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In Defense of Lawyers (Sort Of)

European Views of American Democracy, No. 2

John L. O’Sullivan challenges Tocqueville, arguing that he misrepresented democracy and misidentified American aristocracy.

Editor’s Note

In our last entry on the Democratic Review’s response to Alexis de Tocqueville, editor John L. O’Sullivan argued that the French sociologist failed to understand what truly held American society together. Tocqueville argued that democracy was in fact much like the governments of the Old World in that the majority acted virtually the same as the ruling elements of European governments, right down to censorship. In a democracy, however, the censorship took place in extremely localized form—even in the individual mind. Social tyranny constricted private and public behavior alike, confined acceptable political, religious, and moral beliefs to a relatively small spectrum, and prevented “undesirable” activities before they could even take place. Thus, while America appeared a peaceful, prosperous, and free place, that freedom could often be in name only. Yet, as O’Sullivan argued, democracy could be interpreted in a very different manner. Our author posited that what Tocqueville interpreted as widespread, bottom-up social controls on the individual were in fact representative of the democratic-republican consensus pervading American thought and culture. Where Tocqueville saw forcibly submerged and politically channeled conflict, O’Sullivan saw a deeply entrenched and culturally revered consensus.

In our current number, O’Sullivan expands his critique, arguing that Tocqueville’s “conclusions are so directly opposite to the obvious results of daily experience, that we are really surprised how a writer of so much discernment could have been led by any circumstances to acquiesce in them.” Stern words, certainly. Tocqueville commented extensively on the instability—the near constant mutability—of American laws and institutions and O’Sullivan’s interpretation of the phenomenon was the near inverse. For Tocqueville, instability was evidence of a system subject to dissolution and disruption, perhaps sharp violence, in the long run of history. As our author notes, however, the decades after American independence were some of the most tumultuous and revolutionary the species had ever witnessed, yet they were some of the most prosperous and productive years Americans ever experienced. Essentially, O’Sullivan charges Tocqueville with having made superficial observations of American life without truly understanding what it was like to live as an American.

To make his point more clearly, he then offers the example of what Tocqueville deemed the nearest representative to an aristocracy in this country: the legal profession. Surely, a foreign mind may see the position lawyers occupy in American law and life and see a chartered nobility specially empowered to write, adjudicate, and argue the law, establishing themselves as the sole arbiters between the People and their Government. While O’Sullivan does not disagree that there is, in fact, an incipient aristocracy in America, he locates them in the ranks of “the owners of accumulated wealth, and chiefly by the moneyed men of the great commercial cities.” These men used their wealth to extract monopoly benefits from the People’s government, entrenching themselves as an established class of privileged elites. Sensing this danger, the people identify lawyers as the principle public agents representing a burgeoning aristocracy and dutifully doing their bidding. Should Old World government ever regain a foothold in the United States, O’Sullivan believed, it would not be the fault of a tyrannical majority, but the scheming few in desperate search of power.

Anthony Comegna, PhD
Assistant Editor for Intellectual History

European Views of American Democracy – No. II

We express this opinion of the work of M. de Tocqueville, not because we agree with him in all his views respecting our institutions, or even in some of those which he appears to consider as the most important.  His residence among us was very short; the materials which he was able to collect as the results of his own observation were, of course, comparatively scanty, and often susceptible of much correction.  His conclusions are, necessarily, in many cases, questionable or erroneous, as we have shown them to be in several instances, in our preceding article.  But his observations, even when they are more or less liable to criticism, are always those of a really profound and vigorous thinker, equal to the great subject which he undertakes to treat, discussing it in good faith, and expressing his thoughts in a powerful and elegant style.  As such, they are full of interest for all who are fitted, by their previous course of study and reflection, to follow the author on his arduous track, which, however, he adorns throughout with the fairest flowers of a pure and chastened eloquence.  They are the first observations of the kind which our institutions have yet elicited from any foreign mind; and are far more valuable, even in their errors, than the common-place truisms and boarding-school rhetoric of the every-day tourist.

The first volume of this important work is occupied with a summary account of the political institutions of this country, Federal, State, and Municipal, considered merely in their external form and practical operation.  The materials for such a summary were mostly in print, or easily accessible to a careful and judicious inquirer.  There was, of course, but little danger of any essential error in a writer like M. de Tocqueville; and this part of the work is not only executed with great ability, but, in almost every particular, with substantial correctness. It may be recommended with safety to the reader, whether native or foreign, as perhaps the best summary account of our institutions now in print…

The second volume of his work contains a series of essays, not very closely connected by any single train of thought running through the whole, upon various causes and circumstances which are supposed by the author to regulate the working of our institutions, and to determine or modify their influence upon the welfare of the people.  Here he is, of necessity, more exposed to error than in the former volume — first, from the nature of all speculative discussion, which is more uncertain, as such, than a mere exposition of known facts; and, secondly, from the character of his materials, which are chiefly his own observations, — hastily made in the course of a short tour, devoted, in part, to another definite object, — upon the vast subject of the character of our people, and the theory and practice of our political institutions.  The eagle eye of sagacity can see much at a single glance; but it requires more than a year’s inspection to penetrate and fully comprehend the secret springs and workings of our immense system of confederate sovereignties, revolving harmoniously round the common centre of the Union by the mere force of the popular will, that informs, and, in the language of Virgil, agitat molem, — keeps in motion the whole mass.  In the results of a cursory survey of such a system, there is a great probability of occasional error; and we find, accordingly, in the speculations contained in the second volume of M. de Tocqueville, a good deal that appears to us inconsistent with a correct view of our institutions and history.  In our former article we pointed out some of these errors, and particularly those relating to the instability of the laws, and the omnipotence of majorities.  In regard to both these points the author’s conclusions are so directly opposite to the obvious results of daily experience, that we are really surprised how a writer of so much discernment could have been led by any circumstances to acquiesce in them.

The stability of the political institutions of the United States, considered as including the State and Federal constitutions, and the statutes enacted under them all — is, in fact, by far the most remarkable feature about them, and the one which furnishes the strongest presumption of their future permanence and success.  As they now exist, they are nothing more than a full and natural development of the principles which were brought into action by the first settlers two hundred years ago, and which have undergone no essential alteration, except in the single fact of the separation from the parent country.  Even this was not so much a change in the character of our institutions as the expulsion of an element that had always been foreign to them, and had never interfered with their practical operation except as a disturbing cause.  During the fifty years that have since elapsed, — the most tumultuous and revolutionary half-century that has ever been known in Christendom, — the Government of the United States has suffered no essential, and hardly any formal changes; for we cannot consider as changes in the laws and constitutions of the country the occasional variations of practice that occur from year to year in the details of the administration of the Union or the States.  Like the miraculous tent in the Arabian tales, which could be held in the palm of the hand, but when expanded, at the will of the owner, was large enough to cover an army of a hundred thousand men, — our constitutions, of which the germ may be found in the brief contract concluded between some thirty or forty poor pilgrims on board the Mayflower in Plymouth harbour, have adapted themselves without essential change, and with an almost inconceivable harmony to the expansion of the people, until they now embrace under their broad protecting canopy a confederate Republic of twenty-six States and nearly twenty millions of men. Far from complaining of the instability of our institutions, we never recollect, without a new feeling of delighted admiration, the almost undisturbed quiet with which our country has pursued her course for the last fifty years through the series of political convulsions, which have shaken to their centre all the neighbouring and kindred nations of the Christian world.

We think that M. de Tocqueville will, on farther reflection, revise his conclusions in regard to this point, as well as that of the omnipotence of majorities, to which we adverted at some length in our preceding article.  On this head his theory is not less palpably at variance with the most obvious results of daily experience than on the other.  The ceaseless fluctuation of opinion upon matters of personal preference and mere administration, — the alternation of triumph and defeat that marks the progress of contending parties, the acrimony with which every majority that obtains possession of the government of a State or of the Union, is assailed and opposed, until it is again reduced to a minority, or, finally, by protracted success, wears out opposition ; — these are the daily signs in our political firmament, not less apparent, and in no way more questionable than is the steadiness with which our essential institutions look down in quiet majesty from their loftier height, upon this war of the elements that is constantly raging around their base.  That a really acute and sagacious writer, like M. de Tocqueville, should have been led to represent the laws as fluctuating, and the power of majorities as permanent, oppressive, and irresistible, is a rather curious fact which is probably to be accounted for by some accidental error or preconceived theory.

In the chapters immediately following those on the omnipotence of majorities, M. de Tocqueville enlarges upon certain circumstances which, as he supposes, temper and mitigate their power.  The principal of these is the influence of the legal profession.  His theory upon this subject, as upon the one just alluded to, is somewhat eccentric, and is not, in our opinion, much more tenable.  According to M. de Tocqueville, the influence of the legal profession is, in our institutions, the real and only principle of aristocracy

This theory is rather more plausible than the one just alluded to, of the omnipotence of majorities, and agrees a good deal better, with a merely superficial view of the mode in which the public affairs are conducted in this country.  It is no doubt true that the legal profession furnishes a large proportion of the persons employed in the administration of the Government in all its departments, Executive, Legislative, and Judicial.  It is also true that a very large proportion of the lawyers so employed habitually act with the political party which represents for the time, under whatever name, the aristocratic principle, and supply that party with its acknowledged and ostensible leaders.  From these apparent facts it is not very unnatural for a hasty observer to conclude with M. de Tocqueville that the legal profession form, in fact, the real and substantial basis of the aristocracy, so far as any thing of the kind can be said to exist in this country.  The opinion of M. de Tocqueville is accordingly not uncommon among ourselves, and has contributed largely, in connection with other causes, to generate the unpopularity of the lawyers as a class.  For it is far from being true, as he supposes, that they are less distrusted by the people than other educated men.  It is notorious, on the contrary, that as a class, and with the rare exceptions of those who openly espouse the democratic cause, they are decidedly unpopular.  A democratic lawyer is, of course, more popular than any other person would be under the same circumstances, precisely for the reason that he resists the tendencies of his own profession in support of what are regarded as the rights and interests of the people.

But though a superficial view of the facts alluded to above might lead to the conclusion that the legal profession forms, in fact, the basis of the aristocracy, or rather of the aristocratic tendencies, which are developed, to a greater or less extent, in this country, — a more thorough examination of the subject shows very plainly that this is not the real state of the case.  The members of the legal profession in this country are not the aristocracy but the agents, organs, or, to use a more appropriate term, the attorneys, of the aristocracy.  The aristocracy is constituted by the owners of accumulated wealth, and chiefly by the moneyed men of the great commercial cities.  These are generally persons educated in the habits of practical life, and not very capable of pleading their own cause before the public.  The lawyers undertake to do this for them; they occupy the foreground; they fill the legislative halls and the various departments of the Government; they talk and write upon all occasions, in season and out of season; in short, they take the responsibility, and bear the unpopularity, of keeping up a perpetual warfare upon the democratic tendencies that are constantly in action, and in the end generally carry all before them.  The conspicuous position which the lawyers hold in the fore front of the battle, gives them an imposing and formidable aspect.  In reality, however, they are merely present in a representative character, and would declaim as loudly and as long for democracy as they now do against it, if they could be as well paid for their trouble.

In saying this we would not be understood to mean any personal disparagement to the individuals composing the legal profession, for many of whom we entertain a high respect.  It is no disparagement to any class of men to say that they carry into other pursuits the spirit and genius of their habitual calling.  It is only saying that they are subject to the common law of human nature.  An individual of strong or eccentric character may escape from the bias imparted by his professional pursuits; perhaps may take, by reaction, a directly opposite one.  This occurs as often in the legal profession as in any other.  But the members of every profession, considered as such, must, in general, exhibit, on all occasions, their peculiar professional character.  The soldier will be frank and fearless in the ball-room as well as on the field of battle; the mere politician shrewd and cunning, — as Cardinal de Retz was said to be, upon a question of turnips and cabbages, — politique aux choux et aux raves; and the attorney will argue cases at the dinner table or in Congress as naturally as he does at the bar.

We remarked above that the real aristocracy of this country is constituted by the owners of accumulated wealth, and particularly the moneyed men of the great commercial cities.  This is also the case in all other countries.  The basis of the feudal aristocracy of Europe was the possession of the land, which was formerly the only important element of wealth.  The progress of trade and the accumulation of capital have introduced in Europe a new aristocracy of money, which has gradually shorn the former of some of its beams, and opened the way for the entrance of the democratic principle into the Government at the expense of both.  The possession of accumulated wealth is the only thing which can give an individual substantial political power; that is, the power of commanding the services of others. Superiority in intellectual and physical qualities, natural or acquired, — strength, talent, learning, skill, dexterity in the arts, — are only so many means of rendering service to others with greater facility or effect.  But to render services is a very different thing from commanding them.  The exercise of these valuable qualities may produce wealth, and bring with it political power; but their possessors, as such, are the servants, and not the masters or rulers, of those who employ them.  This is the position of the lawyers as a class in relation to the moneyed men.  The only lucrative part of a lawyers business is that which is connected with the management of property, and especially property accumulated in large masses, and employed in an active way.  The lawyers, as a class, depend for success in life upon being employed by the owners of property, and particularly of accumulated property.  They are, therefore, virtually, with all their superiority of education, and, as a body, of intellectual power, the mere agents, factors, or, in one word, servants of the moneyed men.  Their political career, if they go at all into politics, — which the most prudent carefully avoid, — is entirely subordinate to the professional, which furnishes their means of subsistence; and they fall, accordingly, without effort, into any political course which the interest of their employers may happen to dictate.

M. de Tocqueville remarks that the seat of aristocracy in this country is not among the men of wealth, because they are not united by any common bond of interest.  This is a great and very obvious error.  The possessors of accumulated wealth are, in the first place, united together by the community of habits, tastes, and pursuits, resulting from their peculiar position and, secondly, what is of more importance, and is for the present purpose — the governing consideration, — they are very closely combined together by their apprehensions of the same common enemy.  The possessors of accumulated wealth are aware that they constitute, in every community, a small minority; — that they enjoy a peculiar, accidental advantage, which is envied and coveted by all who do not possess it; and that they have no means of defending this advantage against the immense superiority of physical force which unprincipled adventurers of talent and courage could enlist against them, excepting the protection of society acting through the Government.  Hence the owners of property are relied upon, in all countries, as the habitual and steady supporters of law and government; and hence they are found, in all countries, to favor as a class the establishment of such political institutions as give the greatest efficiency and energy to the administration of the laws, — or, in one word, to favor a strong, rather than a weak government, — the aristocratic, rather than the democratic, principle.  Hence, too, in countries where the democratic principle is actually established, and the government has been purposely rendered as light and imperceptible as it could possibly be made, they are constantly tormented by a vague apprehension that their property is in danger, and regularly favor all schemes of state policy, and all modes of administering, construing, changing, or entirely reforming, the laws, which tend to strengthen the Government.  This constant apprehension of the same common danger, and consequent tendency to seek protection from it by the same means, are a common bond of interest among the moneyed men, of the strongest kind, and one that is quite sufficient to give them a marked political character.  It can hardly be necessary to show how much stronger such a bond of union is than the mere circumstance of common professional pursuits, to which M. de Tocqueville attributes the supposed aristocratic character of the legal profession, — not to say that a community of professional pursuits is generally found to be in practice, so far as it operates, a principle, not of combination, but of competition and rivalry.

That the possessors of accumulated wealth in this country, and particularly the moneyed men of the cities, really entertain the apprehensions alluded to above, of danger to their property, from the democratic character and tendencies of our institutions, is sufficiently notorious.  These apprehensions form, in fact, the basis of a great part of the rhetoric and declamation which have filled the newspapers and speeches of the Opposition party since the commencement of the Government.  At the present day the cant terms of Loco-Focoism, Agrarianism, and so forth, which are applied by the Opposition writers and orators to the friends of the Administration, and to the supporters of democratic principles, have their origin in this vague fear that the final word — the dernier mot — of democracy is the equalization or rather the destruction of property.  As long as these apprehensions exist, — however groundless they may be, — there can be no want of a common bond of union among the moneyed men, or of a sufficient reason why they should resist, with all their might, the regular democratic tendencies of our institutions, and should constitute, of course, so far as any such thing can exist among us, — the nucleus of an aristocratic party.  This can never, in the nature of things, obtain, at least for any length of time, the ascendency in the Government, and will, in general, — as it now does, and has done almost uniformly ever since the establishment of the Government, — form the basis of a regular and permanent opposition.

We find, accordingly, that the principal seat of the opposition to the democratic tendencies of our institutions has always been among the moneyed men of the cities.  It does not always happen that they are able to control the numerical majority of the voters around them.  Cities are the points where the two extremes of society come into contact, and the larger numbers of the working class often more than counterbalance, at the polls, the wealthy few, although these have so many means of influencing the working voters within their immediate neighbourhood, that a contrary result is, by no means, uncommon, and is, perhaps, on the whole, a more natural one.  It occasionally happens, however, that Boston, New York, Philadelphia, or Baltimore, will present the appearance of a democratic city, but even in such cases they are still the headquarters of the aristocratic principle, and the points from which it diffuses its influence through the country.  The city newspaper press is almost wholly under the command of the moneyed men; the proprietors depend for support upon the patronage of this class, and are, of course, compelled, like the lawyers, to wear their political livery.  A few independent editors sustain themselves, with difficulty, in a different course; hut a large majority of the leading journals in all the great cities are, as is well known, in the interest of the Opposition.  The city press is, in short, the great battery by the aid of which the moneyed men carry on the war which they are constantly waging against the democratic tendencies of our institutions, the party which favors these tendencies, and the ad- ministrations which they bring into power.  Through this channel the moneyed men proclaim their good pleasure to their submissive partisans, exhale their griefs at the progress of democratic principles, and pour forth torrents of abuse upon all who make themselves conspicuous on the popular side.  It is the city press which gives the moneyed men their political importance, such as it is; disguises their weakness, in part from the people, and entirely from themselves; and deludes them constantly with new hopes of approaching triumph, which are as regularly followed by fresh defeats at every election, or returning flow of the popular flood.

The young members of the bar are the principal agents of the moneyed men in managing the press; the seniors, who are willing to run the dangerous career of political life, go forward and plead the same cause in the legislative bodies of the States arid the Union.  All, however, as we remarked before, sustain a representative character.  They argue the case because they are well paid for it, and cheerfully exchange for this kind of ‘solid pudding’ the ‘empty praise’ which attends upon the vigorous and successful champions of the rights of the people.

It is not, therefore, the legal profession, as M. de Tocqueville supposes, but the moneyed men of the cities, that form the basis of the American aristocracy, or rather of the opposition to the democratic tendency of our institutions, for that is the only shape in which aristocracy can possibly exhibit itself in this country.  In keeping tip this perpetual warfare upon the spirit of the institutions under which they live, the moneyed men and their agents, the lawyers, are probably not actuated by any worse motive than the influence of their personal position.  Nor is their opposition, perhaps in itself, a great evil.  The general equality of fortunes, the cheapness of unreclaimed land, the whole tendency of our legislation, cooperate together in reducing almost to nothing the real weight of the lords of the exchange.  They may, occasionally, carry a popular election, but can never acquire sufficient importance to endanger the permanence of our institutions.  They may, even, as an opposition, exercise, not unfrequently, a salutary influence in correcting errors or preventing practical abuses in the administration of the Government.  At particular periods they derive, from accidental causes, an accession of power.  In times of national distress the banner of the moneyed opposition ‘streams like a meteor to the troubled air.’  ‘War, pestilence, and famine,’ are the elements in which they live, and move, and have their being; a national bankruptcy is to them a season of jubilee; with the return of political health and sunshine they sink again into their old hopeless minority.

A vicious course of legislation may also, at times, confer upon the Opposition an adventitious consequence to which they are not fairly entitled.  This has been the result of the banking monopolies so freely granted within the last few years by most of the State governments.  These have generally enured to the benefit of the moneyed men of the cities; have greatly augmented the productiveness of their capital at the expense of the community, and have given them, for the time being, the complete control of the currency, a political privilege far superior in importance to any of those that are enjoyed by the feudal nobility of Europe.  The political bearing of this system, which grew upon the country by slow and gradual steps, was not till recently perceived.  The people are now aware of its character, and are adopting, through the State and General Governments, measures of reform, which, though strongly resisted by the cupidity of the interested parties, must necessarily be successful.  No institution or law of aristocratic tendency, least of all any one having a tendency to create an aristocracy of money, can possibly withstand long in this country the overwhelming power of the democratic spirit which forms, as it were, the life and soul of the body politic.

The aristocratic principle can, therefore, never acquire any dangerous influence among us, and in the only shape in which it can display itself, that of opposition to the democratic tendencies of our institutions, may occasionally operate as a salutary check upon abuse or accidental error.  There is, of course, no very strong reason to wish for its entire extinction.  And yet, there is something rather melancholy in the idea that a pretty large portion of the prosperous and educated men, particularly in the cities, constituting, as it were, the flower of the whole population, should be rendered insensible to all the advantages of their position by a groundless and hypochondriac apprehension that their property is in danger.  Situated in the midst of a scene unequalled, unapproached, we may say, in the annals of the world; carried forward themselves in a grand march of political progress and improvement, the results of which are almost beyond conjecture, the moneyed men of our cities shut their eves upon all these beauteous wonders — speciosa miracula — and construe this whole mighty movement of society, a movement which M. de Tocqueville justly contemplates with a sort of religious awe, — into a general rush upon their little hordes of accumulated capital…

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