This is the second in a series of posts in which I am publishing an essay I wrote during law school for a Federalism seminar. The first post can be found here.
Part II: The Founders as Gentlemen: Searching for a natural aristocracy
There is perhaps no more dramatic event in [the breakdown of the pre-modern system of social order] than the American War for Independence, incorporating as it did the idea that “all Men are created equal.” But as should be obvious, the United States of the eighteenth century was not the more-or-less egalitarian society of the twenty-first century. The society the Founders were trying to build, while significantly different from the English society with which they had parted ways, was still a hierarchical society. Modern observers are frequently uncomfortable with the idea of aristocracy at all, but the Founders were trying not to create a purely egalitarian society, but a society in which a new, “natural” gentlemanly aristocracy of civility could emerge.
Though many of the social and legal structures used to define and manage civility and propriety had been swept away when the colonies cut themselves loose from Britain, early Americans were just as concerned with matters of honor and propriety as ever. Joanne Freeman describes the situation as follows:
It was one thing to establish a polity grounded on public opinion and the popular will and quite another to feel the feel the impact of this will firsthand, as suggested by Hamilton’s dramatic response [on July 18, 1795].1 By literally hooting him off the stage, the crowd symbolically dismissed his rights of leadership, driving him into a defensive, fist-clenched rage. The precise meaning of political leadership was under debate in the early republic, and the practical business of politics compelled politicians to confront this unsettling assault on settled expectations on a continuing basis. . . . The culture of honor was a source of stability in this contested political landscape. Democratic politicking shook the earth beneath the feet of those accustomed to leadership; the tradition-bound culture of honor provided solid ground, virtually defining genteel status. Gentlemen restrained their passions and controlled their words. Their manners were refined, their carriage easy. They were men of integrity and honesty whose promises could be trusted. Their word was their bond. . . . Particularly in a nation lacking an established [i.e., hereditary] aristocracy, this culture of honor was a crucial proving ground for the elite. . . . Reputation was at the heart of this personal form of politics. Men gained office on the basis of it, formed alliances when they trusted it, and assumed that they would earn it by accepting high office.2
Honor was a sufficiently significant concern that questions of whether the Senate should rise or not when George Washington entered the chamber provoked extended debate. An attack on a man’s honor was “the ultimate trump card,” and could be used as a weapon even in affairs of state. When one’s honor was impugned by an inferior, one could get satisfaction by beating the offender with a cane. The Sedition Act,3 Freeman observes, was not simply a tool of censorship for its own sake, but “an attempt to institutionalize and regulate an aspect of honor defense by providing leaders with a controlled way of defending themselves against inferiors in a time of crisis.” But when insulted by an equal, unless one were at least willing to expose one’s own life to mortal danger, one ran the risk of being branded an untrustworthy coward, and a ruling elite that conducts business on the basis of honor will view a critical press with no small amount of distress. Traveling up and down the colonies, cane in hand, defending one’s honor against uppity newspapermen does not leave much time for actual governance. Alexander Hamilton died on July 12, 1804, the day after he was mortally wounded in a duel with Aaron Burr.4 Though dueling was illegal in most jurisdictions, duelists were rarely punished, and dueling persisted in the American South until the Civil War.5
As described above, the easiest way of becoming a gentleman was to be born to one, inegalitarian as that may be. Yet by the end of the eighteenth century, the viability of a purely hereditary aristocracy had been called into question. Granted, doubts about the long-term stability of monarchial governments extend back to Aristotle,6 and even Britain had transformed itself into a constitutional monarchy in the seventeenth century. But the Founders were reading men like Locke, Hume, and Smith, who criticized the idea that birth or wealth alone was a sufficient measure of a man’s worth. Still, there is an argument to be made that the “self-evident” truth that “all Men are created equal” was not conceived of by eighteenth-century observers as completely eliminating all kinds of social hierarchy. Rather, the intent was to substitute the old, corrupt, hereditary aristocracy with one based on individual virtue:
To reject parliamentary democracy was, for minds still as English as theirs . . . was to return to the Harringtonian7 tradition in which English political history was restated as leading to a republican culmination; but in Harrington as in every other republican classic, it was unequivocally stated that the alternative to a hereditary, entrenched, or artificial aristocracy was a natural aristocracy—an elite of persons distinguished by natural superiority of talent, but also by contingent material advantages such as property, leisure, and learning, as possessing the qualities of mind required by the classical Few. It was assumed that a supply of such persons was guaranteed by nature, and part of the case against artificially established aristocracies was that the true elite were naturally recognizable by the Many. The democracy could discover the aristocracy by using its own modes of discernment, and there was no need to legislate its choice in advance; a theory of deference was usually invoked in order to democratize the polity. In most American colonies a patrician elite—distinguished indeed by its visible property and culture—stood ready to play the role of natural aristocracy. The literature of colonial Virginia in particular contains some interesting idealizations of the relationship supposed to exist between self-evident leaders of society and the respectful but by no means uncritical yeomanry.8
Perhaps the most conspicuous example of this can be found in Thomas Jefferson, who was famous for his love of the ideal of the yeoman farmer. He is commonly quoted as having written that “Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue.”9 Modern commentators sometimes dismiss this as little more than a mere aesthetic judgment: quaint, but proven irrelevant at best by the progress of history.10 But this does not do Jefferson justice. True, agriculture, particularly of the family-farm sort, is no longer the dominant occupation in America. But Jefferson and his comrades were not so simple as to believe that because a certain lifestyle was aesthetically attractive that this alone made it essential for a concept they cared about so highly as liberty. The full text of Jefferson’s comment begun above is reproduced here:
Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example. It is the mark set on those, who not looking up to heaven, to their own soil and industry, as does the husbandman, for their subsistence, depend for it on casualties and caprice of customers. Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition. This, the natural progress and consequence of the arts, has sometimes been retarded by accidental circumstances: but, generally speaking the proportion which the aggregate of the other classes of citizens bears in any state to that of its husbandmen, is the proportion of its unsound to its healthy parts, and is a good enough barometer whereby to measure its degree of corruption. While we have land to labour then, let us never wish to see our citizens occupied at a workbench, or in twirling a distaff. Carpenters, masons, smiths, are wanting in husbandry: but, for the general operations of manufacture, let our work-shops remain in Europe. It is better to carry provisions and materials to work-men there, than bring them to the provisions and materials, and with them their manners and principles. The loss by the transportation of commodities across the Atlantic will be made up in happiness and permanence of government. The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body. It is the manners and spirit of a people which preserve a republic in vigour. A degeneracy in these is a canker which soon eats to the heart of its laws and constitution.11
Even given its full text, many commentators, especially in the legal community, would conclude that Jefferson simply thinks agriculture is better than industry, possibly for self-interested reasons connected to his being a landowner, and leave it at that. But a closer reading reveals several rather interesting facets of Jefferson’s thought. First, note that Jefferson is not talking about large-scale factories or mass production here. Yes, there is a distinct anti-urban sentiment, particularly towards the end, but Jefferson is here mostly concerned about artisans and the putting-out system of individual, household manufacturing. Though several potential candidates for the first modern factory had been constructed in Britain by this point,12 Jefferson is not writing about them. Yet Jefferson views any occupation not related to agriculture as inherently problematic. His stated reason is that only agriculture enables a man to be independent; every other form of occupation requires dependence on others, both for raw materials and custom. It is dependence, Jefferson believes, not manufacturing per se, that is fatal to republican virtue.13 Jefferson’s desire to expand the ranks of yeoman farmers is not based on sentimentality about the agricultural lifestyle, but because only landowners were capable of free action. Thus if one were to expand the ranks of the yeomanry, one would be expanding the ranks of those who could at least theoretically be considered trustworthy, lineage no longer being necessary for admission into the gentle classes.
Conclusion
Thus ends the second, and shortest, part of my essay. Part III, “Civility and Federalism,” can be found here.
On that date, Alexander Hamilton took the stage in New York City to support the Jay Treaty, which was unpopular as it was perceived to be too favorable to the British. The crowd hooted him and his fellow Federalists offstage, the humiliation of which led to Hamilton challenging Republican James Nicholson to a duel. Hamilton went so far as to set his financial affairs in order, but the duel was prevented by negotiation the day before it was scheduled to occur.
Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (2001), xv, xix.
An Act for the Punishment of Certain Crimes against the United States, 1. Stat. 5 (1798) (expired 1801).
For preceding quotes in this paragraph, see generally Freeman, supra note 2, at xxii - xviii, 190.
C. A. Harwell Wells, The End of the Affair?: Anti-Dueling Laws and Social Norms in Antebellum America, 54 Vand. L. Rev. 1805, 1813 (2001).
See generally Aristotle, Politics, Book III, parts VII - X.
James Harrington (AD 1611 - 77), English political theorist of classical republicanism. Most known for his work The Commonwealth of Oceana (1656).
J.G.A. Pocock, The Machiavellian Moment 515 (1975) (referencing Charles S. Sydnor, American Revolutionaries in the Making (1965)) (emphasis added).
Thomas Jefferson, Notes on Virginia, in The Writings of Thomas Jefferson, Vol. III 85, 268 (Paul Leicester Ford, ed. 1892–99).
See, e.g., Michael C. Dorf, The Good Society, Commerce, and the Rehnquist Court, 69 Fordham L. Rev. 2161, 2181–83 (2001) (arguing that this version of Jeffersonianism “has almost no bearing on contemporary American society”); Eduardo Moisès Peñalver, Is Land Special?, 31 Ecology L. Q. 227, 260 (2004) (“[T]he apparent survival of our liberties despite the disappearance of small-scale agriculture should at least give pause to contemporary adherents of [Jefferson’s] position.”).
Jefferson, supra note 9, at 269 (emphasis added).
The Soho Manufactory in Birmingham was constructed in the 1760s, and cotton mills were beginning to appear by the time of the Constitutional Convention.
The reason Jefferson could consider farmers inherently independent but artisans inherently dependent has to do with the prevailing economic thought of the day, which considered the agricultural sector the only truly productive sector in the economy. This belief originates in the thought of Francois Quesnay, a French economist and father of the physiocratic school in the French royal court, who described the economy as essentially a system for circulating agricultural production amongst the various social orders. The specifics of physiocratic thought are too far afield to go into in any detail here. See generally Philip Mirowski, More Heat Than Light: Economics as Social Physics, Physics as Nature’s Economics 154–63 (1989); Alessandro Roncaglia, The Wealth of Ideas: A History of Economic Thought 96–107 (2005). Much of the debate between Jefferson and Hamilton originates in the controversy over whether agriculture alone, as opposed to both agriculture and manufacturing together could be considered “productive.” In any case, for our present purposes t is sufficient to understand that Jefferson believed husbandmen to be independent and artisans dependent because of what he believed about economics. This is, arguably, another reason to be skeptical about adopting the Founders’ justifications for the system they created.
Full disclosure: Prof. Mirowski taught two of the other non-law graduate courses I took while at NDLS: History of Economic Thought, and Economics of Science. If I had remained at Notre Dame to pursue a Ph.D. instead of getting a legal job, he would likely have been my dissertation advisor. I really cannot recommend his works enough.