America’s Unwritten, Unraveling Constitution

Alexis de Tocqueville (Fine Art Images/Heritage Images/Getty Images)
American freedom, as Tocqueville understood, requires practically loving your neighbors so that the government doesn’t have to step in to love them for you.

Even those familiar with Democracy in America, the great work that Tocqueville authored after his visit to the United States, might not be aware that he undertook that visit in hopes of solving a very particular problem. Observing the great travails and turmoil that had consumed his native France since the revolution of 1789, Tocqueville believed he had finally put his finger on the most important political question facing the modern world: How could a government be both democratic and decentralized at the same time? It strikes us as a strange question today, but we’re still suffering mightily from our inability adequately to answer it.

Before the revolution, there was a great deal of regional and local autonomy in France. This was because feudal lords, who were dispersed across the country, wielded a great deal of power in the area over which they held jurisdiction. The way in which the lower orders were tied to their place of birth by the feudal system further guaranteed that locally rooted associations and institutions were more powerful and more influential over the lives of Frenchmen than the national government. The problem with this social order was that the feudal lords treated the poor people living under their jurisdictions worse than the dirt under their feet. Consequently, an alliance developed between the poor and the monarchy. The poor supported aggrandizement of centralized power in the person of the monarch provided that the monarch liberate them from the oppression of the feudal lords.

This tacit political conspiracy resulted in more and more power being absorbed by the king, until France became the autocratic state presided over by Louis XIV, who could say without much exaggeration, “L’état, c’est moi.” The liberation of the poor by the central government from the tyranny of the regional aristocracy necessitated the destruction of those local and regional power centers that consolidated regional power in the first place. The French Revolution ratified this centralization and dialed it up to eleven, substituting the king’s central government with that of “the people.”

The social revolution this course of events set off was summed up Pierre-Paul Royer-Collard, a political ally of Tocqueville’s, in a speech he gave in 1822:

We have seen the old society perish, and with it that crowd of domestic institutions and independent magistracies which it carried within it . . . , true republics within the monarchy. These institutions did not, it is true, share sovereignty; but they opposed to it everywhere limits which were defended obstinately. Not one of them has survived. The revolution has left only individuals standing. It has dissolved even the (so to speak) physical association of the commune. This is a spectacle without precedent! Before now one had seen only in philosophers’ books a nation so decomposed and reduced to its ultimate constituents.

From an atomized society has emerged centralization. There is no need to look elsewhere for its origin. Centralization has not arrived with its head erect, with the authority of a principle; rather, it has developed modestly, as a consequence, a necessity.

Individualism and centralization are mutually reinforcing. Royer-Collard continues: “Where there are only individuals, all business which is not theirs is necessarily public business, the business of the state. Where there are no independent magistrates, there are only agents of central power. That is how we have become an administered people, under the hand of irresponsible civil servants, themselves centralized in the power of which they are agents.” This is the Gordian knot of democratic, individualist societies that Tocqueville was trying to untie for the sake of France. He traveled to America to examine if and how the world’s first democratic country had solved this problem.

In Democracy in America, wherein Tocqueville describes how America did so, you will find surprisingly little about the written Constitution of the United States or the Declaration of Independence. He writes about the workings of the federal government in Washington and of the country’s federal politicians in a tone of bemused disappointment. It was the social practices of Americans, their actions rather than their ideas, that constituted the true greatness of the country in his eyes. Local association — as a living reality rather than a principle — was the most consequential feature of America. Faced with the untamed wilderness of the New World, the colonial settlers were forced to band together into dense, mutually reliant, and institution-saturated local communities in order to survive. These communities eventually joined to form states, which in turn joined to form the federal government. It was an organic process generated initially by the necessities imposed on the settlers by their environment. As Larry Siedentop notes, Tocqueville viewed American mores as having been formalized by “American federalism — with its spheres of authority extending from the township through the states to the national government.” In other words, the import of America’s written Constitution is as a formal and propositional definition of a practiced way of life. It expresses in language a shared experience of self-government that was defined by practices which preceded its abstract formulations.

In the colonial and revolutionary eras, for instance, the material difficulties of life in a new land required that Americans depend on the work of their neighbors for their survival. This necessity of associating with one another to organize, compromise, and solve local problems recreated in democratic America the dense local and regional allegiance and autonomy that had existed in feudal France. The experience of convening with neighbors to solve problems also made the prospect of a distant and faceless central government both unappealing and unnecessary. As a result, Americans’ habit of joining local organizations did more, in Tocqueville’s eyes at least, to limit the reach of the federal government than any abstract philosophical or political principle. It made the American republic free in fact, not just in theory.

Writing of the average Frenchman as compared with his American counterpart, Tocqueville lamented that “the condition of his village, the policing of his road, and the repair of his church and parsonage do not concern” him. The Frenchman expects administrators from the central government to arrive presently and relieve him of the necessity of working together with his neighbors to care for his community. The Frenchman may have been his neighbor’s equal, but they were also equally weak before a centralized government that turned its citizens into easily manipulated atomized individuals by undertaking all collective endeavors itself. Thus do modern men and women, said Tocqueville, “become powerless if they do not learn to help one another voluntarily.”

These embodied habits and practices of local association might rightly be called the “real constitution” of the United States. The fact that the U.S. has a written constitution often obscures an older political meaning of that word, a meaning that we need to recover. When historians, for instance, refer to “the British constitution,” they’re not speaking of a document (for there is none). They’re referring to the way in which the British polity and British society are actually constituted — the ingrained customs and habits of government that endure down through the generations and define the social order. Every country has a constitution in this sense, including the United States. The attention paid to the U.S. Constitution has often obscured this fact, and the preoccupation of conservatives to ensure that it remains the letter of the law has caused them to ignore the cultivation of the unwritten constitution that gave birth to the document in the first place.

A belief seems to have taken hold on the right these days that the Constitution causes the liberties that it enshrines. But this is not true. As the historian David Hackett Fischer has argued, these liberties are incarnated and made real by the folkways and mores cultivated in our local communities. Failure to recognize the difference between American freedom and its propositional expression in the country’s founding documents has led many American conservatives to prioritize words and images over actions. It’s created a mental context in which people can spend their evenings watching Tucker Carlson, tweeting angrily at New York Times writers, and then think they are being good, patriotic Americans as a result. The notion that being a free American requires practically loving your neighbors so that the government doesn’t have to love them for you appears not to register in their consciousness. More’s the pity, because that is, in fact, the exhaustive definition of Tocquevillian American freedom.

What we have instead today is the inclination on both right and left to make it as easy as possible for us to live as strangers to one another. The Democratic Party appears increasingly to want the federal government, the faceless benefactor of the redistributive state, to meet all of our individual material needs. The starkest example of this Democratic impulse was Barack Obama’s infamous Life of Julia — the government as spouse, provider, babysitter, and guardian for every citizen. No need to look to your neighbor for anything.

Meanwhile, the technological capitalism championed by the Right is becoming increasingly adept at meeting all of our material needs more efficiently than any government program. The faceless benefactor of big business supplies us with everything we need. No need to look to your neighbor for anything.

Across society, politics and economics are conspiring to make us materially wealthy by estranging us from our neighbors. We can be grateful not to face the harsh material conditions that forced the early Americans to band together; but the present problem of the withering away of local association is destroying the nation’s de facto constitution. It’s impossible to be an American at all in the Tocquevillian sense without cultivating the social mores that make us care for one another face to face, not through some bureaucratic or conglomerate intermediary that separates material welfare from human relationship. To contribute effectively to the limitation of government power over social arrangements in America, one has to be willing to carry all the burdens of one’s neighbors that one doesn’t want to see carried by the state. Only this kind of practical, unsentimental love for one another makes the democratic, decentralized politics that Tocqueville described possible.

Paradoxically, the “leave me alone” coalition of selfish libertarianism and constitutional nominalism contributes to the growth of the state. For the financially insecure, if there is no soft landing into the arms of a charitable civil society to accompany cuts to government services, they’ll opt for the devil they know and vote Democratic all the way down the ticket.

Tocqueville saw libertarians and collectivists as essentially united in their assault on what I have called America’s real constitution. His prophecy of what a society devoid of this constitution would look like may seem eerily familiar:

I want to imagine under what new traits despotism will appear in the world. I see an innumerable multitude of similar and equal people will turn incessantly in search of petty and vulgar pleasures, with which they will fill their soul. Each, standing apart, is like a stranger to the destiny of others; his children and personal friends forming for him the entire human race. As for the remainder of his fellow citizens, he is beside them, but he does not see them. . . . He exists only in and for himself, and even if he still has a family, one can say that he no longer has a country. Above these people rises an immense and tutelary power, which alone takes charge of assuring their pleasures and looking after their fate. It is absolute, detailed, regular, foresighted, and mild. It would resemble paternal power, if, like it, its object was to prepare men for maturity. But it only seeks, on the contrary, to fix them irrevocably in childhood. . . . It willingly works for their happiness. It looks after their security, foresees and assures their needs, facilitates their pleasures, regulates their principal affairs, directs their industry. . . . Why does it not entirely remove the trouble of thinking and the difficulty of living? In that way it makes even less useful and rarer the exercise of free will, enclosing the action of the will in an ever smaller space. . . . Equality has prepared men for all these things. It disposes them to endure them and often even to regard them as a benefit.

The “immense and tutelary power” he describes is clearly a state power, but today it could just as easily be a multinational corporation. The current debate between Right and Left seems to be over which of the two will have the privilege of turning us into the somnambulant demi-humans Tocqueville describes. Some on the nationalist right have switched their allegiance from the market to the state, but that hardly changes much — it’s a form of serfdom either way.

For a self-governing republic to work, its citizens must make a habit of practically loving their literal neighbors. The letter of the law cannot save us from federal overreach once this spirit has departed. The only real way to save the country is the same as it ever was: Walk out your front door and look for someone who needs help or for something that needs fixing. In most cases, no politician will take the time or effort to stop you and no cable news host will take the time or effort to help you start. Best, rather, to ignore them both and begin mending the part of the American social fabric that’s nearest to hand.


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