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The State as a Work of Art: The Cultural Origins of the Constitution


By Eric Slauter


(University of Chicago Press, 373 pp., $40)


Over the past two decades or so, sixty-nine countries--from the nations of post-communist Central and Eastern Europe, to South Africa, to Afghanistan and Iraq--have drafted constitutions. At the same time many other states have revised their constitutions on paper, and even the European Union has tried to get a constitution ratified. Consequently, only a few states in the world are without written constitutions. Indeed, it is almost impossible for many people today to conceive of a constitution as anything but a written document.


It all began with the Americans over two centuries ago. Thomas Paine, writing in 1791 in the aftermath of the American Revolution, told the world what had happened over the previous decade and a half. Until the American Revolution, people had conceived of a constitution as the way in which a government was put together or constituted. But the experience of the Americans in writing their various state constitutions in 1776-1777, and then their federal Constitution a decade later, had transformed the meaning of a constitution. It had become, Paine said, a single written document, a thing that could be picked up and consulted: "It is the body of elements, to which you can refer, and quote article by article; and which contains ... every thing that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound." England had talked about its wonderful unwritten constitution for decades, but as far as Paine and the Americans were concerned, England had no constitution at all.


In 1776 Americans had been exhilarated by the prospect of creating their own government. "How few of the human race," John Adams rejoiced, "have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children." All previous nations, they told themselves over and over, had been compelled to accept their constitutions from some conqueror or some supreme lawgiver, or had found themselves entrapped by a form of government molded by accident, caprice, or violence. But Americans knew that they were, as John Jay declared, "the first people whom heaven has favoured with an opportunity of deliberating upon, and choosing the forms of government under which they should live." They became the architects of their constitutions, and thus for them the state became a work of art, a distinctly artificial entity. Drawing out the implications of that idea in the making of the Constitution is the theme of Eric Slauter's richly imaginative book.


 


In the past century, we have had dozens upon dozens of studies of the origins of the Constitution. Historians, jurists, and legal scholars have all tried to explain the sources and the character of the document. Slauter's book is the first full-scale effort by a literary scholar to bring the special tools of his discipline to bear on the Constitution and its cultural origins. The result is a smart, strange, and frustrating book. It is a curious mixture of insight and artifice, of careful readings and runaway metaphors, of persuasive arguments and imaginative exaggerations. The historian's conception of causality is often bent out of shape, and the connections between events become ambiguous and elusive. Still, Slauter's prose is almost always clear and straightforward, avoiding all of the usual jargon that has plagued much literary writing over the past several decades. Slauter has divided his book into two parts: "The State as a Work of Art" and "The Culture of Natural Rights. " Each of these parts has three chapters, only loosely related to one another. Consequently, the book is really a collection of six essays on various aspects of the cultural origins of American constitutionalism.


Slauter begins by emphasizing a point of which the American Revolutionaries were well aware--that governments and constitutions were the products of a society's manners, customs, and genius, and at the same time the producers of those cultural inclinations and distinctions. There was a mutual influence, a feedback and an interplay, between government and society, and it was the recognition of these relations that made an eighteenth-century theorist such as Montesquieu so subtle and significant. No doubt the nature of the government had to be adapted to the customs and the habits of the people, but the government itself could shape and reform the character of the people. "It is in the rich terrain of the period's shifting desire to see politics as an effect of culture and culture as an effect of politics," observes Slauter, "that it makes sense to consider, as I do in this book, the state as a work of art and the cultural origins of the Constitution of the United States."


Slauter's opening chapter, called "Making a Government of Laws," reveals a good deal of his literary method. He selects particular texts, mostly from the popular literature of the period, and then follows out the implications of one image after another in these texts. He begins with a discussion of the way in which the older classical-medieval tradition of thinking of the state as a human body fell away and was replaced by the idea of the state as an artificial man-made creation. Yet he scarcely seems to appreciate how powerful and long- lasting that tradition of the organic state was. "The figure of the body politic declined in both use and conceptual value over the course of the seventeenth and eighteenth centuries, he writes. "Never especially prevalent in the middle or southern colonies, it had come to seem relatively meaningless even in New England by [the time of the Revolution]."


This hardly seems true. The eighteenthcentury remained preoccupied with the idea of the state's resemblance to a human being, with its birth, maturity, and eventual death. In 1774 the loyalist Samuel Seabury argued that England was still a "vigorous matron," in the prime of her life, and not at all, as his adversary Alexander Hamilton had described her, "an old, wrinkled, withered, worn-out hag." This sort of language in talking about states was much more common than Slauter admits. Indeed, the eighteenth-century Enlightenment was fascinated with the political health and the sickness of bodies politic and spent a great deal of time analyzing why states, especially the republics of antiquity, had declined and died. Rome, of course, was the prime example: the eighteenth century, including all educated Americans, could not learn enough about Rome. Its decline was described in terms of a human being: it was once young and industrious, but it grew rich and luxury-loving, and became corrupt and immoral, leading it to sloth and finally to death.


More awareness of this interest in "political pathology," as one American called this investigation of political diseases, might have sharpened Slauter's argument and given his idea of the state as a work of art more radical significance than he has given it. When Americans in the late 1780s began talking of the state in these architectural terms, they were not just changing images, but were opening up the possibility of an entirely new way of thinking about the state's durability and permanence. For if the state were an architectural creation, and not a human-like body, then it was presumably immune to the kinds of diseases that had afflicted the ancient republics. The new American federal constitution might in fact live forever.


 


Instead of exploring this interesting transformation, Slauter has chosen to focus on the connotations of what Hamilton in 1788, now thinking of "politics by analogy to architecture," called the "erection of a new government." This is a pity, but for a literary scholar such as Slauter the image of "erection" is too tempting to resist, and he launches into a lengthy analysis of its ambiguous meaning. The word "erection" retained some of its older physiological and sexual sense, he says, and was thus in tension with its newer architectural meaning. Tension or not, it is the sexual connotation that Slauter most exercises, especially since it relates to the "impotence" of the Confederation, which was the term that the Federalists, or the supporters of the Constitution, commonly used to disparage the government that they wanted to displace. Since sexual impotence could lead to divorce under English law, Americans, in Slauter's words, had "grounds for divorce or annulment of the Confederation." This conception of divorce became especially meaningful "within the larger metaphor of politics as marriage."


Once invoked, this image of government as marriage is too expressive to be dropped, and Slauter carries it on for several pages, even though very few Revolutionaries ever adduced it. He emphasizes how this image of marriage "between a male electorate and male politicians"--creating "a same-sex relationship"--seems to have given legitimacy to government as a "consensual contract," which he mistakenly identifies as a Lockean contract. Locke's contract was one among individuals to form a society. The contract for most Whigs in the eighteenth century, by contrast, was not a marriage contract but a mercantile-like one, between rulers and people, in which allegiance and protection were the considerations. For Locke, the rulers were trustees for the people, which is why his political thinking was so radical.


Even as enlightened anti-patriarchal thought transformed the metaphor of government as marriage, the image continued to retain much of its power. As evidence of this point, Slauter indicates that "on the eve of the Declaration of Independence, some politicians remarked on the similarities between courting women and courting votes." As additional evidence, Slauter finds one person in a private letter claiming that the Constitution was a bride with the people as the husband. "In such a context," Slauter concludes, "'impotence' may have found new political significance, especially as a justification for overriding the procedural barriers of amendment that made the Articles of Confederation a 'Perpetual Union.'" Playing with images in this helter-skelter manner is bound to make a historian very uneasy.


But Slauter is not yet done with sexual imagery in the making of the Constitution. He also stresses the importance of the words "firm" and "firmness" to the Federalists. Why else, he suggests, would they have so often condemned effeminacy, and used strong vertical columns as symbols for the state? "Given this context, it is probably no accident then that the icon for the ratification of the Constitution by the states was the image of individual pillars brought to erection by a divine hand, sometimes accompanied by the slogan 'it will yet rise.'" And once Slauter has let loose his hyperactive imagination, he can scarcely rein it in. Since one image, from 1789, containing twelve white pillars also had a black one sagging outside the new federal edifice (representing Rhode Island, which had not yet ratified the Constitution), Slauter can only conclude that "the whiteness of the columns takes on new significance with respect to the place of black persons in the new nation."


It is hard to know what to make of all this suggestive material. No doubt many contemporaries, including Joel Barlow, who seems to have been unique in making his knowledge explicit, were fully conscious of the erotic and phallic implications of the symbols of liberty--the liberty pole, the references to erection, and so on. But how wide and how deep in the society did this knowledge go? And what does it signify even if the knowledge was widely shared? The Oxford English Dictionary lists eight different meanings for the word "erection" in the eighteenth century, and only one of them involves a bodily organ. Slauter is well aware of the problem of deciphering words and images in a freewheeling manner. "To read the image at all," he writes, "is to risk interpretation beyond the boundaries of meaning contemporary historical agents may have assigned to it." Readers will have to decide for themselves how much of these titillating connections they are willing to accept.


 


Slauter moves on to explore an issue that has taken on greater significance for historians of the eighteenth century in the past several decades--the relation of politeness to politics. The fine arts, good taste, and even good manners had political implications for eighteenth-century thinkers. As the English philosopher Lord Shaftesbury had written, good taste and morality were allied: "the science of virtuosi and that of virtue itself become, in a manner, one and the same." Connoisseurship, politeness, and genteel refinement were connected with public morality and political leadership. Those who had good taste were enlightened, and those who were enlightened were virtuous. This was one reason why Jefferson was so eager to collect the best in the world of what was seen, thought, and said (and sipped, too).


Although Slauter's discussion of this issue is often garbled and unfocused, as it jumps about from text to text, from Hume to Burke to Montesquieu to Addison and Steele to Lord Kames to Hugh Blair to James Ralph to the fashions of women, he nonetheless illuminates the importance of politeness to the eighteenthcentury Anglo-American world. In order to tie the issue of taste to the Constitution, Slauter spends a dozen pages on an interesting text by Noah Webster, published in 1787 under the pseudonym "A Citizen of America," which argued that the beauty of the Constitution could only be appreciated as a whole and only by an educated elite. This was true of any work of art, said Webster, and the Constitution, too, was to be regarded aesthetically. "Let every man examine the most perfect building by his own taste," he asserted, "and like some microscopic critics, condemn the whole for small deviations from the rules of architecture, and not a part of the best constructed fabric would escape. But let any man take a comprehensive view of the whole, and he will be pleased with the general beauty and proportions, and admire the structure."


In his next chapter, "The Matter and Meaning of Representation," Slauter pushes his literary techniques much too far, as least for this historian. Since he believes that "the connection between aesthetic and political representation has become both an object and a commonplace of contemporary critical thought," he wishes to apply this connection to the debate over the Constitution between the Federalists and their opponents, the Anti-Federalists. Although Slauter correctly recognizes that "representation was the most important political concept of the revolutionary era," he plays down the language that contemporaries used in debating the issue, and instead focuses on two images that figured in the debate: whether representatives were a miniature portrait of the people or a transcription of the people.


So in place of an analysis of actual and virtual representation, which is what the Federalists and Anti-Federalists argued over, Slauter launches into long and detailed discussions of miniature portrait painting and of the process of shorthand transcription of speeches. This is all interesting stuff, but it is only tangentially related to political representation as most people at the time understood the issue, which was whether gentry elites could represent ordinary people or ordinary people had to have men of their own kind, in all of their ethnic, religious, and occupational diversity, to speak for them. Slauter does acknowledge that the connections he draws "can sometimes seem overly clever or unconvincing," but he does not let his doubts deter him.


 


In the second part of his book, on "the culture of natural rights," Slauter continues to make connections between popular literary culture in the new republic and its constitution-making, some of which are fascinating but others decidedly far-fetched. In a discussion of slavery and the language of rights, he confronts what he calls "two powerful narratives" of the Revolutionary era-- the changing meaning of the Declaration of Independence between 1776 and the 1790s, and the way in which the imperial debate spilled over to affect other issues, especially slavery.


For most Americans, says Slauter, the Declaration of Independence, including its second paragraph that emphasized inalienable rights and equality, was "an ephemeral and forgettable text." Only in the 1790s, when Jefferson, as the leader of the Republican Party, came to be celebrated by his followers as the document's "author"--much to John Adams's chagrin--did the Declaration begin to acquire its modern significance. Yet not everyone ignored the Declaration, Slauter notes, or its emphasis on the self-evident truths of rights and equality. Blacks and other anti-slave activists certainly paid heed. They insisted that "blacks were or should be included in the contemporary declarations about equality and freedom." In sum, Slauter contends that "slaves were the animating but often buried referent for the language of rights."


Historians have long stressed that the Revolutionaries' emphasis on liberty and rights inevitably spilled over and created a growing opposition to slavery-- a "contagion of liberty," as it has been called. But believing that the second paragraph of the Declaration of Independence had very little immediate meaning for Americans, Slauter wants to reverse the connection, and to make anti- slavery, and the efforts of blacks themselves to end the institution, the more important source of the rights consciousness of Americans. The contradiction between slavery and the libertarian message of the Revolution, he writes, is not a sufficient explanation for the rise of anti-slavery. Not only is such an explanation "restrictive, giving too little weight to the influence of new cultural attitudes about blackness that helped contain the contagion [of liberty]," but, he insists, it also denies a proper role to the agency of blacks in bringing about their own freedom.


All this may be true enough, but it still seems a stretch to contend, as Slauter does, that "free and unfree blacks, in league with white activists, worked to place black slaves at the center of the language of rights." The American colonists, like all Englishmen, had always celebrated their rights. Indeed, since late medieval times the rights of Englishmen had been central to English identity. From the beginning of the Revolution to its end, Americans were preoccupied with their rights. That some of them came to worry about the inconsistency between fighting for freedom and the holding of slaves, and came to promote the natural rights of slaves, were the consequences, not the causes, of that preoccupation.


In other words, Americans did not need the Declaration of Independence to tell them what they believed about rights. They ignored the document for two decades because they took it, and its second paragraph, for granted. They had begun the imperial debate by claiming the rights of Englishmen, and had only converted these English rights into natural rights in 1774-1775, when separation from the British Empire became more or less inevitable. Slavery and anti-slavery were undoubtedly important to the Revolutionaries, but unfortunately never as important as we today think they ought to have been.


 


In order to explain why white Americans "(who so frequently compared themselves to slaves) were reluctant to expand the rhetoric of political slavery to include the real condition of black slaves"--a very legitimate historical problem--Slauter makes one of the strangest arguments in his book. He contends that the issue of race and rights becomes "more legible and meaningful when seen in the context of aesthetic disputes over neoclassicism." Although he admits that "the concerns of neoclassical aesthetics may seem far afield from issues of race and politics," he nonetheless contends that "a common metaphorical language" connects them.


What he seems to mean is that even before the Revolution, proto-romantic critics of neoclassicism were indicting artists for their "slavish" imitation of the classics--"slavish" having "come specifically to signify a lack of mental originality." Slauter suggests that this presumably imitative character of neoclassicism can be connected to the way in which whites tended to denigrate blacks in the eighteenth century. Many whites "increasingly described the mental faculties of black people as imitative," by which they meant "inferior to the mental faculties of white people." Since a British critic disparaged the poetry of Phyllis Wheatley for being "merely imitative," Slauter makes this enslaved Boston poet the center of his analysis.


Wheatley's book of poetry, he writes, "appeared at a particular moment of cultural transition: the beginning of the romantic movement against neoclassicism." The two movements, he further remarks, "were in tension," and the black poet from Boston was caught in the middle. While some criticized Wheatley for being "imitative," others celebrated her in romantic fashion for being "one of the greatest instances of pure, unassisted Genius, that the world ever produced." The debate over Wheatley's poetry helped to transform American culture, or as Slauter puts it: "The clash between neoclassicism and romanticism produced a discourse about cultural 'slavery' and the dangers of mental dependency."


There are many difficulties with this argument, not the least of which is Slauter's reification of these "two theories of cultural production." No one in the 1770s, especially in Boston, had the slightest notion of any "clash between neoclassicism and romanticism." The terms were not coined until the next century. And the more basic question is whether the invocation of these artistic entities contributes at all to Slauter's analysis of Wheatley's poetry and white Americans' reaction to slavery and anti-slavery.


Slauter believes that the 1770s in America witnessed "the emerging cultural revolution against neoclassicism"--an astonishing statement, since in fact it was neoclassicism that was just emerging in America, with the romantic movement far in the future. In the 1770s, Americans were just beginning to invoke the classical past as an inspiration for their republican revolution; and almost no one at the time thought that going back to the classics was "imitative" in any pejorative sense. The American Revolutionaries sought to imitate and to emulate antiquity, because they believed it contained those permanent and universal principles that transcended time, locality, and particularity. In fact, they made such a huge investment in neoclassicism and its commitment to the public purpose of art that the emergence of romanticism was seriously retarded in the United States. Wordsworth was severely condemned as too solitary a poet, and Pope remained the most popular poet in America well into the nineteenth century. So it seems both confusing and irrelevant for Slauter to bring these artistic theories into his discussion of Wheatley's poetry and the rise of black rights. Once he gets into actually analyzing her poetry, however, his talent for close reading of texts takes over and his writing becomes illuminating. Although Wheatley's poem "Niobe in Distress for her Children" is ostensibly about death and mourning, it can be also read, Slauter convincingly points out, as a comment on the debate between Britain and her colonies and on the debate over the inconsistency of slavery in a revolutionary age.


 


Slauter's discussion of "being alone in the age of the social contract" is stronger than his previous chapters. The issue that he raises--the problem of the hermit and solitude in a society dedicated to sociability--is fascinating, and his discussion of it is rich and suggestive. He quite shrewdly points out that the Americans' various declarations of rights "obviously walked a narrow line between construing such rights as importations from a solitary state or as creations of a social one." If rights were natural and existed in people's hearts, then writing them down and putting them into texts made no sense, and might even endanger them. James Madison and some other Federalists made such an argument in their attempt to explain why the Constitution contained no bill of rights.


But even more important for Slauter's discussion of individual rights is his insight that "slavery presented a still larger problem, one that fundamentally altered the way in which the social contract and natural rights could be understood." If slaves existed outside of society and had no natural rights to their liberty--as Virginians, for example, argued--then society or government, rather than nature, implicitly turned out to be the source of rights.


Slauter says that passing from investigating formal political thought, such as that of The Federalist, "to the still largely under-studied world of late eighteenth-century American popular literature allows us to consider the ways in which the culture of solitude and privacy reflected on and participated in larger political discussions." How to bring the political culture and the popular culture intelligibly and persuasively together is the problem that he sets for himself, not merely in this chapter but in his entire book.


 


His final essay, called "The Godless Constitution and the Sacred Rights of Man," is the best in the book, mainly because Slauter keeps close to a fixed number of texts and keeps his often frenetic hermeneutical imagination under control. He acknowledges that the absence of God in the Constitution does not imply any sort of "secularization." Indeed, Americans needed God because he was the author of their natural rights. He goes on to point out that Jefferson, Madison, and others consciously sought to move beyond Locke's plea for toleration, which implied the establishment by the state of a dominant religion, to statements of true religious liberty. In all these discussions, he is very persuasive.


He offers very careful and intelligent readings of Madison's "Memorial and Remonstrance against Religious Assessments," from 1785, and of Jefferson's Virginia Bill for Religious Freedom, written in 1779 but not passed until 1786. Although "freedom of conscience" was mentioned everywhere in the constitutional documents of the period, Slauter points out that Jefferson's Bill avoided the word "conscience" entirely, because the word had a religious potency that Jefferson did not like. Instead, Jefferson in his Bill used the words "opinion" or "opinions" when referring to religious beliefs--a practice that infuriated many Americans, since, unlike conscience, opinions come and go.


Slauter concludes with an analysis of Madison's drafting of what became the First Amendment. Madison originally wanted a preamble placed before the text of the Constitution that would re-state the rights and the principles of the second paragraph of the Declaration of Independence. "Here, in Madison's proposed amendment," Slauter contends, "was the central political philosophy of the American Revolution--the idea that government was an artificial institution designed for the benefit of the people and that it could be changed when it did not benefit them." Unlike Jefferson, Madison made no mention of a Creator. Even if it were understood that God was the author of rights, government for him was a work of human art.


Perhaps this chapter alone vindicates Slauter's aim of using literary analysis to relate the popular culture to constitutional issues. But the overall problem of his literary approach to constitutionalism remains. Is it consistently helpful to rummage through popular literature looking for interesting texts relating to politics? Slauter realizes that "it is impossible to say how popular these texts were or how or by whom they were read." He recognizes also that "it might be easy, probably too easy, to read these texts" in too permissive a manner. Since "the relationship between culture and ideology is rarely one to one," he does not want his readings to "sound flat, forced and unidirectional." Instead, he tries throughout his book to offer "more nuanced, multidirectional" readings. He knows, too, that "to read history or politics into, rather than out of, popular literature will inevitably produce unsatisfying results." He wants the kinds of cultural materials he is using in his book to "be considered not simply as in dialogue with but as part of the history of political thought.... Cultural history, and especially the study of popular culture, can help us reshape our understandings of the 'constitutional era,' but it requires us to see popular texts as contexts for the period as well as to see the period as the context for them." It is a laudable goal. As the examples in some of his chapters indicate, it can sometimes be achieved.


Gordon S. Wood's new book, Empire of Liberty: A History of the Early Republic, 1789-1815, in the Oxford History of the United States, will be published in October.

By Gordon S. Wood

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