Searching for a "natural aristocracy" IV

Part IV and V

This post includes Parts IV and V of my essay on civility in the Founders thought. Here are links to Part I, Part II, and Part III.

IV. The Modern World and the End of Civility

In some sense, this perspective on the Founding generation can be viewed as a snapshot of a world in transition. We do not live in the world in which the Founders lived, and one can already see in their documents how things were starting to change. Though the aristocratic ideal, founded in concerns of propriety and honor, was a significant source of social coherence before the Modern period, this idea was significantly in flux by the founding of the American Republic. Albert O. Hirschman has argued that part of the birth of the Modern world was the transformation of medieval vices into virtues. For instance, Hirschman asks, “How did commercial, banking, and similar money-making pursuits become honorable at some point in the modern age after having stood condemned or despised as greed, love of lucre, and avarice for centuries past?”¹ The question is worth asking: such considerations would have been considered far beneath a true gentleman, as such a one would not sully his hands with mere commerce, participation in which, as Jefferson observed, made one unacceptably dependent.

Though “[S]triving for honor and glory. . . stood at odds with the central teachings, not only of St. Augustine, but of a long line of religious writers, [including]. . . St. Thomas Aquinas. . . who attacked glory-seeking as both vain and sinful,” by the time of the Founders, “[T]he striving for honor achieved the status of a dominant ideology as the influence of the Church receded and the advocates of the aristocratic ideal were able to draw on the plentiful Greek and Roman texts celebrating the pursuit of glory.” In a society structured by honor, violations of that honor could be very dangerous and merit suppression. Yet Hobbes, La Rochefoucauld, and Pascal depicted the heroic virtues to be “self-preservation,” “self-love,” and “frantic escape from real self-knowledge,” respectively, and Cervantes made them appear downright foolish. This both paved the way and created the necessity for a new moral code by which society could be ordered.²

Hirschman observes that Machiavelli implied that “political philosophers had hitherto talked exclusively about [imaginary republics and monarchies that have never been seen] and had failed to provide guidance to the real world in which the prince must operate.” Spinoza attacked philosophers who “‘conceive men not as they are but as they would like them to be.’”³ As a result,

A feeling arose in the Renaissance and became firm conviction during the seventeenth century that moralizing philosophy and religious precept could no longer be trusted with restraining the destructive passions of men. New ways had to be found and the search for them quite logically began with a detailed and candid dissection of human nature.⁴

Where originally there was a hope that social order could be maintained by a civility decreed by social elites, early modern thinkers quickly discovered, taking a cue from John Calvin,⁵ that humanity is a rather unruly and disruptive lot. Ones sees this quite clearly in Federalist No. 10. Though experiments with coercive force were attempted in both philosophy and politics for a time, by the seventeenth century it was beginning to be recognized that an authority that was actually capable of “suppress[ing] the misery and havoc men inflict on each other as a result of their passions” was just as much an exercise in fancy as the aristocratic ideal so recently discredited.⁶

The solution, struck upon by the Founders, instead of repressing the passions coercively, was to harness them. As Hirschman says, quoting a Renaissance thinker: “Out of ferocity, avarice, and ambition, the three vices which lead all mankind astray, [society] makes national defense, commerce, and politics, and thereby causes the strength, the wealth, and the wisdom of the republics. . . .”⁷ On the eve of the American War for Independence, Adam Smith published a work devoted entirely to the deadly sin of avarice, but substituted “‘passion’ and ‘vice’ [with] such bland terms as ‘advantage’ or ‘interest.’ In this limited and domesticated form the harnessing idea was able to survive and to prosper both as a major tenet of nineteenth-century liberalism and as a central construct of economic theory.”⁸ Greed, all of a sudden, was good.

It was in this nexus that the Founders existed: civility still made up their social fabric, but the edges were beginning to fray. Honor was still important to them, but not only was the aristocratic ideal which gave meaning to the concept losing intellectual credibility, but the social structures which instantiated honor in the lived world had been all-but destroyed in the Revolution.⁹ Furthermore, the dual liberal concepts of personal advantage and natural rights were emerging to fill the void created by the ongoing collapse of honor culture. It was these concepts which prevented the Founders from despairing completely, as several delegates at the Constitutional Convention were on the edge of doing.

Part V. Conclusion

Given these things, it behooves us to move carefully and with deliberation when using federalism as a justification for judicial action or policy platforms. Though the Founders were concerned about many of the issues which still concern us, their world is not our world, and many of the concerns that animated their discourse—like ensuring that the Right Sort of People would be willing and able to take positions in the national government—are antithetical to much contemporary thinking about human equality.

Furthermore, the Constitution has changed since 1789 in ways that directly implicate civility. The Fourteenth Amendment dramatically expanded the power of the federal government against the states, altering forever the balance of federalism. The Twenty Fourth Amendment, ratified in 1964, made unconstitutional the imposition of a poll tax.¹⁰ As indicated by the Supreme Court in 1966, poll taxes, taxes which must be paid in order to vote, are now viewed as a violation of the Equal Protection Clause.¹¹ In a culture of civility, poll taxes are all but essential, for if trustworthiness is linked to one’s ability to engage in disinterested free action based at least in part upon financial independence, the ability to pay a poll tax is a perfectly rational way of defining the body politic. Such an amendment could never have been seriously considered in the eighteenth century, yet today we cannot seriously consider the alternative.

In 1991, Justice O’Connor gave a laundry list for the benefits of federalism:

Th[e] federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.¹²

Nowhere on that list is the idea that the federal structure is designed to promote the revelation and identification of the natural aristocracy. If anything, certain aspects of the federal structure were designed to restrict access to democratic processes. The debates about the selection of federal officers and their salaries was motivated in part by an attempt to make sure that the wrong sort of people do not come to power. Yet federalism, as Professors Rubin and Feeley have argued, persists as a kind of trump card in American jurisprudential thinking.¹³ But where Rubin and Feeley question whether the benefits attributed to federalism have been actualized, a student of history would also question whether those benefits were all the Founders intended for federalism, and if not, whether we are as comfortable with their thought as we would like (or ought) to be.

1. Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism Before Its Triumph 9 (1977).

2. All quotations in this paragraph Id. at 10 - 11.

3. All quotations in this paragraph Id. at 13.

4. Id. at 14 - 15.

5. For an extended discussion of the impact of international Calvinism upon the western legal tradition, see Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition 199 - 372 (2003).

6. Hirschman, supra note 1, at 16.

7. Id. at 17 (citing Giambiattista Vico, New Science 78 (David Marsh ed., Penguin Classics 3d ed. 2000) (1725)).

8. Id. at 19.

9. Indeed, the Constitution explicitly prohibits the creation of titles of nobility; the Founders were quite deliberate and self-conscious in their attempt to eliminate hereditary aristocracy. U.S. Const., art. I, sec. 9, cl. 8.

10. This was hardly the only major legal/constitutional development in 1964. . . .

11. Harper v. Va. Bd.of Elections, 383 U.S. 663 (1966).

12. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (citing Michael W. McConnell, “Federalism: Evaluating the Founders’ Design,” 54 U.Chi.L.Rev. 1484 (1987) (reviewing Raoul Berger, Federalism: The Founders’ Design (1987)).

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