Searching for a "natural aristocracy" I

It's always been about identifying the "right sort of person."

Background

I graduated from Notre Dame Law School in 2009. NDLS, like many law schools, allows law students to count a certain number of non-law graduate courses towards their graduation requirements as electives. I figured that I wasn’t going to get another change to take graduate seminars at a world-class university, so I took as many as I could.

The first one was during my 2L Fall, when I took a history seminar on the French Wars of Religion. History Ph.D. candidates are expected to be proficient in the languages relevant to their area of interest, so the course required students to write a research paper based in no small part on primary sources. I don’t speak a lick of French, but as I wasn’t actually a Ph.D. candidate, the professor graciously allowed me to write my paper on any topic of my choosing from the same time period (i.e., primarily the sixteenth century). I wrote about the development of copyright law as a function of the sociology of science, primarily informed by the work of Adrian Johns, especially lines of inquiry inspired by his then-recent work The Nature of the Book: Print and Knowledge in the Making.

Johns was a student of Steven Shapin, one of the leading lights in the history/philosophy/sociology of science in the last few decades.

Little did I know it, but this project would be one that I pursued through seven courses over my 2L and 3L years.

This post is the first installment of a paper I wrote for my class on Federalism during the Fall semester of 2008, the first semester of my 3L year. It’s been fifteen years since then, and the citations show it, but the ideas I was pursuing then keep cropping up in things I’ve been reading online over the last few months. So here is my attempt to bring the fruits of my labor into the discussion in the hopes that someone might find them interesting. I present it here in largely unmodified form, though I have consolidated some of the footnotes in the interest of readability.

Questioning the Benefits of Federalism: The Role of Civility in the Founders’ Thought

When the authors of the United States Constitution created our federal structure, they did so with several purposes in mind. Many of these are still commonly discussed and used as justifications for various policy preferences. These include creating a truly national government to manage international affairs, protecting individual liberty, and ensuring a balance of power between the states and the national government.¹ Federalism, whether it be our national genius or national neurosis,² is now generally considered to have been designed with these goals in mind, assigning powers to the national government or preserving them for the states in an attempt to balance an energetic government and the risk of tyranny against individual liberty and the risk of anarchy.

That is as may be, and there is little reason to question that the Founders clearly had such issues in mind both during the Constitutional Convention³ and the ratification debates.⁴ But there is another animating force, beyond navigating the Scylla and Charybdis of tyranny and anarchy, which led the Founders to create the system which we have inherited from them. The Founders were concerned about the kind of men who would lead this new venture of theirs. Protestations about “all Men [being] created equal”⁵ and no longer attempting to eliminate the causes of faction⁶ aside, there is reason to believe that the Founders thought they were creating a new sort of hierarchical society far closer to the hereditary aristocracy from which they had come than modern observers are generally aware.

This paper is an attempt to sketch this element of the Founders’ thought, namely the role of the gentleman in eighteenth-century Federalism. Ultimately, I make the argument that as though the federalist system was indeed intended to accomplish purposes which are still generally supported today, it was also intended to accomplish ends which are now viewed as somewhat pernicious. As a result, I conclude with the suggestion that modern commentators should be far more careful than is currently common when invoking federalism and the Founders’ intentions about it in support of contemporary policy preferences.

Part I: The Gentleman in Civil Society

Reading eighteenth-century documents is not as simple a task as many legal scholars seem to believe it to be. Carl L. Becker, an early-twentieth century historian, had this to say about that period: “[T]he Philosophes were nearer the Middle Ages, less emancipated from the preconceptions of medieval Christian thought, than they quite realized or we have completely supposed,” and as a result “our appreciation [of their works] is of the surface more than the fundamental thought.”⁷ Becker is not the only one to suspect that modern readers can only come to understand the Founders through concerted effort:

[T]he mind and sensibility of the founding generation—more inclusively the Revolutionary generation—has been exceedingly difficult to recover: substantial portions of that mentality have long since ceased to strike echoes and resonances. A society in which, for instance, the term “democratic” is not yet one of approval, or in which the significances of “private” and “public” are so inverted from those we attach to them now, is a society sufficiently different from ours that though we may, in a manner of speaking, “see” it, we do not report what we see in the voice of easy recognition.⁸

One aspect of the Founders mentality which has definitely lost its place of prominence is the concept of civility.

It is here that I would draw the attention of the reader to work being done in the historical disciplines, particularly that of Steven Shapin, Simon Schaffer, and Adrian Johns. Though their research is directed specifically towards the history and philosophy of science, their works are of inestimable value in understanding the climate of opinion which prevailed in the early modern period. Their project, roughly speaking, is to describe how the period was characterized by a culture of civility in which social order was maintained by more-or-less well-defined concepts of social status. Though the following section may seem to stray significantly from the subject of federalism, the reader’s patience is requested, as the insights will be brought to bear in good time.

A. Trust and Knowledge

Shapin’s major work is entitled A Social History of Truth: Civility and Science in Seventeenth-Century England.⁹ In it, he explores how social relationships played a critical role in the birth of modern scientific disciplines, particularly that of physics. A main insight is expressed as follows:

Both seventeenth-century and present-day “moderns” widely advertise direct experience as the surest grounds for factual knowledge, just as they identify reliance upon the testimony of others as an insecure warrant for such knowledge. Similarly, both sets of “moderns” celebrate proper science as a culture which has indeed rectified knowledge by rejecting what others tell us and seeking direct individual experience. In contrast, I argue that no practice has accomplished the rejection of testimony and authority and that no cultural practice recognizable as such could do so.¹⁰

In other words, despite modern philosophical protestations to the contrary, it is impossible to “know” anything without reference to the community in which one is situated. Because, Shapin argues, man is indisputably a social creature and never exists in a vacuum, “Knowledge is a collective good. In securing our knowledge we rely upon others, and we cannot dispense with that reliance. That means that the relations in which we have and hold our knowledge have amoral character, and the word I use to indicate that moral relation is trust.”¹¹

Taking an example from biology Shapin, examines the purportedly empirical statement “DNA contains cytosine.”¹² In theory, one can argue that it is possible to know this based on either the testimony of others or direct, empirical observation. But in practice, this is not entirely clear. Say one wishes to “prove” the existence of cytosine in DNA. The process would resemble what Shapin describes here:

Here is what I did: I was given some pieces of rat liver which I then minced and froze in liquid nitrogen; I ground the frozen tissue and suspended it in digestion buffer; I incubated the sample at 50ºC for 16 hours in a tightly capped tube; I then extracted the sample with a solution of 25:24:1 phenol/chloroform/isoamyl alcohol and centrifuged it for 10 minutes at 1700g in a swinging bucket rotor. Transferring the top (aqueous) layer to a new tube, I added 1/2 volume of 7.5M ammonium acetate and 2 volumes of 100% ethanol. A stringy precipitate then formed in the tube, which was recovered by centrifugation at 1700g for 2 minutes. I rinsed the pellet with 70% ethanol, decanted the ethanol, and air-dried the pellet. I went on to hydrolyze the sample and to perform a chemical test confirming the presence of the nucleotide cytosine. This was DNA: I had it in my hand; I had verified the facts of its composition.¹³

Yet as Shapin says, “A moment’s reflection about this experience gives grounds for skepticism about the ‘firsthand’ character of my knowledge.”¹⁴ Even in performing this seemingly straightforward chemical demonstration, a large number of things must be taken on trust. One might question whether the precipitate was actually DNA, or whether the cytosine test adequately indicated the presence of the desired chemical, but rather than making a nuisance of one’s self, one accepts, without further verification, that this has been adequately demonstrated by others. One must trust that the sample in question is actually what it purports to be. The reliability of the instruments is accepted without question, as are the identities and compositions of the reagents used. But in attempting to verify any of these things, “each act of distrust would be predicated on an overall framework of trust, and, indeed, all distrust presupposes a system of takings-for-granted which make this instance of distrust possible.”¹⁵

Shapin expands this conundrum beyond the realm of the laboratory, arguing that “It is at least uncivil, and perhaps terminally so, to decline to take knowledge from authoritative sources.”¹⁶ Skepticism looks very much like uncooperativeness, and persistent distrust of authorities accepted by a particular community can yield only one result—expulsion from that community—for “If you will not know, and accept as adequate the grounds for, what the community knows, you will not belong to it, and even your distrust will not be recognized as such.”¹⁷

Failing to trust others is fatal to human relationships.¹⁸ Shapin relates the story of a researcher who assigned his students to engage in an experiment by acting on the assumption “that another person was attempting to lie to them about a reported state of affairs.” Several students found that “reaction to even the most straightforward and apparently inconsequential distrust was often hostility of a quite explosive kind,” and in a situation where a wife acted as if she distrusted her husband’s explanation for returning home late, even acknowledgement that the feigned distrust was part of an experiment failed to “restore preexisting order to the marriage.” Not only do such acts of distrust demonstrate just now “trust-dependent” everyday ordered life really is, but such acts are breaches of both the cognitive and moral fabric. Trust is, as Shapin puts it, “the great civility.”¹⁹

B. Trust and Social Order

Shapin moves from here to the idea that “truth” is, in a sense, a “system of ordered procedures for the production, regulation, distribution, circulation, and operation of statements,” and that in the end, “The practices by which we accomplish truth amount to our moral order.” “Accept[ing] the [statements] of another is. . . to give that other the right to furnish our minds and to provide guides for our actions, while to withhold that right is to deny the other’s ability to contribute to a world-known-in-common.” But such an idea immediately raises questions about who to trust, and when. “Insofar as knowledge comes to us via other people’s relations, taking in that knowledge, rejecting it, or holding judgment in abeyance involves knowledge of who these people are,” and an inquiry into their circumstances and characteristics. This will include not only what one knows about the situation in question, but how the speaker fits into the broader community in which they participate, whether and if so to what extent they can act as representative types of particular sets of people, etc. If we know that a person is being paid to say the things they are saying by a party that has a particular agenda, e.g. when we read an advertisement, we are instinctively on our guard, and rightly so: there is reason to believe that the statements being made are subject to potentially pernicious influence.²⁰

Shapin argues that for the early modern world, the single most important characteristic for determining the reliability of an actor was free action. “Free actors do, and are regarded as doing, what they judge best, natural, most right, or most pleasing, as they freely judge those actions to be. By contrast, the judgments and behavior of the unfree are seen as being constrained—by circumstances or by the consequences of what free actors do.” This free action is bound up with the concept of power and authority: those who possess free action possess social power, and those whose actions are constrained are socially powerless. This, in turn, was because the concept of free action and reliability were linked.²¹

Persons giving a promise bind themselves to others: their word. . . becomes their bond. To that extent, trusted persons make some set of their future actions predictable by agreeing to forgo a certain amount of free action. And, because those who trust them may forgo relevant precaution or skepticism, they facilitate the free actions of others. Thus, free action appears as a problem to which trust is the solution. . . . The concepts of freedom and trust are [thus] codependent: neither makes sense without the other.²²

This is not as alien a concept as it may sound. Even today, contracts formed under duress are considered voidable, if not actually void. “One’s word [is] one’s bond only if one [is] not bound in giving it. The forgoing of free action was considered effective and reliable only if that course was freely decided upon.” Shapin identifies the cornerstone of early modern English society as the gentleman, defined largely by his independence and self-sufficiency, who was, in his person, the solution to the problem of trust and the connection between gentility and veracity.²³

C. The Nature of the Gentleman

Early modern English society was hierarchically structured—the idea that an alternative social order was even possible was a truly radical concept—and though numerous and subtle rank distinctions were carefully observed at all levels of society, the starkest division was between the gentle and non-gentle. The “gentry” consisted of the king, major and minor nobility, and “esquires,” a group including “untitled sons of knights, gentlemen ‘of the better Rank,’ and the otherwise ‘armigerous.’” Towards the end of the sixteenth century, there was an attempt to distinguish between “nobility” and “gentility,” though the distinction wound up being one of degree, not one of kind. Distinctions between gentlemen were “degree[s] of honor accorded by the sovereign to mark out and reward some deed or individual characteristic and then passed on through the lineage.” At root, gentlemen were those who were capable of “economic and political free action.”²⁴

The gentle/non-gentle distinction “was widely considered to be both evident and(literally) essential.”²⁵ Estimates of the number of gentlemen in early modern England vary, but they constituted no more than one to five percent of the total population at any given time before 1700. Mobility between the gentry and the yeomanry did occur, though movement either direction was “much contested and much insisted upon.” Below the gentry and yeomanry were those with no political voice whatsoever: laborers, poor farmers, merchants who were not landowners, copyholders, artisans, etc.²⁶ If you fell into this latter category,

‘[T]hen you counted for little in the world outside your own household, and for almost nothing outside your small village community and its neighborhood.’ Your opinion was of no consequence, and you exerted no power over anyone outside your own family. Thus, to exercise power—‘to be free of the society of England’—and to count as a relevant political actor in. . . society was (with some necessary qualifications) to be a gentleman.²⁷

Gentlemen were generally recognized as possessing certain practical characteristics, chief among which was the fact that gentlemen were landowners: “Recognition, authority, and the political rights of spokesmanship flowed locally from the control of land and the disposition of labor on that land.” As a gentleman’s income was derived from agricultural rent, he was, as he should be, “free of want and. . . under no mundane necessity to labor.” The gentleman was subject to no discipline save from himself, his God, and his sovereign. It was not that wealth made the man—nouveau riche were looked down upon, if grudgingly admitted to the ranks of the gentle—but “effective control of sufficient wealth was very widely recognized as a practical necessity.” “Financial independence was not only a substantial fact about gentlemen, it also was a sign (with others) that allowed a gentleman to be recognized and that explained and justified certain attributes he was presumed and enjoined to possess.”²⁸

Gentility was usually conferred by birth. During the sixteenth century, it was common to insist that for a given man to be a gentlemen, his ancestors must have been gentle for at least three generations. Given the difference in kind posited between the gentry and the commoners, this made a kind of sense, as it was supposed that the quality of gentility passed through the blood. Gentility was not an inherited trait but more an inherited predisposition, but that “special something” was still important. The proper lineage was not a sufficient condition for gentility, as a historically noble family could fall upon hard enough times to pass out of the gentry altogether, but it was generally considered a necessary one. Various theories were used to justify this condition, including references to Scripture, Aristotelian substance theory, Galenic medicine, and a rather strained version of Thomism, but whatever the justification, it was little disputed that unless one came from the right family, one could not really be a gentleman.²⁹

By contrast, the non-gentle were viewed as inherently untrustworthy, due in no small part to the fact that their dependence upon others rendered them incapable of free action. But the distinction was deeper than that. Participation in political life was considered to have beneficial effects upon one’s intellect and perception—gentlemen were presumed to be competent perceivers—and thus one who spend his time at physical labor or trade was unable to cultivate virtue in the same way. The competence of the common people was “‘so feeble in the discernment of falsities, and averting the errors of reason, that it submitteth unto the fallacies of sense, and is unable to rectify the error of its sensations.’”³⁰ The non-gentle could not be trusted to master their animal natures, and their understanding was “impaired by the dominion of their appetite, that is the irrational and brutal part of the soul, which lording it over the sovereign faculty, interrupts the actions of that noble part, and chokes those tender sparkes, which Adam hath left them of reason.”³¹

Furthermore, whereas gentlemen were perceived as being disinterested, as their livelihood depended on no one but themselves, the common folk stood to benefit from deceit. In this way, economic dependence on any level called into question one’s trustworthiness on every level:

Those whose placement in society rendered them dependent upon others, whose actions were at others’ bidding, or who were so placed as to need relative advantage were for these reasons deemed liable to misrepresent real states of affairs—what they were actually thinking, how matters stood in the world. Their word might not be relied upon; it might need to be vouched for or otherwise deliberately gauged against independently known standards of how things were. Accordingly, the culture which accounted for the unreliability of certain people’s word figured in a massively consequential system of exclusion.³²

Those excluded from the poor included women, servants, the mercantile classes, and artisans.

Dividing up power along these categorical social definitions strikes modern observers as hopelessly self-serving. Of course the landed gentry were the only ones capable of free action: the legal structure precluded all others from having a political voice! Women could not generally own property, so they were by definition dependent. But it is not the purpose of this paper to interrogate the sexism, racism, classism, ageism, etc. of the early modern period, only to point out that the climate of opinion that prevailed before the nineteenth century had its own internal logic. We may consider the gentry to have been motivated by self interest in maintaining this social division, but they would have been insulted to hear it. They had a different story to tell, and if we are to understand the motivations and intentions of early modern actors at all, we must attempt to take their story at face value, lest we read our own prejudices into their actions. If anything, taking early modern narratives seriously will better enable us to critique them, rather than merely dismissing them out of hand. We may consider this hierarchical social ordering to be wrong, but we cannot consider it irrational without attempting to understand why the early moderns believed what they did, particularly as it was the breakdown of this system of social order that produced our world.

End of Part I

That is the end of Part I of my essay. Part II, “The Founders as gentlemen: searching for a natural aristocracy,” is here.

I hope, by this point, that the connection between some of these ideas and topics of contemporary interest are starting to become apparent.

1. Anthony J. Bellia, Federalism: Theory and Practice in the American Experience 2 (unpublished manuscript, on file with author). Professor Bellia was the instructor for the Federalism course for which this paper was originally written. It is entirely possible that he has published this paper by now.

2. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 U.C.L.A. L.Rev. 903 (1994).

3. See generally, James Wilson, Speech delivered on June 21, 1787, in James Madison, The Debates in the Federal Convention of 1787 (Jon Roland, ed., available at https://constitution.org/1-Constitution/dfc/dfc_0621.htm).

4. The Federalist Nos. 10, 44–45 (James Madison).

5. The Declaration of Independence para. 2 (U.S. 1776).

6. The Federalist No. 10 (James Madison) (“The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS”).

7. Carl L. Becker, The Heavenly City of the Eighteenth-Century Philosophers 29 (1932).

8. Stanley Elkins & Eric McKitrick, The Age of Federalism 5 (1993).

9. Steven Shapin, A Social History of Truth: Civility and Science in Seventeenth-Century England (1994)

10. Id. at xxv.

11. Id. (emphasis in original).

12. Id. at 17.

13. Id.

14. Id.

15. Id. at 19 (emphasis in original).

16. Id. at 20.

17. Id.

18. The positive expression of this idea would, of course, be something like “Trust is essential for human relationships.”

19. All quotes in this paragraph Id. at 35.

20. All quotes in this paragraph Id. at 36 - 38.

21. All quotes in this paragraph Id. at 38.

22. Id. at 39.

23. All quotes in this paragraph Id. at 39 - 41.

24. All quotes in this paragraph Id. at 45 - 47.

25. In the philosophical sense that is, rather than merely being practically necessary.

26. All quotes and information in this paragraph Id. at 45 - 46.

27. Id. at 47.

28. All quotes and information in this paragraph Id. at 48 - 53.

29. All quotes and information in this paragraph Id. at 53 - 55.

30. Here Shapin quotes Sir Thomas Browne, Pseudodoxia Epidemica (1646).

31. All quotes and information in this paragraph Shapin at 76 - 77.

32. Id. at 86 - 87.