The Making of Tocqueville’s America: Law and Association in the Early United States by Kevin Butterfield (review)

Why bother to join a formal organization, with rules, membership fees, and regular meetings to do something that could be done just as well alone or informally among friends? This question, Butterfield argues, sat at the center of the construction of voluntary associations across the early republic in the United States: How did the United States become a country of joiners in which voluntary associations proliferated in every direction to manage every interest, from the most important to the most mundane, in spite of the tremendous resistance to intermediary bodies in the wake of the Revolutionary War? Indeed, regardless of the extraordinary elaboration of civil society that Alexis de Tocqueville witnessed during his visit in the 1830s, attempts to form voluntary associations—from Freemasonry to the Society of Cincinnati—confronted a profound uneasiness in the early United States Republic.

The response, Butterfield argues, was to cultivate law-minded ways of forming and conducting voluntary associations. Elaborating a postrevolutionary disposition toward legal oversight and “procedural regularity,” Americans of the early republic established the foundations for the world that Tocqueville and his friend Gustave de Beaumont discovered on their trip to the United States. They had already demonstrated a spontaneous natural proclivity to joining. What actually forged American civil society at the time was an emphasis on procedural fairness, legalistic formality, and compliance with “constitutions,” as well as a law-minded push toward a detailed and rule-based mode of organization.

Investigating legal disputes, cases, and discourses about the formation of voluntary associations, the book opens with a discussion of the everyday experience of membership. Butterfield suggests that “law-minded” formalities and procedural regularities became a kind of cultural form that permeated far beyond the desire to cohere to some ideal or standard imposed from above. Rather, it was precisely this “everyday constitutionalism” that allowed people to associate. But beyond a law-minded cultural form, the question of associative binding was also a deeply divisive issue. As the early debates between Federalists and Republicans took shape, the ways in which people were to socialize and join together became a political issue. According to Butterfield’s account, however, this disagreement actually reinforced the attachment to formal rule-making as the foundation for voluntarily joining associations; what brought people together increasingly in these groups was not their shared beliefs but precisely the rules that structured their group. The key issue became how members were to be treated and admitted instead of what they actually did or thought once they were members.

As formal procedure became the foundation for American associative life, the law became the primary vehicle for clearing out space for what was to become ubiquitous practice. Associations did not form sui generis; they were created, preserved and managed through the courts—through judges and juries. Thus was American civil society forged.

The ramifications of this legal construction were many. First, by the mid-nineteenth century, a few key decisions actually removed the court’s ability to intervene into the internal organization of associations; in spite of the means through which they were created, by the middle decades of the nineteenth century, they appeared to be semi-sovereign pluralist institutions outside the prying hands of the state. Alongside this transformation, the book shows how the legal discussions about voluntary associations were responsible for the peculiarities of profit-bearing corporations. The result was a massive transformation in corporate law from the early 1800s to something that by the 1830s largely resembled the corporate legal structure of today. Finally, the book reveals how a growing culture of formal proceduralism within the world of voluntary associations also spilled into the creation of labor and trade unions, making their legal existence possible in the middle decades of the nineteenth century.

This book provides an extremely useful corrective in history, political science, and sociology to the innocent story of...