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 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 In various particulars, his remarks are outdated due to no fault of his, having been overtaken by significant social and technological events.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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