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  • Civil Society in the Slaveholding Republic
  • Padraig Riley (bio)
Kevin Butterfield. The Making of Tocqueville's America: Law and Association in the Early United States. Chicago: University of Chicago Press, 2016. vii + 311 pp. $40.00.
Mark G. Schmeller. Invisible Sovereign: Imagining Public Opinion from the Revolution to Reconstruction.Baltimore: Johns Hopkins University Press, 2016. x + 239 pp. $49.95.

In Democracy in America, Alexis de Tocqueville claimed that the dominant fact of American life was "the equality of conditions," which held "no less sway over civil society than over government."1 Equality helped explain two main features of life under American democracy: the prevalence of private associations, which Tocqueville thought crucial to protecting liberty, and the power of public opinion, which he worried might prove the basis for a new democratic despotism. Both Kevin Butterfield and Mark Schmeller look back to Tocqueville in their respective histories of associations and public opinion in the nineteenth-century United States. Their books are productively read together, as they differ considerably in method and focus despite their shared orientation. Read in dialogue, these books raise a question that haunts Tocqueville's analysis of the United States: How could a society defined by "the equality of conditions" sustain the blunt inequality of slavery?

Tocqueville found the proliferation of private associations in the antebellum United States nothing short of remarkable. Butterfield explains how that world came to be, by tracing the legal history of membership in private groups. Like Tocqueville, he sees Americans as passionate joiners. "After the Revolution," Butterfield contends, "men and women at all levels of social standing, white and black, and in communities large and small, embraced voluntarism and self-created, relatively formal organizations as the very best means to improve society and their own lives" (p. 3). While one should question these sweeping claims about voluntarism, given the extent of slavery and subordination in the post-Revolutionary United States, the associational impulse was clearly strong—and as Butterfield episodically indicates, it extended beyond the ranks of free white men. [End Page 209]

American joiners may have loved their groups, but they were not naïve enthusiasts of associational life. Here Butterfield makes a crucial intervention. In his story, American joiners were wary of the power that associations exerted over their members and they had a deep respect for the autonomy of "rights-bearing individuals." The American Revolution produced "a republican belief in the idea that no governing authority, public or private, could pretend to certain kinds of authority over anyone" (p. 11). The nation of joiners was thus deeply invested in protecting the autonomy of individual political subjects.

Americans built their associational life through the medium of the law. Most associations took pains to specify members' rights in order to protect minorities from majority domination. Joiners devoted considerable time to the work of self-governance, writing constitutions and paying close attention to rules and procedure. Passion and sentiment were not enough to make a group cohere. These commitments reflected a broader tendency to define all of civil society in terms of rule-bound relationships. "The first generations of American citizens," Butterfield argues, "increasingly thought in legalistic … ways about nearly all of their efforts to function in groups, be it in the state, the church, or other small, self-created associations" (p. 63).

The judiciary endorsed these associational practices when members brought suit against groups for violations of their rights. Butterfield excavates what he terms a "common law of membership" based on the writ of mandamus. Mandamus originated as a general principle in British law; in the words of Lord Mansfield, mandamus "ought to be used upon all Occasions where the Law has established no Specific Remedy, and where in Justice and good Government there ought to be one" (p. 74). Over time, mandamus became the principal means to protect members of corporations from abuse by those in positions of authority.

In the post-Revolutionary United States, courts employed mandamus to protect the rights of individual members of associations against majority decisions. Butterfield's key case is Commonwealth v. St. Patrick Benevolent Society (1810), which arose when the Philadelphia editor John Binns was ousted from said society by his rival editor William...

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