because they have free speech under the First Amendment. They also have a strong reaction against a police officer searching the trunks of their cars without probable cause or entering their homes without a warrant. They would want to speak with a lawyer if arrested and held at a police station. In this way at least, the American spirit of liberty and self-government is alive and well.
De Tocqueville noted this phenomenon almost two centuries ago in Democracy in America. He wrote an American “will teach you what his rights are and what means he will use to exercise them.”
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Essay 39: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 6)
90 in 90 2024, Ben Peterson, 6. Guest Constitutional Scholar Essayists, Blog Essay 39: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Ben Peterson, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 282 (Start at “On the Principal Causes”) – 288 (Stop at “How the Enlightenment”) of this edition of Democracy in America.
De Tocqueville on Religion in Society
For De Tocqueville, habits and mores, determined especially by religion, are the primary contributors to the Americans’ successful maintenance of their democratic republic. Against champions of liberty who opposed Christianity and reactionaries who opposed liberty and defended religion, De Tocqueville described and favored an American republicanism that had combined “the spirit of religion and the spirit of freedom.” The dominance of Christian morality—a salutary tyranny of the majority—promotes domestic tranquility and furnishes limits on political power. De Tocqueville makes an arresting claim: “Religion, which, among Americans, never mixes directly the government of society, should therefore be considered as the first of their political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it.”
While noting that religion “never mixes” with government, De Tocqueville nevertheless notes that it holds widespread influence in society, hinting at the larger force of his argument. De Tocqueville’s claim is twofold: first, Christianity exercises an enormous degree of political influence in America, despite formal separation of church and state, through its hold over the mores. Second, the degree of influence Christianity wields actually depends on disestablishment, assigning religion to its proper sphere of dominion over hearts and minds.
In De Tocqueville’s analysis, mortal man is irrepressibly homo religiosus, irrepressibly yearning for immortality. Religion thus possesses a natural advantage in the sphere of the mind and mores, pertaining to the permanent interests of human beings in the next world:
As long as religion finds its force in the sentiments, instincts, and passions that one sees reproduced in the same manner in all periods of history, it defies the effort of time, or at least it can only be destroyed by another religion. But when religion wishes to be supported by the interests of this world, it becomes almost as fragile as all the powers on earth.”
All civil powers, in contrast, are ephemeral. Direct alliance with civil political power jeopardizes religion’s natural advantage. The enemies of an allied regime become enemies of the religion: “So by uniting with different political powers, religion can only contract an onerous alliance. It does not need their help to live, and by serving them it can die.” This makes religion especially vulnerable in democratic ages because configurations of political power change rapidly and constantly.
The reason Christianity—which De Tocqueville will argue in Volume II is especially suited to liberty—maintains a somewhat thinned, but widespread and unchallenged influence in American society is because it confines itself to the realm of general moral guidance and the government of the heart and mind, the natural, universal realm of religion: “In America, religion is perhaps less powerful than it has been in certain times and among certain peoples, but its influence is more lasting. It is reduced to its own strength, which no one can take away from it; it acts in one sphere only, but it covers the whole of it and dominates it without effort.”
De Tocqueville presents religion with a tradeoff: it can have universal dominion over minds and mores, or conventional political power over a particular group, but not both. De Tocqueville’s claim and analysis, supported with the example of the French Revolutionaries’ antagonism to religion and the American case, suggest two intriguing possibilities relevant to the question of the Christian witness: first, political influence need not rest on direct governmental prerogative or public recognition. Second, entanglement with conventional political power could present a danger to the influence of religion, undermining the influence over minds and mores.
The tradeoff has a bit more bite. De Tocqueville claims that Christianity has complete dominance over minds and mores, but that dominance comes up against other mental and moral features of the democratic age. For example, Christianity must not challenge too pointedly the “love of well-being” that equality engenders but be content with constraining the pursuit of well-being to honest means. In democratic ages, religion cannot afford to buck against common opinion too much:
“As men become more alike and equal, it is more important that religions, while carefully putting themselves out of the way of the daily movement of affairs, not collide unnecessarily with the generally accepted ideas and permanent interests that reign among the masses; for common opinion appears more and more as the first and most irresistible of powers; there is no support outside of it strong enough to permit long resistance to its blows.”
Religion retains its dominant—but limited—hold over minds and mores only by staying tightly within narrow bounds. The spirit of religion and the spirit of liberty mix, but uneasily in the context of democracy.
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Essay 38: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subchs. 4-5)
Paul McNulty, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Paul McNulty, Essay 38: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 275 (Start at “On Religion”) – 282 (Stop at “On the Principal Causes”) of this edition of Democracy in America.
Religion and Democracy in America:
An Essay on the Observations of Alexis de Tocqueville
America’s Founding Fathers believed there was an inseparable link between faith and freedom. They were convinced that if one flourishes the other will as well and that liberty particularly would be at risk if religion and virtue diminished. The evidence of these shared convictions is unmistakable, as revealed in the quotations below. In addition, decades after it factored into the Framers’ crafting of the U.S. Constitution, De Tocqueville emphasized the foundational significance of religion in preserving American freedom. But why is this so?
In a free society, self-government is a prerequisite for social order. If citizens exercise self-restraint in relation to others and take responsibility for their well-being and that of their dependents, then freedom and limited government can be maintained. In the absence of self-government, freedom will diminish as various forms of coercive government power necessarily fill the void. Self-government requires the exercise of moral virtue, often referred to as public virtue. And moral virtue is generally and historically the fruit of sincere faith. This is why the Founders saw the great utility of religious belief.
John Adams, our second President, wrote, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” The father of our Constitution, James Madison, offered a similar insight when he observed that our form of government necessitated “sufficient virtue among men for self-government.” And perhaps the strongest statement on this point was offered by President Washington in his “Farewell Address” to the people of the United States in 1796. He wrote,
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports…. And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
The relationship between freedom, religion, and virtue has been insightfully described by some observers as the “golden triangle of freedom.” Freedom begets the exercise of religious belief, religious belief begets virtue, and virtue strengthens freedom. This was universally understood by America’s founding generation.
It should come as no surprise, therefore, that the essential interconnection between faith and freedom was among De Tocqueville’s key observations about our young nation. In his Democracy in America subchapter entitled “Of Religion Considered as a Political Institution, How It Serves Powerfully to Maintain the Democratic Republic among the Americans,” De Tocqueville notes, “Who could deny the fortunate influence of religion on mores and the influence of mores on the government of society [?]” Here the word “mores” is essentially the same as public virtue, a set of generally accepted moral norms within a community. De Tocqueville saw such mores as a powerful influence, both directly and indirectly, on the American political order and critical for sustaining freedom. He writes, “From the onset, politics and religion found themselves in accord, and they have not ceased to be so since.”
In his following subchapter entitled “Indirect Influence Exercised by Religious Beliefs on Political Society in the United States,” De Tocqueville affirms a non-sectarian value of religious belief. “There is an innumerable multitude of sects in the United States. All differ in the worship that must be given to the Creator, but all agreed on the duties of men toward one another. Each sect therefore adores God in its manner, but all sects preach the same morality in the name of God.” Moreover, De Tocqueville observes that some Americans may not be convinced of the truth of religion, but he is sure that they are convinced of its utility.
For De Tocqueville, religion typically entails various characteristics that are especially valuable for a free society. These characteristics include: a special appreciation for the equality of people and their inherent value; a commitment to strong family life; a love for order that “carries into the affairs of the State:” and, perhaps most importantly, a requirement of moral self-restraint that preserves liberty and influences public service.
De Tocqueville concludes subchapter 5 on a cautionary note, one that is strikingly relevant to our current political and moral climate. “How could society fail to parish if, while the political bond relaxed, the moral bond were not tightened?” In other words, the increasing polarization in our politics poses a serious threat to the preservation of our Constitutional order if public virtue continues down the current path. At the same time, the growth of secularism has weakened the religious foundations of our shared morality.
Many in today’s debates would strenuously resist making a connection. At the very least, the burden on those professing faith to demonstrate virtuous character has never been greater. Such faith-based morality is what the Founders were counting on, and what De Tocqueville saw as the greatest hope for America.
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Essay 37: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subchs. 2-3)
90 in 90 2024, Stephen Tootle, 6. Guest Constitutional Scholar Essayists, Blog Essay 37: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Stephen Tootle, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 274 (start at “On the Influence of the Laws…”) – 275 (On Religion) of this edition of Democracy in America.
Even the shortest sections of De Tocqueville’s writings often contained keen insights into the requirements of liberty. When describing the laws and mores required to maintain a democratic republic, De Tocqueville summarized what he had described in previous chapters. His summary gave us a remarkable insight into how American ideals and institutions had been working since the founding.
He understood that the very structure of our government encouraged and enabled a free people to keep their liberties. One key element of this structure was the interaction between the national government and local government. The national government had the power to protect the American people. Local governments gave Americans the ability to enact legislation meaningful to their everyday lives. But towns and the democratic institutions closest to the people had a special role to play.
Towns tended to enact and enforce laws that limited the evils of unchecked majorities. As these people and institutions did their work, every American learned the value of freedom. Courts could not stop majorities from enacting their desires forever. But the emotions of majorities could be slowed and directed. De Tocqueville saw that what the founders had intended did work in practice.
A metaphor can help to understand his point. Imagine an athlete competing in a sport over time. That athlete would come to understand the value of having the rules of the sport applied fairly. When the athlete won, it would be an earned victory. The people who watched the sport would become more invested in the sport because of the integrity of the contest. Thus, even when one failed to win, the athletes and spectators would come back for the next contest. Rules, when fair and followed, create a culture that leads to the best results over time. Further, even though a fan of a particular team or athlete might want to win one contest, over time a fan would learn the importance of protecting the integrity of the sport through effective officiating and rulemaking.
De Tocqueville understood how cultures and government systems interact with one another. Individuals have, “habits of the heart.” Those habits interact with others in society to form, “habits of mind.” Those collective habits form a culture. A government system on its own could never create a free culture for a free people, but governments could help maintain, encourage, or destroy a free culture. Over time, systems of government could allow a culture of a free people to continue and thrive. These lessons might seem simple or obvious, but their implications are as profound as the continued existence of a free government tending toward the prosperity of all people.
As each individual human being is infinitely complex, every single person contains untold conflicting and overlapping desires and values. The federal system, local governments, the practices of towns and judges, and the free culture of a free people did something very special to the complex, conflicting, and overlapping desires of individuals. The system enabled what Hamilton called for in Federalist 1: a political culture based on “reflection and choice” rather than “accident and force.” De Tocqueville’s record of how Americans lived in the early decades of the 19th century demonstrated that Hamilton was right.
Human nature has not changed since the days of De Tocqueville. What was true for them still holds for us. Culture is the sum of the values of individuals. Government institutions cannot force us to live good lives. But good government and good institutions can make it possible for people to live peaceful, prosperous lives of their own choosing.
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Essay 36: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 1)
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Val Crofts Essay 36: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Val CroftsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 264 (start at chapter 9 heading) – 274 (stop at heading “On the Influence of the Laws…”) of this edition of Democracy in America.
The Main Causes Which Tend To Maintain a Democratic Republic in the United States
The United States exists today as a federal democratic republic, which was part of the Founders’ plan to create the unique and effective system of government that we have lived under for 237 years. Our democratic republic has two elements to it. First, in our form of democracy, we let the citizens rule under majority rule in certain elections, as well as adhering to the concept of popular sovereignty: government that is based on the supremacy of the people. Second, in our republic, we give power to our representatives, who govern for their constituents. We have elements of both a democracy and a republic, balanced within our system of government, which was the Founders’ intent.
In the first part of Chapter 9, De Tocqueville examines the main reasons and causes of the democratic republic existing within the United States in 1831-32. Throughout his book, De Tocqueville states that his primary goal was to explain these reasons and causes. He believed that the main causes for them could be narrowed down to three main causes.
1. The situation that God (Providence) placed Americans
2. Our laws
3. Our habits and norms
This section looks at the main factors in maintaining our democratic republic. De Tocqueville narrows down the list of “a thousand circumstances” for the unique situation of the United States democratic republic to the main ones. He felt that as we had no neighbors around us who served as a military threat, we did not need to fear war or the possibility of conquest from neighboring nations. He believed that military glory and the need for conquest were fatal to past republics, but were not a concern to ours in the 1830s.
When De Tocqueville visited, the United States had a small capitol city that was not dominant over the entire nation’s politics yet. It was not controlling the lives of the citizens and making itself felt everywhere. U.S. citizens ruled themselves in small assemblies and participated within direct democracies to determine most of their day to day lives and issues. The people were allowed to be stewards of themselves. De Tocqueville felt it would be a breach of the representative system if the national capital ever tried to usurp the local control.
De Tocqueville speaks throughout his book of the “point of departure” of our nation from others, when the Puritans combined religious and personal liberty, bringing “equality of conditions and of intelligence” to our shores that would become the natural fabric from which our democratic republic would emerge. God also graced us with a natural place to foster this type of government.
He next speaks of Americans having a general “well-being” that exists here, due to the incredible riches that exist on the North American continent, which was described as a blank canvas waiting for emigrants to discover and farm upon. It creates a peaceful and content mindset, which runs contrary to societies that are angry and discontent and those feelings often come out as resistance and overthrow of governments. In the United States of 1831, De Tocqueville felt we did not have to worry about such things because we were so content.
God gave us this land in a pristine state, De Tocqueville notes, which was just sitting there waiting to be cultivated by future successful farmers.
He then discusses that most of the emigrants in the American West do not come directly from Europe there. Most European immigrants, in De Tocqueville’s observations, stayed along the Atlantic coast until they were able to be successful enough to move on to greener pastures of the West. This trend continued as settlers moved into the Ohio Territory. Many in Ohio and the former Northwest Territory also waited to accumulate personal wealth before moving West.
These emigration patterns led to a new type of primogeniture in the United States—one that did not exist by name, but because of condition. As families become more prosperous, the eldest will generally take the land in the East and the younger siblings go West to seek their fortune. This helps to keep large estates in the family and not parceled up among the family. De Tocqueville notes that this does not offend anyone and goes on without complaint. He cites enormous numbers that leave homes in the East and move West.
These situations God provided, along with a series of laws and habits that Americans naturally had during his visit in 1831-32 allowed for our nation to exist to be a perfect land for a democratic republic, according to De Tocqueville.
He shared his passion for learning by teaching AP Government and Politics, AP Human Geography, AP Comparative Government, AP U.S. History, U.S. History, and U.S. Military History. In his current role at the American Village, he works to create an engaging curriculum to help assist teachers and students of all ages to learn about American history, America’s Founders, and the legacy that they left for future generations.
In 2008, Crofts founded the Discovering Democracy program at Milton High School. Discovering Democracy immersed hundreds of students into government through public policy research and culminated with a weeklong field study in Washington D.C. His students were privileged to meet with top policy experts and national leaders such as then-Justice Ruth Bader Ginsburg, Justice Antonin Scalia, Justice Sonia Sotomayor, and former Speaker of the House, Paul Ryan.
Crofts was recognized for his teaching efforts in 2013 when he received the Crystal Apple Award for Teaching Excellence. He was also selected as the Wisconsin DAR Outstanding Teacher of U.S. History in 2020.
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Essay 35: What Moderates The Tyranny Of The Majority In The United States (Vol. 1 Pt. 2 Ch. 8)
90 in 90 2024, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 35: What Moderates The Tyranny Of The Majority In The United States (Vol. 1 Pt. 2 Ch. 8), 2024 - De Tocqueville Study, 14. De Tocqueville Study, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 250 – 264 (stop at chapter 9 heading) of this edition of Democracy in America.
Democracy in America: Moderating the Majority
In Democracy in America, De Tocqueville warns of the inherent danger to a democracy from “the omnipotence of the majority” and the tyranny that is naturally imposed on the minority. De Tocqueville offers some consolation to lovers of American democracy that certain factors in the United States work to hold in check some of that power.
Among these impediments, at least in the 1830s, to potential abuses were lawyers who collectively constituted an independent, non-partisan judiciary system and the authority vested in American juries. De Tocqueville believes that lawyers are naturally elitists and aristocrats and often think contrary to the general run of mankind, thus creating an obstacle the masses must overcome to impose their will on the minority. He also states that the American jury system, in which the people have the final say regarding which laws are just and if they have been equitably applied, is a significant check on the absolute power of the majority whose representatives create the laws.
But De Tocqueville argues the greatest check on the despotic tendencies of the majority is the simple fact that the central government has limited interest in directing the daily lives of its citizenry. De Tocqueville states that during his 41-month tour of the United States in 1831 he observed a central government that was concerned with very few aspects of American life, being almost solely interested in foreign affairs.
Based on his world of the 1830s and the federal government found in America at the time, De Tocqueville’s reasoning was sound. But things have changed since those early days of the republic and his words meant to give comfort to Americans now must give us pause in light of the current state of affairs.
In the America of De Tocqueville’s day there was no federal administrative state, and even President Jackson’s own cabinet only consisted of six departments. There was no Federal Bureau of Investigation to observe every move of a free citizenry, no Environmental Protection Agency to decide if people can use gas stoves in their own homes, no National Health Institute to determine that Americans need to wear masks and stand six feet from their fellow citizens, and no Transportation Security Administration to decide that two ounces of liquid is okay but never three.
The sheer lack of size and apparent lack of interest in the federal government in overseeing day-to-day life in America was, in De Tocqueville’s mind, a blessing to democracy. He mentions how fortunate Americans are that the federal government “has not undertaken to regulate secondary things in society” but provides a warning as well if that condition should ever change.
De Tocqueville writes, “…if having established the general principles of the government, it (the federal government) entered into the details of their application, and having regulated the great interests of the country, it could descend to the limit of individual interests, freedom would soon be banished from the New World.”
One wonders what De Tocqueville would say if he were to view the America of 2024 with its overarching federal government that touches every aspect of American life and is administered by those unelected by the people. It is easy to imagine that De Tocqueville would lament for the loss of true freedom in America, that ability to decide for ourselves how we would live, and he would probably predict a darkened future if somehow this cancer is not removed.
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Essay 34: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, Subchs. 4-6)
90 in 90 2024, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 34: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 243 (start at “On the Power that the Majority..” heading) – 249 of this edition of Democracy in America.
Democracy in America: The All-Powerful Majority
In De Tocqueville’s masterpiece, Democracy in America, De Tocqueville discusses at length what he terms the “omnipotence of the majority” found in democracies and how that all-powerful force is one of the greatest threats to liberty and freedom, the twin pillars of a democratic form of government.
It seems a contradiction that the greatest blessing of a democracy, the rule of the majority instead of the one or the few, should also hold in it the most likely place wherein lies the seeds for the possible destruction of democracy. But, as De Tocqueville points out, that is very much the case.
As De Tocqueville asks, “What is a majority, in its collective capacity, if not an individual with opinions, and usually with interests, contrary to those of another individual, called the minority? Now, if you admit that a man vested with omnipotence can abuse it against his adversaries, why not admit the same concerning a majority?”
De Tocqueville goes on to argue that this omnipotence can easily, and perhaps naturally, lead to abuse, one he terms the “tyranny of the majority.” Because they are the many against the few, the majority assumes a type of moral authority over society and woe be to him that questions this power. Where can he who confronts the majority turn for help? The executive is elected by the majority, and the legislature is as well. The police are, in De Tocqueville’s term, simply “the majority under arms.”
This all-powerful influence extends beyond the laws and the customs of a country; it even has a telling effect on the thoughts of its citizens. De Tocqueville argues that once the majority has determined what is “right,” all who oppose that opinion become outcasts of society.
In an example, De Tocqueville pictures an official telling someone out of step with the majority that “You are free not to think as I do; your life, your goods, everything remains to you; but from this day on you are a stranger to us…When you approach those like you, they shall flee you as being impure; and those who believe in your innocence, even they shall abandon you, for one would flee them in their turn. Go in peace. I leave you your life, but I leave it to you worse than death.”
Because the majority is insulated from the criticism, it lives in a state of “perpetual adoration of itself,” failing to ever conceive that they may be wrong. This develops into arrogance within the majority who begin to see their fellow citizens not as equals with a different outlook but rather as deplorable beings incapable of redemption.
The omnipotence of the majority also has a profound effect on our national character by encouraging the “spirit of the court,” that demeaning characteristic in which men crawl before others in positions of power to curry their favor. While that dehumanizing trait is typically the hallmark of a small cadre of nobility within an absolute monarchy, De Tocqueville argues that the courtier spirit is even more prevalent within a democracy where the many are within reach of the pinnacle of power, therefore making demeaning servility much more common place.
De Tocqueville concludes this discussion by stating that the greatest danger for American republics comes from the omnipotence of the majority. He writes, “If ever freedom is lost in America, one will have to blame the omnipotence of the majority.”
In laymen’s terms, De Tocqueville is cautioning that the minority in this country will only take so much before it pushes back, and that push back will be most unpleasant. This closing warning is ominous and one that today’s “thought-police” in America would be wise to recognize.
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Essay 33: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, Subchs. 1-3)
90 in 90 2024, Jeff Broadwater, 6. Guest Constitutional Scholar Essayists, Blog Essay 33: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Jeff Broadwater, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 235 (start at chapter 7 heading) – 243 (stop at “On the Power that the Majority in America…) of this edition of Democracy in America.
On the Omnipotence of the Majority in the United States and Its Effects
For De Tocqueville, unchecked majority rule within the states presented problems. The national government, he observed, was more independent of public opinion and largely limited itself to foreign affairs, leaving state governments to dominate American society.
De Tocqueville argued that state constitutions dangerously inflated the power of the majority. State legislators served short terms and were elected directly by the people, and so reflected “the daily passions of their constituents.” Bicameral legislatures failed to check the majority because both houses represented the same social class and both were popularly elected. The executive and judicial branches could not serve as effective checks. State governors, who were often selected by the legislatures for short terms of office, lacked the necessary independence. In several states, even judges were elected, and legislators controlled their salaries. Making matters worse was a growing tendency on the part of voters to limit lawmakers’ discretion with binding instructions.
Popular attitudes tended to enhance the authority of the masses. “The moral empire of the majority,” De Tocqueville wrote, “is founded in part on the idea that there is more enlightenment and wisdom in many men united than in one alone.” Americans also believed “that the interests of the greatest number ought to be preferred to those of the few.” They could accept what De Tocqueville called “the tyranny of the majority” because Americans were not divided by “irreconcilable interests;” minority parties could always hope to form a majority in the future. Unfortunately, he added, the will of the majority was so overbearing that it could not be delayed long enough “to hear the complaints of those it crushes,” a tendency that he warned could have dangerous consequences in the future.
The Omnipotence of the Majority and Legislative and Administrative Instability
Whatever dangers America’s freewheeling democracy posed to the nation’s future, De Tocqueville saw immediate problems in its legal system and in public administration. State constitutions aggravated the instability inherent in democracy—he assumed public opinion could change quickly and dramatically—by consolidating power in state legislators and then providing for their annual election. As evidence of instability, De Tocqueville pointed to the state constitutions themselves: almost all of them had been amended within the last thirty years. Ordinary statutes meanwhile proliferated. He considered Massachusetts to be the best governed of the states, but new bills passed by the Massachusetts assembly since 1780 had already filled three large volumes, and that was after an 1823 revision in which a number of obsolete laws were repealed.
Democratic instability also frustrated attempts to implement policy. De Tocqueville cited prison reform in Pennsylvania as an example. In the 1780s, reformers in the Keystone State–he apparently had the Quakers in mind—had pushed for the construction of new prisons built with rehabilitation in mind. But because the entire system could not be reconstructed at once, the older, more punitive prisons, which De Tocqueville described as “dungeons,” persisted, and once public interest in prison reform waned, grew even more brutal.
The Tyranny of the Majority
In addressing the tyranny of the majority, De Tocqueville confessed a personal dilemma: he deplored the idea that the majority had the right to do whatever it pleased, and yet he conceded that all legitimate political power was derived from “the will of the majority.”
De Tocqueville attempted to resolve his dilemma by appealing to universal principles of justice which transcended the laws of a single jurisdiction. When he refused to obey an unjust law, he wrote, he was appealing “from the sovereignty of the people to the sovereignty of the human race.” If one nation might abuse another, and if one individual might abuse a neighbor, why would we deny the capacity of a majority faction to violate the rights of a minority? He rejected “mixed government,” in which competing interests were combined to check and balance one another, as a solution. England, often cited as a model of mixed government, was, De Tocqueville argued, actually an aristocracy. Some superior “social power” would always exist, but justice required it be subject to a moderating influence.
Majority tyranny was rare in America, but when it erupted the law could not contain it. At the start of the War of 1812, pro-war mobs in Baltimore repeatedly attacked the offices of an anti-war newspaper and killed one of the editor’s defenders. In Pennsylvania, free blacks enjoyed a legal right to vote, but fearing white reprisals, feared to exercise it. The states, De Tocqueville concluded, needed executives and judges with greater independence and legislators who would represent the majority without being “the slave of its passions.”
Majority Power and the Arbitrariness of Officials
Majority support, De Tocqueville observed briefly, often permitted American officials to exceed their authority and act arbitrarily, a habit he feared might “one day become fatal” to freedom.
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Essay 32: What Are the Real Advantages That American Society Derives From the Government of Democracy (Vol. 1 Pt. 2 Ch. 6, Subchs. 3-5)
Jason Stevens, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Jason Stevens, Essay 32: What Are The Real Advantages Drive By American Society From Democratic Government, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 227 (Start at heading, “On the Idea..”) – 235 (Stop at Chapter 7 heading) of this edition of Democracy in America.
The Real Advantages Americans Derive from Democratic Government
De Tocqueville called America the “country of democracy par excellence.” To understand why, one must recollect the real advantages American society derives from democratic government. Among those numerous advantages Americans gain from living in a democracy, De Tocqueville argued, are the idea of individual rights, the respect for the law, and the vigorous political activity that reigns in all parts of the body politic.
1. The Idea of Rights
There has never been a great and prosperous people without some notion of individual rights. One of the key advantages of democratic society is respect for the idea of rights, especially the right of property. Americans seem innately to understand that the rights that they want to claim for themselves, and that they want to be respected by others, must belong to everyone in equal measure. The result is a form of the golden rule; so that one’s own rights are not violated, one does not attack those of others.
Through this idea of equal rights, the people over time learn the habits of living free. “One cannot say it too often,” De Tocqueville said, “There is nothing more prolific in marvels than the art of being free; but there is nothing harder than the apprenticeship of freedom.” As opposed to despotism, which pretends to be a quick fix for all of society’s ills but leaves everyone worse off and miserable, “Freedom…is ordinarily born in the midst of storms, it is established painfully among civil discords, and only when it is old can one know its benefits.” Freedom, in other words, is hard work, and it takes time to realize its advantages, but there is no surer path to individual and societal happiness.
2. Respect for the Law
In addition to the idea of rights, respect for the rule of law is another real advantage that American society derives from democracy. The respect Americans share for the law derives from the personal self-interest that each has for seeing the law obeyed and upheld by everyone. “[I]n the United States,” De Tocqueville claimed, “each finds a sort of personal interest in everyone’s obeying the laws; for whoever does not make up a part of the majority today will perhaps be in its ranks tomorrow.” Each follows the law because it is in one’s own interest that everyone obeys the law, which is the product of the people themselves. Since the majority are responsible for making the law, the people view obedience not as an act of servitude but as an expression of freedom. For in following the law, they are in effect ruling themselves: “However distressing the law may be,” De Tocqueville discovered, “the inhabitant of the United States submits to it without trouble, therefore, not only as the work of the greatest number, but also as his own.” Respect for the rule of law is the single greatest expression of self-government.
De Tocqueville is not saying, and democratic peoples do not believe, that there is no such thing as a bad law. Far from it. The argument is that bad laws, while they remain in effect, ought to be obeyed by everyone until such time as the people repeal them. “[T]he people in America obey the law not only because it is their work,” according to De Tocqueville, “but also because they can change it when by chance it hurts them.” In this way, respect for the rule of law increases the overall happiness of the people.
3. Political Activity
Finally, democratic government produces the vigorous political activity that is seen in all parts of the body politic. “When one passes from a free country into another that is not,” De Tocqueville mused, “one is struck by a very extraordinary spectacle: there, all is activity and movement; here, all seems calm and immobile.” Freedom creates energy and a willingness to labor that fuels “the prodigious motion of industry.”
Perhaps reflecting on his own first impressions of America, De Tocqueville claimed, “Scarcely have you descended on the soil of America when you find yourself in the midst of a sort of tumult…Around you everything moves.” In one place, the people gather to learn if a church should be built, and in another place, they deliberate on the choice of a representative; here, the people are restless to decide on some matter of local improvements (what we might call infrastructure), and there, they attend a town meeting to discuss the planning of a school or park. The mighty engine of self-government is always on the move, spreading and deepening the habits of freedom and the happiness of the people.
All in all, De Tocqueville suggests that if “the principal object of a government” is “to procure the most well-being for each of the individuals who compose it and to have each avoid the most misery”—if the purpose of government is to increase the happiness of the most people—then the answer is to “equalize conditions and constitute the government of a democracy.”
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Essay 31: What Are the Real Advantages That American Society Derives From the Government of Democracy (Vol. 1 Pt. 2 Ch. 6, Subchs. 1-2)
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Brenda Hafera Essay 31: Government By Democracy In America: What Are The Real Advantages Drive By American Society From Democratic Government (Vol. 1 Pt. 2 Ch. 6, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Brenda HaferaEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 220 (start at Chapter 6 heading) – 227 (Stop at heading, “On The Idea Of Rights…”) of this edition of Democracy in America.
How to Re-ignite Patriotism in America
Has patriotism become unfashionable? Last year, a Wall Street Journal poll reported that just 38% of Americans view patriotism as very important. That’s down from the 70% who said the same in 1998. The question is, why?
De Tocqueville, the famous French author who loved America, offers some insights. In his essay, “On Public Spirit in the United States,” he describes two kinds of patriotism, warns of the moments when patriotism fades, and offers a solution for patriotic renewal.
The first kind of patriotism is instinctive. People love their home, and that “love intermingles with the taste for old customs, with respect for ancestors and memory of the past.” This patriotism, more monarchical in character, rests on old orders and traditions. It ebbs and flows, reigniting and then subsiding in times of war and peace.
In contrast, republican patriotism is steady, and the citizen “interests himself in the prosperity of his country at first as a thing that is useful to him, and afterwards as his own work.” He connects his character and destiny with that of his country. Republican patriotism is based in reflection, practice, and self-interest. It “is born of enlightenment; it develops with the aid of laws, it grows with the exercise of rights, and in the end it intermingles in a way with personal interest.”
De Tocqueville was astonished and admired that such patriotism reigned in America, despite its citizens not having resided long on the land. He even quipped that a traveler could not criticize anything about America to an American, except perhaps the climate and the soil, “and still, one finds Americans ready to defend both as if they had helped to form them.”
But “sometimes a moment arrives in the lives of peoples when old customs are changed, mores destroyed, beliefs shaken, the prestige of memories faded away.” The land “become a lifeless land in their eyes,” and they are dismissive and disparaging of their ancestors and legislators. Neither form of patriotism appeals any longer to the hearts and minds of the people.
It is difficult to read De Tocqueville’s description of such a moment without thinking of our current time. Civic education is in a sorry state. We tear down statues and with them our memories, good or bad. Four out of 10 Zoomers believe the Founders can be more accurately described as villains, rather than heroes, according to psychologist Jean Twenge’s Generations. It is perhaps no surprise that patriotism matters less for the technological generations who have retreated to the online world and avoid in-person conflicts, or even everyday niceties.
De Tocqueville’s prescription for patriotic renewal is for men and women to participate in government and society. As he famously observed, Americans formed civic associations for even seemingly mundane tasks. Such involvement allows citizens to come together for the purpose of repairing a community center or conducting a fundraiser without care for partisan political disagreements. Engaged citizens begin to see each other as neighbors first, not political adversaries, and view differences through the lens of good will rather than suspicion.
More fundamentally, America’s political system being animated by consent of the governed affords citizens a sense of ownership of their country. It is the principle “all men are created equal” which demands public opinion be treated as sovereign, making that principle the ultimate source of American patriotism. To understand this more fully, we might turn to one of De Tocqueville’s most noteworthy American contemporaries, Abraham Lincoln.
When commemorating the 4th of July, Lincoln observed that many Americans were no longer direct descendants of those who fought the Revolution. As time went on, would the unity and patriotism of America erode? He responded that, as Americans look to the Declaration, they will find that they:
have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.
It is the Declaration that defines and unites Americans. It gives us a principle to strive towards, an ideal that we are asked to further and fulfill, inviting us to love America because it is good in its mission, even if imperfect. Perhaps the most significant source of the current decline of patriotism is that we no longer understand, and maybe even do not believe, the truth of this great principle.
Our call today is to take it seriously, to wrestle with it. We may find that it not only makes us patriotic, but ennobles us, both as individuals, and as a people.
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Essay 30: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subch. 15) of Democracy in America by Alexis De Tocqueville
Joseph Ledford, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Joseph A. Ledford, Essay 30: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 217 – 220 (to heading “What are the Real Advantages…”) of this edition of Democracy in America.
The Manner In Which American Democracy Conducts Foreign Affairs.
Governing the external affairs of a state involves a particular set of skills. Foreign policy requires the combined use of patience, prudence, secrecy, and long-term strategic thinking. It entails grave risks and difficult trade-offs. Decision-makers, who should be free of the passions that grip the people, must make cold-blooded calculations in the national interest. Such is the view of De Tocqueville. In contrast to the “good sense” of democracy guiding domestic affairs, De Tocqueville observes that foreign affairs demand these aristocratic attributes. Certain qualities of democracy stop at the water’s edge.
As De Tocqueville explains, American elites of the Early Republic possessed the leadership qualities necessary to ensure that democracy flourished at home while America advanced its interests abroad. Although seemingly a contradictory stance, De Tocqueville’s advocacy for their role in directing foreign affairs was not incompatible with his republican predilection. Rather, as he contends, aristocrats and commoners alike had a shared interest in the prosperity and security of the United States.
And it was none other than George Washington and Thomas Jefferson whom De Tocqueville saw as the Founding Fathers of American diplomacy. They charted the course for America’s engagement with the world.
Washington, the American Cincinnatus, impressed De Tocqueville above all with his “inflexible character.” De Tocqueville, who abhorred the French Revolution, admired how Washington’s adroit statecraft prevented a Franco-American alliance during the French Revolutionary Wars. In doing so, Washington had incurred the steep cost of bitter partisan politics over his stance of neutrality. Washington braved this domestic upheaval through the Genêt affair and especially during the implementation of the Jay Treaty with Great Britain. Despite these immediate repercussions, however, Washington’s approach to foreign affairs permitted the establishment of the nation in the long run. America eventually secured itself from the meddling of European powers, although it was hard-won through the Quasi-War and the War of 1812.
On September 19, 1796, George Washington’s Farewell Address appeared in Claypoole’s American Daily Advertiser, an eloquent political testament that resonated with De Tocqueville nearly four decades later. First drafted by James Madison in 1792, and then shaped by Alexander Hamilton in 1796, Washington’s Farewell Address makes the classic case for unity, neutrality, and reciprocity, all of which were needed to transform America into a great power.
In Democracy in America, De Tocqueville elects to include an extract from Washington’s Farewell Address. It highlights the first president’s timeless principles for conducting foreign policy. In the passage, Washington prevails upon Americans to seek free trade, abide by treaties, and avoid permanent alliances to keep Americans from involving themselves in European wars.
Washington aimed for peace and union, not war and disunion. This wisdom transcended political divides. Avoiding messy entanglements with European powers proved to be a bipartisan effort among American statesmen. Despite Jefferson’s fierce disagreements with Hamilton, De Tocqueville identifies Jefferson as a kindred spirit of Washington. Once an ardent political foe, the Democratic-Republican shared the Federalist’s vision for American foreign policy when he ascended to the presidency.
To demonstrate the continuity, De Tocqueville cites a maxim from Jefferson. It reflects the third president’s general position on how America should manage its relationship with other countries. “That Americans ought never to demand privileges from foreign nations in order not to be obliged to accord them themselves,” De Tocqueville quotes from Jefferson. In a footnote, De Tocqueville acknowledges that he cannot provide a source for Jefferson’s words. Nevertheless, this sage line captures the sentiment of Jefferson’s precept from his first inaugural address, in which he famously declared “peace, commerce and honest friendship with all nations, entangling alliances with none.”
“We are all Republicans, we are all Federalists,” Jefferson also proclaimed at his first inauguration. Indeed, De Tocqueville understood the conduct of American foreign affairs this way.
For De Tocqueville, as well as Washington and Jefferson, America was geopolitically exceptional. Given that the United States was located in the New World, the struggles of the Old World did not concern Americans. Without being mired in European power struggles, Americans could continue to grow their nation, develop their democracy, and thrive. One day, though, America would become powerful enough to pursue more ambitious external affairs.
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Essay 29: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 12-14)
Paul Carrese, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 29: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Paul Carrese, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 120 (starting at the heading “On The Election of the President”) through 130 (stopping at the heading “On The Federal Courts”) of this edition of Democracy in America.
These sub-chapters on America’s “Government by Democracy” address a crucial theme of the work: constitutional republic versus democracy. De Tocqueville befriends the new phenomenon of mass, egalitarian democracy, especially its success in America (so far). Yet as a genuine friend, he notes both weaknesses and strengths. His tough-love message: beware too much of a good thing. Too much democracy, and its ideal of equality, undermines America’s other great principles. These include: liberty and self-government; the rule of law; moral principles mostly stemming from Christianity yet sustained by religious liberty; and, striving for happiness (per the Declaration) in ways that ennoble life, not cheapen it. The tough-love messages in these sub-chapters address: public morality, particularly corrupt officials; can our democratic spirit sustain hard struggles (e.g. extended wars); can the people heed the wiser policy judgments of “statesmen;” and, can we exercise the self-control and far-sighted thinking necessary to survive and prosper in a dangerous world.
A crucial passage in the “Efforts” sub-chapter reiterates De Tocqueville’s praise of the United States as a federal republic with a complex Constitution (see e.g. Vol. I, Part 1, ch. 8 – praising the Constitution’s offices for statesmen in the Presidency and Senate, and elevated federal judges, balancing the democratic House). The Constitution keeps America a democratic republic, making the best of our democratic-egalitarian spirit. “Efforts” also notes that “a great democratic-republic has never been seen” ( 212). America is the first powerful, successful such republic in human history. However, here and in the sequel – on “the Power” of self-control American democracy shows – De Tocqueville wonders whether our “democracy,” the dominance in American politics of popular will, allows the necessary self-control and far-sighted thinking. In “Efforts” he concludes that democracy “will in the long term augment the real strength of society,” but aristocracies, monarchies, and despotisms still can gather more focused power (in the mid-19th century). Nonetheless, there is a path America could take, offering hope:
If a democratic country remained subject to a republican government for a century . . . it would be wealthier, more populous, and more prosperous than neighboring despotic [authoritarian] states; but . . . it would have run the risk several times of being conquered by them. (214)
Thus, another theme here: can Americans sustain the civic virtues – including “public morality” – to abide by our republican, constitutional forms of government; thereby sustaining a more honorable politics; and, finding policies to promote greatness and security. Today we don’t think of politics in terms of virtues, vices, or the character of the people and of our leaders; thus, we don’t use “statesman” regularly. Yet: looking across the 190 years since De Tocqueville published these sub-chapters, don’t they capture enduring issues of American self-government, along with predicting our survival – indeed, power and greatness – in a still-dangerous world?
Further ideas to consider:
Corruption and Vices of Those Who Govern in Democracy; Effects on Public Morality
Difficulty maintaining “public morality” in democracy; strong temptations to “vulgar” wealth-seeking by officials – and, to popular suspicions against officials – versus the dignity, honorableness, and “public conscience” a democratic-republic should seek.
Of What Efforts Democracy Is Capable
Phony, authoritarian democracy versus genuine.
De Tocqueville considers only the Revolutionary War an existential crisis for America; he never mentions the War of 1812. Yet, a few chapters ahead, he discusses the prospect of a civil war – over slavery. Can Americans sustain the taxes, and military service either voluntary or conscripted, needed in a war of survival? What wars has America fought to substantial victory since 1830? What wars in the past 60 years have we abandoned? How is America’s military faring after 50 years of the all-voluntary military policy? Democracies prefer peace; can make “a sudden and vigorous effort” in a crisis; but may not be capable of “braving great storms . . . for a long time” (p. 214).
Democracies lack a “clear perception of the future,” of the long-term value gained via difficulties, because “the people feel much more than they reason;” lacking the “enlightenment and experience” that authoritarian governments have regarding war, international challenges (p. 214).
The Power American Democracy Generally Exercises Over Itself
The wisdom of “statesmen” versus “the difficulty that democracy finds in defeating the passions and silencing the needs of the moment in view of the future;” that “the people are surrounded by flatterers,” and we often fall for the easy path offered.
De Tocqueville’s harsh criticism of Indians (the typical term in the 19th century), and the Spanish and indigenous peoples of South America, reflects a time when democratic republics were new and fragile; he emphasizes the basic reality that no people and politics is successful unless prosperous, ordered, and powerful enough to defend itself. Later in this Part he severely criticizes America for betraying the principles of the Declaration in its treatment of African slaves and indigenous peoples; but also predicts America will someday be one of the world’s two dominant states – standing for liberty – while Russia stands for authoritarianism. He praises America, even if flawed, for being ordered enough to achieve greatness – by securing the power to defy authoritarianism; yet this realistic lens also produces his harsh judgments about other peoples.
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Essay 28: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 4-5)
Samuel Gregg, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Samuel Gregg, Essay 28: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 199 (start at at heading “On Public Costs Under The Empire of American Democracy” – 210 (stop at heading “The Corruption and Vices Of Those Who Govern In Democracy…”)
Government By Democracy In America Vol. 1 Pt. 2 Ch. 5, Subchapters. 8-11 – Public Expenses Under The Rule Of American Democracy, Instincts Of American Democracy In The Fixing Of The Salaries Of Civil Servants, Difficulty Of Discerning The Reasons Which Persuade The American Government Toward Economy, Can The Public Expenditure Of The United States Be Compared With That Of France?
Though well-known for his political and social commentary, De Tocqueville devoted considerable attention throughout his life to issues of political economy. He was well-versed in the economic writings of thinkers like Jacques Turgot, Adam Smith, and John Stuart Mill. De Tocqueville also explored some of the pressing economic topics of his time in texts such as his Memoir on Pauperism (1835).
Educated Europeans of De Tocqueville’s era were well-aware of the burgeoning economic power of the American republic that he visited for 10 months between 1831 and 1832. In Democracy in America, however, De Tocqueville’s thoughts on economic topics revolved around questions concerning the effects of democracy upon government expenditures.
Public expenditures in Western countries in the nineteenth century as a proportion of national Gross Domestic Product (GDP) were much less than those of the twentieth and twenty-first centuries. But the advent of democratic government, according to De Tocqueville, was likely to increase pressures for ever-growing state spending.
In Democracy in America, De Tocqueville argues that citizens in democratic societies were expected to think more about the proper responsibilities of government. The more they do so, De Tocqueville states, the more that “a host of needs arises that they had not felt at first and which one can only satisfy by having recourse to the resources of the State.”
At the same time, De Tocqueville observes, democracies were more prone to sudden changes of policies. That meant many publicly funded government activities go unfinished or take on a haphazard character. This resulted in democratic governments making numerous “unproductive expenditures.” Such inefficiencies were compounded by the fact that “continuous surveillance” of public officials in charge of implementing budgets was lacking in America.
Working against these propensities to expand public spending, De Tocqueville notes, were the equalizing tendencies of American democracy. These generated skepticism about the worth of expending large sums on the “principal agents” of government.
Americans were willing to pay good salaries to “officials of secondary rank.” Yet their democratic instincts led them to spend less on “the great officers of the State.” The reason, De Tocqueville argued, was that Americans looked at such office holders through the lens of their own social and economic circumstances. This means, he wrote, that democratic society “give those who govern it hardly enough to live honestly”
That parsimonious mindset affected Americans’ willingness to engage in public expenditures on government buildings and public events. On one level, this reflected Americans’ habit of viewing this spending from the standpoint of their own often modest personal circumstances. But another element that disinclined Americans to support government spending on such things was the fact that Americans were as much “a commercial people” as they were “a democratic nation.” Habits like thrift, saving, and deferred gratification that dominated Americans’ business and economic activities discouraged them from attaching much worth to public displays of ornamentation.
De Tocqueville closes his commentary on public expenditures in America by comparing it to the situation in his native France. He stresses the difficulties of making such comparisons in light of limited information about this topic in both countries.
In France, De Tocqueville notes, the central government’s expenses were known, as were those of the eighty-six departments into which France was administratively divided. Expenditures at the town level, however, were unknown. A similar pattern, De Tocqueville observes, manifested itself in America. The Federal government published “the total of departmental expenditures.” One could also easily obtain “the particular budgets of the twenty-four states of which [the Union] is composed.” Yet at the level of county and town, De Tocqueville wrote, such information was near-impossible to find.
De Tocqueville nevertheless maintained that taxation and government expenditures in France were much higher than in America. For one thing, he noted, France had a much larger army and a navy that dwarfed America’s. France’s national debt was also larger than America’s because France had been subject to two invasions in De Tocqueville’s lifetime. America’s physical isolation from Europe, however, meant that it did not face this prospect.
That said, De Tocqueville thought that it was “mistaken” for the “partisans of democracy” to claim that democratic government “is genuinely economical.” Democracy, he argued, did not mean “cheap government.” There was nothing in democracy’s design, De Tocqueville believed, which would prevent it from raising taxes “as high among them as in most of the aristocracies or monarchies of Europe.” The moment that “great troubles came . . . to assail the peoples of the United States,” he fully expected America to increase taxes and its public expenditures.
In this, as in so many other matters, De Tocqueville proved to be correct.
Samuel Gregg is the Friedrich Hayek Chair in Economics and Economic History at the American Institute for Economic Research. In 2024, he was awarded the Bradley Prize.
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Essay 27: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 6-7) 196-199
Roberta Herzberg, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 27: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Roberta Herzberg PhDEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 196-199 (stop at heading “On Public Costs Under The Empire of American Democracy”) of this edition of Democracy in America.
An Analysis of Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 6-7) – The Arbitrary Power Of Magistrates Under The Sway Of American Democracy, Administrative Instability In The United States.
Today, many citizens worry that bureaucrats are unaccountable and unresponsive to the interests of majorities, while other citizens worry that the bureaucracies are too politicized and too open to manipulation. As we can see from these selections of De Tocqueville, this is a long-standing concern for democratic governance. In these chapters, De Tocqueville suggests that democratic systems can be as arbitrary and unstable as despotic states because democratic majorities, just as a despot, can press the administrators to follow their desires. As a result, he argues that democratic majorities do not worry about the power of administrators because they believe that those administrators work on their behalf. If interests of a democratic majority change, they can simply change the actions of the administrators or the administrators themselves. As De Tocqueville states:
In democracies, the majority being able to take power each year out of the hands in which it had entrusted it, also does not fear that it may be abused against itself. A master at making its will known at each instant to those who govern, it would rather abandon them to their own efforts than chain them to an invariable rule that by limiting them would in a way limit itself (196).
As a result, majorities and the administrators they directed could act at will to pursue the majority interests. De Tocqueville worried that this created an instability in society that permitted some potentially dangerous actions by bureaucrats. As he argues:
Nowhere has the law left a greater part to arbitrariness than in democratic republics, because in them, what is arbitrary does not appear fearful. One can even say that the magistrate becomes freer as the right of electing descends further and as the time of the magistracy is more limited (197)
He argued that responsiveness to the majority took precedence over consistent decisions that could form a meaningful rule-of-law.
As an alternative to this arbitrary rule, De Tocqueville suggests that democratic states divide power, as exists in a limited monarchy, which provides both the stability and the energy needed to create the proper balance between effective government and individual liberties. Under this divided plan, both the monarch and democratic majorities will prefer the adoption of regular rules for administrators to follow over the constant tug of war between these divided interests:
The same cause that brings the prince and the people to render the official independent brings them to seek guarantees against the abuse of his independence, so that he does not turn against the authority of the one or the freedom of the other. Both therefore agree on the necessity of tracing out a line of conduct in advance for the official, and see their interest in imposing rules on him from which it is impossible for him to deviate. (198)
The result is the beginning of the arguments in favor of a professionalized administrative state over one that is directly responsible to democratic preferences. Today, the professionalization of the bureaucracy under civil service rules, first established with the Pendleton Act of 1883 and updated by the Civil Service Reform Act of 1978, significantly reduces this link to democratic change that De Tocqueville feared. But, instead, it introduces the risk of severing the bond to democratic interests that made Americans not fear the magistrate. It may no longer be the case that the government is us in the way that De Tocqueville reflects in this selection.
For De Tocqueville, good administration required a balance of democratic input and knowledge of administrative science that only develops and matures with experience across generations: “the art of administering is surely a science; and all sciences, in order to make progress, need to bind together the discoveries of different generations as they succeed each other.” (198) He argues that the instability in a pure democratic system prevents such learning and growth and that this limited the effectiveness of American governance:
It is very difficult for American administrators to learn anything from one another. Thus, they bring to the conducting of society the enlightenment that they find widespread within it, and not knowledge that is proper to them. Therefore, democracy, pushed to its final limits, harms progress in the art of governing (199)
For De Tocqueville, the success of democracy depends heavily on the education and development of the citizenry. It is not surprising, therefore, that he focused so heavily in Democracy in America on the role of civil society as a training ground essential to the successful self-governance of a democratic republic. The skill sets built in those interactions act as a cross-pressure to the desire for constant and immediate change he associates with pure democracy. Without the voluntary art of association which he observed in his travels through America, such an unstable and arbitrary system would be untenable. These cautions come out clearly in Volume Two of Democracy in America, published just 5 years after these selections from Volume One, and are at the heart of his critique and analysis of The French Revolution in The Old Regime and The Revolution. De Tocqueville was a prescient analyst of the strengths and the challenges of building a properly functioning democratic system. We can learn much by continuing to keep his insights and cautions in mind.
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Essay 26: Government By Democracy In America: Influence that American Democracy Exerts on Electoral Laws
James Clinger, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 26: Government By Democracy In America Influence that American Democracy Exerts on Electoral Laws, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, James C. ClingerEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 192 (start at heading Influence that American Democracy Exerts on Electoral Laws) – 195.
In a span of a few pages in the first volume of Democracy in America, Alexis De Tocqueville discusses the implications of the frequency of American elections and the significance of the un-exalted position of civil servants in the United States. In each case, De Tocqueville’s arguments hinge on the importance of time horizons in understanding the behavior of public officials in the nation.
De Tocqueville visited the United States in 1831, along with his friend and collaborator, Gustave de Beaumont, officially to do research on penal conditions in the United States. This did result in a report that was presented to the French government, but of more significance was De Tocqueville’s book, Democracy in America. This was an analysis of more than government and politics, but also social conditions and a civic society that De Tocqueville believed gave rise to a form of governance that was unknown in Europe. De Tocqueville based his conclusions on observations carried out over several months. De Tocqueville visited seventeen of the twenty-four states then making up the union. He also briefly traveled through a bit of Canada. He only spent a few weeks in Washington, DC, so the bulk of what he learned about the country came from witnessing happenings outside the capitol. His observations also took place in a year in which no presidential or congressional elections were held. Much of what he learned came from witnessing politics and society at the local level.
Influence Which American Democracy Has Exercises On Electoral Laws
In remarking on the relative frequency of American elections, De Tocqueville claimed that “When election comes only at long intervals, the state runs a risk of being overturned in each election.” The parties involved perceive that there is much at stake in the election, and the winning side will “seize for themselves a fortune that comes so rarely within their reach.” If elections occur more frequently, the defeated candidates are more “patient.” In short, their time horizons adapt to the prospect of a change in their prospects in a soon to be held election. Frequent elections cause a good bit of “unrest for the state,” largely by the enactment of policies that are unstable since they are often reversed. Yet De Tocqueville believes that most Americans seem to have chosen the dangers of some instability over the threat of calamitous and tumultuous changes when elections are few and far between. Some of the founders, such as Alexander Hamilton and Thomas Jefferson, decried this instability in laws, but their concerns were not persuasive enough to sway most state lawmakers, who crafted the election laws. De Tocqueville’s conclusions were probably based on his observations of state and local elections, and their aftermath. There were no federal elections at the time of his travels to America.
Modern social science research has explored the implications of election frequency. Much of that research examines effects on voter turnout, rather than the behavior of candidates and parties. A phenomenon sometimes called “voter fatigue” or “ballot fatigue” has been found when elections occur frequently or if the ballots are too long. Under these circumstances, voter turnout declines as the number of elections increases over a fixed period of time. Because in America voters have opportunities to vote in federal, state, and local elections, often held on different days of the calendar, elections of some sort were and are held quite frequently. Party primary elections also add to the number of times that voters go to the polls, but primaries did not exist in De Tocqueville’s day. Some research does address the effect of the electoral cycle on the behavior of elected officials. In cases on elected officials with longer terms, such as U.S. senators, voting behavior in their chamber is relatively independent of their constituencies’ preferences but becomes more representative of constituency desires later in their terms as the next election approaches.
“Public Officials Under the Empire of American Democracy”
De Tocqueville also had much to say about the impact that the “empire” of American democracy had on public officials, particularly civil servants. One of the notable aspects of the way that public officials behave appears to be related to that they “remain intermingled with the crowd of citizens: they have neither palaces, nor guards, nor ceremonial uniforms” generally working without uniforms, badges, or distinctive ornaments of office that set them apart from the general population. In a democracy, De Tocqueville argued, “government is not a good; it is a necessary evil.” Public officials are “accorded a certain power” but beyond that any “external appearance of power” would “needlessly offend the public’s sight.”
This disdain for external and pretentious ornaments of office is also related to the issue of time horizons. Privileges (and power) of office “are passing; they depend on the place and not the man.” The administrative positions in office are temporary. They are paid positions, otherwise, the government would be staffed by wealthy amateurs who can afford to serve without official remuneration. This would create a “class of wealthy and independent officials, to form the core of an aristocracy.” In democratic states “all citizens can obtain posts” but “all are not tempted to solicit them.” In a sense, both formally elected and administrative positions are filled by the “principle of election.” The common voters select the elected officials, and the elected officials “elect” those holding administrative positions. In each instance, the appointments are temporary. They are not long-term, and they cannot be handed down from father to son. For that reason, “there is no public career, properly speaking” and officials have “no assurance in being kept in them [office].” Without the prospect of a long-term career, the pool of people who are both willing and able to work in government is restricted.
It is important to remember that De Tocqueville’s observations took place in a time in which both political and bureaucratic terms in office were much different than they are now. In those days, political careers were more time-limited and incumbent office holders had less advantage in elections than they do now. Furthermore, in De Tocqueville’s day there was no civil service system at any level of government. With the Pendleton Act in 1883, the federal government adopted a civil service system, which provided some job protection for government employees, and state and local governments adopted civil service in some cases before but often after the Pendleton Act. Whether this careerism that can be found in America over the last century or so has made the country less “democratic” is an issue that must be considered at another time.
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Essay 25: Government By Democracy In America
Dr. Colleen Shogan, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Dr. Colleen Shogan, Essay 25: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 187-192 (stop at heading Influence that American Democracy Exerts on Electoral Laws).
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De Tocqueville’s Democracy in America is known for its conversational writing about culture, government, and politics. But like all thinkers who blend theory and observations, De Tocqueville can be tricky. It is important to read De Tocqueville slowly and carefully so that we understand the full implications of his arguments.
At the beginning of the chapter, De Tocqueville gives us a hint about what is to come. He wrote, “I know here I am walking on ground that is afire. Each word of this chapter must offend on some points the different parties that divide my country. I shall not speak less than all my thought” (187).
What a remarkable introduction. He tells his readers that he knows his arguments are controversial, so much so that the topics he is about to discuss are on fire! While his opinions will offend almost everyone, he promises honesty in his analysis. These eye-opening sentences place the reader on high alert. We must proceed with caution.
What are De Tocqueville’s shocking revelations? First, he asserts that “in the United States, the most remarkable men are rarely called to public offices” (188). Why is this? Tocqueville argues that although many citizens in a democracy are well-meaning, they don’t know how to achieve the goals they desire (188). Also, democracy encourages envy in its citizens due to the powerful sentiment of equality (189). De Tocqueville comments that Americans “do not fear great talents, but they have little taste for them” (189). Democracy encourages talented citizens to shun a political career, since the vast majority of the electorate does not want them and oftentimes, they have better things to do, such as pursue private wealth.
This seems like a very dismal conclusion from De Tocqueville. If this is the case, then perhaps we should stop reading Democracy in America. The United States is a representative democracy. If democracy does not encourage good people to enter public service as representatives, then it seems as though democracy has no chance of succeeding.
However, it’s important to keep reading. Remember the beginning of the chapter. De Tocqueville likes to make brash statements which catch the attention of a reader. His style is similar to a top-selling thriller writer, who ends each chapter with a scary cliffhanger.
The first sentence of the next section indicates De Tocqueville is about to shift gears. He begins with this pronouncement: “When great perils threaten the state, one often sees the people fortunately choose the most appropriate citizens to save it” (190).
Wait one second! Didn’t De Tocqueville just argue that a problem of democracy is that its citizens don’t choose “remarkable men” for office? This is why De Tocqueville can be puzzling at times. He likes to make bold observations, and then provide counter arguments.
De Tocqueville has at least three caveats to offer, which challenge his pronouncement that representative democracy is endangered. First, when difficult circumstances present themselves, De Tocqueville argues that citizens in a democracy tend to select the best people to lead. This is a big qualification to his earlier argument. After all, the most critical time for a democracy to select the best people is during a crisis. If democracies succeed in picking qualified leaders at these moments, then much of the earlier concerns noted by De Tocqueville may not be valid.
Second, the “mores” (or culture) of a location affect the quality of government (191). De Tocqueville viewed the New England states as the best prepared in this regard, largely because they are the oldest functioning democracies in the United States (191). They’ve had more years to practice democracy, and as it turns out, they’ve gotten better at it over time. This seems a temporary problem, which should resolve as democracies age.
Lastly, De Tocqueville argues that America’s constitutional design is also helpful. While the House of Representatives attracts less distinguished individuals, the Senate is elevated in its membership and rejects “small passions” that can frustrate the public good (192). The bicameral legislative structure seems to mitigate some of the bigger worries De Tocqueville had about representative democracy.
So, which argument is correct? Is it the first notion that democracy frustrates or inhibits the selection of qualified citizens for public office, thus dooming it to failure? Or can we find hope in the second argument, which offers a much more positive assessment about democracy’s future?
Of course, that is why De Tocqueville is such a complicated thinker about democracy. He doesn’t provide all the answers. It’s up to you, the careful reader, to decide. De Tocqueville wants you to keep reading, and to apply your knowledge of history to evaluate his observations.
Remember, De Tocqueville wrote the first volume of Democracy in America in 1835. He could only study and observe about fifty years of American history to frame his opinions. Now, the United States has been a democracy for five times longer than that. This makes studying De Tocqueville today more relevant and compelling than ever.
Dr. Colleen Shogan, 11th Archivist of the United States
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Essay 24: On Political Association in the United States (Vol. 1 Pt. 2 Ch.4) of Democracy in America by Alexis De Tocqueville
Michael C. Maibach, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 24: On Political Association in the United States (Vol. 1 Pt. 2 Ch.4) of Democracy in America by Alexis De Tocqueville, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Michael MaibachEssay Read by Constituting America Founder, Actress Janine Turner
Alexis de Tocqueville On Political Association in the United States:
By Michael C. Maibach
In Democracy in America, De Tocqueville dedicates a chapter to “Political Association in the United States.” “The right of association is an English import, and has existed in America since the beginning… Of all the countries in the world, America has taken greatest advantage of association and has applied this powerful means of action to the greatest variety of objectives…
[The American] learns from birth that he must rely on himself to struggle against the evils and obstacles of life.” De Tocqueville has come from the Age of Aristocracy to visit the new Age of Equality. Here he found gone the safeguards of royal order, social standing, and the family name. In this classless society “In the United States, they associate for the goals of public security, commerce and industry, morality, and religion.” De Tocqueville coins the word “individualism” when writing of America. That word alone explains the deep desire of Americans to form voluntary leagues of all manner and size – what Burke called “little platoons.”
“After the press, association is the great means that parties use to get into public affairs to gain the majority. In America, the freedom of association for political ends is unlimited… An association consists of public support by individuals to a doctrine and the promise… of making those doctrines prevail.” Free speech engenders free association, which engenders the freedom of assembly. “There, men see each other; the means of action combine; opinions are expressed with the force and heat that written thought can never attain.” From assembly, parties may be formed – like a nation inside a nation. And it is parties who elect to office those who will make the changes around which all this gathering has inspired.
In America, he writes, political assemblies “do not have… the right to make laws; but they have the power to attack the one that exists and to formulate in advance the one that should exist.” American assemblies exist to lead opinions to change, not to force change through the violence of the mob. “In America, there are factious persons, but no conspirators.” His example is the 1831 Philadelphia convention convened around the Nullification Crisis. While Americans did not turn to violence then, it was ironically a forerunner to the Civil War of 1860 when political assemblies so sharply divided did come to blows.
De Tocqueville writes, “In America associations can never pretend to represent the majority; they only aim to convince it. They do not want to act, but to persuade; in that they are different from the political associations of Europe.” Why? “Of all the causes that cooperate in the United States to moderate the violence of political association, perhaps the most powerful is universal suffrage.” Because male citizens could cast a vote, those elected to office had a deep legitimacy under the designs of the Constitution. “In countries where universal suffrage is accepted, the majority is never doubtful.” The loyal opposition can write, debate, associate and assemble – but using force is never justified given the basic fairness of universal suffrage. “In America, the purpose of associations is to convince and not to compel.”
In sharp contrast, De Tocqueville writes that “In Europe, there are almost no associations that do not claim that they represent the will of the majority… Most Europeans still see in association a weapon of war… the thought of acting next preoccupies all minds. An association does not want to convince, but to fight… In Europe, associations consider themselves in a way as the legislative and executive council of the nation, which itself cannot raise its voice; starting from this idea, they act and command. In America, where in the eyes of all they represent only a minority of the nation, they speak and petition,” not act.
In summary, De Tocqueville’s thesis is that America’s universal suffrage – the idea of free and fair elections – has the great benefit of creating “the loyal opposition” we see in our political assemblies. They talk, assemble, petition, and campaign… they do not tear down the house. They do not turn to violence or law breaking.
But all of this could be at risk today. Americans’ faith in universal suffrage, in “election integrity” has become a significant issue for our Nation. Until a few years ago US election practices did not include ‘early voting,’ ‘ballot harvesting,’ ‘drop boxes’… and the repeal of voter ID requirements. In Virginia we have gone from Election Day to 145 days of early voting! Party poll watchers can monitor voting on Election Day. It is simply impossible for any party to monitor the polls for 145 days.
De Tocqueville closes by writing – “There are no countries where associations are more necessary to prevent the despotism of parties or the arbitrariness of the prince than those in which the social state is democratic. In aristocratic nations, secondary bodies form natural associations that halt abuses of power. In countries where such associations do not exist…a great people can be oppressed with impunity by a handful of factious persons or by one man.” Considering this, America cannot afford to have the mainstay of our faith in self-government undermined by radical, non-transparent election reforms combined with open borders. At some point public trust in our political system will be lost.
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Essay 23: Freedom of the Press in the United States (Vol. 1 Pt. 2 Ch. 3) of Democracy in America by Alexis De Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, George Landrith Essay 23: Freedom of the Press in the United States (Vol. 1 Pt. 2 Ch. 3) of Democracy in America by Alexis De Tocqueville, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, George LandrithEssay Read by Constituting America Founder, Actress Janine Turner
Freedom of the Press in the United States
By George Landrith, President, Frontiers of Freedom Institute
Our Founding Fathers saw freedom of the press as a foundational element of being a free and sovereign people. They had seen Redcoats arrest writers and destroy printing presses used to publish papers that were critical of Parliament and the Crown. So they made sure that our First Amendment specifically prohibited the government from abridging the freedom of the press and of speech.
De Tocqueville, a Frenchmen, came to study and analyze democracy in America and what made it work. His seminal work was the book – Democracy in America which he published in 1835. Not surprisingly, it includes an extensive discussion of freedom of the press.
De Tocqueville acknowledged that freedom of the press might be abused at times, but he also understood that freedom of the press, even with its imperfections, prevents great evils of abusive government power used to control and manipulate the people. He grasped that a choice between government censorship and a free press was actually a choice between servitude and independence. And like our Founders, De Tocqueville came down on the side of independence and individual liberty.
One of De Tocqueville’s observations was that in France, the newspapers were highly centralized whereas in America newspapers were dispersed, numerous and local. In America, nearly anyone could start their own newspaper or publication and could argue for the proposals or solutions that he or she thought best. Because of this freedom of the press, political information was widely available throughout the entire nation and covered many different perspectives. Thus, the American public was able to debate and evaluate the various political issues and in many cases come to a national consensus after a robust national debate. The wide array of newspapers and publications that enjoyed the freedom of the press played an important part in this national debate.
Among a free and sovereign people, determining what is true is our job. And we need a full spectrum of information and a robust debate to help us determine what is truth versus what is misinformation. The First Amendment’s free speech and free press protections are the best way to be sure we can decipher fact from fiction and truth from lies. Censorship has proven over hundreds of years to be a poor method for arriving at truth. Our founder’s believed this and interestingly, De Tocqueville came to a similar conclusion.
A brief review or comparison of societies across the globe throughout history reveals a great deal. Every totalitarian dictator in modern history has used censorship to empower themselves and to control and subjugate the masses. No dictator in modern history has protected the right of his political adversaries to express their views. Instead, the expression of dissent is seen as an act of treason and merely disagreeing with those in power can result in punishment.
As an inspired break from this trend of using censorship to control the masses, our Founders guaranteed that we could express our dissent and we could even peaceably assemble with the express purpose of stating our disagreement with the government’s actions.
Both our Founders and De Tocqueville wisely understood that we cannot hope to be a free and prosperous people if freedom of speech and the press is only allowed if the content is approved of by those in positions of government power. And we should never base our approval on the concept of a free press on whether we agree with the content.
I am confronted regularly with ideas and content that I believe to be wrong-headed, but its value is that it facilitates a robust public debate and that debate is an important foundational element of our nation’s freedom and strength. Even if I strongly disagree with the writer’s perspective, the answer is to honestly and fairly critique their argument and explain its errors and provide a better option. But it isn’t helpful to seek to silence them simply because we believe them to be wrong.
Another Frenchman, Voltaire, was quoted by his biographer, Evelyn Beatrice Hall, as having said, “I disapprove of what you say, but I will defend to the death your right to say it.” This is very much inline with the views of our Founders and De Tocqueville.
If we believe in freedom of the press only for those with whom we agree, then we don’t really believe in freedom of the press. Freedom of the press plays a fundamental role in a self-governing society where the people enjoy freedom. If we allow freedom of speech or the press to be eroded, the foundations of our liberty will also be eroded. So being pro-freedom of the press is simply being for American foundations of liberty and against government with totalitarian instincts. We can thank De Tocqueville for his keen powers of observation and analysis in Democracy in America.
George Landrith is the President of Frontiers of Freedom Institute – a public policy think tank devoted to promoting freedom, the Constitution, the rule of law, a strong national defense, free markets, and individual liberty. Mr. Landrith is a graduate of the University of Virginia School of Law, where he was the Business Editor of the Virginia Journal of Law and Politics. He is admitted to the bar in Virginia and California and is also a member of the United States Supreme Court bar. As an adjunct professor at the George Mason School of Law, he taught constitutional law and appellate advocacy.
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Essay 22: Parties In The United States (Vol. 1 Pt. 2 Ch. 2) of Democracy in America by Alexis De Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Horace Cooper Essay 22: Parties In The United States (Vol. 1 Pt. 2 Ch. 2) of Democracy in America by Alexis De Tocqueville, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Horace CooperEssay Read by Constituting America Founder, Actress Janine Turner
On Parties in the United States
De Tocqueville offers trenchant analysis of the political parties in the US at the dawn of the 19th Century.
At the time of his writing there was one large party that was dominant – the Republican Democratic party which ultimately came to be called the Democratic party. This party had managed to outmaneuver and outlive the Federalist Party and the Whigs.
In fact, today the so-called Democratic party is the oldest continuously existing party in American history. Founded in 1828, it is also the oldest political party in the world.
According to De Tocqueville, the longevity of this party isn’t a sign of its greatness, but, counter intuitively, a sign of its smallness.
To appreciate this insight, one has to understand De Tocqueville’s understanding of political parties.
He divided them into two categories – great and small. He wasn’t referring to size, instead he was talking about philosophy and impact.
Great parties are motivated by principles rather than by specific conflicts or disagreements. Great parties promote the interests of the whole nation rather than appealing to subset groups within.
In his view the then dead Federalist Party was in fact great. It was populated by some of the most prominent members of society and importantly of the Revolutionary War. Men like John Adams, Alexander Hamilton and John Jay.
These individuals and others like them had served in key roles during the War of Independence against Great Britain as well as within the first government set up by our Constitution.
In fact, many of these individuals were instrumental in the creation of the government in both drafting, and selling it to the American people.
Even after its collapse the Federalist party has had a lasting impact on the American system by laying the foundations for having a national economy, promoting the acceptance of a national judicial system and formulating principles of foreign policy.
In contrast, the Democratic party was viewed by De Tocqueville as a “small” party. Its issues agitate rather than support the broader society. Small parties he argues lack a political faith – that is remain constant on a principle regardless of circumstance. A small party is “stamped with a selfishness that shows openly in each of their acts.” De Tocqueville uses the National Bank as an example of the distinction between “great” and “Small” parties. He argues that the “enlightened classes” are generally in favor of the National Bank and the population at large are not.
Rather than focus on the benefits and costs of the National Bank – which was created by the Federalist party with that in mind – the Democrats used its unpopularity with the public as a wedge to have it eliminated.
This choice by a small party may help it succeed in the short run, but in the long run may not be great for society.
Remember, the National Bank was set up as a means of dealing with the war debt and to help fund the government’s other debts. It was empowered to issue currency as well.
Ironically, though the Democrats were successful in ending the charter of the National Bank in 1811, by 1816 a new national bank had to be created for many of the same reasons as before – this time the War of 1812.
However, even that Bank was ultimately killed by the Democrats. Nearly 100 years would pass before the Federal Reserve was created in 1912. Ironically another Democrat would sign the law creating the Federal Reserve (a national banking system) after the concept had been killed by a Democrat – Andrew Jackson in 1836.
If nothing else, the same political party could ultimately be on opposite sides of the national banking issue, demonstrating De Tocqueville’s point.
De Tocqueville claims that “great” parties try to unite the interests of the country while “small” ones carelessly divide them. In this case he uses the divide between the wealthy and the rest of the population as an example.
Whereas the Federalists supported laws that sought to protect the interests of all the citizens of the US as a “great” party would do, the Democrats sought to pit the broader American society against the wealthy.
In fact, this willingness to look at the broader impact of national policy led to the Federalist party not being nationally popular, according to De Tocqueville.
Only because the national government was so limited in its authority did this phenomenon not create great havoc in the first 100 years of America’s existence. But by the start of the 20th as the federal government expanded its authority, this wedge proved quite powerful in allowing for the creation of greater taxation and business regulation – the super regulatory state that exists today.
Whether political parties are “small” or “great” they still serve a useful purpose. De Tocqueville says that political parties are an “inherent evil” as they provide a constructive way for “factions” to compete with one another. In contrast, without parties there is the inherent risk that “rival nations” form within a given country and when those rivals are unable to resolve their differences then a civil war becomes likely.
While De Tocqueville made his observations nearly 3 decades before the US Civil War, his insights were quite profound. Many of the conflicts that the Federalists recognized – the importance of America being a thriving commercial republic vs an agrarian one, the broader goal of citizen equality (including blacks), and the benefits of limited government – were ultimately unable to be permanently resolved without military conflict.
Even though he had hoped that the competition among parties would allay conflict, his observations have largely held true.
Though today political parties may not be “great” their existence creates a way for Americans to work through their differences without physical force. Like them or not, for De Tocqueville that is a ringing endorsement for their existence.
Horace Cooper is a writer and legal commentator. He has appeared on CNN, MSNBC and Fox as well as in a variety of print publications. He is also a Research Fellow with the National Center for Public Policy Research, a Senior Fellow with the Heartland Institute and the Director of Law and Regulation at the Institute for Liberty.
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Essay 21: Why It Can Be Firmly Stated That In The United States It Is The People Who Govern
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Peter Roff Why It Can Be Firmly Stated That In The United States It Is The People Who Govern (Vol. 1 Pt. 2 Ch. 1) of Democracy in America by Alexis De Tocqueville, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Peter RoffEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references page 165 of this edition of Democracy in America.
It is important to remember that De Tocqueville’s masterwork was published early in the 19th century. It is a collection of observations about an America vastly different from the one in which we now live.
While some of De Tocqueville’s observations are truisms, holding true then, now, and always, it is only by approaching others while acknowledging the emergence of the modern liberal welfare state that we can see how far the nation has moved from its “small d” democratic roots.
Chief among these enduring notions is the concept of America as a self-governing people. De Tocqueville’s words in Chapter 1, Part 2 of Volume 1 of Democracy in America still resonate. The people are sovereign, wielding the ultimate authority over the state. They elect representatives to voice their concerns at the federal, state, and local levels in the executive, legislative, and sometimes even in the judicial capacity, a living testament to the enduring relevance of De Tocqueville’s observations.
With a few caveats, the system studied by De Tocqueville has weathered well most of the storms of the last two and a half centuries. The franchise has been expanded to the point that every law-abiding American citizen is eligible to participate in the electoral process, serve on juries, and be part of national, regional, and local governance. This evolution is a testament to the dynamic nature of our governance system.
That is not to say, however, that the Constitution upon which it is based is, as many like to argue, “a living breathing document that must keep up with the times.” It is foundational to the American system, “saying what it means and meaning what it says” as more than one pundit has said. The system changed because the people arguably wanted those changes and voted for them.
Consider the popular movement that brought about the direct election of senators. It was proposed and adopted through a constitutional amendment as an anti-corruption measure without much consideration being given to how it would abolish the institutional tensions purposely established between the states and the federal government.
It would be wrong to fault De Tocqueville for failing to anticipate changes that allowed the government to grow in size, authority, and power. The system we have now, which began to take shape under Woodrow Wilson and grew exponentially under FDR’s New Deal, LBJ’s Great Society, and the administration of the current president, takes it upon itself to fulfill many of the valuable and volunteer functions cited by Democracy In America as essential to American character and different from what could be found at the time in Europe.
What the voters, through their representatives, put in, they should be able to remove, again through their representatives. That this has not happened, even with the best efforts of presidents like Calvin Coolidge, Ronald Reagan, and Donald Trump, is a testament to the growth in the power of political parties and special interests, as De Tocqueville discusses later in Part 2 of Volume 1.
Nonetheless, the people still govern. They still have the ultimate authority because they still have the franchise. The agents of the administrative state often attempt to overlook that fact, as do members of the judiciary who frequently substitute their own interpretation, not just of the laws passed by Congress and the regulations issued by the Executive Branch and the plethora of independent agencies that populate the nation’s capital, but of the U.S. Constitution itself.
All that can be undone by the people should they choose to be serious once again about their liberty. It will be a costly enterprise, difficult to achieve unless common ground can be found among the badly polarized factions of the American populace that the vision of the nation as recorded by De Tocqueville is superior to what we now have. Without unity on that point, factionalism will expand, partisanship will increase, and the divide of people living side by side will grow.
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Essay 20: Tocqueville on the Distinctiveness of American Federalism – Volume 1 Part 1 Chapter 8
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Joseph M. Knippenberg Tocqueville on the Distinctiveness of American Federalism – Volume 1 Part 1 Chapter 8, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joseph KnippenbergEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 154 (starting at heading What Keeps The Federal System From Being Within Reach of All Peoples) – 161 of this edition of Democracy in America.
Tocqueville on the Distinctiveness of American Federalism (Democracy in America, Book I, ch. 8)
De Tocqueville’s discussion of “What Keeps the Federal System from Being within Reach of All Peoples” is a penetrating and challenging meditation on a certain kind of American exceptionalism. It is at once a tribute to the genius of the American Founders and to the enlightenment of the people for whom they legislated, and a profound appreciation of the serendipitous contribution of geography—America’s great distance from the European powers—to the success of their undertaking.
De Tocqueville identifies two vices inherent in every federal system—“the complication of the means it employs” and the “relative weakness” of the central (i.e., national, or as we say, federal) government. The first, he says, is “most visible,” while the second is “most fatal.”
The complexity has to do with the distribution of sovereignty between two levels of government, each operating directly on the people and each supreme within its limited sphere. This, De Tocqueville emphatically avers, is “conventional and artificial,” that is, not natural. What’s natural is for people to be governed by one source of power, to look to one capital as both the center of authority and the center of loyalty and affection. To undertake the careful discrimination between which government has authority to do what, to discern the limits of both state and federal government in their respective spheres, requires “a people long habituated to directing its affairs by itself, and in which political science has descended to the last ranks of society.”
Are we still capable of this? Our tendency to expect or seek national uniformity in legislation and policy, our impatience with the political and cultural diversity of the states, and our complaints about the “undemocratic” character of both the Senate and the Electoral College, certainly suggest that many of us have lost sight of the genius and subtlety of the original design.
De Tocqueville’s account of the weakness of the central government follows from what he believes about the naturalness of unitary government. Our national government is, he says, “a work of art,” the product of our constitutional design. For most of us, most of the time, it is a remote abstraction. On the other hand, “the sovereignty of the states in a way envelops each citizen… It takes charge of guaranteeing his property, his freedom, his life; at every moment it influences his well-being or his misery.” Indeed, he continues, this sovereignty depends on “all the things that render the instinct for one’s native country so powerful in the heart of man.”
To be sure, especially in times of international crisis, we need a strong central government, capable of defending us from adversaries. Our states by themselves are too small and too weak to meet the exigencies of such a moment. De Tocqueville describes an almost fateful choice between a weak government that leads to defeat and domination and a strong government that prevails only by becoming despotic.
It was America’s great fortune, he wrote in 1835, to have the Atlantic Ocean between it and the European powers, a natural defensive barrier that remedied the defects of a relatively weak central government and obviated the need for a strong one.
Now, we haven’t enjoyed this luxury since the end of World War II and the beginning of the Nuclear Age. Despite America’s status as a superpower, it remains vulnerable to other nuclear powers and to asymmetric threats (such as terrorism) from rogue states and non-governmental actors like al Qaeda and ISIS.
According to De Tocqueville’s prescient analysis, such a situation would seem to call for a strong central government, with its concurrent temptations to abuse and oppression, i.e., to despotism. We might then, in a sense, be forgiven for our own almost natural inclination to abandon federalism, paying attention to the federal government, rather than to the states.
But De Tocqueville’s argument suggests that we do so at our peril. As he argues elsewhere in Democracy in America (see, for example, Vol. I, ch. 5, on townships and on administrative decentralization), the scope of local and state politics matches both our imaginations and our concrete interests. The more distant and abstract those interests are (as in national policy matters), the less efficacious and engaged we tend to be, and the more abstract and ideological our positions tend to be. It would not surprise De Tocqueville at all for a largely national political scene to be dominated by hyper-ideological elites, which seems like an apt description of our current situation.
As I suggested at the outset, his remedy for this situation is to see to it that “political science [descends] to the last ranks of society,” so that we understand the vital role played by the states in our federal system. This is not just a matter of fidelity to a Constitution that has been in place for almost 240 years, but of informed allegiance to a political arrangement that engages our interest, protects our rights, and provides the basis for the kinds of political interactions where fellow citizens on opposite sides of an issue can work together to find a common ground.
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Essay 19: Federalism and Democracy – Volume 1 Part 1 Chapter 8 Sub Chapters 22
Will Morrisey, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Will Morrisey, Essay 19: Federalism and Democracy – Volume 1 Part 1 Chapter 8 Sub Chapters 22, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 149 (starting at On the Advantages of the Federal system Generally and its special Utility for America) – 154 (stopping at heading What Keeps The Federal System From Being Within Reach of All Peoples) of this edition of Democracy in America.
In order to construct modern, centralized states on the model advocated by Machiavelli, European monarchs weakened the aristocratic class, which had ruled the feudal states, characterized by weak monarchs and powerful landlords. Weak aristocracies meant increasingly egalitarian civil societies beneath the modern states, whether their regimes were monarchic or republican. For De Tocqueville, ‘democracy’ is not itself a regime, and equality is neither a natural or legal right; democracy is a social condition, one that must be understood clearly if it does not descend into despotism. As the most thoroughly democratized society in the world in the 1830s (this, despite slavery), America fascinated the young French aristocrat, living in the aftermath of the debacle of the French republicanism in the 1790s and of French monarchy in the 1780s and again in the Napoleonic Wars.
Differing from feudal states in their degree of centralization, modern states also differed from ancient city-states in size, being far larger in both territory and population. In small states, De Tocqueville remarks, “the eye of society penetrates everywhere” (as the song advises, “don’t try that in a small town”), ambitions modest (no Napoleon has arisen from Slovenia). In small states, “internal well-being” is prized more than “the vain smoke of glory.” Manners and morals are “simple and peaceful,” inequality of wealth less pronounced. Political freedom is the “natural condition” of small states; in all times, antiquity (Athens) and modernity (Switzerland), “small nations have been cradles of political freedom.”
They lose that freedom on those rare occasions when they do muster the power to expand. “The history of the world does not furnish an example of a great nation that has long remained a republic,” whether the nation is ancient Rome or modern France. That is because “all the passions fatal to republics grow with the extent of territory, whereas the virtues that serve as their support do not increase in the same measure.” The gulf between rich and poor widens; great cities arise, with their “depravity of morals”; individuals become less patriotic, more selfish. This is worse for republican regimes than for monarchies, as republics depend upon popular virtue while monarchy “makes use of the people and does not depend on them.” In sum, “nothing is so contrary to the well-being and freedom of men as great empires.”
This notwithstanding, “great states” enjoy some substantial advantages. Their cities are “like vast intellectual centers,” where “ideas circulate more freely” than in the more censorious atmosphere of small communities. The people are safer from invasion, since the borders are remote from much of the population. Above all, great states wield greater force than small states, which is “one of the first conditions of happiness and even existence for nations.” De Tocqueville “[does] not know of a condition more deplorable than that of a people that cannot defend itself or be self-sufficient.”
What, then, shall republican legislators do? The American Founders took the recommendation of Montesquieu: federalism, which (as Publius argues in the tenth Federalist), permits Americans to live in an “extended” republic, one that can preserve the virtues needed for republicanism while enjoying the advantages of a large modern state. While the Congress “regulates the principal actions of social existence,” it leaves administrative details to the “provincial legislatures.” [1] In a democratic republic, the people are sovereign; in the United States, the people have divided their sovereignty between the federal government and the “provinces” or states. The federal government attends to the general welfare of the nation, but can only act through specific, enumerated powers set down in the Constitution. It can reach into the states and rule their citizens directly, but not in all, and indeed not in most, things.
This is what allows democracy or civil-social equality to ‘work’ in the United States. Because the federal government organizes American foreign policy, the states need not take on the expense or the effort to defend themselves and so can concentrate their energies on internal improvements, just as small political communities are inclined to do. This spirit of economic enterprise is enhanced by the Constitutional prohibition of tariffs among the states, which makes America into a vast free-trade zone. The spirit of economic enterprise itself redirects ambitions toward peaceful commerce and away from military glory, the passion of aristocrats. Americans thereby unite “the zeal of citizens” with their self-interest. With no arms to purchase and no wars to sustain, among state politicians “ambition for power makes way for love of well-being, a more vulgar but less dangerous passion” than the love of glory, the passion of aristocrats. “Vulgar” means not-noble, not aristocratic but democratic. Federalism thus reinforces the democratic republican regime, unlike in the South American republics of the time, where republicanism extended over large territories but under centralized governments. In the federal republic of the United States, “the public spirit of the Union itself is in a way only a summation of provincial patriotism.” Combining civic participation with the spirit of commercial enterprise, Americans unite “the zeal of citizens” with economic self-interest, each passion moderating the other.
Thanks to the wisdom of the Framers of the United States Constitution, “the Union is a great republic in extent; but one could in a way liken it to a small republic because the objects with which its government is occupied are few.” The federal government exercises substantial power but in a manner “not dangerous to freedom” because, unlike a fully centralized government, it does not “excite those immoderate desires for power and attention that are so fatal to great republics,” whether in ancient Rome, modern France, or modern Brazil. Such desires that do arise “break against the individual interests and passions of the states,” jealous defenders of their own share of the popular sovereignty.
In the civil society of American democracy within a federal system, “the Union is free and happy like a small nation, glorious and strong like a great one.”
Note:
De Tocqueville uses the term “provincial” rather than “state” because his European readers associate statehood with sovereignty, which American states have only in part.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.
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Essay 18: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapter 21
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Marc Clauson On The Federal Constitution - Volume 1 Part 1 Chapter 8 Sub Chapter 21, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Marc ClausonEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 146 (starting at heading “What Distinguishes the Constitution of the United States of America from all other Federal Constitutions – 149 (stopping at On the Advantages of the Federal system Generally and its special Utility for America) of this edition of Democracy in America.
The French writer De Tocqueville traveled in and wrote about the culture and politics of the new American Republic between 1835 and 1840. His work has become a classic of political thought and is considered one of the most insightful analyses of the early Republic and its institutions. Democracy in America is De Tocqueville’s most important work, particularly for our consideration of the Constitution.
The question in subchapter 21 is a crucial one, even in current discourse on the Constitution. De Tocqueville asks what makes the American Constitution different from other constitutions. In his day, the American version was certainly not the only constitution in effect (even less so today). In addition, several elements set the American compact apart from other similar documents, such as Poland and France. De Tocqueville focuses on one aspect—a very important one. As he explains it, the most unique innovation of the American Constitution is that, unlike the previous Articles of Confederation, whose provisions only allowed the national government to operate on state governments as a whole, the new compact’s provisions operated directly on citizens of each state. Before, the state governments could, and sometimes did, simply refuse to follow laws enacted by Congress based on its powers. As De Tocqueville writes, “In America, the Union has, not states, but plain citizens, for those governed.” The new Constitution bypasses the states in the exercise of its enumerated powers.
This innovation might at first seem somewhat insignificant. But if one remembers the previous regime, it was the very problem of the inability of the Congress to enforce its powers that threatened the survival of the new republic. This flaw (at least in large part) drove the Constitutional Convention to take drastic action in devising a wholly new social compact. Even assuming common interests existed among the entire population and across all or most states, the possibility that each time Congress attempted to enforce its agreed-upon powers could lead to defiance on the part of even one state, and could inevitably incentivize more states to ignore the national government. The entire confederation might disintegrate.
Vincent Ostrom has elaborated on the political theory underlying the American Founders’ innovation, beginning with the foundational idea that “people as individual persons are the fundamental units to be considered in organizing any political association…The individual person is the doer of acts. The way each individual as a person relates himself to others is the basis of all social organization.” The fundamental reason for the existence of government is to establish order among individuals. Collectivities as a whole cannot make such decisions apart from the individuals constituting them. Moreover, individuals as individuals are the recipients of political order, as a given law or policy does not fall on an abstract entity called a state, but on natural humans, notwithstanding the occasional legal attribution of some corporate entities as legal persons. Even a decision affecting a corporation in the first instance eventually affects the individuals related to that corporation, not the “thing” called a corporation—for example, employees and consumers.
In addition, De Tocqueville and the American Founders recognized that laws needed to be enforced to be effective. But under the previous Articles of Confederation, sanctions amounted only to advice or suggestions. To be effective, laws had to be enforceable as against individuals, the actual actors. Without the design of the Founders, the very idea of a government and its goal would be thwarted, to the detriment of the citizens. Once again, one can see the uniqueness of the American Constitution. It would not be an overstatement to assert that the American constitutional system would not work, in fact, might collapse, without this innovation added by the Founders.
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Essay 17: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapter 20
90 in 90 2024, Adam Carrington, 6. Guest Constitutional Scholar Essayists, Blog On The Federal Constitution - Volume 1 Part 1 Chapter 8 Sub Chapter 20, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Adam Carrington, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 143 – 146 (stop at heading What Distinguishes the Constitution of the United States of America from all other Federal Constitutions) of this edition of Democracy in America.
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In this section of Democracy in America, De Tocqueville claims that the national constitution is superior to those found in the states. In making this case, he points to a broader purpose of his project.
As he stated early in the work, De Tocqueville thinks that a general movement toward democratic forms of government are inevitable, part of a Providential movement in history. Yet he believes humans possess the ability to make their democracies better or worse. Here, he notes two problems democracies tend to face. Both he claims the national constitution combats better than its state counterparts.
First, De Tocqueville writes that one danger for democracies is the possibility of “[t]he complete enslavement of the legislative power to the will of the electoral body.” One might think this point is a good thing, a feature, not a bug. Should not the lawmakers in a popular government follow the will of the people, who by definition are the sovereign in such regimes?
De Tocqueville does not deny the ultimate sovereignty of the people. But he wants the people to exercise their rule in the most thoughtful, moderate, and just way possible. The people do so best through representatives who themselves possess some ability to lead and thus to mold popular opinion rather than merely follow it. This balance, wherein the representatives truly represent but do so with some room to persuade, depends in large part on the terms of office lawmakers hold.
In the states, the lawmakers tend to hold one to two year terms, De Tocqueville notes. This made the representatives constantly dependent on the immediate, short-term views of the people. In that mode, the people could be prejudiced, passionate, and irrational, as all persons can be at certain points in life. The national constitution established longer terms—two years for the House and six for the Senate—with the idea that, “lengthened the time of the electoral mandate to allow to the deputy a greater use of his free will.” With some space between elections, lawmakers had some time to persuade voters, to appeal to their more settled, rational, and longer-term interests. That space would increase the chances of justice being served, not the mighty feeding on the weak.
Second, the French thinker states that democracies tend to result in “[t]he concentration, in the legislative power, of all the other powers of government.” The Americans had learned from another Frenchman, Montesquieu, that political power was by nature legislative, executive, or judicial and that free governments divided these tasks among distinct institutions. To combine them descended into tyranny, even if it was the people themselves combining the power.
But state constitutions had proven woefully inadequate in realizing the truth about separation of powers. Though having such a distinction on paper, the legislative power tended to dominate in practice; executives and judges became the puppets of the lawmakers. The national constitution reacted to these problems with a better structure.
The president as national executive would have a four year term, thus giving him the independence that came with length of office. Moreover, the legislature could not coerce him to act in certain ways by diminishing or eliminating his salary. Finally, De Tocqueville points to the veto, whereby the president could stop legislative attempts to minimize or eliminate his inherent constitutional powers.
Other guards existed for the judiciary. They, too, would have salary protections. But instead of a four-year term, the judges, once appointed, held their positions for life absent willing resignation or the difficult process of impeachment and removal. These judges need not succumb to legislative control but instead could exercise their own powers in ways that furthered their purpose and checked overreaches from other branches.
Taken together, De Tocqueville says the clear result was that, “the affairs of the Union are infinitely better conducted than the particular affairs of any state.” By this claim he meant the national government operated in a more moderate, wise, intelligent, stable, and firm manner. Doing so was about much more than simple efficiency. De Tocqueville saw in the national constitution mechanisms that preserved the people’s liberty against its many foes. The national constitution channeled decision-making the exercise of power in ways more likely to result in justice.
We would be wise to listen to De Tocqueville’s wise observations. It not only will make us better students of our own country. It might make us better citizens of it here and now.
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Essay 16: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Eric Wise Essay 16: On The Federal Constitution - Volume 1 Part 1 Chapter 8 Sub Chapters 15-19, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Eric WiseEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 130 – 143 of this edition of Democracy in America.
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On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19
“In the hands of seven federal judges rest ceaselessly the peace, the prosperity, the very existence of the Union. Without them, the Constitution is a dead letter…”
– Alexis De Tocqueville
The great observer of the American regime is Alexis De Tocqueville. An observer is most often distinct from a participant. De Tocqueville sees America from the outside.
But to say he sees America from the outside is insufficient. We are invited to ask from what vantage point of the outside does De Tocqueville observe.
It would be easy to conclude he observes from another great young democracy, France. After all, his subject, democracy in America, suggests that democracy is going on somewhere else.
Democracy in America was first published in 1835. This is the period of the July Monarchy in France, which began with the overthrow of one Bourbon monarch, Charles X, to replace him with another Bourbon monarch, Louis Phillipe. De Tocqueville could have accurately titled his book Democracy Today, given that democracy in America was at that time the only democracy game in town.
Why digress so? Because in reading De Tocqueville it helps to understand that, as astute an observer as he is, he is in fact an alien to the system in America. De Tocqueville truly knows only monarchy.
In this spirit he writes, “a federal government ought more than any other to desire to obtain the support of justice, because in its nature it is weaker, and one can more easily organize resistance against it.” Is this observation made because for an observer looking down from a monarchical perch, that is how the American system appears?
“In America, they have put this theory into practice. The Supreme Court of the United States is the sole, unique tribunal of the nation,” writes De Tocqueville. “Sole” reminds us of the root “mono”, which is one half the root of “monarchy”, which means rule of one. This idea foreshadows a potential corruption of the institutions of the United States, which we will get to later.
Let’s look at De Tocqueville’s perspective and then at the possible corruption.
De Tocqueville appreciates how the United States’ federal government and the United States’ state governments are both ground up institutions. That is, each part of the federal system represents delegations of sovereign authority from people to the government. The people of each state lend certain aspects of their sovereignty to the state governments, and the people of the United States lend their sovereignty collectively to the United States.
As De Tocqueville wrote, “The first question which awaited the Americans … was so to divide the authority of the different States…, whilst the entire nation, represented by the Union, should continue to form a compact body, and to provide for the general exigencies of the people.”
This sense of the sovereignty of individuals, which is the basis of consent in America, is bred in the bone. Perhaps the first instance of this practice occurs in Connecticut through the adoption of the Fundamental Orders of Connecticut without any reference to royal authority. As Thomas Hooker, a leading Puritan minister in New England, had said in 1638, well before Hobbes and Locke wrote any jot or tittle on the subject, “The foundation of authority is laid firstly in the free consent of the people.”
That ethos as reflected in the United States Constitution leads to dual sovereignties that are derivative of the sovereignty and consent of the people. With that dual sovereignty comes dual judicial systems, one state and one federal. And while De Tocqueville makes no mention of Puritans such as Hooker, he appears to understand this.
Thus De Tocqueville observes with interest that “It may easily be proved that the Union could not adapt the judicial power of the States….to enforce the laws of the Union by means of the tribunals of the States would be to allow not only foreign but partial judges to preside over the nation.”
But I venture an American of De Tocqueville’s time would have seen this procedurally requirement slightly differently, as they would not have admitted the possibility of a sole power precisely because there cannot be two sole powers, of course. If the sole power of the American regime is the consent of the people, then there is no room for judicial supremacy. De Tocqueville, one dares say, may have mistaken, ever so slightly, or as a modern man might say, subconsciously, the power of the Supreme Court with the power of a king.
This brings us to corruption. At the time De Tocqueville was writing the United States was experiencing a drought of new amendments to the Constitution, new affirmative and formal acts of consent, that began in 1804 and would not end until after the Civil War with the 13th Amendment. To fill the gap, the Supreme Court, after De Tocqueville, handed down the Dred Scott decision to settle once and for all a regime question that could only be resolved through the consent process. Justice Taney, the author of Dred Scott, assured a credulous President James Buchanan that the regime question of popular sovereignty set forth in his Dred Scott opinion, would put to rest the political instability over slavery that troubled the regime. Taney could scarcely have been more wrong.
Today we suffer from a similar drought of amendments, the last fully consummated and unified process for the 26th Amendment having been completed in 1971 (the 27th Amendment having been a drawn-out event that began as the Congressional Compensation Act of 1789). De Tocqueville might see the change as an example of the power of the Supreme Court analogous to a monarch. But from the perspective of an American participant it is hard to unsee it as the ebb of the true sole power in America, the people, which ought to be restored through a process like a convention of states, where the people of the United States might take on regime questions after the manner of the Founders, and in the manner the Founders intended, as reflected in Article V.
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Essay 15: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 11-14
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Tara Ross Essay 15: On The Federal Constitution - Volume 1 Part 1 Chapter 8 Sub Chapters 11-14, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tara RossEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 120 (starting at the heading “On The Election of the President”) through 130 (stopping at the heading “On The Federal Courts”) of this edition of Democracy in America.
American presidential elections have grown increasingly contentious in recent years—to say the least! Too many mistakenly blame the Electoral College, but Alexis de Tocqueville’s classic work, Democracy in America, offers a different perspective.
Indeed, his observations about American society in the early 1800s also included warnings that Americans should have heeded—but didn’t. No wonder presidential elections have become so acrimonious.
De Tocqueville, of course, lived at a time when countries around the world were (at least trying to) shake off monarchies, replacing them with elected leaders. Perhaps it’s unsurprising, then, that Democracy in America alludes to the change. A monarchy, with its relatively infrequent change in leadership, at least provides stability. Can a nation elect new leaders once every few years without too much disruption?
In general, De Tocqueville believes that elective systems undermine a nation’s stability, but he notes that this danger has been mitigated in America because presidential power is limited. To the contrary, “the preponderant power resides in the national representation as a whole,” De Tocqueville observes.
The modern American presidency, of course, looks nothing like the one that De Tocqueville studied in the 1830s.
A powerful President, De Tocqueville writes, makes for dangerous election seasons. One human being clawing for power is surrounded by others, also clawing for a piece of that power. “It is clear that the more prerogatives the executive power has,” De Tocqueville explains, “the greater the lure is; the more the ambition of the pretenders is excited, the more also it finds support in a crowd of [those with] secondary ambitions who hope to share in power after their candidate has triumphed.”
America during De Tocqueville’s lifetime didn’t have that problem. To the contrary, he marveled, “[n]o one has yet been encountered who cares to risk his honor and life to become president of the United States, because the president has only a temporary, limited, and dependent power.” The same applies to those who might otherwise want to help a candidate achieve the presidency. “The reason for this is simple,” De Tocqueville concludes, “having come to the head of the government, he can distribute to his friends neither much power nor much wealth nor much glory, and his influence in the state is too feeble for the factions to see their success or their ruin in his elevation to power.”
A too-powerful President can create other dangers, too, because the workings and direction of government become too dependent on a single individual. “The vaster the place that executive power occupies in the direction of affairs, the greater and more necessary its habitual action is,” De Tocqueville concludes, “and the more dangerous such a state of things is. Among a people that has contracted the habit of being governed by the executive power and, even more so, of being administered by it, election could not fail to produce a profound disturbance.”
An election is inherently “a period of national crisis,” De Tocqueville thinks, because everyone becomes overly focused on the approaching election. The interests of the country fall by the wayside. Nevertheless, things are even worse when a President runs for re-election.
He recognizes the dilemma facing the delegates to the Constitutional Convention: If a President is doing a good job, then Americans should have the option to re-elect him. On the other hand, De Tocqueville wonders if the dangers don’t outweigh the benefits.
“Intrigue and corruption are vices natural to elective governments,” he concludes. “But when the head of state can be reelected, the vices spread indefinitely . . . . [the incumbent] borrows the force of the government for his own use. . . . the care of the government becomes a secondary interest to him; his principal interest is his election.”
In an interesting twist, De Tocqueville remains impressed by the “mode of election” for American Presidents, recognizing that the Electoral College “express[es] the real will of the people.” He notes the difficulty in getting a majority to support any candidate “at the first stroke,” especially given the size and nature of the country. Electing a special body (the Electoral College) to make this decision struck De Tocqueville as an efficient process for reaching agreement on a candidate. It would also better reflect the will of the people than legislative selection.
America’s presidential election system, he concludes, “[is] a happy combination that reconciles the respect that is owed to the will of the people with the rapidity of execution and the guarantees of order that the interest of the state requires.”
In short, Democracy in America focuses on two factors that have historically made American presidential elections work: The limited nature of executive power and the structure of the Electoral College. The first of these has been severely undermined, and the second is under attack.
De Tocqueville would surely be unsurprised to learn that elections have turned ugly in recent decades.
Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).
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Essay 14: On the Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 7-10 of Democracy in America by Alexis De Tocqueville
Dr. Robert Brescia, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Dr. Robert Brescia, Essay 14: On the Federal Constitution– Volume 1 Part 1 Chapter 8 Sub Chapters 7-10 of Democracy in America by Alexis De Tocqueville– Guest Essayist: Dr. Robert Brescia– Pages 113-120, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 113 (starting at the heading “On the Executive Power”) through 120 (stopping at the heading “On the Election of the President”) of this edition of Democracy in America.
Executive Power; a Summary of Alexis de Tocqueville’s Comparison of the U.S. Presidency and the French Monarchy
“The executive power in France extends to everything, like the sovereignty – the king is one of the authors of the law. The president is only the executor of the law.”
“The president is hindered in the sphere of the executive power – the king is free in it.”
“The president possesses great prerogatives that he has no occasion to make use of – in what he does have occasion to execute, he is weak.”
Alexis Charles Henri Clérel, Comte de Tocqueville
It’s helpful to set the stage with the reminder that De Tocqueville was one the 19th century “big thinkers” – A French noble who analyzed political and sociological movements. He had an avid interest in the young United States, particularly its form of government. De Tocqueville was a classical liberal who espoused the governmental form of parliamentary government, wary, though, of the tyranny of the majority when in power. It is difficult, however, to assign a political ideology to De Tocqueville because he straddles the ideals of much of the political spectrum. The time of his visit to America was during the French monarchy (Louis XVIII and Charles X); “between the republics” period – between the First Republic (1792–1804) and Second Republic (1848–1852).
De Tocqueville’s thoughts about the American presidency and the French monarchy
Following are the main points of difference between the U.S. Presidency and the French monarchy that De Tocqueville points out in Democracy in America, starting with what he refers to as the most important difference:
1. Sovereignty in the United States is divided between the Union and the states, whereas among us (in France), it is one and compact. In the United States, the executive power is limited and exceptional, like the very sovereignty in whose name it acts; in France it extends to everything, just like the sovereignty.
2. The king in France really constitutes a part of the sovereign, since laws do not exist if he refuses to sanction them; he is, in addition, the executor of the laws. 3. The king of France participates in the formation of the legislature by naming the member of one house and putting an end to the duration of the mandate of the other at his will. The president of the United States does not concur at all in the composition of the legislative body and cannot dissolve it.
4. The king is represented within the houses by agents who set forth his views, support his opinions, and make his will prevail. The president has no entry into Congress; it is only in an indirect manner that he can influence the legislative process.
5. The power of the king of France has the advantage of longevity over that of the president – this makes the king feared because he wields power for a much longer time. The president is a magistrate who is elected every four years with one exception so far (Grover Cleveland, 1885-89 and 1893-97), while the king of France is a hereditary head – divine right to assume absolute power says it all. Whereas the U.S. president is indirectly elected by the people, the French king is appointed – usually succeeded by an immediate family member.
6. The king of France is the absolute master in the sphere of executive power. The president of the United States is responsible for his actions. French law says that the person of the king is inviolable. Like the Roman Catholic Pope, he is infallible when speaking “ex cathedra” (from the chair). The difference is that while the Pope has only spoken once ex cathedra, the French kings put out many edicts during their reigns. There can be no opposition to his rule.
7. De Tocqueville points out that in France, there must be an accord between the king and the chambers; that anything else invariably leads to an irresolvable struggle. That is not the case in the U.S. but if the U.S. president is of a different political party than the majority in one or two houses of Congress, there certainly is a struggle to get things done.
The framers of our Constitution had placed the utmost importance on the legislative branch and envisioned the executive branch as an action-oriented, puttin-laws-into-force branch of government. They realized that it is one thing to write a law and another to apply it and see that it is obeyed. Basically, the U.S. president is supposed to be a “doer” – an executor. Article II of the Constitution says that the president “must take care that the laws be faithfully executed” and that he must take an oath or affirmation to faithfully execute the Office of President. In our times, there has evolved a notion of the “imperial presidency” which deals with the enlargement of the powers of the office but that flies in the face of the Constitution and is reinforced by the mystique factor of the presidency, especially in recent years. De Tocqueville recognizes that there are “accidental causes that can increase the influence of the executive power – generally that is war because the president acts as the chief of the armed forces.
Summary
Alexis de Tocqueville’s service to our heightened understanding of the U.S. presidency is quite commendable. For example:
“Just now Washington contains the most important men of the whole Union. We no longer seek instructions from them on subjects of which we are ignorant; instead, we reexamine, in conversation with them, everything which we already know, more or less. We settle the doubtful points…”
His service is very valuable because it promotes a prominent level of questioning and “doubt settling” we should be undertaking currently. The nature of our political experiment can be considered as an early form of a complex adaptive system – constantly changing with the identity and the impact of independent variables weighing heavily upon it. That is something that historians do not focus on and something that political scientists should. The U.S. presidency has built up capabilities never imagined in 1832 because our society has become infinitely more complex to manage. Still, many Americans repel the notion of a monarchy as much as they did when King George III was the King of England.
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Essay 13: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 5-6
90 in 90 2024, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 13: OnTheFederal Constitution- Volume 1 Part 1 Chapter 8 Sub Chapters 5-6 Guest Essayist: Chris Burkett– Pages 110- 113, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 110 (starting at the “Legislative Powers heading”) – 113 (stopping at the “On the Executive Power Heading”) of this edition of Democracy in America.
Alexis De Tocqueville: On The Federal Constitution
“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic.” (Alexis De Tocqueville, Democracy in America).
As De Tocqueville notes, the Constitution of the United States is federal in nature. This makes it quite unusual – in fact, unique – among all historical constitutions in Europe. This is so, in part, because Americans have discovered a new understanding of what “federal” means, which in turn requires De Tocqueville to carefully point out to his European readers some subtle characteristics of the Constitution.
De Tocqueville begins to explain the federal nature of the Constitution of the United States by describing what he calls “Legislative Powers.” By this, De Tocqueville means to show how the bicameral Congress is composed of two legislative bodies – a House of Representatives and a Senate – and, though the concurrence of both is needed to pass laws, each has some unique characteristics, responsibilities, and powers. This difference between the two houses of Congress arises from the compound nature of the American political union: it is intended, by the Federal Constitution, to be a union of the whole American people under a national government with national laws, while each of the member states simultaneously retains its own government, laws, and powers.
This compound or “federal” nature of the American Union and Constitution is an important factor in shaping American democracy, but was established legally in the new Constitution as a way to reconcile the natural tension that would exist between a national government and a state government. De Tocqueville reveals how this new kind of federalism came into being, beginning with the first attempts at establishing a government for the Union during the American Revolution. In the years when the Articles of Confederation were legally in effect (1781-1787), disagreements rose to the surface in the Confederation Congress over whether the Union of the American states comprised a real nation or a mere treaty-based agreement between sovereign and independent nation-states. As De Tocqueville writes:
“[T]wo opposed interests were presented to each other. Those two interests had given birth to two opinions. Some wanted to make the Union a league of independent states, a kind of congress, where the representatives of distinct peoples would come to discuss certain points of common interest. Others wanted to unite all the inhabitants of the former colonies into one and the same people.”
These were the prevailing opinions when the Confederation Congress authorized a Federal Convention to meet in Philadelphia in 1787 to discuss amendments to the Articles of Confederation. Delegates such as David Brearly and Robert Paterson of New Jersey, for example, strongly defended the former point of view that, in order to protect the various interests of the states, the Union should be more like a treaty-based league with a very limited general congress. Others, such as James Madison of Virginia, argued for the creation of a national union under a strengthened national government with real legislative powers. From the beginning of the debates at the Convention, when delegates agreed to create a bicameral legislature it became clear that this question would be resolved primarily through the composition of the two bodies of Congress (the House of Representatives and the Senate). Brearly and Paterson, among others, insisted that each state be equally represented in both houses, and that members of each house be selected by the state legislatures, ensuring that the interests of the states would be sufficiently expressed, supported, and protected in Congress. Madison and his supporters, on the other hand, insisted on creating a national government in which each state would be represented proportionally (based, for example, on population) in both houses, and in which state legislatures would select members in either house of Congress.
Ultimately delegates agreed to compromise on these questions (as proposed in part by Roger Sherman and Oliver Ellsworth of Connecticut): the states would be proportionally represented in the House of Representatives by members elected directly by the people; and the states would be represented equally in the Senate by members chosen by the state legislatures. By this compromise the framers established a Constitution that was “partly national, partly federal.” De Tocqueville writes:
“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic. The legislators adopted a middle term that reconciled by force two theoretically irreconcilable systems. The principle of the independence of the states triumphed in the formation of the Senate; the dogma of national sovereignty, in the composition of the House of Representatives.”
With careful insight, De Tocqueville reveals the uniquely complex nature of the Constitution of the United States in the composition of Congress, as an important factor of American democracy.
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Essay 12: On the Federal Constitution– Volume 1 Part 1 Chapter 8 Sub Chapters 1-4 of Democracy in America by Alexis De Tocqueville
Robert Lowry Clinton, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 12: On the Federal Constitution– Volume 1 Part 1 Chapter 8 Sub Chapters 1-4 of Democracy in America by Alexis De Tocqueville– Guest Essayist: Robert Lowry Clinton– Pages 105- 110, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Robert Lowry Clinton PhDEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 105 – 110 (stopping at the heading “Legislative Powers”) of this edition of Democracy in America.
“…what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.” (Alexis De Tocqueville, Democracy in America).
Alexis De Tocqueville: On the Federal Constitution
After a brilliant introduction expounding the rise of democratic inclinations in Europe during the centuries leading up to the colonization of America, followed by seven chapters exploring socio-economic, geographical, cultural and political conditions on this side of the Atlantic, De Tocqueville turns to a peremptory discussion of the Federal Constitution in chapter 8. Beginning with the history of the Constitution’s emergence out of the earlier Articles of Confederation, De Tocqueville emphasizes the colonists’ strong connections to England before the War of Independence, noting the sharing of religion, language, mores and laws among the Americans and the English. This sharing, however, was not enough to prevent the War of Independence.
During the War and its immediate aftermath, the Americans were governed by the Articles (written in 1778 and adopted in 1781), which repudiated a complete union in favor of a confederation of individual states. De Tocqueville explains that once the War commenced, the principle of union prevailed anyway in the face of a common enemy. However, when the public danger subsided, states resumed their original and entire sovereignty.
The states disunited proved disastrous, exposing the states to dangers both foreign and domestic. Before long, Congress recognized its’ impotence and called for a convention to address the problems and revise the Articles. The “revision” thus produced by the Convention of 1787 turned out to be a complete replacement of the Articles, resulting in our present written Constitution.
De Tocqueville extols the greatness of the American founders in heeding the warning of the dangers of disunity, acting with resolve yet patience in devising a remedy, and accepting the remedy—though controversial—without bloodshed:
“…. what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.”
After a brief comparison of the American and French Revolutions, attending to the most obvious differences between the two wars, De Tocqueville proceeds to a summary of the Federal Constitution, stressing the crucial distinction between the character of the powers granted to the nation and those left to the states. Since the goal of the nation is to respond to “a few great general needs,” its powers are “simple and easy enough to define”. Since the goals of the state are “multiple and complicated,” thus retaining “the common rule,” their prerogatives cannot be so easily defined. De Tocqueville perceives the inevitability of conflict between state and national governments, and suggests that the Supreme Court was created, in part, to avoid having such disputes left to individual state courts.
Relying heavily on The Federalist, De Tocqueville examines more closely some of the intricacies presented by this constitutional system. For example, some national powers are made exclusive, others not. Where national power is not exclusive, states can govern freely, subject to the intervention of courts if they abuse their freedom and “compromise the security of the entire Union.” Thus the Federal Constitution establishes both a republic and a confederation, both federal and confederal.
De Tocqueville closes his section on federal prerogatives by giving some examples suggesting that on some points (e.g., having a single national court to interpret the law and a single legislature to impose taxes on everyone and commercial regulations on the states), the American Union is more centralized in some ways than some European monarchies! Though this seems a bit of a stretch, maybe not. Perhaps De Tocqueville was echoing the earlier fears of the Anti-federalist “Brutus” when he suggests in the one-sentence section that follows (entitled “Federal Powers”) that it might be difficult to confine the national government to the exercise of its delegated powers?
In sum, De Tocqueville’s preliminary remarks on the Constitution are generally sound and most helpful in drawing attention to the most important feature (and problem) of the constitutional order it established: the dual sovereignty embodied in the federal system. And in the last analysis, his cautionary suggestion about the difficulty of preventing future concentration of power in the national government would prove fully justified.
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Essay 11: On Political Judgment in the United States Volume 1 Part 1 Chapter 7 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, Andrea Criswell, 6. Guest Constitutional Scholar Essayists, Blog Essay 11: On Political Judgment in the United States Volume 1 Part 1 Chapter 7 of Democracy in America by Alexis De Tocqueville, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Andrea Criswell, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 100 – 104 of this edition of Democracy in America.
Alexis De Tocqueville: On Political Judgment in the United States
“[Political jurisdiction is] to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future.” (Alexis De Tocqueville, Democracy in America).
“Take one for the team”! Maybe Washington, maybe Hamilton, patented this unheard of paradigm shift, but the idea set in motion a constitutional republic that would require more from the elected than any other time in history. Adding a unique feature, in regard to public officials, the Founders took it a step further, one that would keep democracy on the up and up. Alexis De Tocqueville recognized this feature, he caught the nuance in regard to political jurisdiction saying it is, “to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future.” It allowed public servants to be judged among their elected peers, without criminalizing them. In America’s version of political jurisdiction it could not be used as a partisan weapon, it required deep trust of the elected, and it tethered leaders to a higher accountability. These three distinctions will be considered here.
Be slow to impeach. The temptation to override is currently strong in the political atmosphere. Take what you want politically by force. The Founders feared this, and set in motion a unique take on political jurisdiction which would require a respect for the law no matter who was elected. If the people, by free and fair elections, selected a person to govern, then that person should be protected from impeachment being used as a partisan weapon. It is this very reason that only the public official called forward by the House of Representatives can be labeled an offender. Protecting against false accusations, the Senate judges the offense. What surprised De Tocqueville was that this only included removal from office, not justice through the penal code. The House could call for impeachment, and the Senate could enact impeachment, but neither could take away the personal liberties of the offender. That was out of their jurisdiction. Radically different from the structures in both England and France, the Founder’s plan limited impeachment for the purpose of protecting the choice of the governed.
Trust the law. In times of uncertainty, the governed must trust the checks and balances of the law and not take matters into their own hands. Obedience to authority is a wonderful fail safe when the elected is your chosen candidate, but when your candidate is not chosen, it requires great maturity to work under the leadership of someone you do not agree with. Order is a protective measure against chaos. It blesses all who sit in its shade. The shade as seen in political jurisdiction in the United States is that the leaders are tethered to something greater than themselves, the law, which supersedes agenda. Usurpation is only acceptable when the elected dishonor the law. However, in modern America trust in elected leadership has been broken and most of the governed do not understand the law. This is a concerning combo that the Founders feared.
To hold office. A little phrase with great power. When seen through a lens of selfish ambition this power brings an elected person self-promotion. Seen through the lens of service, it garners benefit for the governed. Political jurisdiction is intended to protect the elected while establishing office void of selfish ambition. What a difference a lens can make. This is where free and fair elections apart from gerrymandering are so important. The balance between recognizing the possibility of human failure and the tension between freedom of choice and the law is real. The elected person is imperfect, but the law holds their imperfection in check. Accordingly, political jurisdiction is, in De Tocqueville’s words, “despite its mildness and perhaps because of its mildness, a very powerful arm in the hands of the majority.”
This is not “your father’s” democracy. Liberty requires more. The republic is a standard of law for all people, to be honored and upheld equally by both the elected and the governed. It was understood that the elected would place their own natural tendencies aside out of respect for the law, and that the governed would place their natural tendencies aside out of respect for the elected. This mutual agreement of giving and receiving would allow them to accomplish something the world had never seen. De Tocqueville reminds us today that America’s system of political jurisdiction sets American democracy apart. If it breaks down, she will become just like other democracies. Without this unique balance, America will not embody liberty in its truest form.
Andrea Criswell is a wife, mother, and homeschool teacher in the northwest Houston area. Graduating from both Texas Tech University and Asbury Theological Seminary, she teaches Christian Worldview classes. Her passion is helping high school students become responsible young adults who critically think and learn how to solve problems.
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Essay 10: On Judicial Power in the United States and Its Action on Political Society – Volume 1 Part 1 Chapter 6 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. Essay 10: On Judicial Power in the United States and Its Action on Political Society – Volume 1 Part 1 Chapter 6 of Democracy in America by Alexis De Tocqueville – Guest Essayist: Kevin Gutzman, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Kevin R. C. Gutzman M.P. Aff. J.D. PhDEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 93 (starting at chapter 6) through 99 of this edition of Democracy in America.
Alexis De Tocqueville entitles Volume One, Part One, Chapter 6 of Democracy in America “On Judicial Power in the United States and Its Action on Political Society.” He attempts to describe American judicial institutions as if they were all of one model, along the way comparing them to the French courts more familiar to him and to his intended readers. Particularly notable to De Tocqueville as a foreign observer was the political role of American courts that we Americans have come to take for granted. “ The judicial power[‘s] … political power is so great,” he explains, “that it appeared to me that to speak of it in passing would diminish it in the eyes of readers.”
Federal, republican, and elective governments are not peculiar to America, this Frenchman notes, but the American judiciary is unique. Its weight is felt in every political discussion. In regard to particular cases, it exercises its power as other countries’ judiciaries do — “as an arbiter” between parties, “on particular cases and not on general principles” (that is, not on an advisory or legislative basis), and “only when it is appealed to” (that is, when a case is properly brought before it).
Yet, American judges, De Tocqueville insists, have political power of a remarkable kind: “Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws.” What he has in mind is that American judges exercise the power of judicial review, which he classifies as political, not legal. To an American, this distinction is jarring. We have all been indoctrinated in the idea, captured in Article VI of the United States Constitution and forcefully said to have been the bedrock of judicial review by Chief Justice John Marshall in Marbury v. Madison, that judicial review is precisely a legal function, that what is happening when a judge says a statute is to be inoperative (“struck down”) on the basis of unconstitutionality is that inferior law is being made to yield to superior law. As Marshall put it, “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
It was by political acts that the sovereign states, following the Article VII ratification process, put the U.S. Constitution into effect, yes, but determining whether a law is constitutional in a case brought before it by one of the parties is for an American court a legal task, not a political one. De Tocqueville essentially concedes this point without making it when he notes that in America the people can, when they so desire, change a constitution (state or federal).
After comparing the relationships between law and constitution in the American system to the relationships between law and constitution in France and in Britain, De Tocqueville asserts that there is little to fear from judicial decisions holding laws unconstitutional, as they will only affect the particular cases the judges are deciding. Whether a statute will be repealed because unconstitutional is a question that will only be decided after several related cases have been adjudicated. Here our author is simply mistaken: decisions holding statutes unconstitutional have commonly had immediate and general effect since American courts first exercised the power of judicial review.
De Tocqueville next asserts that judges exercise the power of judicial review only despite themselves. They have no impulse to do so, he says. We are familiar with numerous instances in which Americans certainly were, or at least seem to have been, anxious to exercise the power of judicial review. At least one of them, the Supreme Court case of McCulloch v. Maryland (1819), ought to have been known to De Tocqueville. There had already been numerous cases of judicial review in federal courts by the 1830s, when De Tocqueville wrote his book, and they have come to be quite numerous now.
De Tocqueville closes this chapter with consideration of Article 75 of the French Constitution of year VIII (1799), which made Napoléon Bonaparte first consul. Under that constitution, he says, a government official could only be tried after the Council of State had decided he could. American courts have no need of such permission, he notes.
Kevin R. C. Gutzman, J.D., Ph.D. is Professor and former Chairman in the Department of History, Philosophy & World Perspectives at Western Connecticut State University. He is the author of six books in the history of the American Revolution and Early Republic, one of which was a New York Times bestseller, two of which were book club main selections, and one of which was named one of the ten outstanding conservative books of 2007. His latest is The Jeffersonians: The Visionary Presidencies of Jefferson, Madison, and Monroe.
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Essay 9: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapter 12 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, Jay McConville, 6. Guest Constitutional Scholar Essayists, Blog Jay McConville, Essay 9: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapter 12 - Guest Essayist: Jay McConville, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 82 (starting at the heading “Administrative Decentralization”) – 93 (stop at chapter 6) of this edition of Democracy in America.
Alexis De Tocqueville: Administrative Decentralization and the Character of the United States.
“What I admire most in America are not the administrative effects of decentralization, but its political effects” (Alexis De Tocqueville, Democracy in America).
Alexis De Tocqueville’s Democracy in America is an insightful examination of American society and its political institutions. In “The Necessity Of Examining What Happened In Individual States Before Considering The Union As A Whole – Political Effects Of Administrative Decentralization In The United States,” De Tocqueville emphasizes the importance of understanding the political structures at the state level before attempting to grasp the nature of the American Union. His admiration for the political effects of the American decentralized system highlights the importance of democratic participation and local governance over mere administrative efficiency.
In times of increasing political polarization, complexity of governance, and rising public debt, it is natural to look for ways to reduce redundancies and centralize operations. That has led many to question the effectiveness of the federalist system, especially given modern communications technologies. It is no longer difficult to communicate, as it was at our founding for example, between federal authorities and local communities. De Tocqueville was one of the first to observe that the division of powers among national, state, and local authorities in America could lead to inefficiencies in governance. After detailing some examples of this division, he readily admits that “the villages and counties of the United States would be more usefully administered by a central authority…” Yet De Tocqueville knew such efficiencies were not the most important aspect of government, but that instead, “individual forces [are] joined to the action of social forces,” and that when joined, “they often succeed in doing what the most concentrated and most energetic administration would be in no condition to execute.”
Laboratories of Democracy
Supreme Court Justice Louis Brandeis popularized the phrase “laboratories of democracy” in the 1932 Supreme Court case New State Ice Co. v. Liebmann. His emphasis, like many of today’s writers, was on effectiveness and efficiency. “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,” wrote Brandeis. This has often been cited as a reason to maintain what is otherwise an inefficient diffuse administrative state, as well as for leaving as much power locally as possible. Brandeis wrote, “[m]erely to acquire the knowledge essential as a basis for the exercise of this multitude of judgments would be a formidable task…Man is weak, and his judgment is, at best, fallible.” Brandeis’ opinion echoes much from De Tocqueville who wrote, similarly, that “[a] central power, however enlightened, however learned one imagine it, cannot gather to itself alone all the details of the life of great people. It cannot do it because such a work exceeds human strength. When it wants by its care alone to create so many diverse springs and make them function, it contents itself with a very incomplete result or exhausts itself in useless efforts…” Thus, an over-centralized state “excels, in a word, at preventing, not at doing.”
Reading Democracy in America, it becomes clear that while De Tocqueville and Brandeis might agree on the benefits of decentralization, De Tocqueville emphasized its role in fostering democratic participation as the primary benefit.
The Character of the Nation
De Tocqueville’s analysis of administrative decentralization compared the distinctive nature of American governance to European nations, where administrative power was often concentrated in the hands of a few. American decentralization, to De Tocqueville, was not just a matter of convenience but a deliberate strategy to promote democratic participation. European citizens, controlled by a centralized authority, often viewed their condition as akin to being a “colonist, indifferent to the destiny of the place that he inhabits.” The citizen’s connection to the nation was therefore suspect, reliant more on tradition than a genuine belief that his nation was his own. Longevity for the nation was therefore tenuous, as its governance “[does] not concern him in any fashion,” and “belong[s] to a powerful foreigner called the government.” As a result, European citizens found themselves “swinging constantly between servitude and license.”
De Tocqueville was more bullish on the American nation, even as tradition might fade, because, unlike Europeans, the American “applies himself to each of the interests of his country as to his very own… He has for his native country a sentiment analogous to the one that he feels for his family, and it is still by a sort of selfishness that he takes and interest in his state.” Americans believe, in the words of Abraham Lincoln, that this is a nation “of the people, by the people, [and] for the people.”
Out of Many, One.
True, federalism ensures a check on national authority and guards against tyranny. Additionally, decentralization promotes a more responsive and accountable government.
Most importantly, however, decentralization fosters a political culture of what we would today call buy-in – that deeply held belief that this is our nation, that we are not subjects, but full participants in its success now and into the future. It fosters civic responsibility and engagement, and develops a habit of self-governance, responsibility, and accountability. De Tocqueville saw this buy-in as essential for the sustainment of democracy and knew, like many today, that such self-reliance should never be sacrificed on the altar of efficiency.
Jay McConville
is a former soldier, political activist, and business executive who writes on Substack at Goose & Gander (jaymcconville.substack.com). He is also a fitness trainer and a doctoral candidate at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Jay has served for more than seven years on Constituting America’s Governing Board of Directors.
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Essay 8: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 9 to 11 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Scot Faulkner Essay 8: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 9 to 11 - Guest Essayist: Scot Faulkner, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Scot FaulknerThe essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 79 (starting at the heading “On The State”) through 82 (stop at the heading “Administrative Decentralization”) of this edition of Democracy in America.
The core of America’s federal system of government is viable state governments. America is called “the United States” to institutionalize the importance of distributed and diverse state governance as a balance to centralized power.
De Tocqueville fully understood this unique America concept by declaring “The Necessity of Examining What Happened in Individual States Before Considering the Union as a Whole”.
State legislatures, except Nebraska, mirror the two legislative chambers at the national level. In 1934, Nebraskans voted to merge their two legislative houses determining unicameralism would be more efficient and cheaper.
The concept of two legislative chambers, at both the national and state levels, began with the Royal Charter that established Jamestown in Virginia. It evolved from the Charter holders into governance by the King’s Representative (Royal Governor) and his Advisory Council. This evolved into the Senate at both the national and state level.
As De Tocqueville explains:
“The Senate is usually a legislative body; but sometimes it becomes an administrative and judicial body.”
A state’s House of Representatives, called the House of Delegates in some states, also has its roots in Jamestown. When the settlers demanded their own voice, the Virginia House of Burgesses, in 1619, became the first democratically elected legislative body in America.
De Tocqueville explains the difference:
“The other branch of the legislature, ordinally called the House of Representatives, participates in no administrative power and takes part in judicial power only by accusing public officials before the Senate.”
The House of Burgesses became a proving ground for what would become the “lower house” at the national and state levels. “Upper” and “Lower” house designations were derived from their location within Jamestown’s legislative building. The House of Burgesses was located on the ground floor while the Governor’s Advisory Council met on the second floor.
Drawing from British tradition, the members of the House held their positions for shorter periods of time to be held closely accountable by those they represented.
De Tocqueville explains:
“By granting to the senators the privilege of being chosen for several years, and being renewed seriatim, the law takes care to preserve in the legislative body a nucleus of men already accustomed to public business, and capable of exercising a salutary influence upon the junior members.”
James Madison and Alexander Hamilton, writing under the pseudonym “PUBLIUS”, outlined this binding of the House of Representatives more closely to those they served in Federalist No. 52:
“Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”
This unique legislative environment of having different terms and therefore different mandates/perspectives was considered a strength by de Tocqueville:
“To divide legislative strength, thus to slow the movement of political assemblies, and to create a court of appeal for the revision of laws – such are the sole advantages that result from the current constitutions of the two houses in the United States.”
De Tocqueville embraced the universal wisdom of how America’s state legislatures governed:
“This theory, nearly ignored in ancient republics, introduced into the world almost haphazardly like most great truths, unknown to several modern peoples, has at length passed into the political science of our day as an axiom.”
De Tocqueville then turns his attention to state governors.
He outlines the governor’s role as a “moderator and counsel”. This is very different from the powerful Royal Governors they replaced. Governors serve as a counterbalance to the legislature as each chamber balances each other. This institutionalized series of “checks and balances” creates a web of accountability at both the state and national level. The lessons learned from royal overreach were embedded to prevent future tyranny.
Governors also have the power to “stop or at least to slow movement” of legislation. This check on legislative power arises from the lessons learned from the English Revolution (1640-1660) when Charles I’s royal tyranny was replaced with Oliver Cromwell’s legislative dictatorship.
A governor, in their role as moderator, do set “out the needs of the country to the legislative body and makes it known what means he judges useful to employ in order to provide for them.” The legislature’s role is to approve or reject the governor’s agenda, serving as a balance to executive power.
De Tocqueville, who had previously outlined the importance of local government in America, explains that “the governor does not enter into the administration of townships and counties”.
Each level of government in America has its own role, power, and independence. From the national level on down to local communities, America’s strength is a structure that prevents centralized tyranny.
Scot Faulkner was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. He is Vice President of the George Washington Institute of Living Ethics at Shepherd University and the President of Friends of Harpers Ferry National Historical Park.
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Essay 6: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 1 to 5 of Democracy in America by Alexis de Tocqueville
Raul Rodriguez, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 6: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 1 to 5 - Guest Essayist: Raul Rodriguez, Raul Rodriguez, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 56 – 65 of this edition of Democracy in America, and stops at the heading “On The County In New England.”
De Tocqueville’s study of townships in America is justly famous. He allows Americans to have pride in where they come from and in their history. He champions the idea of local civic participation and shows how it is a core element of American prosperity. The town, he tells us, is the key to understanding what true freedom is and fostering it in a democracy. This is a bold claim. Let us see what de Tocqueville has to teach us.
De Tocqueville states that one must look at the individual states prior to looking at the national government to understand America. De Tocqueville recognizes that the United States has a unique constitution that grants political power to states and the national government. The federal character of the US Constitution is one of the strengths of America. This virtue of America is better understood by examining not only the states, but also the towns and counties that make up the state. The local character of America, we will learn, gives America vitality and fosters freedom.
De Tocqueville memorably states that townships are “the sole association that is so much in nature that everywhere men are gathered, a township forms by itself.” Because towns are so natural, they exist in all societies. The town, he even declares, “appears to issue directly from the hands of God.” Despite the natural, or providential, character of towns, “the freedom of a township is a rare and fragile thing.” Town liberty requires citizens to come together and to fix their own problems. The difficulty with this is that towns often make mistakes. A large and sophisticated country “tolerates only with difficulty the trials of freedom in a township.” The authority overseeing a town often thinks that it can govern in a faster and more efficient way. As a result, town liberty is vulnerable to “the invasions of power”” (57). Town liberty, in other words, does not last long. What is amazing is that in America, town liberty still existed when de Tocqueville visited and he had reason to believe that it could possibly be maintained, albeit with considerable effort.
Rather than disparage the dysfunctional and provincial character of local towns, de Tocqueville praises them. De Tocqueville agrees that a centralized nation can sometimes get things done faster, but such a nation loses the spirit of liberty. There is something about liberty that requires small, local action by citizens. He memorably tells the reader that towns prepare citizens to be truly free:
“The institutions of a township are to freedom what primary schools are to science; they put it within reach of the people; they make them taste its peaceful employ and habituate them to making use of it. Without the institutions of a township a nation can give itself a free government, but it does not have the spirit of freedom” (57-58).
Freedom is not easy—it requires apprenticeship. Towns provide citizens with an opportunity to practice being free. Localism is a key ingredient to freedom.
The New England Township is elevated as a paragon of liberty. Numbering between two and three thousand inhabitants, New England is the epitome of local political action. De Tocqueville says that “the law of representation is not accepted” in the New England township. Citizens are their own masters and they unite to rule over themselves. This pure form of local freedom is unheard of in Europe and most of the world, de Tocqueville tells us. Ordinarily, citizens see problems, but have no power to fix them. In the township, citizens see a problem, come together to discuss the problem and to vote on how to fix it immediately. This fact of the township teaches citizens how to be powerful and independent. To be free means to have the power and independence to take action.
In the cosmopolitan world that we now live in, it can be hard to see the virtue of local towns. De Tocqueville helps us have a new perspective. He challenges us to reexamine, to rethink, what it means to be free. For de Tocqueville, freedom is not simply the right to do whatever you want, but the ability to take action with our fellow citizens to accomplish something good. By vindicating town life, de Tocqueville provides us with a practical means by which to learn and practice civic freedom. He also gives us a warning—local liberty is hard to keep. If citizens allow local decisions to be taken out of their hands, they may never get it back. Actively participating in town governance can be annoying and tiresome, but we should be wary of giving it up for the sake of convenience. Freedom requires vigilance, and even mistakes. Our small towns provide us with a space to practice the art of being free. De Tocqueville admonishes us: Return to your local communities—you will find freedom there!
Raúl Rodríguez is an Assistant Professor in the School of Civic Leadership at the University of Texas at Austin. He received his Ph.D. at the University of Notre Dame and his B.A. at Furman University. Dr. Rodríguez’s research and teaching focus on the classic texts of political philosophy and constitutional studies. His current book project is titled Redeeming Democracy: Tocqueville’s New Liberalism.
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Essay 7: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 6 to 8 of Democracy in America by Alexis de Tocqueville
Charles Hurt, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Charles Hurt, Essay 7: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 6 to 8 - Guest Essayist: Charles Hurt, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references page 65 (starting at the heading “On The County In New England”) through page 79 (stop at heading “On The State”) of this edition of Democracy in America.
Anyone who has worked as a reporter for newspapers — from small town weeklies to big city dailies — can tell you that few things are more boring than the civic affairs of a tiny New England township. It’s existence, one might say, is “obscure and tranquil.” Yet, curiously, it is also the object of “lively affections” from the citizens who inhabit the township. We are reminded of this intense pride over a township’s mundane civic obligations every four years when the dutiful people of Dixville Notch, New Hampshire, trundle out into the deep snows near the remote Canadian border at midnight on a Tuesday to cast and count the first half dozen or so ballots in the nation’s presidential primary. It’s an affair bursting with so much pride among the townspeople as to seem like a Taylor Swift concert — even compared to that always show-boating Punxsutawney Phil predicting the end of spring down near Young Township closer to the end of winter in balmy Pennsylvania. To the outside cynic, the voters of Dixville Notch very often get it wrong and never has a primary come down to those first six or 11 votes cast by those hardy citizens. Yet the townspeople of Dixville Notch are undaunted and persevere every four years as if the life of the Republic depended upon it.
Because it does.
The “obscure and tranquil” nature of the New England township — and the “lively affections” inspired among its citizens — caught the jealous attention of French aristocrat Alexis de Tocqueville when he traveled to America in 1831 to study this budding new Republic. He was in awe of such curious behavior as if he were an explorer on a safari observing strange, new wild animals in their native habitat.
“The township is the hearth around which the interests and affections of men come to gather,” he observed.
Coming from a continent of aristocratic bloodlines, 1000-year religious wars, feudal fiefdoms and kingly realms with bejeweled crowns and walled cities, de Tocqueville considered this New England township in America a truly strange creature. What was the source of cohesion among its citizens? From where did such intense pride spring? How did they know what to do? Where was the castle? It is worth noting that many of these townships predated the republic to a time when they were remote, unwalled outposts in a vast kingdom loosely governed by a king whose palace was an ocean away. Even then, they were kind of on their own. While they were taxed by the king and had fealty to him, they were entirely on their own when it came to finding practical solutions to the very real problems they faced in daily civic life. It was this very whiff of practical independence that would become the wind that fueled the wildfire of freedom on the American continent.
“The revolution in the United States was produced by a mature and reflective taste for freedom, and not by a vague and indefinite instinct of independence,” de Tocqueville observed. “It was not supported by passions of disorder; but, on the contrary, it advanced with a love of order and legality.”
In the plain New England township, titles were loathed. Instead of Lords and Dukes, the officers of the township are called “justice of the peace” and “selectman.” Degrees in received wisdom were viewed with special suspicion.
“The justice of the peace is an enlightened citizen, but who is not necessarily versed in knowledge of the law,” de Tocqueville noted. “So they charge him only with keeping the order of society, a thing that demands more good sense and rectitude than science.”
The justice of the peace and the selectman is stripped of all “aristocratic character,” he writes.
In particular, de Tocqueville was struck by the “primitive” nature of the township and the “practical” matters so dutifully taken up by regular townspeople. If a road or a bridge washed out, who would fix it? Certainly not a king in some faraway land of fairy tales. The road had to be fixed and fixed fast so that the farmer could get his grain to the miller’s grist mill on the far side of the stream so that bread could be made so that the people of the township could eat. It was that simple. Practical self-interest was the social compact. Certainly, high ideals such as independence, life and liberty were sacred in the new Republic. But those principles alone would ultimately perish if all the townspeople starved to death. In the old country, governments and kings were forever justifying their existence and brutally confirming their authority. In this strange new country fueled by human nature and reigned by self-determination, government was a lowly affair entirely justified by its ability to ensure basic freedoms while solving practical problems that would clear the path to prosperity for the townspeople.
“In the bosom of the profound peace and material prosperity that reign in America, the storms of municipal life are few,” de Tocqueville wrote.
Obscure and tranquil? Yes. Even boring? Perhaps. But free.
Charles Hurt is the Opinion Editor and a columnist for The Washington Times. Often seen as a Fox News contributor on the cable network’s signature evening news roundtable, Mr. Hurt in his 20-year career has worked his way up from a beat reporter for the Detroit News and Washington correspondent for the Charlotte Observer before joining The Washington Times in 2003. He later served as D.C. bureau chief and White House correspondent for the New York Post and editor at the Drudge Report.
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Essay 5: On The Principle Of The Sovereignty Of The People In America – Volume 1 Part 1 Chapter 4 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 5: On The Principle Of The Sovereignty Of The People In America – Volume 1 Part 1 Chapter 4 of Democracy in America by Alexis de Tocqueville - Guest Essayist: Andrew Langer, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references start at the chapter four heading on page 53 and goes through page 55 of this edition of Democracy in America.
Alexis de Tocqueville’s seminal work, Democracy in America, offers a profound examination of the American political system, with particular emphasis on the principle of the sovereignty of the people. In Volume 1, Part 1, Chapter 4, de Tocqueville explores how this principle functions in the United States, attributing much of its success to the decentralized nature of American government, particularly through the institution of townships.
De Tocqueville identifies townships as the foundational units of American democracy, embodying the principle of the sovereignty of the people. He describes them as independent entities endowed with significant local autonomy, handling functions such as tax collection, school management, and road maintenance. This level of local governance contrasts sharply with the centralized administration prevalent in France, where the state manages most functions.
The autonomy of American townships, according to de Tocqueville, fosters widespread civic participation. He notes that almost every citizen is involved in some aspect of local governance, which serves as an essential educational tool. Through active participation in township affairs, citizens practice self-governance, develop a deeper understanding of their rights, and cultivate a sense of public spirit. This civic engagement strengthens democratic institutions from the ground up, reinforcing the principle of popular sovereignty.
Thomas Jefferson, one of the foremost advocates for states’ rights and local governance, argued for the devolution of power to states and localities within America’s federal system. Jefferson believed that the best government is one that is closest to the people, where citizens have the most direct control over their affairs. He saw local governance as a means to educate and engage citizens in the political process, thereby fostering a more vibrant and resilient democracy.
Jefferson’s vision aligns with de Tocqueville’s observations on the role of townships. By decentralizing power and granting autonomy to local governments, the American system ensures that citizens are not merely subjects of distant authorities but active participants in their governance. This decentralization, or dual sovereignty, creates a balance between national and local interests, promoting liberty and preventing the concentration of power.
The principle of federalism, which underpins the American political system, involves the distribution of power between the national government and the states. This diffusion of power is crucial in securing individual liberties. The 1992 Supreme Court case, New York vs United States, Justice Sandra Day O’Connor highlighted this aspect of federalism, stating that “Federalism secures to individuals the liberties that derive from the diffusion of sovereign power.” This case underscored the importance of maintaining a balance between centralized authority and local autonomy to protect individual freedoms.
In de Tocqueville’s analysis, the sovereignty of the people is most evident in the functioning of townships. These local units of government embody the principle of subsidiarity, where decisions are made at the most immediate level possible, thus promoting individual freedom and responsibility. The townships’ ability to manage their own affairs without excessive interference from higher levels of government exemplifies this diffusion of power.
De Tocqueville emphasizes the educational role of townships in American democracy. By engaging in local governance, citizens learn the practicalities of democratic participation. They develop skills in deliberation, negotiation, and decision-making, which are essential for the functioning of a healthy democracy. This hands-on experience in governance is invaluable in cultivating informed and active citizens.
Moreover, de Tocqueville observes that the local independence of townships nurtures a strong sense of community and public spirit. Unlike the centralized bureaucratic systems in Europe, where citizens often feel detached from their government, American townships foster a direct connection between the people and their representatives. This connection enhances accountability and responsiveness, further reinforcing the principle of popular sovereignty.
De Tocqueville contrasts the decentralized township system with the highly centralized administration in France, highlighting the benefits of the American approach. In France, the central government’s extensive control over local affairs stifles civic participation and inhibits the development of local leadership. In contrast, the American township system encourages local initiative and responsibility, creating a dynamic and participatory political culture.
This decentralization serves as a counterweight to potential abuses of power by the central government. By distributing authority across multiple levels of government, the American system prevents the concentration of power in a single entity, thus safeguarding individual liberties. This balance is essential for the maintenance of a free and democratic society.
The principle of the sovereignty of the people in America is intricately linked to the role of townships in the nation’s federal system. De Tocqueville’s observations highlight the significance of local autonomy and civic participation in fostering a vibrant democracy. Through the devolution of power, as advocated by Thomas Jefferson, and the diffusion of sovereign power emphasized in the New York vs United States case, the American system of federalism secures individual liberties and promotes active citizenship.
Townships, as the foundational units of American democracy, provide a practical and effective means for citizens to engage in self-governance. This decentralized approach not only enhances local governance but also serves as a critical educational tool, preparing citizens for broader political participation. Ultimately, the success and stability of American democracy rest on this delicate balance between local autonomy and centralized authority, ensuring that the sovereignty of the people remains at the heart of the nation’s political system.
Andrew Langer is a long-time contributor to Constituting America’s annual studies on the Constitution. Currently, he serves as Director of the Center for Regulatory Freedom at the CPAC Foundation, as well as the host of several podcasts, including the Federal Newswire’s “Lunch Hour” podcast and “Andrew and Jerry Save the World.”. For nearly a decade, he was the host on WBAL Newsradio 1090 in Baltimore, and still fills-in regularly for radio shows across the country. A graduate of William & Mary with a degree in international relations, he has taught regulatory policy at the university level.
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Essay 4: Social State Of The Anglo-Americans – Volume 1 Part 1 Chapter 3 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 4: Social State Of The Anglo-Americans – Volume 1 Part 1 Chapter 3 of Democracy in America by Alexis de Tocqueville - Guest Essayist: Joerg Knipprath, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 45 (start at chapter 3 heading) – 53 (stop at chapter 4 heading) – of this edition of Democracy in America.
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De Tocqueville long has had the deserved reputation of an insightful early observer of the United States and its people. His discussion of the social condition of Americans and its influence on their personal and political character is a case in point. De Tocqueville uses this chapter as an introduction to a further and more detailed analysis later in the book. Although De Tocqueville’s account is informative and illuminating, one must be conscious of its author’s limitations. In various particulars, his remarks are outdated due to no fault of his, having been overtaken by significant social and technological events. Some are likely incorrect, and yet others reach conclusions more comprehensively explained by other developments. Moreover, as the typical current discussion of historical events sadly demonstrates, it is difficult to rise above one’s own cultural background, biases, and attitudes, for us no less than for De Tocqueville.
De Tocqueville’s main theme in this chapter is the mutually reinforcing relationship of American social conditions, the character trait of seeking equality, and the political tendency in favor of democratic government. To develop that theme, he attributes considerable importance to changes in the law of inheritance at the time of the American Revolution. Indeed, as he describes, American states generally abandoned feudal English practices of entail and primogeniture.
Although this is not an essay on English land law, a very brief and, admittedly, superficial foray into the subject is useful. Entail allowed “dead-hand control” in that a landowner would convey his property (in practice it usually—but not always—was a male landowner) to someone with the proviso that the recipient could transfer the land only to his kin (usually his issue). That kin could only transfer to their own kin, and so on, within the structure of primogeniture. The entail could keep landed estates within the family and preserve the family’s land based status.
Primogeniture required that, in general, the entire landed estate went to the eldest son. If there was no son, a more curtailed estate would go to any daughters. Those daughters’ interests then would go to their eldest sons. This system helped to prevent estates from being broken up into undesirably smaller parcels over time. However, as De Tocqueville points out, it also fostered economic inequality among family members and social inequality between the great landed nobility and the rest of society, including the emerging commercial bourgeoisie. At the same time, primogeniture had the—probably unintended—consequence of pushing the younger sons of the nobility into the military, the legal profession, or the church. Much of England’s imperial success was engineered by those who were deprived by primogeniture of inherited landed wealth.
Complex interrelated changes in European society gradually produced an economically powerful and politically restive commercial elite. Money and trade became the focus of enterprise and wealth. With the decline of feudalism, land became more commodified. Entail and primogeniture survived in some relic form in England into the 20th century. However, they already had lost their vitality long before De Tocqueville wrote, due to changed social conditions and through the creativity of English lawyers.
Attempts to plant the English law of land tenures in American colonies occurred but fell on inhospitable soil. Not all colonies were initiated by English noblemen. Even within the proprietary colonies, the authority of the lords proprietor was challenged almost from the beginning by the settlers who, whether farmers, merchants, artisans, or mechanics, represented a broad middle class and who did not shy from using their numbers and their taxes for political leverage. Moreover, the English families mostly remained in the old country, several thousand miles across the ocean. There arose some economically and politically powerful American families of Dutch descent in New York and English descent in Virginia and other Southern and Border states. But, as De Tocqueville acknowledges, “So, therefore, in our day in America the aristocratic element, always weak since its birth, is, if not destroyed, at least weakened, so that it is difficult to assign it any influence whatsoever in the course of affairs.”
Finally, the North American colonies had an abundance of something that England lacked by comparison, land. As long as people could move freely across the next ridge of mountains, neither entail nor primogeniture was a barrier to land acquisition and to wealth and status. In short, while De Tocqueville’s thesis about the intimate connection and critical causal relationship between the abolition of such land law doctrines and the development of American democratic character is interesting, there may be less to it than he claims. It might be more accurate to state that the republican nature of American post-Revolutionary War politics and the resulting constitutional realignment made it easier for state legislatures to sweep away anachronistic legal doctrines.
With those disclaimers, many of his observations and conclusions are worth contemplating, both for their general validity and their continued specific relevance to current American social conditions and political structure. “In order to know the legislation and mores a people, one must therefore begin by studying its social state.” So much has been a common staple of anthropology and political philosophy for millennia. Plato’s exploration of the relationship between the nature or soul of the individual and that of the community comes to mind. Aristotle’s argument in favor of the social conditions provided within the Greek polis as best conducing to human flourishing is another example. Baron de Montesquieu added climate and ecology to the factors determining the character of a people and their customs and laws, while his premise of the importance of a people’s social condition to their political system matched that of his countryman.
Ordinary law, including legislation, is most effective when it arises organically from the habits of the people and responds to the community’s felt needs of the times. Law imposed from the top and used instrumentally to achieve a “good” community envisioned by a self-proclaimed enlightened elite and their clerisy is less likely to account for the full range and nuance of the community’s social condition. At the level of a political constitution, the study of a people’s social condition must take into account historical influences and cultural predispositions beyond what might be needed for ordinary civil or criminal law.
De Tocqueville generally views the American emphasis on equality as a commendable trait. Equality is at the heart of an eminently democratic American political structure, as he describes it. There is relative economic equality, not due to a lack of wealthy individuals, reticence about the love of money, or commitment to the permanent equality of property. Rather, there is economic mobility. “In America most of the rich have begun by being poor,” and “fortune turns there with incredible rapidity and experience teaches that it is rare to see two generations collect its favors.”
This is an important factor for republican government. A broad middle class, constituted of farmers, merchants, artisans, and mechanics, was the focus of republican theory from ancient Greece to the American founding. Through its stabilizing influence on the inherent contentiousness of factional political competition, a broad property-owning middle class as an engine for general prosperity and maintenance of so-called bourgeois values and morals is a critical factor for success and longevity of a republic. The current unease about wealth inequality reflects in part a concern about its effect on the essence of our political system, self-government. However, wealth inequality is natural in an advanced technological society based on knowledge. We are not a nomadic hunter-gatherer society. It is not wealth inequality as such that is the problem, it is whether or not there is sufficient economic mobility to avoid multi-generational economic and, ultimately, political stratification.
This cultural devotion to the principle of equality is generally beneficial. It provides the incentive to be economically productive and successful. In education, few are illiterate. “Men show themselves to be more equal in their fortunes and their intelligence … than in any country in the world and than they have been in any century of which history keeps a memory.” On the political side, equality promotes democratic sentiment and political fluidity. “This passion tends to elevate the small to the rank of the great ….”
De Tocqueville acknowledges that there is also a dark side to equality and the democratic principle. He appears to have taken to heart Plato’s lessons in The Republic about the dangers of the democratic man. “[O]ne also encounters a depraved taste for equality in the human heart that brings the weak to want to draw the strong to their level and that reduces men to preferring equality in servitude to inequality in freedom.” This tendency, rooted in envy, is certainly not unknown today.
As to the political danger, “when citizens are all nearly equal, it becomes difficult for them to defend their independence against the aggressions of power…. People can therefore draw two great political consequences from the same social state [maintaining popular sovereignty or succumbing to absolute power of one ruler];…” He concludes, “The first to be submitted to the formidable alternative that I have just described, the Anglo-Americans have been happy enough to escape absolute power.” But the danger is always present, and, if Plato is to be believed, the same social and political characteristics that lead to increased equality and democracy have inherent flaws which ultimately lead to tyrannical government.
De Tocqueville avers that the cause for Americans’ success up to that point was their circumstances (presumably overall prosperity and wide-spread property ownership), origin (presumably deeply ingrained cultural influences), enlightenment (comparatively wide-spread literacy), “and above all mores ….” If De Tocqueville was correct in at least the core of his analysis of the social condition of the dominant Anglo-American population of the United States in the mid-19th century, one must now confront two difficult questions. To what extent do the social and economic conditions he saw as critical pre-requisites for self government and popular sovereignty within a republican system still exist? If they have become eroded and resulted in (or are the result of) more systemic economic stratification, less connection to cultural influences that previously defined American republicanism, and collapse of traditional morals, can these deficiencies be mitigated and the alternative tendency to tyranny be avoided?
An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Essay 3: On The Point of Departure and Its Importance for the Future of the Anglo- Americans – Volume 1, Part 1, Chapter 2 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 3: On The Point of Departure and Its Importance for the Future of the Anglo-Americans – Volume 1, Part 1, Chapter 2 of Democracy in America - Guest Essayist: Tony Williams, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 27 (start at chapter 2 heading) – 45 (stop at chapter 3 heading) – of this edition of Democracy in America.
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Alexis De Tocqueville was a French traveler who produced one of the most discerning observations about American democracy ever written. His discussion of the Puritan origins of American democracy is ample proof of his keen understanding. In De Tocqueville’s view, the Puritans made profound contributions to civil and religious liberty in what he terms, “the first age of the American republics.”
De Tocqueville acknowledges that the English tradition of rights in the Magna Carta was important to the colonists’ attachment to rights, freedoms, and the rule of law that were a ““fertile seed of free institutions.” But, whatever their country of origin, they experienced common hardships settling North America that promoted equality instead of European feudal aristocracy. While De Tocqueville briefly discusses the South and argues that slavery bred a character of haughtiness and extremes of luxury and poverty:
Slavery as we shall explain later, dishonors work; it introduces idleness into society, and with it, ignorance and haughtiness, poverty and luxury. It enervates the forces of the intellect and puts human activity to sleep. The influence of slavery, combined with the English character, explains the mores and social state of the South.
He focuses on the Puritan democracy that shaped the American character and self rule.
De Tocqueville sees several defining characteristics of Puritan democracy that supported religious and civil liberty. The Pilgrims, he notes, sought to escape persecution and enjoy religious freedom to worship God as they pleased. Importantly, they settled as middle-class families who were the backbone of a society that valued family, order, and morality.
In addition, one of the first things the Pilgrims did in the New World was to agree to a political covenant establishing the rule of law. The Mayflower Compact created a civil body politic to create “just and equal laws” in support of the common good. The towns of New England formed democracies in which the people were sovereign and “name their magistrates…[and] give themselves laws.”
In their democratic town meetings, the sovereign people voted and participated in public affairs, enjoyed individual freedom, and consented to taxes. They served in local public offices that served the needs of the community. The citizens formed strong attachments to their community and were habituated in their rights, duties, and morals.
One of the main pillars of strong, democratic New England towns was the great emphasis upon education. Townspeople paid taxes to support public schools. De Tocqueville correctly observes that the Puritans were a people of the Book who valued education and encouraged literacy to read Scripture. “It is religion that leads to enlightenment,” he wrote.
De Tocqueville argues that New Englanders clearly demonstrated the close ties of “the spirit of religion and the spirit of freedom” that “lend each other a mutual support.” Importantly, he states that Puritanism provided a natural law framework for liberty under law rather than licentiousness.
While he does not directly address the rich tradition of Protestant resistance theory that was similar to and predating the Enlightenment ideas of John Locke, De Tocqueville believes that Puritan covenant theology supported an understanding of civil liberty that the Founders would have understood. The Puritans believed that the Creator was the source of natural rights. A just government supported a rule of law and a moral society that protected the rights granted by the divine.
De Tocqueville concludes the chapter with an exploration of national character. He states that the English tradition of liberty obviously influenced colonial political ideas and practice, but he offers a rather bold assertion that in understanding the American founding, “one ought therefore to distinguish carefully what is of Puritan origin or of English origin.” The tenor of the chapter is that one should not underestimate just how important the Puritans were to shaping American democracy.
Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.
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Essay 2: External Configuration Of Northern America – Volume 1, Part 1, Chapter 1 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Daniel Cotter Essay 2: External Configuration Of Northern America – Volume 1, Part 1, Chapter 1 of Democracy in America by Alexis de Tocqueville – Guest Essayist: Daniel Cotter, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Daniel CotterEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 3 – 27 of this edition of Democracy in America, and stops at the Chapter 2 heading.
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In 1831, Alexis De Tocqueville came to America, sent by France to investigate the United States of America’s prison system. De Tocqueville does that and much more in his incredible, sprawling book that provides his impressions of democracy in North America.
De Tocqueville addresses in the first volume and part and chapter the majestic, sprawling geography of the United States. He refers to the “external configuration” of North America. De Tocqueville refers to the “methodical order” that separates land and water, with two vast regions divided. He notes the two great mountain ranges that separate the regions, one being the Alleghenies in the east, and the other the Rocky Mountains in the west.
In between the two mountain ranges is the “Father of Waters, or the Mississippi.” The valley watered by the Mississippi River “dispenses good and evil at will, and in that it is like the god”. De Tocqueville notes that the waters are responsible for the country’s sterility and abundance. He was very impressed with the Mississippi Valley, making the following glowing attribution:
“The Mississippi Valley is, all in all, the most magnificent dwelling that God has ever prepared for the habitation of man, and nonetheless one can say that it still forms only a vast wilderness.”
De Tocqueville would be pleased, one would think, if he could jump ahead almost 100 years to the present and see that the wilderness is no more.
Turning to the territory that is east of the Alleghenies and west of the Atlantic Ocean, De Tocqueville characterizes that part as “a long band of rocks and sand that the sea, in retreating, seems to have forgotten.” The small territory, 100 miles wide and 900 miles long, did not lend itself to ideal or easy farming. This land De Tocqueville describes was “on that inhospitable coast” where “were born and grew the English colonies that were day to become the United States of America”. When one reads and ponders that statement, one realizes how incredible it is that those colonies became the base for this great nation of ours, which spans beyond the Rockies to the west coast and beyond.
In this first part, De Tocqueville speaks much of the Native Americans and contemplates the first European settlers’ arriving to the new place. He writes of the time before the Europeans came to our shores and the inhabitants:
He speaks of the Indians as “equal and free.” He contemplates the “landing on the shores of North America” by Europeans having little impression on the natives, as “their presence gave rise neither to envy or fear.”
“Mild and hospitable in peace, pitiless in war, even beyond the known boundaries of human ferocity, the Indian would expose himself to die of hunger in order to assist the stranger who knocked at the door of his hut in the night ….. The most famous ancient republics had never admired a firmer courage, prouder souls, a more intractable love of independence than was hiding in the wild woods of the New World.”
“The Indian knew how to live without needs, to suffer without complaining, to die singing. ….they adored God, the creator of the universe. Their notions on great intellectual truths were generally simple and philosophical.”
De Tocqueville in this chapter identifies the resources and the bountifulness of the United States and provides reasons why the nation he wrote so much about was in the position it was, even before the Industrial Revolution that was soon to come.
In closing chapter 1, De Tocqueville sets up the overall premise of his book, the democracy he experienced.
He wrote, “It was there that civilized men were to try to build a society on new foundations, and applying for the first time theories until then unknown or reputed inapplicable, they were going to give the world a spectacle for which the history of the past had not prepared it.”
Much of what De Tocqueville wrote has weathered two hundred years and gone through massive changes, yet his views on the exterior lands is amazing and somewhat forecasting, as the map and America he explored in 1831 was not the sea to shining sea nation we live in today.
Daniel A. Cotter is Attorney and Counselor at Dickinson Wright PLLC. Dan focuses his practices in a variety of areas of corporate law and litigation, including insurance law, complex business disputes and counseling, employment law, corporate transactions, corporate governance and compliance, and cybersecurity and privacy law. Dan was an adjunct professor at The John Marshall Law School, and has taught Insurance Law, Accounting for Lawyers and SCOTUS Judicial Biography. Dan graduated summa cum laude from The John Marshall Law School and received his B.A. in Accounting from Monmouth College, magna cum laude. Dan is a frequent writer and presenter on various topics, including the nation’s history and the Supreme Court, and in 2019, his book, “The Chief Justices,” was published.”
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Introduction to Democracy in America by Alexis de Tocqueville: Why Every American Should Read a Book by a Frenchman
Pete Peterson, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 1: Introduction to Democracy in America by Alexis de Tocqueville: Why Every American Should Read a Book by a Frenchman – Guest Essayist: Pete Peterson, Pete Peterson, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Leave a comment in the blog below and automatically be entered in our weekly drawing for a free copy of the book!
In the introduction to their translation of Alexis De Tocqueville’s Democracy in America, the renowned Harvard historian, Harvey Mansfield, and his late wife, Delba Winthrop, describe the volume as “at once the best book ever written on democracy and the best book ever written on America.” Though written almost two centuries ago, the book’s insights on American culture and exceptionalism could not be more timely. Though coming in at 700+ pages in the Mansfield/Winthrop edited edition, it’s well worth an investment of time and study by every American.
Alexis De Tocqueville was a French aristocrat and government official who landed in the United States in 1831 with his friend, Gustave de Beaumont, ostensibly to study America’s prison system, but his plans soon change as he encounters a culture so different than his own. In the first paragraph of the book, De Tocqueville lays the foundation for his overarching argument about the country’s exceptional nature by declaring that what struck him most about America in those first few days of the visit was the “equality of conditions”. He goes on to argue that “this enormous influence this primary fact exerts on the course of society; it gives a certain direction to public spirit, a certain turn to the laws…and particular habits to the governed.” By “equality of conditions”, De Tocqueville did not mean to say that everyone lived in equal circumstances, but something closer to “equality of opportunity.”
From this firm foundation, De Tocqueville perceives the major cultural factor (what he calls “mores”) that appears to be necessary to support a country where equal opportunity reigned as the central economic dynamic. He quickly discovers that Americans hold to a doctrine he calls “self-interest rightly understood” – a worldview that dictates a certain degree of reliance on neighbors and community in order to accomplish tasks ranging from building churches to roadways. Remember, at this stage in America’s history, the federal government had little power to determine local affairs. As De Tocqueville writes, “they show with complacency how an enlightened regard for themselves constantly prompts them to assist each other, and inclines them willingly to sacrifice a portion of their time and property,” for the common good.
Comparing with his native Europe, De Tocqueville is also shocked to see religion and government mix in a way that’s actually beneficial rather than a source of bloody conflict. Unlike Europe, America did not have a national religion, but ironically, this contributed to a flourishing of faith in the country. From developing Americans’ political skills by serving in local church administrative councils, to working with faith-based nonprofits, De Tocqueville concludes, “Religion, which, among Americans, never mixes directly in the government of society should therefore be considered as the first of their political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it.”
This willingness of Americans to collaborate through nonprofit and ad hoc civic organizations is what De Tocqueville describes as “associativeness”, and it’s a major distinction between this burgeoning republic and Europe. From temperance associations to foreign missionary support organizations, De Tocqueville sees Americans put their faith into action even as they respond to local needs that would have been the purview of government in Europe. He observes, “Everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.”
As we conclude our whirlwind review of Democracy in America, it’s worth noting that De Tocqueville’s last chapters in the book can be seen as prophetic in describing the future of American (and other democracies’) society. It’s not an optimistic perspective, and one grounded in the Frenchman’s belief that with the increasing wealth he foresees coming to this country, Americans will gradually withdraw from their associations, their faith, and the community-spirit. De Tocqueville looks to the future: “There is, in fact, a very perilous passage in the life of democratic peoples. When the taste for material enjoyments develops in one of these peoples more rapidly than enlightenment and the habits of freedom.”
De Tocqueville fears that as Americans earn the material benefits of freedom, they will look to government not to protect our liberties, but to protect our “stuff”. He describes this dynamic: “each of them desires that it [central government] aid him as an exception in the special affair that reoccupies him, and he seeks to attract the action of the government to his side, all the while wanting to shrink it for everyone else.”
It is here where De Tocqueville wonders whether the “self-interest rightly understood”, which drew Americans into civil society and community would become “self-interest wrongly understood”- a selfishness and withdrawal from the public square. For future leaders, De Tocqueville sees that “individual independence and local liberties will always be the product of art.” Are we seeing these trendlines today? I think these concerns, and the importance of citizen engagement are vital to consider during this election year, and beyond.
Pete Peterson is the Braun Family Dean’s Chair of Pepperdine University’s School of Public Policy. Prior to that he was the executive director of the School’s Davenport Institute, which trains local government officials to improve their public meeting processes. Pete speaks and writes widely on civic participation, viewpoint diversity in higher education, and the increasing role of technology in local government.
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Mr. James Ingram
BlogMr. James Ingram was Constituting America Founder, actress Janine Turner’s, beloved 5th grade teacher, who instilled in Janine a love of our founding fathers, through the 5th grade’s production of 1776.
Mr. Ingram was honored as Constituting America’s Constitutional Champion in 2011 and was a beloved and active member of our Education Advisory board.
Mr. Ingram’s full obituary is below.
NORTH RICHLAND HILLS – James Ingram, 72, passed away on Saturday, March 2, 2024.
Graveside Service: 10 a.m. Saturday, March 9, 2024, at Mount Olivet Cemetery with Jinx Ingram Thompson to officiate. Elizabeth Hatley, a dear friend, will deliver the eulogy. Visitation: 5 to 7 p.m. Friday, March 8, 2024, at Mount Olivet Chapel in the Sandburg Suite.
James was born in Fort Worth. He was the son of, James and Juanita Ingram. James accepted Christ as his personal Savior at a young age. He prayed daily and maintained a positive spirit. His cousins, Jinx and Betty, were like sisters to him. They had many great times including U.S.A. and world travel experiences.
James graduated from Texas Wesleyan University with a Bachelor of Science degree. He obtained a Master’s in Education degree from Texas Christian University.
His lifelong, devoted career encompassed 34 years as an elementary fifth grade teacher at Eagle Mountain Elementary. He enjoyed the challenge of Shakespeare’s Romeo and Juliet in a modified version on the stage with his fifth grade Language Arts classes. He also produced musicals with his students early in his career. The Eagle Mountain-Saginaw I.S.D. school board named the school stage in his honor when he retired.
Other educator honors included: 1995-1996 District-wide Elementary Teacher of the Year, Peer Professional, PTA Life Membership Recipient, PTA Extended Service Award, and Saginaw Chamber of Commerce Educator of the Year.
James appeared on television’s Disney’s American Teacher Awards. He was selected by actress, Janine Turner, a wonderful former student, as her favorite teacher. Furthermore, Ms. Turner recognized him as “The Constitutional Champion Teacher at the “Constituting America” gala.
His involvement with Miss Texas Pageant included Board of Trustees member and Awards Ball Set-Up committee chairman. James was inducted into the Miss Texas Hall of Honor for his pageant work.
James was a season ticket holder with dear friends for the Fort Worth Symphony Pops, Texas Ballet Theater, and Theatre Arlington. B. J. Cleveland, former artistic director at Theatre Arlington, was a talented former student.
Trips to the Texas Rangers baseball games were a highlight. The “good times” were highlighted with his Bunco groups of special friends. The Olive Garden, Chili’s, Babe’s Restaurant, Saltgrass, and Abuelo’s were his favorite restaurants. James enjoyed reading best sellers and viewing the Oscar-nominated movies. Morning walks with his mall buddies at the NE Mall and Grapevine Mills Mall, started each day with special conversations and many smiles. Pilgrimages to Scarborough Faire in Renaissance costumes with his Bros.-in-Hose provided majestic experiences for James and friends.
Surgeries were a challenge later in life. These included open-heart surgery, two hernia surgeries, six leg surgeries, cataracts surgeries, skin cancer surgery and gallbladder surgery. God’s Grace saw James through these times.
Survivors: All from Fort Worth
Cousin, Jinx Ingram Thompson
Cousin, Betty Evans
Second Cousin, Kim, and her 3 children
Second Cousin, Josh and wife, Laurie and their 5 children
Cousin, Tommy Freeman, and his 3 children
To plant Memorial Trees in memory of James Arnold Ingram, please click here to visit our Sympathy Store.
Maureen Quinn
BlogIn loving memory of our dear friend, Anne Maureen Quinn. Maureen entered this life on September 25, 1956 and passed away December 14, 2022. Maureen was a bright light who shone in all of our lives.
We were blessed to have Maureen’s beautiful voice narrate many of our 90 Day Studies. She also submitted our We The Future Contest winners’ films into film festivals, achieving over 118 film festival acceptances for our winners over her time with us. In Maureen’s memory, we have named our We The Future short film category after her.
Maureen was a talented writer, inspirational life coach and sought after voice talent in Hollywood, but most of all, she was a treasured friend to all of us who had the blessing of knowing her and working side by side with her over the years.
Please join us in leaving your remembrances of Maureen here on our page.
Conclusion: Preserving the First Principles of the American Founding
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 90: Conclusion: Preserving the First Principles of the American Founding – Guest Essayist: Chris Burkett, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
Does the United States today resemble the nation envisioned by the American Founders? Have we lived up to the political and constitutional principles they believed are so important for maintaining a free society and remaining a self-governing people? Have we as a people done a good job of preserving those principles by educating and reminding each generation on their importance? Constituting America’s 90-Day Study on “First Principles of the American Founding” should help each of us, as citizens, think about the first two questions in a more enlightened and informed way – and certainly goes far in ensuring that the third question is answered in the affirmative.
In this series of essays, written by exceptionally thoughtful thinkers, teachers and scholars, we can discern how insightful the American Founders were in recognizing and articulating the first principles upon which the nation of America was founded. From ideas identifying the basis of rights in nature rather than tradition, to constitutional principles that established a limited government, to foreign policy principles meant to promote justice with other nations, these essays allow us to glean in a more capacious way the overarching ideas that informed who we were meant to be as a people and a nation.
These essays reveal that Americans, and especially the Founders, had learned extensively from the careful study of history. Born of English tradition, Americans gradually came to develop their own identity – one might even say “mind,” as Thomas Jefferson called it. Separated from Great Britain and largely left alone for decades, American colonists lived in relative freedom and came to establish local governments and social institutions that complemented their understanding of rights and liberties. They frequently heard these ideas of individual liberty and limited government reinforced in their churches, newspapers, shops, and businesses. The essays in the 90-Day Study, as a whole, show the story of how Americans became one people united by common principles.
The American Revolution was, in more than one sense, a test of those principles. Should the Revolution fail, the principles of liberty and self-government might be lost forever. It was also a test in the sense that Americans found themselves in the position of having to accomplish a political separation and wage a war in accordance with the very principles they declared to be self-evidently true. Winning the war and gaining independence seemed to many, including George Washington, nothing short of miraculous. Having accomplished this, Americans next found themselves having to apply the principles of the Declaration of Independence to the creation of a government that would fulfill the demands of justice both at home and toward foreign nations. In other words, Americans had to learn how to act like a nation – and this is when Americans applied and thought even more deeply about the meaning of their founding principles.
Domestically, Americans faced the great difficulty of establishing a republic, based on consent, to replace the traditional form of monarchy that had prevailed throughout most of human history. The challenge facing the Framers of the United States Constitution was how to frame a government that was sufficiently powerful to secure the natural rights of American citizens, but that was also sufficiently checked to prevent it from abusing and violating these rights and liberties. Another great challenge was to find constitutional ways of obligating America’s government to secure American sovereignty and independence, and to respect the independence and sovereignty of other nations. The essays in this 90-Day Study reveal that, to fulfill these ends, knowledge of fundamental principles proved to be the guiding star for the Framers of the Constitution, and the standard by which American citizens could judge the justice or injustice of acts of government even after the Constitution had been ratified.
In the end, these essays bring to the fore the Founders’ view that without civic virtue, no government – not even America’s own Constitutional government – can succeed. Local political participation can never be replaced by national administration without some cost to individual liberty; and despite the best efforts of the Framers of the Constitution, civic awareness and engagement is still necessary to check laws and policies that are contrary to the principled purposes of government. All of this reinforces why the Founders believed that a proper civic education of the American people was so critical – an education that informs them of both their rights and duties. This 90-Day Study, as a whole, aims to fulfill that crucially important purpose of the American Founders.
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Upholding the Principle of Free Civil Discourse and Public Debate Without Censorship
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 87: Upholding the Principle of Free Civil Discourse and Public Debate Without Censorship – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary PorterAmerican government, as President George Washington notes, is to be based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force:
[I]f Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.
The Articles of Confederation Congress had difficulty with the states meeting their funding requisitions during most of the Revolutionary War period. Ending the siege at Yorktown in General George Washington’s favor only made matters worse. With the British no longer posing a threat, the men of the Continental Army were ordered into bivouac at Newburgh, New York. Soon thereafter, Congress stopped paying them, as a “cost-saving” measure, and also stopped funding the soldiers’ pensions.
The conflict over this came to a head when an anonymous letter was circulated in Congress in which a threat was made: the Army would remove itself to “unsettled” western lands, leaving the states unprotected until such time as pay and funding resumed.
Commander-in-Chief General George Washington traveled personally to Newburgh, and in an emotional scene during which he apologized for having to use spectacles to read his prepared remarks said, “I have grown not only gray, but almost blind in the service of my country,” he convinced the officers and men to renew their trust in Congress. Washington noted that the anonymous letter was appropriate since, “[I]f Men are to be precluded from offering their Sentiments on a matter, … the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter.”
“The Founders considered freedom of speech a fundamental natural right.”[i] At the same time, the right was also understood to not be absolute because during the early colonial period, “seditious words” were taken seriously and often prosecuted, as was blasphemy in most states.
When Patrick Henry proclaimed on May 29, 1765, that “Caesar had his Brutus, Charles the First his Cromwell and George the Third … may profit by their example,” he was indeed guilty of treason under English law. To “compass or imagine” the death of the King was one of the several crimes in the Treason Act of 1351, and Henry knew this. To the cries of “Treason” from some of the Burgesses in the room, Henry replied, “If this be treason, make the most of it.”
Christian thinker, G. K. Chesterton, said: “To have a right to do a thing is not at all the same as to be right in doing it.”[ii]
Sir William Blackstone agreed: “Every freeman has an undoubted right to lay what sentiments he pleases before the public…But if he publishes what is improper, mischievous, or illegal, he must take the consequence of his temerity.”[iii] Note that Blackstone refers here to “illegal” speech; the Treason Act would provide but one example.
But other founding era philosophers disagreed. French philosopher Baron de Montesquieu,[iv] in his acclaimed work, The Spirit of the Laws, wrote: “The laws do not take upon them to punish any other than overt acts. . . . Words do not constitute an overt act; they remain only an idea.”
Without freedom of speech during the period 1760-1776, there likely would have been no revolution leading to American independence. Based on the Founder’s experience, the British would have prohibited public speeches arousing the people to claim their freedom and the press would have been severely curtailed.
“Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates. An evil magistrate entrusted with power to punish for words, would be armed with a weapon the most destructive and terrible.”[v]
In ratifying the United States Constitution, Virginia, North Carolina and Rhode Island (both of which copied Virginia’s submission verbatim) all proposed a free speech amendment and James Madison included an amendment, which read: “That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.”[vi] In successive House and Senate committees this was “wordsmithed” to the wording eventually placed within the Bill of Rights of the United States Constitution.
The Founders great emphasis on freedom of speech makes the Alien and Sedition Acts of 1798 difficult to explain. Perhaps the expression “when the shoe is on the other foot” best captures Congress’s motivation to censor and suppress speech as the infant nation of America attempted to stay neutral in the on-again, off-again war between England and France. Americans were equally split on the question of which country the John Adams administration should support (even as both England AND France were both interdicting American shipping heading for their enemy’s ports). The Sedition Act made it illegal to make false or malicious statements about the Adams administration, specifically mentioning the President while conspicuously not mentioning the Vice-President. Criticism of Thomas Jefferson was therefore fair game, and certain “Adams-friendly” newspapers took great advantage of it.
So convinced they were of the unconstitutionality of the Acts, Thomas Jefferson and James Madison consented to drafting, respectively, the Kentucky and Virginia resolutions. These essays argued that the states have both a right and a moral responsibility to declare unconstitutional acts of the national government to be so and hold them to be null and void within their state.
The U.S. Supreme Court eventually found the Sedition Act to be constitutional in United States v. Thomas Cooper (1800).[vii] Congress had set the Alien and Sedition Acts to expire on March 3, 1801; the reason being was, the following day, a new President and Vice President would be inaugurated. Over a century later, President Woodrow Wilson’s administration would bring back the Alien and Sedition Laws (as the Espionage and Sedition Acts) as the U.S. entered World War I.
The Free Speech landscape had changed drastically by 1925 when the Court “incorporated” the Free Speech Clause into the Due Process Clause of the Fourteenth Amendment in Gitlow v. New York,[viii] creating an explosion of free speech cases based on state government actions, which continued thereafter.
Although the Free Speech Clause was intended to only restrict government actions, in the 1970s, the Supreme Court began deciding that commercial “speech” could also be regulated to some extent.[ix] Since that time, regulations on commercial advertising have become commonplace.
Eventually, the Court decided that certain types of “symbolic speech,” i.e. “speaking” through actions rather than words, should also be protected.[x] Over the years, the following are some examples of types of symbolic speech among those requiring protection:
Without freedom of speech, remaining steadfast to the principle of free civil discourse and public debate without censorship, America would likely be a very different place. “Freedom of Speech is the great Bulwark of Liberty; they prosper and die together.”[xi]
[i] Robert Natelson, The Original Constitution; What it Actually Said and Meant.”Apis Books Colorado Springs, CO, p. 212.
[ii] https://en.wikipedia.org/wiki/G._K._Chesterton
[iii] William Blackstone, Commentaries on the Laws of England, 1769.
[iv] Montesquieu was the most oft-quoted political philosopher at the Constitutional Convention, after the Bible.
[v] Benjamin Franklin, On Freedom of Speech and the Press, Pennsylvania Gazette (17 November 1737).
[vi] https://en.wikipedia.org/wiki/United_States_Bill_of_Rights
[vii] https://www.archives.gov/education/lessons/sedition-case
[viii] https://www.law.cornell.edu/supremecourt/text/268/652
[ix] https://constitution.findlaw.com/amendment1/freedom-of-speech-for-corporations.html
[x] https://mtsu.edu/first-amendment/article/1022/symbolic-speech
[xi] Trenchard and Gordon, Cato’s Letters, February 4, 1720.
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Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 62: Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary R. PorterArticle V of the United States Constitution describes that the only lawful methods, of amendment, are by its keepers, the American people. While that may have been the Framers’ intent, an unlawful method of amending the Constitution, through judicial activism, for example, usurps the legislative process of the American people when the courts are used as a legislature. Black’s Law Dictionary defines “judicial activism” as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”[1]
When the Supreme Court renders an opinion about a constitutional provision, that opinion–it is called an “opinion” and not a “law”–has traditionally assumed the status of the Constitution itself; since the Constitution is the Supreme Law of the Land (see Article VI), the American people and the federal government have given federal court opinions the same status: the law of the land. Nothing in the U.S. Constitution requires this, but that is the way America has operated as a people since the Constitution was ratified. Many distinguished men over the years have warned against this approach:
Thomas Jefferson: “[T]o consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.”
Andrew Jackson: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.”
Abraham Lincoln: “[I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Is the U.S. Constitution “Alive?”
President Woodrow Wilson is credited with originating the concept of a “Living Constitution,” the idea that the Constitution must constantly be updated to reflect changes in the culture and mores of an evolving society. Who best to guide the “evolution” of the Constitution but the legal “scientists” of the federal courts? Why go through the arduous process of amending the Constitution through Article V when the Supreme Court is willing to issue an opinion which will have the same effect as a desired amendment? The Supreme Court has often been viewed as the “legislature of last resort.” Policies which have failed to gain majority acceptance in the Legislative Branch, whether state or federal, are instead “enacted into law” by the Judiciary.
The Anti-federalist called “Brutus”[2] warned: the “power in the judicial, will enable them to mould the government, into almost any shape they please.”
James Madison mentioned in Federalist 51 that the Constitution requires the government “to control itself.”[3]
Congress last proposed an amendment to the Constitution fifty-two years ago, in 1971, the Twenty-sixth Amendment. Scores of proposed amendments are introduced in Congress each session; a handful may make it out of committee; none have achieved a two-thirds vote on the floor in either chamber, or both chambers, since 1971.
Article V of the United States Constitution, on amending the Constitution, states that when two-thirds (34) of the state legislatures apply to Congress for an amendment convention, Congress shall convene one. Nothing in the Constitution describes how such a convention must operate, or the threshold within the convention for approving amendment proposals before they are transmitted for ratification, but there is ample historical evidence showing how such conventions of the states operated during the founding period and model rules for such a convention have already been composed and tested.[4]
Consider next the alternatives to amending the Constitution through an Article V convention:
The “Article V Question” is indeed controversial. Some opponents insist it will do more damage than good. Still, with arguments on both sides, correctly amending the Constitution remains in maintaining the principle that “the United States Constitution prescribes within the document the only lawful methods of amendment, by its keepers, the American people.”
[1] As quoted in “Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No” DF O’Scannlain, Geo. JL & Pub. Pol’y, 2002.
[2] The identity of Brutus is unknown, but scholars have suggested he was either Melancton Smith of New York or John Williams of Massachusetts. See: https://en.wikipedia.org/wiki/Brutus_(Antifederalist).
[3] James Madison, Federalist No. 51, 1788, read at: https://avalon.law.yale.edu/18th_century/fed51.asp.
[4] https://conventionofstates.com/videos/official-convention-of-states-historic-simulation-live.
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Principle of a United States Constitution Prescribing Within Itself the Only Lawful Methods of Amendments, by Its Keepers, the American People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 61: Principle of a United States Constitution Prescribing Within Itself the Only Lawful Methods of Amendments, by Its Keepers, the American People – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary R. PorterPrior to achieving statehood in March 1791, the Republic of Vermont placed a provision in their 1786 State Constitution. Every seven years, the people would elect a 13-person Council of Censors who would examine whether: “the Constitution has been preserved inviolate in every part, during the last septenary (including the year of their service;) and whether the legislative and executive branches of government have performed their duty, as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the Constitution: they are also to inquire, whether the public taxes have been justly laid and collected in all parts of this Commonwealth–in what manner the public monies have been disposed of–and whether the laws have been duly executed.”[i] This Council would: “recommend to the Legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the Constitution; these powers they shall continue to have, for, and during the space of one year from the day of their election, and no longer. The said Council of Censors shall also have power to call a Convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of this Constitution which may be defective–explaining such as may be thought not clearly expressed–and of adding such as are necessary for the preservation of the rights and happiness of the people; but the articles to be amended, and the amendments proposed and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such Convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject.” (Emphasis added)
Laying on land claimed by both New Hampshire, New York and, at times, Canada, Vermont finally became an independent republic on January 15, 1777. It called itself the State of Vermont but failed to receive recognition by any country until admitted to the union on March 4, 1791.[ii] Because of its independency, Vermont was not invited to the Constitutional Convention in 1787. If it had been invited, would these ideas of constitutional review and revision have made it into the United States Constitution? If the U.S. Constitution had contained such a provision, what sort of amendments might have been ratified over these 234 years (as of 2023). And over these years, would the Constitutional “Council of Censors” find, repeatedly, that the Constitution had not “been preserved inviolate in every part”?
Amendment Under the Articles of Confederation
One of the chief defects of the Articles of Confederation, found in Article XIII, reads in part: “nor shall any alteration at any time hereafter be made in any of [these Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”[iii] (Emphasis added)
This requirement for unanimity among the states meant that the Articles would never be amended or otherwise improved. In his Vices of the Political System of the United States, James Madison’s “homework assignment” to himself, he fails to mention this flaw among the twelve “vices” he identifies; it could be that much of the “blame” for America’s moving to a new Constitution is due to this one defect. At the Constitutional Convention, Charles Pinckney said “it is to this unanimous consent [provision of the Articles], the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.”[iv]
In 1781, a proposal was made to amend the Articles of Confederation to give Congress the power to set an impost on goods. Rhode Island refused to approve the measure. As described in the notes of delegate James Madison, “[t]he small district of Rhode Island put a negative upon the collective wisdom of the continent.” Just as Rhode Island’s veto prevented the adoption of an impost in 1781, New York would be the sole state to obstruct a second impost attempt two years later.
Early in 1785, a Congressional committee recommended amending the Articles of Confederation to give Congress power over commerce. Congress sent the proposed amendment to the state legislatures; only a few states responded.
Later that year, in a letter to James Warren, George Washington, wrote: “In a word, the confederation appears to me to be little more than a shadow without the substance;..Indeed it is one of the most extraordinary things …that we should confederate for National purposes, and yet be afraid to give the rulers of that nation… sufficient powers to order and direct the affairs of the same.”[v]
In 1786, Charles Pinckney proposed a revision of the Articles. A committee debated the proposal and recommended granting Congress power over both foreign and domestic commerce, and empowering Congress to collect money owed by the states. By now, convinced that at least one state would disagree, Congress never sent the measure to the states. Given this history, it appeared to the Constitutional Convention delegates that something less than unanimity was required to amend the new Constitution they had drafted.
Amendment at the Constitutional Convention
Item seventeen of the Virginia Plan, introduced in the “Grand Convention” on May 29, 1787, stated: “Resolved. that provision ought to be made for the amendment of the articles of Union, whensoever it shall seem necessary;” There were many provisions of the Virginia Plan to discuss and debate. The delegates did not discuss a process of amendment until a month before the end of the convention.
The U.S. Constitution, Analysis and Interpretation website,[vi] provides this account of the debates over what became Article V of the new United States Constitution:
Alexander Hamilton … suggested that Congress, acting on its own initiative, should have the power to call a convention to propose amendments.[vii] In his view, Congress would perceive the need for amendments before the states.15 Roger Sherman took Hamilton’s proposal a step further, moving that Congress itself be authorized to propose amendments that would become part of the Constitution upon ratification by all of the states.16 James Wilson moved to modify Sherman’s proposal to require three-fourths of the states for ratification of an amendment.17 James Madison offered substitute language that permitted two-thirds of both houses of Congress to propose amendments, and required Congress to propose an amendment after two-thirds of the states had suggested one.18 This language passed unanimously.19
But on September 15, 1787, two days before the convention adjourned for the last time, Article V of the draft Constitution was again discussed. To that point, the approved wording gave all power to Congress to officially propose amendments, although the states could suggest them. Virginia’s George Mason rose and cautioned that: “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (as Madison wrote in his notes), as he verily believed would be the case.” Gouverneur Morris and Elbridge Gerry then moved to require a convention on application of two-thirds of the states and the motion passed “nem: con:” (unanimously). And this provided the alternate method of proposing constitutional amendments: a convention of the states. But notice the rationale for this alternate method of amendment: should Congress become oppressive.
The process of amendment placed in Article V was further debated in the state ratifying conventions, the records of Massachusetts,[viii] North Carolina[ix] and Virginia[x] particularly recording the concerns of delegates. Some convention delegates, like Virginia’s Edmund Randolph, who refused to sign the Constitution, even called for an amending convention[xi] to be immediately convened to fix the “deficiencies” in the Constitution before they went into operation, which would make them harder to correct. Madison thought the idea dangerous. Randolph’s suggestion never gained momentum and the Constitution was ratified by Virginia on June 26, 1788, four days after New Hampshire’s ratification “sealed the deal” because it was the ninth state to ratify, the number of states required by the new Constitution. Less than a year later, the new national government went into operation.
Amending the Constitution – Correctly
Article V of the United States Constitution contains two methods of proposing amendments and two methods of ratifying amendments. Congress, with a two-thirds vote of both chambers, can propose an amendment for ratification by the states and the states themselves, in a convention called for that purpose, can propose amendments for ratification. Over America’s history, all 27 current amendments have been proposed by Congress, none by a convention of the states.
Ratification of a proposed amendment can also take two forms: ratification by three-fourths of the several state legislatures (38) or ratification by three-fourths of state conventions held for that purpose, Congress may “propose” either method. Over America’s history, the later method of ratification has been used only once, to ratify the Twenty-first Amendment.
As many as five thousand amendments have been proposed in Congress since the Constitution went into effect in 1789 and only twenty-seven survived the high hurdle of committee discussions/votes followed by super majority floor votes in both chambers.
[i] https://press-pubs.uchicago.edu/founders/documents/a5s1.html.
[ii] It was Vermont’s admission to the Union which required ratification of the Bill of Rights by ten states versus the nine required to ratify the Constitution itself.
[iii] https://www.archives.gov/milestone-documents/articles-of-confederation.
[iv] Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 Farrand’s Records, supra note 1, at 120–21.
[v] https://press-pubs.uchicago.edu/founders/documents/v1ch5s9.html.
[vi] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913
[vii] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913
[viii] https://press-pubs.uchicago.edu/founders/documents/a5s7.html.
[ix] https://press-pubs.uchicago.edu/founders/documents/a5s10.html.
[x] https://press-pubs.uchicago.edu/founders/documents/a5s9.html.
[xi] https://press-pubs.uchicago.edu/founders/documents/a7s4.html.
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Principle of Secure Borders
Kevin Portteus, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 71: Principle of Secure Borders – Guest Essayist: Kevin Portteus, Kevin Portteus, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
Though the concept of national borders is rejected by many,[1] with some even denouncing the very idea of borders between nations as racist,[2] at both principled and practical levels, however, secure borders are not only defensible, but essential.
More than any other single concept, the foundational principle of the American regime is the principle of natural equality. “That all men are created equal” is the first of the “self-evident truths” proclaimed in the Declaration of Independence. In his 1791 Lectures on Law, James Wilson explains that this equality does not extend to “to their virtues, their talents, their dispositions, or their acquirements,” but only that “the natural rights and duties of man belong equally to all.”[3] This equality of rights originates in “the Laws of Nature and of Nature’s God”: it is inherent in our humanity, and not dependent on any regime or government.
The political corollary of the equality principle is the principle of government by consent. Abraham Lincoln describes this as “the sheet anchor of American republicanism” and “our ancient faith.”[4] Precisely because all men are created equal, no man has the right to govern any other man, without that other’s consent. No one is inherently superior to anyone else in his right to govern. All legitimate political relationships between equal human beings must be on the basis of consent.
This principle of consent is directly applicable to immigration and border security. If borders are insecure, then people may enter into a country, without the consent of those who already comprise that country. It would be as if a homeowner had no right to prevent random people from simply walking in the front door, plopping themselves down on the couch, and claiming to live there now. A property owner has a right to control ingress into his property. A nation is the collective property of its citizens, who have consented to live with each other. If a random person could force himself on the people of a country, without their consent, then that is not a relationship of equals. It is instead tyranny.
Not only is a nation without secure borders subject to the arbitrary whim of whomever may choose to impose himself upon it, that nation also has no control over what comes across its borders. There is overwhelming evidence that huge quantities of illegal narcotics, such as fentanyl, have been pouring across America’s porous southern border.[5] Other problems are known to occur such as increased rates of diseases like polio and tuberculosis.[6] Finally, an insecure border is an invitation to engage in international human trafficking, and the practice is epidemic at the US-Mexico border.[7] In short, a nation, which does not have secure borders, is not really a sovereign nation at all.
The power to protect the integrity of America’s borders is embedded in the United States Constitution in at least two places. First, Article I, Section 8 states that Congress “shall have power…to define and punish…Offences against the Law of Nations.” Borders, and migration of non-citizens across those borders, were understood by America’s Founders to be a law of nations issue and are thus covered by this clause. Second, Article I, Section 9, the infamous “Importation Clause,” creates a “negative pregnant,” implying that in the absence of one very specific set of conditions, Congress may regulate “migration” into the United States, not just the “importation” of enslaved persons[8] as was being addressed by the Founders at the time of writing the Constitution. They wanted to continually reduce and end the scourge of slavery in the United States while preserving the Union and without fomenting war between the states over controversial issues.
With this understanding by the Founders, how would it be possible to maintain what makes America its own nation able to self-govern apart from any dictatorships that could take hold? As President, John Adams wrote “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”[9] meaning that the nation of Americans possesses a specifically chosen cultural infrastructure, and the American people have historically adopted certain moral values, that make its system of constitutional self-government possible. This system, in turn, makes it possible for Americans to enjoy their natural rights. Other peoples, and other cultures, antithetical to that system of government, are thus a mortal threat to America’s political system and way of life, and Jefferson cautioned against a mass influx of peoples with opposing cultures and values, to those of America’s, in Notes on the State of Virginia.[10]
The ultimate tendency of the obliteration of borders is the obliteration of the very idea of sovereign nations. In Federalist 10, James Madison argues for the viability and desirability of a large republic, but even this has its limits.[11] The limits of communication and transportation cannot be completely overcome, and there’s more to a self-governing political society than that. The competing interests of society must have something to unite them; Madison also notes in Federalist 10 that “justice ought to hold the balance between them.” In order to constitute a true political society, a regime, they must share something fundamental, which Aristotle at the outset of The Politics calls the “good.”[12]
The natural and inherent differences in people’s thinking about ideas such as what is good and just means that the peoples of the world will never agree on them perfectly, and they can thus never come together into one regime on principles of justice. The result will either be tyranny or anarchy, as philosophers as diverse as Leo Strauss and John Rawls have noted.[13] The destruction of sovereign nations does not signify the dawn of universal justice; it rather heralds the establishment of universal tyranny.
Secure borders, then, are a necessary precondition of liberty and self-government. It allows us to distinguish between those who are members of our political community, and those who are not. It allows people who share conceptions of justice and the good to congregate into one political community and govern themselves according to those conceptions. Secure borders allow Americans to preserve the cultural infrastructure that makes the United States’ version of free self-government possible. The concept of secure borders is embedded in both American principles and constitutionalism. The destruction of secure borders would be a catastrophe for the American republic.
[1] https://rooseveltinstitute.org/wp-content/uploads/2022/08/RI_TheStatueofLibertyPlan_Report_202208.pdf (accessed August 4, 2023); https://nymag.com/intelligencer/2019/04/this-is-the-immigration-policy-liberals-want.html (accessed August 4, 2023); Alex Nowrasteh, Open Immigration: Yea, in Alex Nowrasteh and Mark Kirkorian, Open Immigration: Yea & Nay (New York: Encounter Books, 2014).
[2] https://www.npr.org/2021/09/30/1041623709/the-racist-legacy-of-early-immigration-law-is-still-alive-today (accessed August 4, 2023); https://thenevadaindependent.com/article/nevada-judge-says-immigration-law-making-reentry-a-felony-is-unconstitutional-has-racist-origins (accessed August 4, 2023).
[3] https://press-pubs.uchicago.edu/founders/documents/v1ch15s48.html (accessed July 30, 2023).
[4] https://teachingamericanhistory.org/document/speech-on-the-kansas-nebraska-act-at-peoria-illinois-abridged/ (accessed July 31, 2023).
[5] https://www.nbcnews.com/politics/immigration/fentanyl-seizures-u-s-southern-border-rise-dramatically-n1272676 (accessed July 31, 2023).
[6] https://nypost.com/2023/04/18/bidens-open-borders-are-bringing-contagious-diseases-to-your-neighborhood/ (accessed July 31, 2023).
[7] https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html (accessed July 31, 2023); https://www.npr.org/2021/04/24/990150761/human-smugglers-bypass-border-patrol-bedeviling-sheriffs-and-ranchers-in-south-t (accessed July 31, 2023); https://www.washingtonexaminer.com/opinion/op-eds/trouble-at-the-border-is-fueling-human-trafficking (accessed July 31, 2023).
[8] https://www.journals.uchicago.edu/doi/10.1086/705604 (accessed July 31, 2023).
[9] https://founders.archives.gov/documents/Adams/99-02-02-3102 (accessed July 31, 2023).
[10] https://vindicatingthefounders.com/library/notes-on-virginia-8.html (accessed July 31, 2023).
[11] https://founders.archives.gov/documents/Madison/01-10-02-0178 (accessed August 4, 2023).
[12] Aristotle, The Politics, book 1, chapter 1 (1252a1-3).
[13] G. P. Grant, “Tyranny and Wisdom: A comment on the Controversy Between Leo Strauss and Alexandre Kojeve”, Social Research 31, no. 1 (spring 1964): 45-72; John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 36.
Principle of Distinguishing Between Purpose of Federal, and Governments of the States: Maintaining the Union While Preventing Federal Encroachments on the States and Individual Americans
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Amanda Hughes, Blog Essay 69: Principle of Distinguishing Between Purpose of Federal, and Governments of the States – Guest Essayist: Amanda Hughes, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Amanda HughesEssay Read By Constituting America Founder, Actress Janine Turner
Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton in a speech, Compromises of the Constitution, June 20, 1788 during the New York Ratifying Convention.
On federal-state confrontation, Hamilton—an aide to General George Washington during the American Revolution and then our first Secretary of the Treasury— in speaking on this topic quoted above, as he argued for the ratification of the United States Constitution: “We might give to such a government certain powers,” he said of the proposed federal government, and yet, he continued, “to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism . . . establishing a power which would destroy the liberties of the people.” Hamilton wanted the states and their people to have power, too, as a counterweight to the danger of federal usurpation. These warnings note that liberty can be destroyed through abrupt or gradual means either by a domestic tyrant or if a foreign force overwhelms it. Hamilton had the answer for both: “The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments.”
Hamilton made it plain he sympathized with the states: “That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation.” In other words, keep the states intact, as a bulwark of freedom for themselves, and as a bulwark against national impingement. This is part of the genius of the Constitution: for every legitimate power, there’s a legitimate counter-power.
As an entity intended to be indestructible, each state has a right, and a duty, to ensure its own integrity and survival. For example, the federal government leads the national defense, but if it won’t, the states must act. For example, one of the state constitutions declares, “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”
Additionally, if the federal government attempts to centralize, for example, law enforcement, education, differing circumstances affecting city or county funding or regulatory needs from state to state, then local control can be usurped of its most basic foundations for maintaining self-government and accountability. Through state constitutions, state legislatures, city and town councils, civil systems closest to the people are enabled to uphold Americans in charge of their own governing.
Along with Founders such as Hamilton, others later in American history learned the importance of state sovereignty which meant local control and self-governing. For instance, Salmon P. Chase appointed by President Abraham Lincoln in 1864 as Chief Justice of the United States, in 1869, Chase opined on behalf of the Court, “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” So how, precisely, does the indestructible Union interact with the indestructible States? That is a question each generation of Americans must carefully discern through the study of history.
America’s Founders, and Framers of the Declaration of Independence and Constitution knew the dangers of centralized government that easily usurped the local decision-making process. From the study of world history, they understood this well leading up to what would be contained in the words of the Declaration of Independence, and fought for in the American Revolutionary War. Though they did not want war, they were willing to do so for independence. They discussed through meeting together, writing letters, pamphlets and newspaper articles about how freedom is not free and that the steps to gain independence would be slow and difficult, but worth it. They understood how a government distant from the people could easily turn into a tyrannical dictatorship of top-down control. From the perspective of America’s Founders, Framers of the Declaration of Independence, and eventually the United States Constitution, it was far better to protect local decision-making that would not remove self-governing from the people than to allow centralization of government to take root. This was the importance they saw in limiting the federal government and ensuring liberty of the states and localities of America.
This understanding was more stark to them each day of work it took to gain their independence from Great Britain and eventually form a different type of government. Samuel Adams emphasized this importance after the Second Continental Congress adopted the Declaration of Independence July 4, 1776. Then a little over a week later the Articles of Confederation were presented on July 12 that would serve as a constitution to get the new nation’s government started. In his speech “On American Independence” on August 1, 1776, Adams stated: “Our Union is now complete; our Constitution composed, established, and approved. You are now the guardians of your own liberties. We may justly address you as the decemviri did the Romans, and say: ‘Nothing that we propose can pass into a law without your consent. Be yourselves, O Americans, the authors of those laws on which your happiness depends.’”
The ideas that animated the debate over the United States Constitution nearly a quarter-millennium ago are as alive today as today’s headlines. The principle of distinguishing between the purpose of federal and state governments cannot be overstated. Maintaining the Union through preventing federal encroachments on the states and individual Americans is vital to the foundation of self-governing and independence. Legal and political issues that threaten the ability of the states to maintain local control continually prove the Constitution so relevant and urgent for American citizens to understand and apply.
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Principle of Free Thought and Speech, a Core Component of a Self-Governing People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 82: Principle of Free Thought and Speech, a Core Component of a Self-Governing People – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony Williams“The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.
The Declaration of Independence asserts the self-evident truth that all human beings are created equal and endowed with natural rights. The Declaration then states that governments are established with the purpose of protecting those rights with the consent of the governed. This Lockean conception of social compact theory supported a representative government in the American republic.
The concept of consensual government naturally supported the idea of freedom of speech. While the nature of free speech differed from America’s modern conception, the principle of political free speech was fundamental to a republican form of government and self-governing society. Expressing political opinions in speech and in print, engaging in hearty debate and deliberation, and giving consent to representatives in legislatures were all essential for self-governance.
In The Federalist No. 51, James Madison wrote, “In republican government, the legislative authority necessarily predominates.” As the first branch of government, Congress most embodied the principle of self-government and representation. The legislative branch, both in Congress and the state legislatures, was the center of deliberation, debate, and consensus.
Indeed, the American founding experienced great deliberative moments that represented profound moments of reflection and discussion. These debates demonstrate the importance of free speech to exchange political viewpoints in a free society. In each case, they show that free debate of clashing viewpoints can result in the common good. For example, the members of the Second Continental Congress were unsure or even opposed to independence in early 1776. A vigorous debate occurred in which both sides of the issue sought to persuade the other. Eventually, the Congress unanimously agreed to independence.
During 1787-1788, the great deliberative moment of making and ratifying the United States Constitution witnessed robust debates between the Federalists and Anti-federalists over the principles of human nature and government. The debates took place in the secret Philadelphia convention, but the vigorous conversation moved into state ratifying conventions, newspapers and pamphlets, private letters, and taverns.
In the early republic, the George Washington presidential administration had its share of highly partisan and contentious debates. The debates over Secretary of the Treasury Alexander Hamilton’s financial plans and the crafting of American foreign policy were rooted in constitutionalism and establishing the right precedents for the new government as prescribed in the new Constitution. These deliberations could be offensive and personal, but they were also deeply rooted in constitutionalism as both sides took the document seriously.
In all of these debates, the key principle was the element of free speech. The representatives and the people freely asserted their views about the best ways to achieve good government. They may have often had rival conceptions of the public good, but they built consensus through sharing and debating those ideas, listening to the arguments of the other side, and trying to persuade others of a reasonable viewpoint. For these reasons, holding to the first principle of free speech and thought has always been a core component of a self-governing people.
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Principle of Freedom of Association, Undissolved and Unweakened, Either to Associate or Not, and Neither under Coercion nor Force
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, George Landrith Essay 83: Principle of Freedom of Association, Undissolved and Unweakened, Either to Associate or Not, and Neither under Coercion nor Force – Guest Essayist: George Landrith, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, George LandrithEssay Read By Constituting America Founder, Actress Janine Turner
“…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.
The Bill of Rights doesn’t grant or create rights, but it does outline and protect rights. Our nation’s Founders believed that rights were given to us by our Creator. But they also believed that the proper role of government was to protect God-given rights. The freedom of association is a fundamental right of a free people. The First Amendment lays out the basis for the freedom of association — which simply means we have the right to associate with like-minded people, if we choose to.
The First Amendment explicitly protects religious freedom, freedom of speech and of the press, the right to assemble peacefully, and to petition the government to remedy injustice. While the phrase “freedom of association” does not appear in the United States Constitution, the right is wrapped up in the ideas of freedom of speech, the right to peacefully assemble, and the right to petition our government as well as the Due Process Clause of the Fourteenth Amendment.
It is important to remember that the Bill of Rights was never intended to list every God-given right that we have. The Ninth Amendment explicitly states this point — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Likewise, in some ways the Bill of Rights is more a list of limits on the power of government than it is a list of rights. For example, the First Amendment states “Congress shall make no law ….” The Second Amendment says that the right of the people “shall not be infringed.” The Fourth Amendment says that “the right of the people … shall not be violated….” The Eighth Amendment prohibits government from imposing cruel and unusual punishments and excessive bail and fines.
If the Bill of Rights had been intended by our Founders to be a complete and comprehensive list of every God-given right that we had, it would have been much, much longer. The issues raised in the Bill of Rights were things that the Founders had experience with. They had seen the British crown mandate religious practices, limit speech, destroy presses that published disfavored ideas, and try to confiscate American guns. They had also seen Redcoats terrorize Americans, searching and destroying their homes and businesses without due process. They had also seen throughout history a number of abuses by other overbearing and unjust governments. So the Bill of Rights was only a partial listing of the rights that history had taught them were most likely to be abridged by a tyrannical government.
America’s Founders did speak specifically of the freedom of association. Samuel Adams was an ardent patriot, an influential leader of the movement for American Independence, and a cousin of John Adams. In a letter dated February 12, 1779, to James Warren — a fellow advocate for American independence and a Major General in George Washington’s Continental Army — Sam Adams wrote “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles and Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.”
It makes perfect sense that America’s Founders would see the freedom of association as foundational to a free society. They had gathered together and worked together to promote American independence. And the British Crown had attempted to make those associations a criminal activity. America’s Founders understood that they would have to associate and work with other Americans who shared their desire for independence. The British attempt to deny them the right to associate with like-minded Americans was simply an attempt to silence them and prevent them from petitioning the government for redress of their grievances. And only after years of presenting their grievances and being entirely rebuffed did they finally decide to declare their independence.
A logical extension of the rights of free speech and the right to peacefully assemble is the freedom of association. So while the actual words “freedom of association” do not appear in our Bill of Rights, the principle of freedom of association is clearly intended by our Founders and the United States Constitution. If you only have the freedom of speech as an individual, but cannot align yourself with others who share your views, that would give government the power to limit your ability to effectively speak your mind or petition the government.
Likewise, freedom of association includes the right for a group or association to establish its own rules for governing the internal affairs of the group. Imagine if government could regulate political parties or issues-based groups and how they operate. If government had this power it could effectively stifle a political group’s ability to petition the government or to speak out on policies that it supports or opposes.
Freedom of association also includes the freedom to not associate. An example of unwanted association is when a group tries to force employees to contribute to spending on ideological or political issues that employees may disagree with. The point is that government should not be requiring people to associate or preventing them from associating. In a free society, people get to decide what groups they agree with and which ones they disagree with and to either associate or not to associate based on their own determination — not government mandates.
We have a wide variety of possible associations — family, friends, neighbors, schools, the workplace, clubs, political parties, issue-based groups, etc. Not all are voluntary — for example, we are typically born into a family, we don’t choose the family we belong to. But once we become adults, we do choose how closely we want to align with and associate with our family. Likewise, young children don’t really choose to attend school or even a particular class.
But by the time we are adults, our associations are by choice — the church we go to or don’t go to, the job that we choose to pursue, and the clubs or organizations that we join or support. In a free society, government ought not be dictating what friendships, memberships, or groups we must maintain or support, and alternatively those which we must avoid or spurn. And government should not impose rules upon groups which discourage membership or punish those who align with the group.
In 1958, in NAACP v. Alabama, the Supreme Court unanimously held that the freedom to associate was part and parcel of free speech and peaceable assembly and that it also flowed from the Due Process Clause of the Fourteenth Amendment. The case involved the State of Alabama trying to deny the NAACP the right to operate within the state unless the organization fully disclosed its membership and donor lists.
The NAACP was concerned that such disclosure could be used to harass its members and would significantly limit its ability to align with Americans who supported civil rights and equal rights for all citizens. The U.S. Supreme Court unanimously held that the freedom to associate was part of the ability to engage in free speech and to peacefully assemble and that advancing your beliefs through association with like-minded people was an inseparable part of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment.
Freedom of association is part of American life since the nation’s earliest days. We even associate with other Americans via social media. It is instructive that totalitarian regimes like North Korea, China and Iran outlaw free association. If you’re spotted visiting or dining with the wrong people, these regimes will punish you. If you attend religious services, or have friends who attend such services or have friends who are known to support reforms, you will be punished.
Even China’s social credit program is designed to enforce a mechanism that requires its populace to maintain only those relationships that are approved of by the government. No free society can tolerate a government that believes it has the power or authority to dictate associations in this fashion.
America’s Founders wisely understood that a free people must have the right to think for themselves, to speak freely, to petition their government without reprisals, to create associations to further their beliefs and leverage their speech, and to work individually or in association with others for policy reforms. The nation of America has been blessed that its Founders recognized this important fundamental right of freedom of association.
If America hopes to continue to be a free people, then we must continue to embrace and defend free speech, freedom of the press, freedom of conscience, the right to petition the government and the freedom of association. These freedoms are foundational elements of self-determination.
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Principle of Constitutional Limits on the United States Government To Tax
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 80: Principle of Constitutional Limits on the United States Government To Tax – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read By Constituting America Founder, Actress Janine Turner
“How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.
In 1765, the Stamp Act ignited a storm of protest and led to a series of events that sparked a revolution of the American colonies against Great Britain. The dreaded act was a British tax on colonial stamps on newspapers, legal documents, and playing cards among other items. The taxes provoked a strong reaction against the colonists who raised cries that they were being taxed without representation in Parliament.
The colonists resorted to several different forms of protest to the taxes. At first, they petitioned the king and Parliament claiming their constitutional liberties as Englishmen and their natural rights. Soon after learning of the impending taxes, in December 1764, the Virginia House of Burgesses was the first to level a protest and sent a petition stating that, “The people are not subject to any taxes but such are laid on them by their own consent.”
In addition, colonists formed mobs that intimidated and coerced the Stamp Act collectors into not collecting the tax and resigning their offices. Some were threatened with violence, others were burned in effigy, and one was frighteningly buried alive until he relented. Other acts of violence erupted, with Boston mobs tearing down the Stamp collector’s office and vandalizing and plundering the home of Lieutenant Governor Thomas Hutchinson.
The colonists also began to demonstrate a sense of common identity and unity when nine colonies agreed to meet at the Stamp Act Congress in New York. After their deliberations, the delegates agreed to a declaration of rights asserting their fundamental liberties. Foremost among these was the right not to be taxed without their consent. “It is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives.”
British merchants were devastated financially by the colonial boycotts of British goods. They petitioned the king and Parliament for relief and eventually found it when Parliament revoked the Stamp Act Taxes. However, the Parliament also passed the Declaratory Act, which affirmed that principle that the body could legislate and tax the colonists in “any case whatsoever.”
The clashing perspectives of the colonists and British showed a fundamental disagreement over taxation and the powers of government. The parliamentary assertion of unlimited authority to govern the colonies led to additional attempts to tax the colonists, who predictably stood by the principle of no taxation without consent and resisted the taxes.
In 1767, Parliament passed the Townshend Acts which were a tax on a variety of items including glass, paint, paper, and tea. The colonists again resolved not to import British goods, which dried up trade between Great Britain and her colonies. Parliament relented and revoked the taxes but soon passed the Tea Act which collected three pennies per pound.
While it might seem like a trifling amount, Virginian George Washington explained that it was the principle that was at stake rather than the money. “What is it we are contending against? Is it paying the duty of 3d. per pound on tea because burdensome? No, it is the right only…as Englishmen, we could not be deprived of this essential and valuable part of our Constitution.”
The Boston Tea Party in late 1773 was the clearest expression of colonial opposition to being taxed without consent. The British retaliated harshly with the Coercive Acts shutting down the Port of Boston, banning town meetings and self-government, and allowing British colonial officials to escape American justice. This course led to the First Continental Congress and the first shots of the war being fired at Lexington and Concord. One of the grievances of the Declaration of Independence was “imposing Taxes on us without our Consent.”
During the war and after, however, the opposition to central authority provoked by resistance to British tyranny meant that one of the problems in the new nation was the inability to tax and collect adequate revenue. During the period, the Continental and Confederation Congress relied primarily on requisitions to the states for taxes, which were frequently ignored. Meanwhile, the states and national government were burdened by large war debts. The national government under the Articles of Confederation was especially unable to pay it off or use revenue to pay for armies to suppress internal rebellions such as Shays’ Rebellion.
Article I of the new United States Constitution empowered the Congress to pass taxes with the consent of the people through their elected representatives. Article I, section 8 stated: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”
However, because of the fear that the Senate might form a corrupt cabal with the executive branch, and because the House of Representatives was the only popularly-elected branch of government and was closest to the people, any bills in Congress for taxes had to start in the House. Article I, section 7 states, “All Bills for raising revenue shall originate in the House of Representatives.”
Taxation in the United States was often controversial from the tariff and protective tariff in the nineteenth century to the escalating tax rates to fund a growing federal government in the twentieth and twenty-first centuries. The ideals of the American founding continued to shape American concerns and fears of centralized government and taxation. Supreme Court Chief Justice John Marshall asserted in McCulloch v. Maryland (1819) that, “The power to tax involves the power to destroy.” Americans have believed since the founding that a government that taxes too much destroys liberty.
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Principle of a Nation’s Longevity Upon Consisting of Public and Private Virtue
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 89: Principle of a Nation’s Longevity Upon Consisting of Public and Private Virtue – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.
In A Defence of the Constitutions of Government of the United States, John Adams mused about a lengthy quote from Aristotle’s Politics. There, Aristotle extols the benefits of a polis controlled by a broad middle class and warns of the danger to societies if the number of the middle class dwindles. His assessment of the best practical political system is consistent with what is called the “Golden Mean,” a concept taken from Aristotle’s Nicomachean Ethics. For the most part, excellence of the soul—virtue—lies in taking a path between two extremes that are vices. Another key element of classical Greek philosophy was that excellence of the person and of the state were intimately connected, that the polis was the soul writ large, so the analogy of the benefits of moderation for the individual to the benefits of middle-class government for the state was obvious.
It is worth quoting Aristotle at length on this point, as Adams did:
This critique of pure oligarchic or democratic systems has been summed up as the unwelcome prospect of the rich stealing from the poor in the former, and the poor stealing from the rich in the latter.
Adams quoted this passage with approbation, but occasionally expressed opinions which seemed to be at odds with Aristotle’s political theory. Aristotle proposed a mixed government (mikte) as the most stable and conducive to human flourishing. The mixed government would not be democratic or oligarchic but would have elements of both in a mediated balance, such as in Athens, where the popular Assembly was balanced by the Council of 500 and its steering committee. Adams’s own work in drafting the Massachusetts Constitution of 1780 incorporated a similar bicameral structure in a Senate and a House of Representatives, with qualification for election to the former requiring ownership of an estate three times the value of property needed for election to the latter. But he also put in place a further structure of separation and balance of powers among the three branches of government, explicitly affirmed in Article XXX of that constitution, so that “it may be a government of laws and not of men.”
Aristotle’s description of the instability of pure systems such as oligarchy and democracy was not new with him. Plato and other Greeks had done likewise. American writers had similar misgivings. James Madison addressed such instability in his writings in The Federalist, especially in his discussion of factions in essay No. 10. Aristotle’s observation that “extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor,” sounds remarkably like Madison’s defense of the national government.
Factions are the result of the inevitable inequality of rights in property which proceeds from the natural inequality of talents. “Those who hold, and those who are without property, have ever formed distinct interests in society.” Moreover, because of the inherent nature of democracies, where a small number of citizens conducts the government in person, those factions are most likely to become entrenched, with the stronger party sacrificing the weaker. “Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.” This remark might as well have been a summary of Athenian politics. Again, Aristotle’s observation, “When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state,” matches Madison’s critique.
The instability and short survival of democracies carried over to other small political entities.
Specifically,
Samuel Adams’s letter to James Warren quoted in the introduction to this essay tied stable government and individual liberty to virtue and bound private and public virtue to each other. This emphasis on the interdependent virtue of the citizen and of the society was the essence of classical republicanism and a fundamental concept in the political philosophy of Greek and Roman writers. Moreover, Adams confided to his fellow New Englander that it was the “Principles & Manners” of that region which produced the spirit of liberty that fueled the drive to American independence. In the views of many New Englanders, especially Samuel’s cousin John Adams, widely-distributed land ownership of medium size lay at the heart of developing those New England principles that allowed for private and public virtue to take root.
In that letter to Warren, Adams also echoed Aristotle’s identification of a free city with a large middle class, whose ownership of a moderate estate made them most receptive to governance based on reason. Government by reason is analogous to the exercise of public or civic virtue and is most conducive to happiness (eudaimonia). When Aristotle declares, “It is plain then that the most perfect community must be among those who are in the middle rank,” he is associating excellence of government with a middle-class society. Excellence was arete in Greek. In Rome, the Latin translation became virtus and denoted a particular type of attribute and action that connected private character and public conduct.
The inevitable link between widespread property ownership of land, a virtuous citizenry, liberty, and survival of republican government was a common theme outside New England, as well. Although property ownership in the South was somewhat more complex due to the existence of the planter class in the Tidewater regions, other regions of the area still had a large class of yeoman farmers with moderate estates. Two of the most prominent advocates of Southern agrarian republicanism were Thomas Jefferson and John Taylor. Jefferson sought to realize his idealized virtuous republic of artisans and yeoman farmers politically through his promotion of land sales in the Old Northwest and the acquisition of Louisiana. Taylor’s writings on land ownership, virtue, liberty, and republican institutions brought systematic cohesion to agrarian republicanism and tied its principles to contentious issues of public policy.
But faith in a virtuous middle class as the source of personal liberty and political stability was not blind. Various writers, including John Adams in 1776, expressed reservations about the capacity of Americans to acquire the virtue necessary for self-government. New Englanders’ faith in their virtue and their fitness for republican government was shaken severely by the tax rebellion of Daniel Shays and his followers in 1786. Perhaps such virtue was not possible without a strong hand of government to correct deviations. More Americans were forced to confront that issue during and after the Whiskey Tax Rebellion in Pennsylvania from 1791 to 1794. After all, in both scenarios, the challenge to the republican governments had come from yeoman farmers, the supposed embodiments of republican virtue.
Southern agrarians had always been more skeptical that there was sufficient virtue among politicians to maintain republican government. Their experience with the turbulence and corruption of state governments after independence only confirmed their doubts. Madison expressed that sentiment in essay No. 51 of The Federalist. While there was some basis to believe that the people might acquire the requisite virtue, in the case of politicians it was best to assume that “the better angels of [their] nature,” to borrow Abraham Lincoln’s famous language from years later, would not direct their actions. It was more likely that pure self-interest and desire for power would be their motivation.
Therefore,
Those auxiliary precautions lay in the structure of the government under the Constitution, primarily a separation of powers and blending and overlapping of functions as in John Adams’s Massachusetts constitution.
Madison was not alone in declining to place all bets for success of republican self-government and liberty on human virtue. Samuel Adams may have been correct that those “Blessings of Liberty” cannot be passed on without cultivating virtue in the people, especially the virtues of the Aristotelian golden mean. Self-government requires self-restraint. But virtue, though necessary, may not be sufficient. “The best republics will be virtuous, and have been so,” the other Adams—John—concluded in the last pages of the multivolume Defence in the somewhat stilted syntax of his time,
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Principle of Civil Discourse To Keep Representative Government, Unhindered Freedom of Speech in the Airing of Grievances
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 86: Principle of Civil Discourse To Keep Representative Government, Unhindered Freedom of Speech in the Airing of Grievances – Guest Essayist: Andrew Langer, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerEssay Read By Constituting America Founder, Actress Janine Turner
“To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.
The age-old proclamation made in the Pennsylvania Gazette, attributed to Andrew Hamilton, regarding the “reciprocal dependence” between the United States Constitution and free speech, resonates powerfully with the principles held dear by anyone deeply concerned with balance of power between individuals and their government: the inseparability of a free constitution and freedom of speech. For a republican form of government to remain genuinely representative, it is imperative to ensure that citizens can air their grievances without fear of retaliation. To suppress the voice of the people is, in effect, to suppress the very essence of democracy which is the means a representative republic uses to make apparent the consent of the governed.
At the heart of a representative government lies the principle that those in power are there to serve, and not to dictate. They are but emissaries, chosen by the populace to voice their hopes, aspirations, and concerns. Such representation is hollow if the populace cannot, or is afraid to, communicate openly.
Civil discourse, which is simply the ability to discuss and debate matters of public interest in a reasoned and respectful manner, is the bedrock upon which representative government stands. Without it, the bridge between the representatives and those they represent is broken. The essence of representative government is lost if its constituents cannot engage in free discourse without fear of persecution.
Traditionally, classical liberals (which is how one can describe most, if not all, of the founding fathers) firmly believe in the principle of minimal government intervention in the lives of its citizens. Freedom of speech, as a cornerstone of liberty, is not just the ability to speak one’s mind but to do so without fear of government retribution. To silence or suppress speech is to curb the very freedom that serves as a bulwark against tyranny.
The case of John Peter Zenger, defended by Andrew Hamilton, stands as a testament to the dangers of a government that seeks to stifle criticism. Arrested for merely voicing his critique of the establishment, Zenger’s plight underscores the importance of preserving unhindered freedom of speech. When governments are allowed to decide what can and cannot be said, we tread perilously close to the realms of despotism.
The quote from the Pennsylvania Gazette highlights a profound truth: a free constitution and freedom of speech are interdependent. Without the liberty to speak one’s mind, a constitution, however free in letter, becomes tyrannical in spirit. Conversely, freedom of speech without a constitution that protects and upholds it is but an illusion.
The reason for this reciprocal relationship is clear. A free constitution provides the framework within which rights, including freedom of speech, are preserved. Meanwhile, unhindered freedom of speech ensures that this constitution remains truly representative, constantly held to account by the voice of the people.
In an age where voices are increasingly stifled under the guise of various reasons, it is paramount to remember the wisdom of yesteryears, as echoed by Andrew Hamilton. To suppress inquiries into administration might be the hallmark of autocracy, but in representative government, the voice of the people must remain unbridled and unbroken.
In any dynamic society that prides itself on progress, innovation, and the welfare of its people, the free flow and exchange of ideas is not just a luxury, but an absolute necessity. The significance of this cannot be overstated, particularly when it comes to addressing and solving the myriad problems society faces. At their core, the principles upon which this nation was founded cherish the values of individual freedom, limited government, and the sanctity of personal choice. This philosophy acknowledges that every individual, with their unique experiences and perspectives, has the capacity to contribute to the vast tapestry of human knowledge. However, this can only be realized if they are allowed and encouraged to express themselves freely, even if their ideas are unpopular or deemed contentious.
At the foundation of the free exchange of ideas is the belief in the “marketplace of ideas,” a theory that the truth will emerge from the competition of ideas in free, transparent public discourse. Just as economic markets rely on competition to produce the best goods and services, intellectual progress requires a contest of ideas. Suppressing unpopular or controversial ideas, even those deemed false or harmful, doesn’t necessarily make them disappear. Instead, it drives them underground where they are not subject to public scrutiny, critique, and potential refutation.
Moreover, it creates a “marketplace of ideas.” Many of the most groundbreaking discoveries and social movements in history were once viewed as controversial or even heretical. Galileo’s heliocentric model and the rights of women to vote were both, at different times, unpopular ideas. Without the freedom to challenge prevailing notions and the status quo, society would stagnate, and advancement would be hindered. A society that is open to the free exchange of ideas is more adaptable, resilient, and inventive.
Free speech also offers protection from despotism and tyranny. One of the most potent tools at the disposal of tyrannical regimes is the suppression of speech and the curtailment of the free exchange of ideas. By controlling the narrative and silencing dissent, these regimes can maintain power and perpetuate their ideologies unchallenged. History has repeatedly shown the dangers of this approach. Protecting even unpopular speech ensures a check against potential governmental overreach and tyranny.
One can also not understate the importance of freedom of speech to the betterment of men and women themselves, outside of just the political realm. On an individual level, exposure to a wide array of ideas, even those that challenge our deeply held beliefs, is essential for personal growth. It encourages critical thinking, promotes empathy by understanding various perspectives, and enriches our knowledge base. Suppressing unpopular speech denies individuals these opportunities. Promoting the greatest amount of speech ensures a vibrant civil society.
The freest speech also is a way to ensure that society solves its own problems. No society is without its problems, and often, it is only through open dialogue and the free exchange of ideas that these issues come to light. Unpopular speech can draw attention to overlooked issues, catalyze movements for change, and present alternative solutions to pervasive problems. Silencing such speech, on the other hand, can perpetuate ignorance and hinder society’s ability to address its challenges.
The suppression of speech, particularly when it involves the silencing of religious or ethnic expressions, can have dire consequences on societal cohesion and stability. Yugoslavia, under its Communist regime, is a poignant example of this phenomenon. The country, a mosaic of ethnicities and religions, was kept together through strong centralized governance and strict control over nationalist sentiments. The Communist authorities aimed to forge a unified Yugoslav identity, which involved suppressing religious and nationalist expression, relegating it to the private sphere, and often demonizing it in the public sphere. This suppression did not eradicate the deeply-rooted ethnic and religious sentiments; rather, it drove them underground, where they festered, accumulated grievances, and lacked the necessary open space for dialogue and reconciliation.
When the Communist regime in Yugoslavia disintegrated in the early 1990s, the suppressed sentiments and grievances came to the surface with a vengeance. Without the structures or platforms for peaceful dialogue in place, these sentiments exploded into sectarian violence, leading to a series of brutal wars that resulted in the dissolution of Yugoslavia. Had there been a more open space for religious and ethnic expression during the Communist era, communities might have had the opportunities to address and possibly reconcile their differences or at least coexist peacefully. Instead, the suppression created a vacuum, and when the lid was abruptly removed, the pent-up frustrations and hostilities were unleashed in a tragic wave of violence. This serves as a powerful reminder of the dangers inherent in suppressing speech and the importance of fostering open dialogue in multi-ethnic and multi-religious societies.
The importance of the free flow and exchange of ideas, even those that are unpopular, cannot be emphasized enough. Such freedom is at the very core of a thriving, advancing society. In embracing the free exchange of ideas, the fundamental human right to express oneself is championed, and fostered is an environment ripe for innovation and the holistic betterment of society.
A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.
Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.
He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.
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Principle of Freedom of Assembly
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Scot Faulkner Essay 85: Principle of Freedom of Assembly – Guest Essayist: Scot Faulkner, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Scot FaulknerEssay Read By Constituting America Founder, Actress Janine Turner
“New England town meetings have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government and for its preservation.” – Thomas Jefferson, 1816
“Local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.” – Alexis de Tocqueville, 1835
The concept of people openly gathering to discuss matters of public interest was developed among the ancient Greek city states in the 6th Century B.C. It became known as “Athenian Democracy” under the leadership of Pericles (461-429 B.C.) during Athens’ “Golden Age.” Participation was open to all adult free male citizens.
In actions that would be repeated throughout history, Athenian public meetings were suppressed to centralize government power. This occurred in 322 B.C. by the rulers of the Macedonian Empire, first Philip II and then his son, Alexander “the Great.”
Freedom of assembly vanished during the Roman Empire and the feudal states. People could still petition the chief, warlord, or king for grievances, but local democracy was lost.
Iceland rekindled community-based democracy in 930 A.D.
The Althing (Norse for “assembly field”) was an open area (near present day Reykjavik) reserved for the annual gathering to discuss and decide issues facing the community. The presiding official, Lögsögumaður (Norse for “Law Speaker”), stood on a central rock outcropping known as the Lögberg (Norse for “Law Rock”). He established the procedures for the Althing and declared decisions after open discussion and voting. All free men had the right to attend and participate.
The Althing lost its authority when Iceland was annexed by Norway in 1262.
In 1231, the freedom of assembly, and early federalism, arose among the various independent regions (Cantons) in Switzerland. The Landsgemeinde (German for “cantonal assembly) was established as a system of direct democracy, open voting, and majority rule among the communitas hominum (Latin for “the community of men”). This terminology was to emphasize that it was an assembly of all citizens, not just the elite.
Citizens of the Swiss Cantons fiercely defended their assemblies. In 1499, they defeated the forces of Emperor Maximillian I, the Holy Roman Emperor, at the battle of Dornach. They retain their system to this day.
The practice of holding town meetings in Colonial America developed from 17th Century English “vestry” meetings. These meetings allowed parishioners to discuss and decide issues relating to their local parish. These became integral to New England communities in the mid to late 1600s. Their agendas ranged beyond church governance to community matters.
In 1691, the Colonial Parliament (General Court) of the Commonwealth of Massachusetts passed a Charter that declared that final authority on bylaws rested with town meetings. In 1694, the Massachusetts General Court granted town meetings the authority to appoint assessors. In 1715 it granted town meetings the right to elect their own presiding officers (moderators) instead of relying on outside appointees.
Colonial meeting houses remain places of reverence in small towns throughout New England.
It is not surprising that eradicating town meetings, and restricting the right to free assembly, were key elements in Britain’s suppression of America’s Independence movement in the early 1770s.
Lord North, the British Prime Minister (1770-1790), instituted harsh measures to suppress dissent and disrupt the culture of self-government, which he viewed as the root cause of the chaos. On May 2, 1774, North declared Massachusetts was “in a distempered state of disturbance and opposition to the laws of the mother country.”
On May 20, 1774, the British Parliament passed the Massachusetts Government Act, which nullified the Massachusetts Charter of 1691. It abolished local town meetings because, “a great abuse has been made of the power of calling them, and the inhabitants have, contrary to the design of their institution, been used to treat upon matters of the most general concerns, and to pass dangerous and unwarrantable resolves.” Ongoing local meetings were replaced by annual meetings only called with the Colonial Governor’s permission, or not at all.
A series of five punitive acts were passed by Parliament intended to restrict public discourse and punish opponents. It was England’s hope the “Intolerable Acts” would intimidate rebellious Colonists into submission. The “Acts” ignited a firestorm of outrage throughout Colonial America. More importantly, it generated a unity of purpose and inspired a willingness for collective action among leaders in the previously fragmented American colonies.
In a bold “illegal” act to assert its right to free assembly, the First Continental Congress met in the Carpenters Hall in Philadelphia from September 5 to October 26, 1774. Twelve of the thirteen colonies (Georgia opted out) were represented. They issued the “Declaration of Rights and Grievances,” the first unified protest of Britain’s anti-colonial actions.
The British Crown’s assault on the right to free assembly was among the top Grievances listed in the Declaration of Independence less than two years later.
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Principle of Freedom of Religion
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 88: Principle of Freedom of Religion – Guest Essayist: Patrick Garry, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Patrick GarryEssay Read By Constituting America Founder, Actress Janine Turner
“Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.
Freedom of religion has been a foundational belief ever since America’s colonial beginnings in the seventeenth century. Most of the colonies were religiously inspired enterprises, and the early laws and charters of the colonies reflected those religious beliefs.
The European settlement of America owed much to the desire of the new settlers to escape the religious oppression of their old country. They braved the long, treacherous ocean journey to come to an unknown land filled with unknown dangers, all for the sake of finding the freedom to practice their religion.
A belief in freedom of religion stems from the conviction that religion reflected a higher source of authority than do civil governments; therefore, those governments should not coerce individuals from following their religious beliefs, especially when those beliefs do not threaten the state or pose harm to any other individual.
England, an originating country for many early settlers, possessed a state established religion—the Church of England. The government both supported this religion, with tax revenues, and regulated its theological practices. This meant that individuals who did not adhere to the tenets of the Church of England and who did not wish to belong to that religion were nonetheless forced to support it. Moreover, religious dissidents were often oppressed and discriminated against in various ways. It was this oppressive environment from which many American settlers wished to escape.
Once in America, the settlers initially formed their colonies around the single religion of their belief. However, as settlement increased and the colonies became more diverse in their population, the colonies in turn became more diverse in their religious identities, with the result that the American colonies acquired a practice of religious tolerance unknown in Europe.
This tolerance continued after America achieved its independence and formed a constitutional republic. The very first freedom enshrined in the First Amendment of the Bill of Rights guarantees individuals the right to freely exercise their religious beliefs. To further protect religious freedom, the First Amendment also prohibits Congress from establishing a state-run religion, as England had done with the Church of England.
Over the years, courts have grappled with the application of these religious liberty provisions in the First Amendment. The courts have ruled that the Free Exercise Clause prohibits government from targeting religion for selective burdens or discriminating against religious believers. However, because courts have not wanted to adjudicate all the areas in which religious beliefs might conflict with secular laws, the courts have held that neutral and generally applicable laws that incidentally burden religion are not unconstitutional. This holding has left religious believers vulnerable on a number of fronts, and so Congress in 1993 by an overwhelming margin passed the Religious Freedom Restoration Act, which sought to strengthen legal protections for religious liberty. Unfortunately, during the thirty years since passage of that law, the commitment to religious liberty on behalf of many political and governmental leaders appears to have waned.
With respect to the Establishment Clause of the First Amendment, courts have been even more confused and divided. Whereas some judges believe that the Establishment Clause was intended as another means by which to protect religious liberty, other judges have seen the Clause as a tool by which to prohibit any interaction between government and religion, thereby preventing religious institutions from receiving any government benefits or recognitions that all other social institutions are entitled to receive. This latter position rests on the argument that any government benefit given to a religious organization, regardless of whether that benefit has anything to do with religious beliefs, amounts to an unconstitutional establishment of religion. Essentially, this argument equates a Christmas display of a nativity scene in a public park with the tax-supported Church of England.
The judicial dispute on the Establishment Clause has come down to a debate over whether the Clause was intended to protect religious liberty or the secular identity of society. Recently, the U.S. Supreme Court has greatly clarified the nature and purpose of the Establishment Clause. Several years ago, it held that a cross monument constructed by private parties to honor military veterans, but now standing on public property, did not rise to the level of an unconstitutional establishment of religion. And in 2022, the Court held that a public school district did not violate the Establishment Clause by not forcibly prohibiting an assistant football coach from voluntarily saying a private prayer at mid-field after the conclusion of a game.
Opinion polls and political agendas suggest that Americans may not value religious liberty in the same manner as eighteenth-century Americans did. But the constitutional Framers foresaw that religious liberty should not be left up to the dictates of political opinion. The Framers so valued religious liberty that they placed it as the first liberty protected by the Bill of Rights. And unlike contemporary critics who see religion as divisive, the Framers valued religion for contributing to the civic virtue and welfare of society.
For the constitutional Framers, freedom of religion was necessary not just to protect what was considered the most important individual liberty, but to protect the vitality and thriving of religious beliefs and institutions that in turn did much to strengthen society. Through religion, citizens learned the values of public service, honesty, and the rule of law. Religious belief combatted the vices of selfishness and greed and helped strengthen the virtues of self-sacrifice and self-restraint, which were seen as necessary traits for a stable nation.
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Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 79: Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
Alexander Hamilton responded in numerous essays in The Federalist to the charges that Congress might impose excessive taxation. Among his efforts to calm the torrents of dissent was essay No. 21, where he opined that imposts, excises, and other duties on articles of consumption were preferable to other types of taxes. Consumption taxes were unlikely to be excessive, as they had a built-in safety valve. The higher the tax, the less of the article would be consumed, which would result in less revenue collected. “This forms a complete barrier against any material oppression of the citizens, by taxes of this class, and is itself a natural limitation of the power of imposing them.”
As a supporter of the wealthy merchant class, Hamilton might have been supportive of consumption taxes for another reason. In England as well as North America, the tendency was for legislative majorities to impose most taxes on other than their own class. As the historian Forrest McDonald describes the matter of taxes as “gifts” to the government in his book Novus Ordo Seclorum, “When deciding whether to give away one’s own property or somebody else’s, humankind—being imperfect—has a disposition to give away somebody else’s. Hence, for several centuries, the landed gentry in the House of Commons elected to have as much of the tax burden as possible fall either upon their tenants or upon gentlemen of trade. When the latter gained influence and power proportionate to their wealth, this trend was altered; but the costs of government rose astronomically during the eighteenth century, and country and city gentlemen tended to meet these costs by multiplying the kinds and amounts of taxes upon consumer necessities. They volunteered as many of the ‘gifts’ as possible from the unrepresented poor.”
In the American colonies, according to McDonald, legislatures were mostly controlled by the landed gentry, elected by the broad proportion of the adult male population which owned sufficient land to meet the property qualifications for voting. “The American colonists developed an aversion to taxation for which they were to become celebrated. What was less celebrated, they tended to place the main burden of taxation, insofar as was possible, on merchants and on the well-to-do. The euphemism for this practice was requiring the most taxes from those who were best able to pay; again the reality was requiring somebody else to make the gift.” James Madison, in his 1792 essay, “Property,” was making that same point when he wrote, “A just security to property is not afforded by that government under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor.” Those attributes of taxation remained, although mainly in the form of income taxes, which grind the middle and upper middle class.
Thomas Jefferson, on the other hand, rather predictably supported taxes on merchants and manufacturers. In April of 1811, in a letter to General Thaddeus Kosciusco, Jefferson wrote of his ideas about restraining the tendency for manufacturing to concentrate wealth and encourage corruption, dependence, and servility among the population. “…. [W]e shall soon see the final extinction of our national debt, and liberation of our revenues for the defence and improvement of our country. These revenues will be levied entirely on the rich, the business of household manufacture being now so established that the farmer and laborer clothe themselves entirely. The rich alone use imported articles, and on these alone the whole taxes of the General Government are levied. The poor man who uses nothing but what is made in his own farm or family, or within his own country, pays not a farthing of tax to the general government, but on his salt; and should we go into that manufacture also, as is probable, he will pay nothing. Our revenues liberated by the discharge of the public debt, and its surplus applied to canals, roads, schools, etc….” Jefferson did not take into account the imposition of tariffs on imported goods, which increased the influence and wealth of domestic manufacturers at the expense of the landed yeomanry, raised the prices of domestic goods, and caused frequent sectional conflicts between the South and West on the one hand, and the Northeast on the other.
Other than proceeds from the sale of western lands, the most common source of revenue for the early United States was import duties. Those were generally acceptable during the first several decades, because they involved voluntary purchases and were often seen, as Jefferson’s remarks show, as luxury taxes paid by the wealthy. Attempts to tax the fruits of labor, such as the Whiskey Tax of 1791, precipitated significant political opposition and a drawn-out period of unrest from 1791 to 1794. There were incidents of violence against federal tax collectors and the property of federal officials. That unrest, dubbed the Whiskey Rebellion, ended only after a show of military force by federalized militia, the arrest and trial of a handful of participants, and, eventually, the repeal of the tax.
A later tax on labor, the 1894 federal peacetime income tax, was struck down as unconstitutional by the Supreme Court in 1895 in Pollock v. Farmers’ Loan and Trust Co. It took another couple of decades and a constitutional amendment before a one percent tax on income above $3000, affecting only about three percent of the population of the United States, was enacted. Since then, the federal government has relied primarily on taxes on production and labor, such as excise taxes on products and income taxes, rather than on import duties and tariffs.
Another threat to the rights in property was expropriation and redistribution of land. Many Revolutionary War era state legislatures found it impossible to resist the lure of seizing property owned by British subjects and American Loyalists and reselling it to American Patriots, either settlers or speculators. But, in general, there probably was nothing that more viscerally frightened and repelled most Americans than redistribution of property. As noted earlier, many Americans reacted in shock to the alleged goal of Daniel Shays and his followers to force a redistribution of land. There was no less opposition to a peaceful redistribution of land through what were called “agrarian laws.” Hamilton, Washington, Adams, Madison, Jefferson, and John Taylor of Caroline County might view agrarian republicanism with lesser or greater degree of favor, but all rejected such interference with a person’s rights in property.
Even Taylor, the foremost American theorist and defender of agrarian republicanism, declared that redistributions of property were grotesque infringements of liberty. He noted that government was instituted primarily to protect private property, the “acquisitions of private people, which no law can transfer to other private people.” On a curious note, Taylor assured his readers that, as a practical matter, it would be futile to support such laws, because the political system was rigged against them: “My fellow laborers, mechanical or agricultural, let us never be deluded into an opinion, that a distribution of wealth by the government or by law, will advance our interest.” The mechanics and farmers may constitute the majority of nations, but “a minority administers governments and legislates.”
The judiciary also placed themselves firmly in categorical opposition to such laws, using both specific constitutional restrictions and more abstract political theory. A clear statement to that effect came from Justice Samuel Chase in 1798 in Calder v. Bull. In language similar to that of Taylor, Chase insisted that “a law that takes property from A. and gives it to B.” would “take away that security for personal liberty or private property for the protection whereof the government was established” and would be “contrary to the great first principles of the social compact.” Presumably, even an exercise of eminent domain through which government compensated the property owner for the land seized was unconstitutional if the land was transferred to another private person. For better or worse, that strictness was not always observed as states condemned land for private canal and turnpike operations. Not unexpectedly, given the breeziness with which rights in property are infringed today, the Supreme Court no longer sees forced transfers of property from one person to another as fundamentally objectionable, as long as the original owner is compensated, and the transfer achieves some vague public purpose.
In Vanhorne’s Lessee v. Dorrance, a federal circuit court case in 1795, Justice William Paterson, a leading figure at the Philadelphia Convention, struck down as an unconstitutional taking of property a Pennsylvania law that vested title to tracts of land after the land had previously been granted to another claimant. Using both the Constitution’s text and natural law reasoning Chief Justice John Marshall and Justice William Johnson wrote opinions in Fletcher v. Peck in 1810 striking down a similar Georgia law as a violation of vested rights in property. Johnson, a Jeffersonian republican, went so far as to announce that such laws went against a general principle which binds all legislatures, “the reason and nature of things; a principle which will impose laws even on the deity.” Setting aside theological disputation about the last part of that assertion, Johnson’s opinion recognized the fundamental nature of rights in property.
The final threat to property and the fruits of one’s labor in the early United States came in the form of laws which interfered with duly made contracts. State legislatures in the 1780s, responding to depressed economic conditions, repeatedly meddled in debtor-creditor relations with a plethora of laws designed to assist debtors. Most notorious were state laws making depreciated paper currency legal tender for the payment of debts. Neither state constitutional guarantees nor the frail central government created by Articles of Confederation proved able to halt these legislative abuses. State courts were simply unable to uphold the rights of creditors in the face of public pressure. “Americans,” Forrest McDonald concluded, “were not as secure in their property rights between 1776 and 1787 as they had been during the Colonial period.”
When discussing the destructive influence of political factions in essay No. 10 of The Federalist, Madison described the types of pernicious laws that have resulted from factions gaining majority control of legislatures. He was obviously referring to the laws enacted through the tumultuous factional politics of the state governments of his time: “…a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than any particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.” Such laws, too, interfered with the legitimate expectations of people to have the fruits of their labor protected, because funds lent in good faith could be repaid in worthless scrip and contracts for goods and services performed in good faith could be undone on legislative whim. The Constitution sought to remedy this problem by prohibiting state laws which impaired the obligations of contract and frustrated rights vested under such contracts. Unfortunately, over the past century, the Supreme Court has effectively neutered that clause.
Justice Stephen Field, the most influential American judge of the latter part of the 19th century, put it succinctly in 1890 in an address on the occasion of the centenary of the Supreme Court: “It should never be forgotten that protection to property and persons cannot be separated. Where property is insecure the rights of persons are unsafe. Protection to the one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain.”
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Principle of Keeping the Fruits of One’s Own Labor
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 78: Principle of Keeping the Fruits of One’s Own Labor – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.
One of the fundamental philosophical tenets of American republicanism in the late 18th and the 19th century was the inviolability of rights in property. Influenced by the writings of John Locke on political theory, the definition of property extended not only to material property, but to the status of ownership over oneself. One had natural rights in one’s person. The exercise of one such right, labor, would lead to the acquisition of an estate in material property. As James Madison explained in essay No. 10 of The Federalist, there is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.” It is these inherent characteristics of mind, body, and talents that government must protect, not handicap. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”
Property in both senses, metaphysical and material, was the source of a person’s liberty. In the metaphysical sense, one’s property in oneself meant that one was not by nature the slave of another, and that, therefore, as a free person, one had certain rights of which one could not be deprived. In the material sense, a sufficient portion of property, especially of land, provided the independence that was necessary for the effective exercise of one’s liberty. Further, that independence from others’ control must exist broadly within the community to supply the civic virtue needed for republican self-government. Property as so understood was at the basis of human flourishing for the individual and the community. When Thomas Jefferson changed the last aspect of Locke’s formulation of natural rights from property to the pursuit of happiness in the Declaration of Independence, he did not change the fundamental point that property was critical to human happiness understood as individual flourishing within a political commonwealth governed by consent of its people.
Locke had posited that one’s labor, mixed with the land (or with other raw materials in the case of non-agricultural pursuits), created private property out of what God had given humans in common in nature. An estate, therefore, was a fruit of one’s labor, and government action to take or diminish one’s estate or to commandeer one’s labor was a violation of fundamental rights to property and liberty. A century after Locke, Adam Smith made a similar point in 1776 in Wealth of Nations. “The property which every man has in his own labor,” Smith wrote, “as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”
Writing yet another century later, in 1872 in The Slaughterhouse Cases, the highly-respected Justice Joseph Bradley observed in a dissent from a Supreme Court decision to uphold a slaughterhouse monopoly, “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.
“For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”
The right to engage in labor of one’s choosing, and the right to retain the fruits thereof in the form of property, are central to one’s liberty, yet experience has shown that governments have threatened these rights repeatedly. Taxation, redistribution of property, especially of land, and abolition of debts have been the most potent threats to security in property. Taxes, notably those on land or its produce, were particularly suspect because they could deprive people of their most basic means of subsistence and status, while benefiting some favored politically powerful individual or group.
Sounding much like Plato in The Republic about the defects of democracy, John Adams identified the danger in his Defence of the Constitutions of Government of the United States. Although his posited facts appear odd considering his assurances elsewhere about the widespread distribution of property in New England, he argued, “[A] great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”
The long struggles over taxation between king and barons in Magna Charta, and subsequently between king and Parliament, had ended with Parliament’s power over the purse confirmed in the settlement offering the throne to William and Mary after the Glorious Revolution of 1688. Taxes were said to be a “gift” of property from the people to the king. Therefore, the king could not simply impose taxes, any more than a thief could help himself to one’s property or command one’s labor. However, under the class-based theory of virtual representation which held that all Englishmen other than the high nobility were represented in the House of Commons, that body had the authority to vote in favor of granting the king such a gift. The American colonists had a different theory of representative government, one based on geographic communities whose residents selected “their” representatives. As such, they rejected taxes levied by vote of the House of Commons in which, the colonials averred, they were not represented. That basic difference over the nature of representation led to the revolutionary slogan “no taxation without representation.” But even domestically, contests between royal governors and colonial legislatures over taxation were endemic.
Americans’ distrust of taxation continued after independence. The power to tax was still the power to destroy, even if it was exercised by a legislative majority elected by themselves. The problem existed at the state level and, if anything, was considered even more of a threat at the national level. The Articles of Confederation tried to strike a balance between taxes and liberty by giving Congress only the power to levy requisitions on the states, not to impose taxes directly on people. When the Constitution of 1787 gave Congress a broad taxing power, it produced significant resistance. One concern was that the Congress might impose a level of taxation that destroyed the liberty of persons by impoverishing them. Another was that the power threatened the vitality of the states.
The example of Shays’s Rebellion in Massachusetts in 1786 provided a concrete lesson about the former concern. The state legislature, acting on the prompting of Governor John Hancock, had voted expensive programs of repaying the state’s war debts at face value, even though the state’s notes had depreciated significantly in value. This benefited wealthy speculators in those notes. It also placed a severe burden on the state’s finances. However, Hancock refused to collect the taxes the legislature had voted to cover the costs. When he left office, the state’s treasury was in dire straits, and that politically unpleasant task fell to his successor, James Bowdoin. The taxes heavily burdened farmers in the western part of the state. The resulting discontent produced statements of grievances, interference with court proceedings, and a loosely organized armed force of debtor farmers eventually defeated by a volunteer army recruited in the state’s eastern counties.
Shays’s Rebellion frightened many Americans. They were alarmed by exaggerated accounts of Shays’s “army,” especially the report written to George Washington by Henry Knox, the superintendent of war under the Confederation. Washington believed Knox’s wild claims, including that Shays intended to march south and to seize and redistribute land. A letter from Abigail Adams to Thomas Jefferson noted that some Shaysites called for an equal distribution of property. Another letter, from James Madison to his father, asserted that “an abolition of debts, public and private, and a new division of property are strongly suspected to be in contemplation.” The tumult gave strong impetus to the convening of the constitutional convention in Philadelphia.
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Principle of a Free Press
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 84: Principle of a Free Press – Guest Essayist: Patrick M. Garry, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Patrick GarryEssay Read By Constituting America Founder, Actress Janine Turner
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.
The principle of a free press is enshrined in the First Amendment of the United States Constitution. This principle has shaped and characterized American society and political governance from the nation’s earliest beginnings. Americans of every generation have valued a free and independent press, protected from the controlling or censuring arm of government.
This strong American cherishing of a free press has its roots in the colonial period, during the lead-up to the movement for independence from Britain. As the colonists learned, such a movement would not have been successful without a free and vibrant press.
One of the political catalysts of the American Revolution was the effort of the British to subdue the popular press in colonial America. This attempt was twofold. The first was an accelerated use of the law of seditious libel. The second was the Stamp Act, under which a prohibitive tax was placed on the paper used by the presses. This tax threatened to force the inexpensive press out of circulation and thus to suppress colonial discussion of politics.
The Stamp Act passed by Parliament in 1765 proposed a host of unprecedented and, in the American view, unconstitutional burdens. The passage of the Stamp Act hurt printers by threatening an increase in their costs and by jeopardizing their subscription base, since many subscribers refused to even indirectly pay a tax to the Crown.
Following passage of the Act, the colonial newspaper documented the public’s mounting opposition to the Act. Indeed, the outburst of popular resentment against the Act was so great that it led to the start-up of four new newspapers. Printers took an active role in the debate and developed a close alliance with political groups such as the Sons of Liberty. These political groups also founded new newspapers whenever they felt it desirable.
As the Stamp Act became effective, the majority of colonial newspapers became inspired by the wave of public opposition to the Act, and in one manner or another opposed the Act. By the time the Stamp Act was repealed, newspaper printers had acquired a heightened sense of their role in the community. The principle of “liberty of the press” had become a battle cry against the Stamp Act. The campaign against the Stamp Act also increased the opinion role of newspapers. No longer mere transmitters of information, they had become engines of opinion.
The newspapers carried forward the role they had played in the Stamp Act crisis to the protest against the Townshend Acts. Even more so than the Stamp Act, the Townsend Acts sparked an intense battle of opinion waged in the newspapers. This battle was fought between the patriot press and the government press, revealing the degree of public support behind each cause. The spirited campaign fought by the patriot newspapers against the Townshend Acts contributed to the eventual repeal of nearly all of the duties.
During the controversy surrounding the Stamp Act and Townshend Acts, printers were greatly swayed by the opinions of their readers. The more radical the readers, the bolder the printers. The content of colonial newspapers closely mirrored the particular issues that were important to the local constituencies. The press in effect became intertwined with local partisan battles, and newspapers often started up just as a political issue rose in importance.
During the interim period between the Townshend Acts and the Revolutionary War, newspapers continued to exist and to flourish, keeping open the channels of public discussion, which would become valuable in the crucial years ahead.
In 1773 when Parliament passed the Tea Act, a roar of protest once more emerged from the newspapers. The most aggressive editors were those who had participated in the protests in the 1760s. Again, the public mood thrusted the newspapers into the midst of the protest.
The American press played a major role in opposing British rule. The distinct gain in prestige made by the press during the revolutionary period began with the Stamp Act, the repeal of which was recognized as the result of a united colonial opposition made possible by the important role played by the newspapers of the day.
In addition to its political consequences, the newspaper offensive unleashed by the Stamp Act made several permanent impacts on American journalism. First, the influence of the press was enormously enhanced, instilling a newspaper-reading habit that would characterize many succeeding generations. In 1800, for instance, a magazine declared the United States to have become a nation of newspaper readers, and foreign observers noted in comparison with Europe the prevalence of newspapers in America.
After achieving independence from Britain and setting out to form a new constitutional republic in the United States, the Framers knew and treasured the role that a free press had played in shaping a new nation. This principle would receive not only constitutional protection in the Bill of Rights but would also command widespread popular support throughout America for centuries to come.
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Principle of Free Market Trade, Industry, Innovation and Competition
90 in 90 2023, Stephen Tootle, 6. Guest Constitutional Scholar Essayists, Blog Essay 77: Principle of Free Market Trade, Industry, Innovation and Competition – Guest Essayist: Stephen Tootle, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Stephen Tootle, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
“That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792
Americans are exceedingly fortunate in some regards. The founding generation that theorized about creating a government did not evaporate into thin air or disappear into classrooms after publishing a few papers or demonstrating for change. Instead, most of them engaged in practical politics. They were around to find the limits and implications of their theories. James Madison, as the primary author of the United States Constitution could have retired and lived the life of a hermit and still made it into our history books. He did not do that.
By the Spring of 1792 Madison was a congressman from Virginia, engaged in the messy horse-trading of practical politics. He was also actively engaged in describing how the underlying principles of our government interacted with the real world. He watched the beginnings of the ideological and partisan divisions between people who shared all of the same fundamental principles. He saw regions compete with regions and nations serve as both positive and negative examples for America. In that spirit, he wrote an essay on the subject of property published March 29, 1792.
Madison conceived of property rights in a way that was much broader, deeper, and more expansive than the mere protection of wealth or land. Understanding his conception is central to understanding the very nature of the American government. Unlike some later thinkers, Madison and the Founders did not consider the rights of property to be a “thing” that was separate, apart, held only socially, or distinct from all other rights of an individual. While that might seem like an inconsequential bit of political theory, the practical implications of this formulation were enormous and foundational to the idea that human beings could live prosperous lives at peace with one another.
If property rights were natural to all other rights, things like free market trade, industry, innovation, and competition were the consequences of the deeper foundational principles of the Founders—not their purpose. To put it another way, Madison and the Founders did not envision liberty in order to justify the free market or property rights; Madison merely recognized the implications of property rights in the real world. To pretend that our system of government could function without the protection of individual property rights would have seemed oxymoronic and absurd to the framers of our political institutions.
In the American system and as outlined by Madison, the same set of individual rights have both a private and public function. He understood that every right an individual holds has some manifestation in the physical world. Understanding that simple fact led him to a conclusion that was inescapable, profound, and should be obvious: Every right lived and breathed in its relationship to the rights of property. No just government could sever property rights from any of the natural rights held by any individual. This was not enough.
Because individuals exercise the rights of property in a social context, they depend on a reciprocal, peaceful recognition within a political system. A just system protected the rights of every individual. As Madison wrote, property, “…embraces every thing to which a many may attach a value and have a right, and which leaves to every one else the like advantage.”[1] Any right you have and anything you find valuable is defined as property. Because everyone has rights, everyone has property worthy of protection.
Property then, was more than simply money, wealth, land, or objects. Madison understood that one could not claim to have free opinions without being free from violence when communicating those ideas. One could not freely express religious belief and practice when personal safety and property were threatened. The freedom to choose where to work, what to work for, and what to do with the product of one’s work were inseparable. All were rights. All were inseparable from property.
To Madison, any pretended choice between the rights of property and any other right was a false dichotomy. The rights of property were inextricably linked to every other right and should be recognized and balanced in a peaceful constitutional order. As he concluded, “…a man is said to have a right to his property, he may be equally said to have a property in his rights.”[2] Protecting property rights – in this expansive understanding of property – was the very purpose of just government. There could be no other definition of justice beyond every individual peacefully having what they deserved to have while secure in their peaceful possession of all liberties. Because of this, Madison believed government ought only to interfere with property rights sparingly.
Any government that violated religious liberty with tests, taxes, or an imposed hierarchy would not be just. Any government that failed to enforce contract law, engaged in arbitrary property seizures, or allowed one class of people to oppress another would be violating the rights of conscience, which Madison called “the most sacred of all property.”[3] But he had a special ire for the regulated markets of the British mercantilist system and worried that America might follow their example.
Government itself could easily fall out of balance by imposing, “restrictions, exemptions, and monopolies” that would interfere with property rights.[4] Property was not secure when government encouraged one form of work or manufacturing over another. Such encouragement would be similar to an unjust tax designed to reward friends and punish enemies. He deplored the use of taxation as social policy and recognized the temptation to, “invade the domestic sanctuaries of the rich,” or taxation that would, “grind the faces of the poor.”[5] He understood that human beings always sought advantages for themselves and would try to use taxation to gain those advantages.
Leaders needed to be scrupulous in dealing with all forms of property–including the property that individuals hold in ambitions, religion, opinions, and labors. None should be taken from an owner without full compensation. If the United States wanted to maintain its legitimacy and serve as an example to the world, its government had to “equally respect the rights of property, and the property in rights….”[6] There could be no substitute for this formulation.
Human beings are infinitely complex. Part of Madison’s genius was his understanding of the practical application of rights based on how imperfect human beings lived in an imperfect world. Instead of theorizing about how to turn human beings into angels, Madison understood the complexity of human experiences and the relationship between the internal and the external world. He knew that politics can do many things, but it cannot do everything.
Of course Madison and the Founders believed in the principles of free market trade, industry, innovation, and competition. Every competition requires the peaceful execution of its rules or it could not be said to be a competition. The violent suppression of innovation or use of violence in directing labor was anathema to anything resembling a free life. If all of our rights have a manifestation in property, individuals must be able to buy, sell, withhold, cherish, and labor for property – broadly understood – as they see fit. To say that our Founders believed in a “free market” is to state nothing so plain as the Founders believed that people could live peaceful lives. One could not protect any fundamental rights without protecting the “property in rights.”[7] There is no other way.
[1] https://teachingamericanhistory.org/document/property/
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
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Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 72: Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read By Constituting America Founder, Actress Janine Turner
In the early 1790s, Representative James Madison was a skilled politician, newspaper polemicist, and member of the Jeffersonian Republican Party. In all of these roles, Madison demonstrated increasing concerns about the centralizing tendencies occurring in the first of the American presidencies which began with the Washington administration. He was especially concerned about Secretary of Treasury Alexander Hamilton’s financial policies regarding the public credit and a national bank.
In late 1791 and throughout 1792, Madison penned a series of eighteen newspaper essays on various topics of government, law, and economics. He wrote them to reflect on various topics related to self-government, but his main purpose was to expose how Federalist Party policies stretched the boundaries of the United States Constitution by expanding the power of the national government.
On March 29, 1792, Madison published one of the essays entitled “Property.” In the essay, he leaned in on the principles of natural rights, the purposes of government, and limited government. These principles were important to Madison because they protected individual liberty. His ideas were heavily influenced by the ideas of Enlightenment philosopher, John Locke.
In his Second Treatise of Government (1689), Locke wrote that all humans are in a state of nature, free and equal in their natural rights. For Locke, property was the most important natural right, and it included possessions but also most significantly a property in one’s person, labor, and rights. He wrote, “Yet every man has a property in his own person…The labour of his body, and the work of his hands.”
Government was established by common consent for the purpose of protecting a person’s property rights. He wrote, “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.”
These Lockean ideas fundamentally shaped the Declaration of Independence in 1776. The Declaration lays down natural rights as the basis of self-government. It asserts that “all men are created equal,” and that they were “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Declaration also states the fundamental purpose of government is to protect rights. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
In 1792, these ideas continued to shape Madison’s thinking about American constitutionalism when he penned his “Property” essay. Locke clearly helped to influence Madison’s understanding of property as he argued that it included physical property, a person’s opinions, the right to have safety of one’s person, and an individual’s religious liberty. In fact, he described religious conscience as the “most sacred of all property.”
Importantly, while Madison had all of these conceptions of property, he thought that individuals had an inalienable property in their rights. “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights,” he wrote.
Like Locke and the Declaration of Independence, Madison believes that government exists to protect inalienable rights especially property. He explains that a just government is one that protects rights, and, conversely, an unjust government violates those rights or fails to protect them adequately. Therefore, he attacks arbitrary government, which is the definition of tyranny. He writes,
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own…That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.
Madison continued to oppose many of the policies of the Washington and Adams administrations. He served as vice-president under Thomas Jefferson and helped to usher in the “Revolution of 1800,” in which they believed they restored republican limitations on the national government. Madison was elected president in 1808 and served two terms. While his administration reflected his republican ideals from his “Property” essay, he did eventually change his mind on certain centralizing policies he opposed in the early 1790s including signing the Second National Bank into law in 1816. Still, James Madison believed in a natural rights republic and constitutionally limited government throughout his entire life.
The Founders applied the principle of limited government in the Constitution and early republic. The national government had no authority to tax without consent or to take property without consent or compensation. The First Amendment prevented a national establishment of religion and protected religious liberty. George Washington set the great example of limited republican government when resigned from the presidency after two terms.
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Principle of Making Personal Contracts
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 76: Principle of Making Personal Contracts – Guest Essayist: James C. Clinger, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, James C. ClingerEssay Read By Constituting America Founder, Actress Janine Turner
Contracts are the promises that are made individually or collectively that are presumed to be legally enforceable. They are normally the product of negotiation and deliberation among parties regarding the mutual obligations that they accept voluntarily.[1] Not every agreement is a contract, and not every promise is legally enforceable, but contracts have become an essential means by which individuals can organize themselves and carry out personal and professional interactions, particularly with persons or entities with whom they have no personal or familial connection. The ability to make contracts, and the capacity and willingness for a neutral arbiter to guarantee that contracts will be enforced, became one of the critical developments that made long-term and long distance trade relations possible.[2] Contracts also became a building block of the modern corporation, which is often described today as a “nexus of contracts.”[3]
The freedom to make contracts and the confidence that contracts will be enforced cannot be taken for granted. Prior to the United States Constitutional Convention of 1787, many of the original thirteen states were actively undermining the enforcement of contracts among citizens. In most cases, the contracts that were threatened by state actions were concerned with debts. State legislatures enacted a number of laws which prevented creditors from collecting debts in the time frame stipulated in contracts. For this reason, many creditors looked to the federal government to curb state actions which threatened the execution of contracts. Congress, under the Articles of Confederation, provided in the Northwest Ordinance that in that soon to be developed territory stipulated “no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with, or affect private contracts or engagements, bona fide and without fraud previously formed.” [4] Notably the clause pertained only to “private” contracts that were already in existence.
At the Constitutional Convention, a stand-alone contracts clause was debated and ultimately rejected, but the Committee on Style inserted a general form of the clause within a section dealing with limits on state power, which the convention did approve.[5] The final language in Article 1, Section 10, reads as follows: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”[6] The clause is sandwiched between other provisions that limit states’ ability to engage in diplomacy, affect international trade, or carry out monetary policy. There is no language limiting the clause’s application to private contracts, nor is the clause clearly limited to contracts that were “previously formed,” although the courts quickly established that state law could regulate future behavior that might otherwise be the subject of a contract. It should also be noted that the contracts clause does not forbid the federal government from “impairing the obligation of contracts.” In fact, the federal government may modify debt contracts very dramatically through bankruptcy laws, which were authorized explicitly by the bankruptcy clause in Article I, Section 8 of the United States Constitution.
The clause was applied in some early cases of the Supreme Court. In 1810, the Court ruled in Fletcher v. Peck that the state of Georgia could not revoke a previously issued land grant to private parties. This ruling established that the contract clause applied to both public and private contracts.[7] A few years later, the Court more clearly asserted the constitutional protection of contracting in the case of Dartmouth College v. Woodward. In this ruling, the Court held that a charter establishing and organizing a private academic institution could not be fundamentally changed by an enactment of the New Hampshire legislature.[8] This decision was not only significant because it defended the right of private parties to have their contracts respected, but also because it recognized that private associations and incorporated entities could be at least somewhat insulated from state government control.
In later cases, the Court made clear that the right to engage in personal contracts is not absolute. In Ogden v. Saunders, the Court ruled that the states could make laws affecting contracts as long as those laws had prospective effect.[9] Later, i