Constitution 12: The Civil War Amendments

Last week, we looked at the Emancipation Proclamation of 1863 and the Presidency of Abraham Lincoln to the war’s mid-point in 1863. After the battle of Vicksburg, the Union navy controlled the entire length of the Mississippi reiver, cutting the Confederacy in half. Lee’s army retreated from Gettysburg, morally wounded. The end-phase of the war had begun.

The Union Victory and Lincoln’s Death

Although Lee would prove a capable leader time and time again during the ensuing 18 months, fighting a long retreat, the Army of Northern Virginia never again reached the same level of greatness it achieved during the first half of the war. In addition, in Ulysses S. Grant, Lincoln found a general who was willing to both use the industrial might of the North and expend the lives necessary to win a decisive victory. He pounded the Army of Northern Virginia until it was battered into defeat. By April of 1865, Lee’s army was exhausted, surrounded, and unable to continue. On April 9, 1865 at Appomattox Court House, Lee surrendered his army. Although the war would continue for a while longer, by the November 1865, the last holdouts had surrendered.

Lee’s surrender resulted in a national celebration. On April 11, two days after Lee’s surrender, Lincoln spoke to the crowds around the White House, in what would be his last public address. In that speech, he addressed the issues that would have to be addressed in the reconstruction of the nation after the end of hostilities. Three days later, John Wilkes Booth slipped into the President’s box at Ford’s Theatre and shot the president, fatally wounding the 16th President. He died early the next morning.

Without Lincoln’s moral authority and determination to moderate the influence of the Radical Republicans and cajole the Southern leadership into a “malice free” reconstruction, the leadership of the reconstruction took on an retaliatory character, which alienated the South. In addition, Lincoln’s deep dislike of slavery, and the affection the now freed slaves felt towards him because of his leadership in winning their freedom, would not be present to give impulse to the changes necessary to enact into law the victories won on the battlefield as well as to restore the defeated southern states to statehood. His death was a disaster for North and South alike.

13th Amendment

Despite the Union victory, amendments were necessary to embody in the Constitution the freedom declared during the Civil War by the Emancipation Proclamation. The Thirteenth Amendment was passed by the Senate on April 8, 1864, before the end of the war and Lincoln’s death, and was ratified by the states by December 6, 1865. This amendment provided that, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” [1] Its impact was to undo the Dred Scott decision granting property rights in slaves and nationalize the freedom granted to slaves by the Emancipation Proclamation, which was enacted under the president’s war powers, with certain exceptions.

14th Amendment

On April 9, 1868, three years after the War’s end and Lincoln’s death, the Fourteenth Amendment was ratified by the requisite number of states. Section 1 of this Amendment provides as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [2]

This section of the 14th Amendment has been the most important of the Civil War Amendments, because of its determination that the privileges of United States citizenship, due process of law, and equal protection of the law are not only applicable to the national but also to state governments. Over the years since it was ratified, this amendment has been the subject of much litigation and the vehicle for incorporating many federal rights into the states.

The 14th Amendment contains other provisions that are of importance. Section 2 repealed the “three fifth clause” of the original constitution that failed to fully count the citizenship of black voters was specifically undone. Together with the 13th Amendment, this article clarifies that all males over twenty-one years of age are entitled to vote. This provision also allowed the vote to be denied to those who served in the Confederate government after taking an oath of office to the United States.

Section 3 allows Congress to prevent those who took an oath of allegiance to the U.S. Constitution before the Civil War, from holding office if they “engaged in insurrection or rebellion” against the Constitution. The intent was to prevent the President Johnson from allowing former leaders of the Confederacy to regain power within the U.S. government after securing a presidential pardon.

Section 4 prohibited the former southern states from payment of any of the debts they had incurred during the Civil War or from compensating former slave owners for the loss of their property. This prevented Southern states from repaying debts to fund the war, making any future insurrection less possible and preventing those who financed the war from recouping their losses.

Section 5 allows Congress to enforce the provisions of the amendment by appropriate legislation, powers that became of importance in the 20th Century with the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Importance of the 14th Amendment

As indicated, the most important of the Civil War Amendments is the  14th Amendment. In recent years, the Supreme Court has applied the protections of the 14th Amendment on the state and local level. [3] For example in Brown v Board of Education 347 U.S. 483 (1954), the Supreme Court overturned the “separate but equal” doctrine established in Plessy v. Ferguson 163 U.S. 537 (1896), ruling that segregated public schools violate the equal protection clause of the 14th Amendment. In Loving v. Virginia (388 U.S. 1 (1967), the Supreme Court struck down a Virginia Statute outlawing interracial marriage on the basis that a statutory scheme preventing marriages between persons solely on the basis of race violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In these and other similar cases the court has ruled on cases related to the consequences of the Civil War. [4]

Procedural and Substantive Due Process

It has long been a question of jurisprudence whether due process only protects one’s rights to a fair judicial procedure or whether it has substantive force, protecting personal liberty. The distinction between procedural and substantive due process is an important one. The debate over this issue extends all the way back into English Constitutional history, and the founding fathers and others were not of one mind about whether the Constitution’s due process clauses protected substantive rights. [5] Nevertheless, the Fourteenth amendment has been interpreted throughout its history in substantive ways, not always with positive results.

Before enactment of the 14th Amendment, the decision in Dred Scott v. Sanford 60 U.S. 393 the due process clause of the 5th Amendment was interpreted to protect the rights of slave-owners in the property, a decision that is universally condemned by historians of the court In Lochner v. New York, 198 U.S. 45 (1905) the court invalidated a state law creating maximum work hours per week as denying the right of contract, thus reintroducing the doctrine into American jurisprudence. Lochner is not a well-regarded decision of the court and was overturned in West Coast Hotel v. Parish 300 U.S. 397 (1937).

Since West Coast Hotel v. Parish, the Supreme Court has essentially employed a two-tiered analysis of substantive due process claims.

  • Legislation concerning economic affairs, employment relations, and other business matters is subject to minimal judicial scrutiny, meaning that a particular law may be overturned only if it serves no rational government purpose.
  • Legislation concerning “fundamental liberties” is subject to strict judicial scrutiny, meaning that a law will be invalidated unless it is narrowly tailored to serve a significant government purpose. [6]

This second category of “fundamental liberties” is divided into two sub-categories, those rights which are fundamental because they are within the Bill of Rights and those which are not within the Bill of Rights, but which are deemed fundamental by the Supreme Court. It is this category that has provoked the most controversy. Beginning with Griswold v. Connecticut 381 U.S. 479 (1965) the Supreme Court began a series of cases, most importantly Roe v. Wade410 U.S. 113 (1973), where the court found a fundamental liberty under circumstances where large numbers of people disagreed and continue to disagree. [7]

15th Amendment

1n 1886 Congress proposed the 15th Amendment, which was ratified by the states on July 9, 1868. The 15thAmendment to the Constitution was added to the Constitution to clarify the voting rights of former slaves. It provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” In its second section, Congress is given the power to enforce the article by appropriate legislation. [8] The 15th Amendment is the final of the three amendments added to the Constitution after the Civil War.

Subsequent to the Civil War, this Amendment was added to ensure the voting rights of former slaves. Initially, the Amendment was successful, but as radical reconstruction gradually failed and the southern states began to pass their own laws concerning voting rights, a variety of measures were enacted that dramatically restricted the voting rights of black citizens, including voting rights laws that created legal hurdles, such as literacy tests, poll taxes, odd districting, and other methods. This is a sad chapter of American and especially Southern American history. De Tocqueville foresaw that the end of slavery would bring about an increase in prejudice and hostility towards the former slaves, and he was correct in his fears.

In Giles v. Harris 189 U.S. 475 (1903) the court refused to hold these laws unconstitutional, delaying full incorporation of the black community into American political society for more than another half-century. [9] However, beginning with Smith v. Allwright, 321 U.S. 649 (1944), the court began the process of invalidating state laws that interfered with voting rights of minorities. [10] The process was only completed with the passage of the Voting Rights Act of 1965, which Congress was empowered to adopt under the 14th and 15th Amendments.

Conclusion

The Civil War ended the national debate concerning slavery. What politicians had been unable to solve peacefully in the halls of Congress, the Courts, and the Whitehouse, the guns of war resolved on the battlefield. Subsequent to the war, the amendments that have been the subject of this blog were enacted to end both slavery and the legal impediments to former slaves being fully-incorporated into American society. The promise of the enactment took a century to fully accomplish. [11]

The second result of the war was the clear establishment of the national government as supreme, and the end of any theory under which the national government was simply a confederation of state governments.  The Civil War Amendments also accomplished this result over time, especially the 14th Amendment.

The second result has not been without its complications for American society. Increasingly the courts have been looked to resolve issues that might have better been resolved by Congress or the state legislatures. Remembering de Tocqueville’s understanding that all the subordinate levels of government were and are vast training grounds for development of the skills and practices of democratic self-government, the loss of both willingness and responsibility of local governments for many issues of life is one to be addressed in the future—and no easy solution comes to mind.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Constitution of the United States of America, Amendment XIII (1865).

[2] Constitution of the United States of America, Amendment XIV (1868).

[3] This process began with Gitlow v. New York (28 U.S. 652 (1925), the Court held that the due process clause of the 14th Amendment protects First Amendment rights of freedom of speech from infringement by the state governments.

[4] Beginning with Griswold v. Connecticut 381 U.S. 479 (1965) the Supreme Court has cited the 14th Amendment in cases involving contraception (Griswold), abortion (Roe v. Wade 410 U.S. 113 (1973)), and the power of states to regulate same sex marriages. (Obergefell v. Hodges 576 U.S. 644 (2015)). This line of cases presents interesting legal issues which may form the basis of a future blog, but lie outside this reflection on the Civil War Amendments.

[5] See, Nathan S. Chapman & Michael W. McConnell, “Due Process as Separation of Powers” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005406 (2012), (downloaded November 30, 2021).

[6] Substantive Due Process, at https://law.jrank.org/pages/10589/Substantive-Due-Process-Modern-Analysis.html (downloaded November 29, 2021).

[7] This is not the time to discuss this line of cases, which must await our arrival at the 1960’s with its pervasive changes in American society. We will discuss the subject of substantive due process again when we look at the thought of Oliver Wendall Holmes.

[8] United States Constitution, Amendment Fifteen (1868).

[9] One of the tragedies of Giles v. Harris is that it was authored by Justice Holmes, one of the few of his cases to receive almost universal condemnation.

[10] Once again, I cannot go into the series of cases in which the court both denied attempts by blacks and then retreated to support such attempts in this blog. It is, however, a complex and interesting analysis, which I may undertake when we get further along.

[11] For example, the poll tax, which was one of the vehicles used to deprive black persons of voting rights was only outlawed by passage of the 24thAmendment in 1964. In many ways, this is the last of the “Civil War Amendments.”

Thanksgiving 1863: Abraham Lincoln our “Theologian of American Anguish”

This week is Thanksgiving Week, and in celebration of that event, we are looking at one of the most important of Thanksgiving Proclamations. On October 3, 1863, President Abraham Lincoln issued a Thanksgiving Proclamation. It begins:

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever-watchful providence of Almighty God. [1]

It might seem odd that Lincoln thanked God in the midst of the tragedy of civil war. The year 1863, however, marked the turning point of the American Civil War. The year began with the President finally, and after much thought, issuing the Emancipation Proclamation, which freed the slaves. Grounded by Lincoln in his powers as Commander in Chief, it was limited to slaves in the rebellious areas of the nation and read in part:

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons. [2]

The proclamation was intended to free the slaves, give moral authority to the armies of the North, and to encourage an early end to hostilities. However, the freedom proclaimed would be won on the field of battle.

The previous July, at Gettysburg, Pennsylvania and Vicksburg, Mississippi, the Union troops finally achieved long-awaited victories, which marked the beginning of the end of the Confederacy. In the victorious general at Vicksburg, Ulysses S. Grant, Lincoln finally found the leader his armies needed to roll over the talents of Robert E. Lee and the Army of Northern Virginia. The war would drag on another year and a half, and bloody battles would be fought, but the South would never recover from their losses in mid-1863.

Run-Up to the Civil War:

The years following the presidency of Andrew Jackson saw the gradual emergence of the question of slavery as an insolvable national problem. In the North, the economy was not dependent upon slave labor, but in the South it was. In addition, as de Tocqueville pointed out, the solution available in the North to the race issue was not available in the South. This led to a long period of intense conflict and political attempts to mediate the problem.

In 1820, Congress enacted what came to be known as the “Missouri Compromise.” In that year, Missouri was admitted to the Union (the first state West of the Mississippi River) as a slave state while Maine was admitted to the Union as a free state, maintaining a delicate balance of political power between the North and South. The Missouri Compromise also banned slavery in lands which had been a part of the Louisiana Purchase north of 36º 30’ which was roughly the southern boundary of Missouri.

Thomas Jefferson, who was still alive at the time, felt the compromise would not work and could lead to Civil War. His fears turned out to be well-grounded. The Missouri Compromise maintained a temporary peace, but failed to resolve the moral problem of slavery. In addition, it created a deep division between the North and the South—and a line which with the earlier the Mason Dixon Line that might demark the boundaries of a divided United States of America. [3]

Congress continued to attempt to find ways to maintain the Union by compromise. California was admitted to the Union with a requirement that one of her Senators be pro-slavery. In 1854, the Missouri Compromise was abandoned in the “Kansas and Nebraska Act” was passed, allowing slavery in a region north of the 36º 30’ line. Passage resulted in violence between pro- and anti-slavery factions.

In 1857, under the leadership of Roger B. Taney, the Supreme Court decided Dred Scott v. Sanford ruling that the Missouri Compromise was unconstitutional holding that Congress had no power to prohibit slavery in the territories, as the Fifth Amendment guaranteed slave owners could not be deprived of their property without due process of law. [4] This meant that there could be no legislative or judicial path out of the difficulties of the union caused by slavery. For the probem of slavery to be resolved, an amendment to the Constitution would be required—an unlikely event.  In my view, with the Dred Scott decision, the only path left to resolve the issue of slavery was war, which erupted four years later with the election of Abraham Lincoln as President.

In the wake of the Kansas Nebraska Act, a little-known lawyer from Illinois, Abraham Lincoln, ran against Stephen Douglas, the Senator who spearhead passage of the Kansas Nebraska Act. This election produced the famous, “Lincoln Douglas Debates.” Douglas won the election; however. historians judge he lost the debates—and in the process brought Abraham Lincoln, an obscure politician and lawyer to public prominence. In the election of 1863, Lincoln was the candidate of the Republican Party for President and won. He was inaugurated on March 4, 1861, and war commenced on April 12, 1861 when confederate troops fired on Fort Sumter in South Carolina. [5]

The years preceding the Civil War demonstrated a failure of the American political system  to end slavery peacefully. All the institutions of government, congressional, judicial, and executive failed in their duty to find a way to end slavery. Every attempt at compromise failed, because no compromise was possible with respect to so great an evil. In his First Inaugural Address, Lincoln urged a compromise and patience in resolving the issue of slavery, but that was not to be. [6] The future of the nation was to be determined on the battlefield.

President Lincoln and the First Months of the War

When Lincoln was elected President, southern states were already in the process of separating from the Union. His life was in danger. In his First Inaugural Address, the careful lawyer was on display and certain features of his leadership were evident. The speech foreshadowed the leadership he would give and the greatness he would achieve.

His appeal to the South was simple: Nothing had changed. The South was under no immediate need to separate from the Union, and no southern state had any obligation to leave the Union. Lincoln, on the other hand, had sworn an oath to “faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”  He  was warning the South that he would be compelled to take up arms to defend the union, a principle that defined his presidency. Nevertheless, the Confederacy was formed, and Ft. Sumpter attached in April of 1861. From that time forward it was clear that the fate of the Union would be decided on the field of battle.

In the first year and a half of the war, Lincoln was hampered by a series of commanding officers of the Army of the Potomac, who were either not competent, excessively cautious, outfoxed by the Commanding Officer of the Army of Northern Virginia, or hostile to his leadership.  General Robert E. Lee had been offered command of the Union armies at the outbreak of the war, but had felt loyalty to his home state of Virginia must come first. He proved to be an able general, especially in turning defensive situations into offensive possibilities. His victories in the early years of the war despite being out-manned and out-gunned were and are legendary.

It is often forgotten that Lincoln was made fun of by the press of his day and not admired by many in Washington. His first years in office were challenging, and his greatness was unrecognized. In spite of all this, he stayed the course. At the same time, the industrial might of the North was growing, its army increasing in size and capacity, and wearing down the army of the Confederacy, which was an agrarian area of the nation, lacking in the industrial potential to wage the kind of war that was emerging during the period of the Civil War.

Despite setbacks, by the summer of 1863 the South needed a victory which would force a peace process satisfactory to the Southern states. Otherwise, Lee knew the armies of the Confederacy ultimately would be overwhelmed. Lee devised a plan to invade Pennsylvania without the aid of his greatest lieutenant, General Thomas Stonewall Jackson, who had died as a result of friendly-fire injuries the previous may in the Battle of Chancellorsville. General Meade proved an able and competent opponent, and Lee lost the Battle of Gettysburg, the turning point of the war.

Thanksgiving 1863 and Lincoln as a Theologian of Politics

So it is that President Lincoln felt that the nation should thank God for the blessings of the year past. Therefore, in October, he issued this call for a National Day of Thanksgiving:

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever-watchful providence of Almighty God. In the midst of a civil war of unequalled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union. [7]

There are features of this proclamation that appear in other works by Lincoln, and which reveal him as a profoundly religious person, with a religious attitude towards the situation of the nation. Lincoln recognizes the blessings of life even in the midst of conflict. He sees the fragility of the human condition and need for the grace of the  Almighty Most High God. He sees the Civil War as, in some way, a punishment for national sin, and especially the sin of slavery, an attitude he also reveals in his Second Inaugural Address. [8] He saw the magnitude and severity of the war as commensurate with the evil being addressed.

Lincoln, however, does not see himself or the Union as avenging angels, but as instruments of God in order that the slavery might end, the wounds of the war healed, and peace and harmony restored. Whatever the current state of the Union and his own and our national suffering, a Beneficent God was at work for good in the struggles of the Civil War. For himself and the nation, the proper response was a humble thankfulness for such blessings as had been received, repentance for the flaws that were the cause of the suffering, and a prayer for mercy and the return of peace.

Conclusion

This Thanksgiving 2021, as we hear so many strident voices from the left and the right, and the harsh voices of deluded souls captured by a “Politics of War” attempt to inflame our natural prejudices and failings, perhaps we might listen to the final counsel of our unique “Theologian of American Anguish,” [9] Abraham Lincoln:

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan–to do all which may achieve and cherish a just and lasting peace among ourselves, and with all nations. [10]

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See, “Abraham Lincoln’s Proclamation of Thanksgiving” at the American Battlefields Trust, https://www.battlefields.org/learn/primary-sources/abraham-lincolns-proclamation-thanksgiving?ms=googlepaid&gclid=EAIaIQobChMIspT0peuf9AIVZnxvBB1AdAhPEAAYASAAEgJX9_D_BwE (downloaded November 17, 2021).

[2] See, Abraham Lincoln’s Emancipation Proclamation January 1, 1863 at the American Battlefields Trust,https://www.battlefields.org/learn/primary-sources/abraham-lincolns-emancipation-proclamation?ms=googlepaid&gclid=EAIaIQobChMI_8W4ru6f9AIVESM4Ch1rKQvEEAAYASAAEgJ4X_D_BwE (downloaded November 17, 2021). The proclamation excluded the then union occupied areas of except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans.

[3] Although a footnote to the history, the term “Mason Dixon Line” was used as a part of the language of the Missouri Compromise, referring to an earlier dispute between the between the British colonies (now states) of Maryland and Pennsylvania/Delaware. In popular terminology it refers to the cultural line between the Northern and Southern parts of the United States.

[4] Dred Scott v. Sanford, 60 U.S. 393 (1857).

[5] In his First Inaugural Address, Lincoln attempted to pacify the southern states, which were in the process of leaving the union, urging a constitutional and legal resolution to the problem. This, like all previous attempts at compromise, failed. Abraham Lincoln, “First Inaugural Address” (March 4, 1861).

[6] Abraham Lincoln, “First Inaugural Address,” previously cited.

[7] Abraham Lincoln, “Thanksgiving Proclamation” (October 3, 1863).

[8] Abraham Lincoln, “Second Inaugural Address” (March 4, 1865).

[9] The title of this week’s blog comes from a wonderful little book by Elton Trueblood, Abraham Lincoln: Theologian of American Anguish (New York, NY: Harper One, 1973).

[10] Abraham Lincoln, Second Inaugural Address (March 4, 18650>

De Tocqueville No. 4:

De Tocqueville 4: Threats to Democracy, Race, and the Civil War

I have mentioned that Democracy in America is such a rich book that an analysis of it might go on forever. This week’s blog is the last in this series and deals with two inter-related issues: (i) generic threats to American democracy and (ii) the specific threat posed by slavery.

As previously mentioned, de Tocqueville was a friendly but not uncritical observer of American culture. He visited the United States in 1831 at a time when American democracy was less than a half century old. Nevertheless, he and his companion, Gustave Beaumont, saw flaws in American character and potential structural threats in the Constitution and the form of government it created. They also perceived both the social evil of slavery and potential for civil war.

When de Tocqueville arrived, Andrew Jackson, an unabashed populist, was President. His presidency ushered in a new era in American politics. His party supported state’s rights and the extension of slavery into new Western territories. Jackson was personally a slave owner. He was opposed to many of the innovations that had been projects of the Whig party and his predecessors. For example, he was opposed to the creation of a National Bank favored by business and industry and would ultimately veto the extension of its charter.

In 1831, religion was flourishing in America. Charles Finney, the great evangelist and founder of Oberlin College was at the peak of his powers, and there was a rise in church membership and activity. The cotton gin had been invented, railroads were being formed, and industry was growing. American interest in business, commerce, and manufacturing were resulting in rapid growth. Already by de Tocqueville’s time, no nation except Great Britain had so large a merchant fleet, and America was becoming an international economic power.

There were, however, storm clouds on the horizon of the American experiment. Nate Turner’s rebellion had occurred in which there were multiple deaths, and the issue of race and slavery was on the public mind. In Virginia, a bill to abolish slavery had been introduced into the legislature. Other states had abolished or would abolish slavery. The next year, an obscure lawyer and would be politician from Sangamon County, Illinois, named Abraham Lincoln, filed to run for the Illinois General Assembly, a campaign he would lose. His greatness would be winning when it counted.

Generic  Threats to Democracy

American Politicians and Politics

De Tocqueville perceived certain aspects of American democracy that created risks to its future. As indicated above, de Tocqueville visited the United States immediately following the creation of the Democratic Party and the decay and end of the Federalist Party and the Whig party. In analyzing American democracy, de Tocqueville early on observes:

On my arrival in the United States I was surprised to find so much distinguished talent among the citizens and so little among the heads of government. It is a constant fact that at present the ablest men in the United States are rarely placed at the head of affairs; and it must be acknowledged that such has been the result in proportion as democracy had exceeded its former limits. The race of American statesmen has evidently dwindled in the course of the last fifty years. [1]

The constant agitation of political parties and the rough and tumble nature of American politics meant that the best citizens often did not enter politics, leaving the public square open to demagogues. In addition, many politicians entered politics not for reasons of conviction or the public interest but to further their own private ambitions and fortunes. De Tocqueville was in particular critical of Andrew Jackson and a soon to be Texas martyr, David Crocket, a Tennessee congressman. [2] Beyond Jackson and Crocket as persons, the visitors perceived that the current leadership of the nation was not nearly so wise as the generation of the founders.

The Tyranny of the Majority

De Tocqueville observed that American democracy might descend into a kind of tyranny if unscrupulous leaders used public passions to allow a majority to abuse its great powers under the American Constitution. He could see that legislatures are inevitably swayed by the views of interests and seek to form majorities out of these interests. De Tocqueville felt that the main evil in the political institutions of the United States was not the weakness of the legislature, which had often been the case in Europe, but its potential “irresistible strength” if moved to tyranny. [3] The very power of the Congress might result in a “despotism of the legislature.” [4]

Once political parties began to treat politics as a winner take all contest, the politicians themselves would lose power over the course of events and be driven along my social forces leading to tyranny. [5] Thus, the danger of despotism is especially to be feared in democratic ages. [6] This is a danger we continue to experience.

Misuse of Political Power

From the perspective of recent events, it is interesting to note that de Tocqueville recognized that the Constitution itself had potential flaws that might be used by misguided persons in such a way as to damage American democracy. He believed one of those provisions was the power to impeach. Thus, de Tocqueville observes:

Nothing can be more alarming than the vagueness with which political offenses, properly so called, are described in the laws of America. Article II, Section 4 of the Constitution of the United States runs thus: The President, Vice President, and al civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Many of the constitutions of the states are even less explicit. [7]

De Tocqueville felt that the phrase, “or other high crimes and misdemeanors” could be allow the power to impeach to be used as a purely political weapon rather than as a way of punishing criminal behavior. With some degree of perspicuity, de Tocqueville observes “When the American republics begin to degenerate, it will be easy to verify the truth of the observation by remarking whether the number of political impeachments is increased.” [8]

Abuse of the Power to Spend

The power to tax and spend is another power that de Tocqueville recognized could pose a threat to American democracy:

The disastrous influence that popular authority may sometimes exercise upon the finances of a state was clearly seen in some of the democratic republics of antiquity, in which the pubic treasure was exhausted in order to relieve indigent citizens or to supply games and theatrical amusements for the populace. [9]

The power to spend was a cause of the fall of the democracies of Athens and of Rome, and de Tocqueville recognized that America was not without vulnerability to this threat. Interestingly the danger was not foreseen by the generally far-sighted Alexander Hamilton in the Federalist Papers, but by the time of de Tocqueville wrote, it was obvious—and even more obvious today. [10]

Centralization of Power

All governments, imperial, democratic, or oligarchical are characterized by a tendency of the most powerful elements to extend their power to an unhealthy degree. [11] De Tocqueville did not think that America was exempt from this tendency. The problem with centralization of power is that while it makes “great projects” and war possible, it ultimately enervates a society and after a time weakens a government and society. [12]

This leads to one of de Tocqueville’s most famous observations concerning the way in which American and other democracies are most likely to descend into despotism. A powerful and centralized government is inclined to develop minute rules designed to secure equality, but the cumulative impact of which is to destroy freedom and promote tyranny. Such a set of rules,

…covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes and stupefies a people, till the nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd. [13]

I leave it to the reader to draw his or her own conclusions about the current state of affairs with regard to the modern bureaucratic state. There is no question that the rise of large corporations and the complexity of modern economies together with the necessities of the modern welfare state require a larger bureaucracy than could have been foreseen in 1931. The question is one of balance and size as well as the focus and duties of bureaucratic officials.

Slavery as a Specific Threat to American Democracy

De Tocqueville and his traveling companion, Gustave Beaumont, both felt that the institution of slavery was a stain upon American democracy and a danger to the nation. In Democracy in America, de Tocqueville deals only with the main issues, because Beaumont was writing a separate book concerning the horrors of American slavery. [14] In de Tocqueville’s view, the oppression of the black race in America had deprived them of all the privileges of humanity, what our Constitution would call, “Life, Liberty, and the Pursuit of Happiness.” It was the “most formidable” of the social ills not just in America and a threat to the continuation of the nation as a unit. [15] Its impact was detrimental to the slave and to the slave owner, as well as to society as a whole. De Tocqueville also recognized that the discrimination was not limited to the South and to slave owners, but existed in the northern states in a different and more subtle way.

By de Tocqueville’s time, northern slaves had largely been freed, but great numbers had been sold into the south before the liberation. This tactic, characteristic of the northern states was not available to the southern states, which meant that the problem of abolition of slavery was becoming more and more complex and impossible in the south. [16]Furthermore, he anticipated that when and if the slaves were freed, the antagonism between the races would increase. [17]Under these conditions, civil war was a constant threat.

Conclusion

I have indicated that de Tocqueville was not an uncritical analyst of American Democracy despite his great admiration of its achievements. He could see that a decline in morals, a despotic legislature, a burdensome bureaucracy, a degenerate judiciary when combined with the inevitable human desire for power and possessions could destroy what the Americans had built. More specifically, he could see that slavery was both a great moral evil and a social institution difficult to eliminate. He also has a sense of history and knows that, “The history of the world affords no instance of a great nation retaining the form of republican government for a long series of years;….” [18]  In our time was can easily detect the presence of these and other troubling signs. The question is whether our political leaders, unlike the leaders in the lead up to the Civil War can find a just and satisfactory solution to the political, social and economic issues that plague our society. Thus far, they have failed.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), Volume 1, Chapter 11, page 83, hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).  Future citations will be to volume, chapter and page.

[2] Constitutional Rights Foundation, “The Citizen in de Tocqueville’s America” https://www.crf-usa.org/election-central/de-tocqueville-america.html (downloaded November 5, 2021).

[3] Id, at Volume 1, Chapter 13, page 101.

[4] Id, at Volume 1, Chapter 13, page 102.

[5] Id, at 105.

[6] Id, Volume 2, Chapter 4, at 210.

[7] Id, Volume 1, Chapter 6, page 49.

[8] Id, Volume 1, Chapter 6, page 50. The italics is de Tocqueville’s.

[9] Id, Volume 1 Chapter 11, page 87.

[10] See for example, The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 34 (Hamilton). Hamilton spends a good deal of time in his contributions to the need for an indefinite power of taxation in the federal government. I do not think it entered his mind that the federal government would print fiat money or engage in huge, continuing deficit spending.

[11] Id, Volume 2, Chapter 4, at 351.

[12] Id, at 353.

[13] Id, Volume 2, Chapter 5, at 359.

[14] Beaumont, who was also a lawyer, published in 1833 the social commentary and abolitionist novel Marie, or Slavery in the United States, addressing American social customs and attitudes.

[15] Id, at Volume 1, Chapter 16, Page 140.

[16] Id, at Volume 1, Chapter 16, page 145.

[17] Id, at 146.

[18] Id, Volume 1, Chapter 7, page 69.

The Role of Religion in American Democracy: De Tocqueville No. 3

An analysis of the role of religion in American democracy is a prominent feature of both Volume 1 and Volume 2 of Democracy in America. [1] One essential difference between the French and American revolutions is the role religion played in American society as a whole and in American politics compared to the very different role religion played in France. This blog looks at de Tocqueville’s views on the role of religion in American public life in hopes of giving readers a better understanding of the topic as well as its importance for American citizens today living in a very different secular and multi-faith context.

A bit of background is helpful, both for understanding the French and American Revolutions and for understanding the role religion most hopefully plays in America today.

De Tocqueville’s Religion

Much has been made of de Tocqueville’s religious faith or lack thereof, and scholars debate the issue. [2] In Democracy in America, he states that he is a Roman Catholic. We know he was raised as a Catholic and continued for the balance of his life to be positively inclined towards the importance of Christian faith. He was not, however, an uncritical Roman Catholic. He read widely and internalized more than his childhood faith. Many of his intellectual teachers and colleagues would have been antagonistic to religious faith. Others would have been deists, that is they believed in a God, but not the God of the Bible who does miracles, controls history by his providence and will, and hears and answers prayers.

De Tocqueville was obviously impacted by the culture and views of his day. There are scholars who think he was, in fact, a skeptic. I do not agree with this view. The overwhelming number of his comments indicate a respect for religion and a feeling of its importance, going beyond its role as a source of morality. He often speaks of religion at a distance, and I believe this is an intentional attempt to underscore his objectivity about religion and its role in public life. This observation is given force by the way in which he constantly addresses his continental readers, who might have been impacted by the Enlightenment and its hostility towards religion.

Religion in Pre-Revolutionary France

In the ancient regime of pre-revolutionary France, the Roman Catholic Church was an integral part of society. The “Three Estates” of France were the “First Estate made up of the king, royal family, and aristocracy, the “Second Estate” made up of the church and its hierarchy, and finally the “Third Estate” which included the remainder of the French people. [3] The Third Estate was, until the French Revolution, much the least important.

The church that made up the Second Estate was the Roman Catholic Church and its hierarchy. While by the time of the French Revolution there was a form of religious freedom in France, the history was one of persecution of Protestants. Calvin, if one remembers, fled France because of the danger he was in as a result of publishing an early version of what became his Institutes of the Christian Religion. In addition, the Church was seen as aligned with the king and aristocracy and its leaders included individuals hated by the common people.

As the Enlightenment unfolded, the French Enlightenment was, therefore, most opposed to the Roman Catholic Church, though many of its leaders were hostile to Christian faith generally. Rousseau was the least unfavorable towards religion, being at various stages of his life a Roman Catholic, a Reformed Calvinist, and finally a kind of independent mystical Christian. The political leaders of the French Revolution were generally openly hostile to religion, and both Catholicism and Protestantism suffered persecution. This aspect of the French Revolution was a part of Burke’s criticism and was widely seen as playing a role in the way in which it disintegrated into violence and bloodshed.

This is the background de Tocqueville carried with him as he toured the United States, talked to various people, and observed the character of American public life.

Direct influence of Religion on Democracy in America

De Tocqueville observed that, unlike the situation in France before the revolution, religious faith was a direct and important factor contributing to the political stability of the United States and the success of its democracy. [4] Unlike France, in which the primary form of religious faith was Roman Catholicism, with its hierarchy patterned after the examples of the Roman Empire, the colonists of America “brought with them into the new world a form of Christianity which I cannot better describe then by styling it a democratic and republican religion.” [5] In other words, the various protestant sects in America brought with them a kind of democratic Christianity in which much power was given to members and local congregations and many decisions made democratically.

In addition, Roman Catholicism had proven in the New World that it was not necessarily undemocratic in its essence, for it was favorable to the formation and maintenance of American democratic institutions. [6] De Tocqueville gives three basic reasons for this observation:

  1. The Roman Catholic religion recognizes no particular hierarchy in the local congregation, other than the special role the priest plays. Other than the priest, there is equality before God.
  2. In its doctrine, Roman Catholicism places all men in a position of equality before God, whatever their social or economic situation or individual capacities.
  3. Finally, unlike the situation in Europe, the clergy in America never supposed that they were to have any direct political power. The Roman Catholic population was generally poorer than average and not located in states with great political influence, such as Virginia which was Anglican.

Indirect Influence of Religion on American Democracy

In addition to the direct influence of religious faith on the stability of American democracy, de Tocqueville believed that there was an even greater indirect influence of religious faith on political stability. From the beginning of the colonization of America, a number of Christian sects were present which, while differing in details, upheld a basic doctrine of faith and of life, which resulted in a common public morality that undergirded American democratic institutions. Nevertheless, it was a characteristic of early American democracy that while the church and its leaders might speak of political matters from the pulpit, it was unusual for them to participate directly in political affairs. [7] Thus, de Tocqueville observes that:

Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions, for if it does not impart a taste for freedom, it facilitates the use of it. Indeed, it is the same point of view that the inhabitants of the United States themselves look upon religious belief. …I am certain that they hold it to be indispensable to the maintenance of republican institutions. [8]

De Tocqueville’s analysis bears study and analysis.

First, in some way the religious faith of Americans was foundational to their democracy. Second, that foundational importance was not direct as it had been in pre-Revolutionary France, but indirect as it formed the character and morals of the population in ways that gave stability to its democratic institutions. Unlike France, where the revolution resulted in religious decline, in America the result was robust religion unlike anything that Europe experienced. De Tocqueville believed that the reason for the difference was the way in which religion and politics were separated in America.

The fact that there was no national religion meant that people were free to choose which of the many religious sects in America to which they would belong. This freedom alone meant that love and personal choice were foundational for the religious choices Americans made. [9] This separation meant that people of religious faith were found in all religious factions and their presence acted as a leaven on the tendency of democracy to promote faction. This presence meant that, while religion has less power in American democracy, it had and can have what might be called “trans-factional influence.”

This aspect of American religion continued in effect until relatively recent times. In the beginning, the Social Gospel movement encouraged religious groups to enter into politics. [10] When opposition to abortion became a public issue that evangelical religious leaders became embroiled in partisan politics. During the 1970’s, as America became more secular and religiously diverse, there was a movement for greater involvement of religious leaders in politics both on the religious right and left. Interestingly, these movements coincide with the decline of Christian faith in America. These movements exposed religion in America to what de Tocqueville believed were its two main threats: Schism and Indifference. [11]

Where religion becomes too intertangled in politics, as de Tocqueville believed it had in France, it is inevitably exposed to the impact of partisan participation: the alienation of those who do not agree with those in power. Where religion is established, it can become a “lukewarm” possession of those who are positions of power. This provokes a reaction from those who are in fact devout—a reaction that involves a defense of faith that is both religious and partisan. This encourages further discord of just the kind we have seen in American politics. This, in turn, further discredits religion and results in indifference. [12]

The process de Tocqueville describes is almost exactly what resulted from the religious wars of the Reformation and thereafter. Religious faith became embroiled in partisan politics, which resulted in a both schism and indifference among a vast number of people, including the intellectuals of Europe. In my own view, this process of schism and indifference continues today, with the alienation of intellectuals from religious faith, stemming from the Enlightenment continuing to influence new generations. Interestingly, the “Culture Wars” of the 1970’s seemingly did not promote any revival of faith or morals, but ultimately undermined the “trans-factional influence” of religious bodies of all kinds in American society.

De Tocqueville noticed the tendency of Americans to participate in sects involved in what he believed to be a kind of “Fanatical Spiritualism.” [13] The Reformation, by exalting personal religious choice and the right and ability of everyone to determine their own doctrine and practice in religious matters, opened up the door for a kind of religious fanaticism we noted when reviewing the political thinking of Martin Luther. [14] As a European, this aspect of America must have reminded de Tocqueville of the issues Europe had faced and the resulting violence.

One aspect of contemporary America that is different from 19th Century America is the proliferation of religious views, from well-established historic faiths, such as Buddhism, Hinduism, Islam, Judaism, Taoism, and many others, to secular humanism to almost limitless versions of Christianity. [15] In this context there are bound to be both relatively orthodox groups of various religions and unorthodox members of groups. There are also bound to be groups that others regard as “Fanatical.” This vastly complicates the role of religion in public life as compared to 19th Century America.

Religious Groups and Associations for the Public Interest

In his second volume, de Tocqueville continues his analysis of religion in public life focusing on religious institutions as they impact society and social cohesiveness. As noted last week, de Tocqueville noticed the number and variety of private associations, so called “mediating institutions,” that were formed in America and which acted as both training grounds for democratic character and as restraints on selfishness. To the extent a citizen belongs to a religious association and participates in its activities, to that extent the person is exposed both to the realities of the give and take of public life and the religious and moral training of the society. One characteristic that de Tocqueville noted of American is that while the European clergy of the Middle Ages spoke of nothing but a future state as a justification for moral behavior in the present life, the American clergy constantly referred to the beneficial results of religious faith in the current life. [16]

Democratic Life and Institutions as Secondary

Finally this week, I want to look at what I will call the “transcendental role” of religion in democratic society. De Tocqueville was aware that the twin objectives of freedom and equality could debase the human race. The focus on this life and the improvement of the material life of people could result in materialism, which de Tocqueville referred to as a “dangerous disease” to be dreaded in all societies and most dreaded in democratic societies. [17] He therefore warned leaders against disturbing religious faith in any society.

One might ask, “Why this is so in a fundamental way?” One answer I think is that in any democratic and egalitarian society, government is not a primary good but a secondary one. Freedom implies that government is restricted in some ways in order that people may pursue goods that transcend government’s ability to provide. One of these goods is the good of a transcendent purpose in life.

Individualism in any form is antithetic to any form of enforced rule, which any state of whatever kind embodies. There is an inevitable tendency towards faction and anti-social actions. In a democratic society, religion has a transcendent role in directing attention towards fundamental goods to which human beings need to direct themselves: justice, the common good, fairness, equity, social peace, and the like. Religion focuses attention on answers to fundamental questions of good and evil, the meaning and purpose of life, and  the hope for a future beyond this world. How people answer these questions is important, but for now it is important to see that these are the fundamental questions of life, superseding the question of whether my social group or family obtains certain benefits from government and society. This contributes to social cohesion.

Thus, de Tocqueville urges:

It should therefore be the unceasing object of the legislatures of democracies and of all the virtuous and enlightened men who live there to raise up the souls of their fellow citizens and keep them lifted up towards heaven. It is necessary that all those who feel an interest in democratic societies should unite, and that all should make joint and continued efforts to diffuse love of the infinite, lofty aspirations, and a love of pleasures not of earth. [18]

It is my view that this particular quotation answers the question as to whether de Tocqueville was religious or in favor of merely using religion for moral ends. He is obviously a proponent of religious faith, and in his case Christian faith. However, it is important to remember the phrase “love of the infinite, lofty aspirations, and a love of pleasures not of earth”. This language does not promote any particular religious view and leaves a wide door open for modern pluralism to exist and support democratic institutions. By seeking their own particular transcendent vision, and by impressing their followers with their specific morality, they provide a basis for life upon which democracy can rest.

It is an unfinished promise of American religion whether it can function in the way Christianity functioned in the 21st Century and beyond. To do so, it is necessary that religious groups model restraint, mutual respect, dialogue, and the search for the common good in areas of dispute.

Conclusion

In many ways, de Tocqueville anticipates criticisms of what is often called “the Enlightenment Project” and foresees its failures. He sees that a purely materialistic view of human life is bound to fail, and that those governments which embody a purely materialistic vision, be they Russian Communism or American Secular Corporatism, are bound to fail. The failure is inevitable and is characteristic of left-wing and right-wing solutions to the problem of organizing human society.

Human beings are simply too complex and too gifted with infinite material and transcendent desires for any secular government to have a chance to provide for the satisfaction of this longing. This is why young people are often alienated in our society and why Russian Communism finally failed in a spectacular way. A fuller analysis of this will be given when these blogs reach Marx and Marxist ideologies. For the time being it is sufficient to note that the wisest analyst of 19th Century America saw that democracy needed a transcendent basis, which in his time Christian faith provided.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).

[2] See, Doris S. Goldstein, “The Religious Beliefs of Alexis de Tocqueville” French Historical Studies Vol. 1, No. 4 (Fall, 1960)

[3] In the blog on Edmund Burke, I outlined the fact that per-Revolutionary France was made up of three estates, each of which were represented within the Estates‐​General, which met infrequently. These three orders were the nobility, the clergy, and all other French citizens, known as the “Third Estate.” Ultimately, the Third Estate became the ultimate legislative body, and responsible for the excesses of the revolution

[4] Democracy in America, Book 1, Chapter 15, at 118.

[5] Id.

[6] Id.

[7] Id, Volume 1, Chapter 15, at 120.

[8] Id.

[9] Id, at 121.

[10] See, Walter Rauschenbusch, Christianizing the Social Order (Waco, Texas: Baylor University Press, 2010). This is the seminal text of the so-called “social gospel movement,” and it will be reviewed in these blogs when we reach the 20th Century.

[11] Id, at 122.

[12] Id, at 123.

[13] Id, Volume 2, Chapter 12, at 240-241.

[14] See, “A Reformer Speaks: Martin Luther on Politics” at  http://www.gchristopherscruggs.com/2020/10/a-reformer-speaks-martin-luther-on-politics/ (October 28, 2020).

[15] For one analysis of the diversity of American Christianity, see The 2020 Census of American Religion (PRRI, July 21, 2021)https://www.prri.org/research/2020-census-of-american-religion/ (downloaded November 3, 2021).

[16] Id, Volume 2, Chapter 9, at 233. I think that this is an early recognition of the deeply pragmatic inclinations of Americans and of American churches, a characteristic which has its good and bad results.

[17] Id, Volume 2, Chapter 13, at 244.

[18] Id, Volume 2, Chapter 13, at 244.

Equality and Democracy: De Tocqueville 2

Alexis de Tocqueville was more than a writer. He was an active participant in the political affairs of France. Over the course of his life, he engaged in French politics and served in the French government. He believed that Europe had entered a new, democratic phase of its history, an historic movement that was irreversible. His interest in America was, therefore, motivated by an interest in what could be learned from the character of American democracy that might aid the development of democratic institutions in France and in the rest of Europe.

As previously indicated, by the time that de Tocqueville wrote his book, the American Revolution was seen as successful, while the French Revolution was seen as a disastrous failure. The Reign of Terror and the rise and fall of Napoleon had plunged France into economic, political and military disaster, and the years following the restoration were troubled. The battle cry of the French Revolution was, “Liberty, Equality and Fraternity.” In the end, what France experienced was dictatorship, continued inequality, and social disintegration. It was natural that de Tocqueville would be interested in the way in which liberty and a sense of equality developed in America. [1]

Freedom and Liberty

The major emphasis of Volume 2 of Democracy in America is an analysis of the requirements of political freedom as they coordinate with human equality. [2] His analysis is important for us, because the relationship between equality and political freedom is no less important today than in the 19th Century. He begins Volume 2 of Democracy in America with this observation:

Everybody has remarked that in our time, and especially in France, this passion for equality is every day gaining ground in the human heart. It has been said a hundred times that our contemporaries are far more ardently and tenaciously attached to equality than to freedom, but as I do not find that causes of the fact have been sufficiently analyzed, a I shall endeavor to point them out. [3]

It is fair to say that the entirety of Volume 2 of Democracy in America is a long commentary on this statement.

The struggle of the French Revolution had been to accomplish two goals: political freedom and enfranchisement and equality for the people of France. In order to understand de Tocqueville’s interest in the problem of equality, it is important to look briefly at the circumstances that gave rise to the French Revolution. Pre-Revolutionary France was characterized by extreme social inequality. The monarchy was absolute and supported by an aristocracy that controlled most of the land and wealth of the nation. This aristocracy controlled the affairs of the nation, but did not pay a proportionate share of the cost of supporting the national ambitions of France. The French Revolution thus set out to create political and social equality, which by the time of de Tocqueville’s death had led to an interest in socialist alternatives, which he opposed.

De Tocqueville begins his analysis of the situation in France and America by noting that it is perfectly possible to have equality without freedom in the political sense of that word. [4] In addition, since the benefits of equality are more readily and easily seen than the benefits of freedom and political liberty, there is always a danger that the drive for equality will end up destroying freedom. Thus, de Tocqueville notes:

I think our democratic communities have a natural taste for freedom; left to themselves they will seek it, cherish it, and view any privation with regret. But for equality their passion is ardent, insatiable, incessant, invincible; they call for equality in freedom, and if they cannot obtain that, they still call for equality in slavery. [5]

In writing these words, de Tocqueville saw himself as issuing a warning of the danger that an emphasis on equality posed to a functional democracy.

Conflict between Freedom and Equality as Social Goals

There is an inherent potential conflict between freedom and equality as social goals. Freedom by its nature allows individuals to pursue their own personal goals, economic, political and otherwise. The results of freedom are not immediately apparent in any area of life. For example, if I am free to begin a business, the results of that business may be a long time in developing. If I am free to begin a new political party, that new political party may be a long time in growing. If I am free to proclaim a religious or moral belief that religion or belief may take a long time to gain a following. If my views are correct, it may take a long time for them to be implemented.

The benefits of equality, on the other hand, are more immediately felt. To the extent the government redistributes wealth and I am a beneficiary, I immediately feel the improvement in my economic situation. If I am a member of a disadvantaged group and the government takes steps to create equality, I immediately feel the improvement in my situation. This leads, de Tocqueville believes, to a preference for equality over freedom that can result in a loss of freedom. Thus, the passions of the people can inadvertently destroy the freedom they have sought through creating democratic institutions.

Conflict between Individualism and Community

De Tocqueville goes on to show that there is also a conflict between Individualism, which is the inevitable result of freedom and a sense of community, which is the ground of any form of true and voluntary equality:

Our fathers were only acquainted with …selfishness. Selfishness is a passionate and exaggerated love of self, which leads a man to connect everything with himself and to prefer himself to everything in the world. Individualism is a mature and calm feeling, which disposes each member of a community to sever himself from the mass of his fellows and to draw apart with this family and friends, so that after he has thus formed a little circle of his own, he willingly leaves society at large to itself.  [6]

In other words, for most people there is a tendency to use freedom, even an unselfish freedom, to create a “personal social space” in which most people prefer to spend their lives. In this personal space, it is easy to forget the political connections that make freedom to have this social space possible. Under these conditions, despotism of one kind or another, was a danger. [7]

How America Overcame the Dangers of Equality and Selfishness

There were several important aspects of American society, which de Tocqueville believed worked to limit the dangers of the kind of descent into despotism that France had experienced. Among the most important were:

  1. Federalism. By the maintenance of many interlocking and interdependent governmental levels from townships and local communities to the states and national government, democratic social life and responsibility were present at all levels of social organization. [8]
  2. Public Associations. Beyond the existence of federal political institutions, more than any other nation, 19thCentury Americans bound themselves together with a variety of private associations, institutions that were and are private, public, economic, social and religious that encourage social bonds, pursuance of common objectives, respect for others, and which maintain and develop public interest. These are what are elsewhere called, “mediating institutions.” [9]
  3. Media. The newspapers of de Tocqueville’s day, like the media of today, allowed persons of common views to “meet daily” and develop common bonds. In addition, the media allowed persons holding views to have these views disseminated and to impact public discourse. [10]
  4. Political Associations. Among the private associations that American form are political associations, not just political parties but associations designed to influence government in a particular course of action or to solve various political issues. These associations give private citizens, who would be individually powerless the ability to influence the course of democratic government.
  5. Religious Associations. As indicated last week, and which will be the subject of the next blog, the absence of an established religion and the resulting cooperation and competition among these institutions is also a democratic mediating institution that gives stability to American democracy and which tends to limit human selfishness and isolation. [11]
  6. Democratic Economic Activity. This element is hard to put into this summary format, but de Tocqueville recognizes that the centralization of wealth in Europe, and the relative poverty of the mass of citizens, worked to divide people and create an aristocracy that enjoyed the privileges of wealth without the necessity to work. In America, however, everyone rich and poor sought the physical well-being that wealth can provide, and interestingly this did not injure the political stability of American democracy. Thus, the search for wealth is not necessarily contrary to creation of a sound democratic social order. [12]

Conclusion

I am going to bring this week’s blog to a close here—though there is great deal more that might be said. Next week, I am going to deal with de Tocqueville’s views on the role of religion in American democracy, indeed on any form of stable polity. This series of blogs began with, and intends to end with, a discussion of religion in public life in our largely secular, multi-cultural society. De Tocqueville’s views will be surprising to some, but they are still relevant today.

This week we focused on an enduring problem for democratic societies: how to balance individual freedom with a measure of social equality. De Tocqueville believed that one danger to American democracy was the way in which a desire for equality can actually damage the human need for freedom and end in a kind of democratic despotism. He also felt that the America of his day had found a way around this danger because of the structure of certain of its social institutions. Many of the institutions he mentions either do not exist today or exist in a much different way than he experienced in early 19th Century America. It is our challenge of find ways to create mediating institutions in our day that can protect our democracy from decay.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] De Tocqueville believed that the French Revolution was ruined by an over-reliance on the abstract revolutionary philosophy of the French Enlightenment and the attempt to arbitrarily alter ling established institutions without practical experience on the part of the revolutionaries. De Tocqueville’s last work was “The Old Regime and the Revolution” in which he analyzed the failures of the French Revolution.

[2] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).

[3] Id, at Volume 2, Chapter 1, page 201.

[4] Id.

[5] Id, at 204.

[6] Id, at 205.

[7] Id, Book 2, Chapter 4, at 210ff.

[8] Id, at 211-213.

[9] Id, at Book 2, Chapter 5, pp 214-219.

[10] Id, at Book 2, Chapter 6, pp 220-223.

[11] Id, at book 2, Chapter 9, pp 231-233; Chapter 12-13, p .240-246.

[12] Id, Book 2, Chapters 11, pp 237-239.