Government by Dissent: Protest, Resistance, and Radical Democratic Thought in the Early American Republic 9780814738863

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Government by Dissent

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Government by Dissent Protest, Resistance, and Radical Democratic Thought in the Early American Republic

Robert W. T. Martin

a NEW YORK UNIVERSIT Y PRESS New York and London

NEW YORK UNIVERSIT Y PRESS New York and London www.nyupress.org © 2013 by New York University

All rights reserved References to Internet Web sites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Martin, Robert W. T. (Robert William Thomas), 1967Government by dissent : protest, resistance, and radical democratic thought in the early American republic / Robert W.T. Martin. pages cm Includes bibliographical references and index. ISBN 978-0-8147-3824-5 (cl : alk. paper) 1. United States—Politics and government—1783-1809. 2. Dissenters—United States— History—18th century. 3. Opposition (Political science)—United States—History—18th century. 4. Democracy—United States—History—18th century. 5. Federal government— United States—History—18th century. 6. Government, Resistance to—United States— History. I. Title. E310.M37 2013 973.3'18—dc23 2013001057 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1

For Gretchen

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Contents

Acknowledgments Note on the Text 1 Introduction

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2 Regulation, Not Rebellion: From “Rough Music” to Democratic Disorder

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3 “Secret Plodders”: Anti-Federalism, Anonymity, and the Struggle for Democratic Dissent

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4 Institutionalizing Counterpublicity: The Democratic Societies of the 1790s

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5 James Madison: Public Opinion and Dissentient Democracy

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6 “Salutary Collisions” and Multiple Discourses: A Farmer, a Lawyer, and Two Unknown Democrats

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7 The “Saucy Sons of Enquiry”: Thomas Cooper and Democratic Dissent

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8 Conclusion

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Notes Bibliography Index About the Author

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Acknowledgments

This book has been a decade in the making and along the way I have relied heavily on many institutions, colleagues, fellow scholars, and friends. The staff at my “home” library, the Burke Library at Hamilton College, have always been willing to attend to my many requests, no matter how extraordinary they might be. The Manuscript Divisions at both the Library of Congress and the New York Public Library proved similarly helpful. The staff at the South Caroliniana Library at the University of South Carolina, along with Jamie Wilson of the History Department, pointed me to resources of which I was unaware. A Research Fellowship from the New-York Historical Society was especially productive for me. I should also note that I have drawn, especially for chapter 5, from material first published in Polity (vols. 37 [2005]: 365–88; 42 [2010]: 185–209; copyright © The Northeastern Political Science Association). The one institution that has probably had the most influence on my work is the Association for Political Theory (APT). Though it has only been in existence since 2000, its annual conferences have provided a wonderfully productive venue for much of the research that eventually became this book. For their work with APT, but especially for their friendship, I thank Darren Walhof, Simona Goi, Dennis McEnnerney, Emily Hauptmann, and Ed Wingenbach. My departmental colleagues, and especially Peter Cannavo and Phil Klinkner, have also been a boon to my work. When I delivered the Constitution Day Address at Colorado College in 2009, the audience provided many interesting challenges to my thinking. Students within a philosophy senior seminar who read some of my work were even more insightful. Better yet, Dennis McEnnerney and Tip Ragan were wonderful hosts. More recently, a similar event at the University of South Carolina, ably hosted by Dan Sabia, also proved rewarding. Finally, a 2011 conference of the American Democracy Forum at the University of Wisconsin organized by John Zumbrunnen, as well as discussions I had there with Alan Gibson and Michael Zuckert, further spurred my thinking. Many scholars have been instrumental over the years. The historians John Howe and Seth Cotlar generously shared drafts of their respective books long before they were published. A number of fellow political theorists commented on early versions of the research here, leaving me greatly in their debt: Eileen Botting, Peter Cannavo, Jason Frank, Teena Gabrielson, Jennet >>

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1 Introduction

Under cover of darkness and disguise, a carefully orchestrated band of protesters intentionally and systematically destroyed private property. On a different occasion and in a discreet context, a large, peaceful protest was marred by a handful of rioters who engaged in some destruction of private property, despite other protesters’ efforts to stop them. The former episode we praise as the “Boston Tea Party” (1773), and twenty-first-century political movements have been named after it; the latter incident we denigrate as the “Battle of Seattle” (1999), that is, if we remember it at all. While this stark comparison is perhaps unfair in certain respects, it does tell us a great deal about the way in which American thinking about popular disorder, and political dissent more generally, has changed since our founding era. When a modern political protest aims to respect private property but does not quite live up to its goals, we call it a “battle”; our eighteenth-century forebears, on the other hand, celebrated a concerted effort at intentional, forcible destruction.1 Indeed, they would find it remarkable, even unfathomable, that we modern Americans do not make such disorder more central to our democratic theory and practice. We are, after all, a nation that was literally created by riotous refusal. Whether this is intentional oversight or collective amnesia, we are hardly alone in our failure to appreciate the centrality of dissent to democracy. Past political theorizing has focused on the issue of dissent episodically at best. From its very beginnings in John Locke’s Second Treatise of Government (1689), the theory of “government by consent” has presumed consent and marginalized dissent.2 When other political philosophers have examined the nature and place of dissent, it has been primarily as a dynamic of individual expression (e.g., John Stuart Mill, Henry David Thoreau) rather than as the core of democratic life. And America has a checkered history of silencing, or at least minimizing, dissent. From the Sedition Act of 1798 to the McCarthy >>

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from genetically modified organisms. Dissent is any practice—often verbal, but sometimes performative—that challenges the status quo (the existing structure of norms, values, customs, traditions, and especially authorities that underwrite the present ways of doing things).5 Thus, the religious “dissenters” of eighteenth-century England—Unitarians, Baptists, Quakers, and many others—are an example, a sectarian subset, of the general practice. Politically, dissent opposes the status quo, but it is more than “the opposition.” It is more than—though inclusive of—“the opposition” because opposition has often been thought of, at least since the nineteenth century, as the “loyal opposition,” and dissent need not be, and occasionally is not, unquestioningly loyal. Furthermore, “opposition” is generally conceptualized as political in the strict sense of governmental and institutional (e.g., “the opposing party,” “Her Majesty’s Opposition”). Dissent is better understood as political in a much broader sense; indeed, one of the norms it often opposes is precisely the cramped view of what is political.6 Dissent, then, is a broad category. What makes it even more complicated (from an analytical standpoint) is that it is also relative. It is a matter of degree but also is contextual. For instance, in a world order of global capitalism, socialist views constitute dissent. Yet in some contexts (certain enclaves of academia, say) defending capitalism is a practice of bold dissent. Complicating matters, of course, is the fact that the academy is part of that larger, capitalist world. As even this one instance suggests, it will be more helpful to avoid narrowing definitions and to stick to powerful examples; that is how we will proceed. What matters most is how genuine dissent acts, what it does. Rarely do even the most impassioned and insightful acts of dissent prove to be substantively effective; dissenters often fail to bring about the changes they seek. More important from the perspective of democratic theory, though, is dissent’s procedural efficacy: its ability to oblige people to rethink their own views, conceptions, and underlying assumptions and to actively (re)consider other people’s views, conceptions and assumptions, especially when those other views challenge the status quo. But to be procedurally effective in this way, dissent must have some prospect of substantive success. Just as an election in which there is only one candidate is not truly democratic, so a challenge to the status quo that is genuinely hopeless is scarcely dissent. Dissent, like the electoral process, is not always perfect or perfectly just. They both can be manipulated by defenders of the status quo; they often are.7 Nevertheless, genuine dissent, like a genuine election, is a necessary but not sufficient condition for democracy. This may seem obvious, or even tautological, and thus of little import. But it is not. The eighteenth-century

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goal, but only a part. He is thus best understood as a theorist of dissentient society, but not of dissentient democracy. Nevertheless, Mill highlighted some of the challenges faced by dissent, especially a majoritarian culture that sees all dissent as threatening rather than enlightening. As we shall see, some political radicals in eighteenth-century America understood that popular government needs to make room for dissent and even to privilege it.12 Though necessary, providing ample space for dissent was arduous, they maintained, because “whoever sets up for a Reformer of public Abuses, must expect to encounter innumerable Difficulties,” not least from those who “swim with the Current; [who] believe as others [do], and act, if at all, with the prevailing Majority.”13 Developing a theory of dissentient democracy requires an appreciation not only of the critical role dissent plays in democracy, but also of the myriad obstacles placed before all challenges to the status quo. There is, for a start, the power of social inertia: human life is often demanding, and simply going along with the current arrangements is almost always the easier, more comfortable path. Related to this is our tendency to defer to the status quo, to accept it and even to commend it as tried and therefore true.14 Political deference was especially problematic for the plebeian dissenters of the early American republic, who faced continuing claims that the existing elite had special access to the truth and was the only class capable of being “disinterested,” that is, unbiased. Challenging these norms and notions required a theory of popular government that went well beyond periodic elections, one that was centered on a conceptual space, the democratic public sphere, where public debate over policies and philosophies could inform and transform the views of citizens and policymakers alike. However, such debates could only be genuine—more than mere rituals of assent—if there was an appreciation for the irreducible diversity of political views and a willingness to take up the uncomfortable task of self-examination. This self-reflection is difficult because it unsettles our inclination to see our own perspective as disinterested, and thus not really a perspective, but the objective “truth of the matter.”15 Finally, beyond these theoretical and cultural challenges, dissenting views generally have to contend with a host of serious practical disadvantages structured by the myriad powers of the existing order, which has privileged access to the government, the press, wealth, legal influence, and educational advantages. As we shall see, thinking through all these typical resources of the status quo was the burden placed on the first theorists of dissentient democracy, a burden they shouldered willingly because they saw dissent as essential to the democracy they envisioned.

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Exchanges like these overlook the centrality of dissent to democratic dialogue of all kinds. To be sure, Benhabib’s concerns are well founded. Rhetoric and stories can encourage us—especially in group decisions—to make choices that we later come to realize were misguided, unfair, or irrational. But then again, so can specious rational argument, when it is not chastened by informed, thoroughgoing dissent. We do need rhetoric, storytelling, and appeals to authority in democratic discourse, even though they are sometimes ways of “lying.” As Mark Twain reminds us, there are “lies, damned lies, and statistics.” So even the most rationalized, statistical approach can distort, intentionally or unintentionally, public debate. What matters is the robust dissent that provides multiple perspectives, thus ferreting out ignored aspects, outright manipulations, and spurious conclusions. As we shall see, early Americans intuitively understood this: They effortlessly blended rhetoric, narrative, and reasoned argument, all in the service of dissent. Contemporary political theory, to the contrary, has remained preoccupied with this debate over the proper nature of legitimate democratic discourse, and this fixation has led to two interconnected weaknesses, as the political theorist Simone Chambers has observed. First, the stress on an idealized notion of “reasonable deliberation” has led theorists to focus on carefully controlled settings for democratic talk, which are structured to avoid or at least minimize rhetoric and the distortions of various kinds of power (e.g., economic, social, or cultural power). This has led to copious research on “mini-publics,” such as citizen juries and deliberative polls, and thus has brought about a general retreat from theorizing democracy for mass publics.23 Second, there has been a misunderstanding of what is wrong with rhetoric. To be sure, Young and others have demonstrated that rhetoric can have democratic advantages and that the claim to being “reasonable” is often itself a powerful rhetorical tactic. But this does not address the lingering dangers of rhetoric. The problem posed by rhetoric, Chambers explains, lies not in the style of speech but in the asymmetry between orator and listeners.24 Rhetoric is principally about a single speaker persuading a mass audience; as such, rhetoric does run the risk of manipulative demagoguery. It is the deliberativists’ understandable rejection of the mass politics of the demagogue that has led democratic theory to take “an institutional turn” toward idealized mini-publics.25 But here our focus on the early American republic promises to be instructive for a number of reasons. First, this was the moment when the trajectory was set for so much later American democratic evolution. But it is more than that. The society of the time was at some (very rough) midway point between the face-to-face politics of ancient Athens and the mass democracy of today, in terms of population, inclusiveness,

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Bush administration and, especially, in “the absence of any effective counterframing” by the mass media.32 The problem, Chambers concedes, is that the necessary framing of public information by various media is often aimed at “pleasing elites” and “maintaining the status quo,” among other imperatives.33 But if we are going to counteract the “selective pressure of social inertia,” Habermas observes, we need to make “the structures that actually support the authority of a critically engaged public begin to vibrate.”34 We need dissent. The Paradox of Founding. Dissent is valuable, then, for its tendency to force us to reflect on competing discourses, be they rational or rhetorical, and to assess their validity in a form of deliberation that gives democracy its normative value. But the question of democratic legitimacy goes even deeper than ensuring fair and reasonable terms of debate, as pivotal as that is. In a second, related problem, theorists have explored the inevitably dubious legitimacy of democracy’s moral foundations. At issue here is a logical paradox that gives rise to a kind of vicious circle of justification, or an infinite regress of reasons. The result is often called the “paradox of founding” and it points to an invalid grounding for democracy. “If it takes a legally constituted democratic procedure to bring forth valid fundamental laws,” the legal scholar Frank Michelman explains, “then the (valid) laws that frame this lawmaking event must themselves be the product of a conceptually prior procedural event that was itself framed by (valid) laws that must, as such, have issued in their turn from a still prior (properly) legally constituted event. And so on, it would appear, without end.” Hence the infinite regress. A half century ago, Hannah Arendt captured this problem of legitimacy more bluntly: “Those who get together to constitute a new government are themselves unconstitutional, that is, they have no authority to do what they have set out to achieve.” The contemporary political theorist Bonnie Honig is even more succinct: “The grounds of legitimation are always themselves in need of legitimation, all the way down.”35 We might try to provide some kind of grounding to stop this infinite regress by appeal to some extraneous source of authority: natural law, Divine Will, or perhaps “Nature’s God.” We would be in good company. But this only deflects the question of authority elsewhere. Worse yet, it fails in deflecting it fully, for even these sources would have to be interpreted, and to do so democratically would require the use of procedures or practices that would themselves need to be justified (and so on).36 Similarly, ordinary lawmaking is not immune from this moral failing, contra Arendt,37 since it, too, needs to be interpreted via democratically justified procedures that would establish them as “ordinary” and “laws.”

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the authority of the rebel organizations that had evolved into “committees of safety” and then into state legislatures. Who authorized these usurpations of power? Not those who remained loyal to the British Crown, or those in Vermont, which was not yet a state. And certainly not women or African Americans, either enslaved or free. Indeed, much research has explored those who were silently excluded by the Constitution’s (then-illegitimate) attempt to ground its authority in “We the People.”43 If we think of democracy as “rule by the people,” then who gets excluded from that “people” and who gets to establish those exclusions are monumental questions.44 No less important, but much less noticed, is the question of what it means for a people—however defined—to “rule.” For example, scholars are well aware that propertied women in New Jersey were legally empowered to vote—and did—from 1776 until 1807, when a statute disenfranchised them (in a clear violation of the state constitution).45 What is less well known is that the very definition of citizenship—of what it means to “rule”—was conceptualized broadly and robustly during the 1790s, only to be sharply restricted after 1800.46 Various practices and institutions of a dissentient politics were marginalized, and we are the heirs of that enervated democracy. Today, universal suffrage is broadly understood, but citizenship is narrowly construed. Dissent and Democracy. If current democratic theory has left us with little guidance in thinking deeply about the nature and place of dissent, it is not the case that we are entirely without theoretical assistance. The political theorist Gary Shiffman has recently focused more directly on the important place of a norm of dissensus. “Good democrats,” he maintains, “should realize that the norm of dissensus is a profound achievement, one well worth celebrating.” Yet “deliberation theorists tend to discount the normative quality of dissensus.” In fact, Shiffman demonstrates that in democracies our everyday “normal politics is governed by a norm of dissensus.”47 The distinctive “constitutional politics” of major, fundamental issues, however, puts the “norm of dissensus . . . on shaky ground.” On the basis of a particular interpretation of ancient Athens and of Demosthenes’s speeches in particular, Shiffman argues that constitutional politics unavoidably favors the norm of consensus and, with it, exclusionary invective (since those who do not share our understanding of the very basis of our polity are thus against us, even traitors).48 Shiffman is correct that at the foundation of a properly dissentient democracy lies some consensus about political legitimacy, at least an agreement to disagree. But, I would argue, we must avoid too quickly bracketing the norm of dissensus even when we conceptualize constitutional politics. As we shall see, our radical theorists knew they were in the midst of a constitutional crisis, yet they argued—with imperfect success—against exclusionary language and action.

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But the mention of this storied example of effective public dissent raises an issue that is trickier still and that must be an early focus of this study: force. Central to the story of the Boston Tea Party is the claim that no person was harmed by the public vandals, and property damage to materials—aside from the offending tea—was gladly and promptly recompensed.54 But public demonstrations are rarely this tidy, as the Battle of Seattle in November 1999 reminds us. Many of the (peaceful) demonstrators claimed—nay, chanted at the tops of their lungs—“this is what democracy looks like!” But is it really? When is property damage and even violent harm to citizens, even if incidental and unintended, justifiable as part of legitimate dissent? And what if some property destruction is precisely the point, as it was at the Boston Tea Party? These are difficult issues that we will investigate further in the next chapter, but a few preliminary comments here will serve to focus us on some important issues. We might, for a start, conceptualize dissent along a sliding scale, a kind of democratic continuum we might call the dimension of dissent. At one end are practices that are clearly democratic, but often anemic, such as voting and partisan scutwork. Toward the middle of the continuum we might place some core practices of dissentient democracy, such as petition drives, protest movements, and independent, grass-roots organizing. Exit, separation, and silence would then be toward the other end of the spectrum, by virtue of their sometimes powerful but often undemocratic effects. In this model, the practices of “loyal opposition” parties would be somewhere between voting and petition drives. Ian Shapiro takes the concept of a loyal opposition to be essential to democratic life in part because it stabilizes democracy by focusing attacks on bad officeholders, not on the democratic system itself, or even its foundations or legitimacy.55 This is certainly important, because it allows our everyday forms of dissent—what Shiffman calls “normal politics”—to focus on problematic areas without challenging a basically sound system. But this is also loyal opposition’s weakness. I said at the outset that dissent is more than “opposition” precisely because dissent is not always perfectly loyal. When the problems at hand do directly implicate the very foundations of the system, then the loyalty of the opposition risks taming its oppositional power, rendering it unable to address the core issue of legitimacy. Dissent, on the other hand, must go further, or at least it should contemplate the possibility of going further. To be sure, this is very serious business. The line between spirited political protest and violent disorder is often a murky one, as disparate examples such as the Boston Tea Party and the Battle of Seattle demonstrate; we risk falling off our continuum altogether. But as the political theorist Jennet Kirkpatrick has reminded us, “Uncivil

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And then something had to be put in its place. As we have seen, establishing a government, by recognizing some people as citizens and some procedures as authorized, inevitably involved excluding some people and some practices. When many state legislatures sought to pay off hefty debts with massive, unprecedented tax hikes during the depression following the Revolutionary War, many backcountry people came to see the newly established procedures of representation as illegitimate. Though the discontent was widespread, it was the yeomen of western Massachusetts in 1786 who most clearly opted instead for the political practices validated only a decade earlier: They simply took over the local institutions of government, by force when necessary. Though many of them had been Patriot soldiers only a few years before, they were now labeled “rebels.” They preferred the term “regulators,” because they sought to regulate illegitimate policies. But Boston elites came to see the movement as “Shays’s Rebellion” and moved quickly to put down the insurrection. When local militias simply ignored the call to muster and march against the protesters, a private army had to be formed. This palpable weakness of a state government was in turn an important impetus for the emerging movement for a revised and empowered national government. When that movement culminated with the Philadelphia convention’s proposed, all-new Constitution, America witnessed the “Great Debate” or “Great National Discussion” over ratification.62 As we shall see, this political struggle was far from an open exchange; the opponents of the Constitution, those denigrated as “Anti-Federalists,” were silenced or marginalized in various ways. Since they were defending the existing form of government, we might think of them as advocates of the status quo and thus not really “dissenters” in my sense. But once the convention of luminaries such as George Washington and Benjamin Franklin had issued the new plan, the Anti-Federalists were on the defensive. Mounting the offensive, Alexander Hamilton, James Madison, and John Jay wrote newspaper essays in the pivotal state of New York, writing them independently but signing them all “Publius” after a great founder of the Roman republic. The famed Federalist Papers (1787–88) may have played a minor role in the actual ratification struggle, but they provided—then as now—the most penetrating and insightful defense of America’s “complicated system” of popular government. Once the ratification was achieved, Madison took up the task of proposing a series of amendments that become known as the Bill of Rights, including protections for freedom of speech and of the press. Though he had not previously been an advocate for amendments (partly out of fear that demands for them would derail ratification of the

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it generally drew on the notion that political power should serve the public good (“res publica,” the public thing), rather than the narrow interests of a king or the nobility. This generally implied some greater role for more of the people, but in practice it meant an exalted role for the learned and generally wealthy elite (the so-called natural aristocracy). The yeomen farmers and middling lawyers that made up the bulk of the democratic societies were forced to defend their right to dissent, and they provide—in theory and practice—some early developments in the emergence of dissentient thought. These clubs would not last long, however. When the political marginalization of the western backcountry was exacerbated by one of Hamilton’s new policies, a tax on whiskey, many communities effectively nullified the law by pressuring or simply taking over any local office that might try to enforce it. When violence emerged in western Pennsylvania in 1794, these Regulators were also labeled “rebels.” Soon, Hamilton was marching with a federal army headed west to put down the “Whiskey Rebellion.” Once Washington publicly denounced the democratic societies for encouraging this opposition, they quickly fell out of favor and largely disappeared by 1795. The clubs lasted long enough to participate in the widespread public opposition to the proposed new treaty with Britain, the Jay Treaty. It may well have been the best deal that the American negotiator John Jay could get, but it was decried in popular dissent throughout the summer of 1795. Washington signed the treaty and once again his immense public stature effectively cowed dissent, though this time it would take several months to quiet the furor. What the Federalist administrations proved unable to do, however, was remain unscathed in the middle of the fierce battle between France and Britain. By clearly siding with the British, the Federalists had only invited a hostile response from the French, which arrived in the form of naval skirmishes off the American coast starting in 1797, the undeclared “Quasi-War.” With the country soon on a war footing, President John Adams, having succeeded Washington after a close election against Jefferson in 1796, moved to create a navy, expand the army, and ensure loyalty at home. The latter effort gave rise to a series of draconian measures known as the Alien and Sedition Acts, passed by a Federalist Congress and signed by Adams in the summer of 1798. One of the Alien Acts empowered Adams to deport any foreign national he chose, summarily and without appeal; he never dared use this power. The Sedition Act was aimed instead at keeping citizens in line and included a prohibition on any expression that would bring the president or Congress into disrepute. This authority to censor was used, repeatedly, but only against newspaper editors on the “Democratic-Republican” (that is, Jeffersonian) side. The Sedition Act Crisis and its debate over the legitimacy of

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Cooper perhaps went the furthest, privileging all dissent—even false dissent—in the service of a radical democratic politics. Despite all these efforts, after 1800 dissent was driven down below the calm surface of an ascendant Democratic-Republican party. Even today, dissent remains an undercurrent, surprising us when it bubbles up as a new kind of “Tea Party.” But we should not be surprised. Rather, we should return to this neglected element of our tradition, rediscover the centrality of dissent, and reconsider why, even now, we need to privilege it. Only then can we rethink how we might, following the promising leads of some early radicals, seek to make our democracy more legitimate.

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2 Regulation, Not Rebellion From “Rough Music” to Democratic Disorder

When President George W. Bush sent American troops into Iraq in 2003, he was able to launch and maintain an increasingly unpopular war without serious financial and military problems. A large, professional army stood ready to follow his commands, with other troops in reserve who could be easily called up. The Treasury would not run dry, because most Americans pay their taxes in advance via automatic withholding. And should any soldier, marine, military reservist, or taxpayer refuse to acquiesce in all this, the president could rest assured that an ample police force could arrest the protester, courts would prosecute, and juries would convict. None of this, none of it, could be taken for granted by rulers in early America. And they knew it. Even more important, common people knew that the system relied on their ongoing active support (and not simply their passive acquiescence). As we shall see, in the 1780s and ’90s, militias and other armed troops sometimes simply refused to show up.1 Citizens often quietly dodged and sometimes vociferously refused to pay certain taxes they deemed illegitimate, leaving government coffers dry and political officials’ options few. If officials could get a prosecutor to prosecute and a judge to officiate, grand juries would simply refuse to indict and trial juries would immediately acquit. Nor were these avenues of popular control reserved for extreme moments such as war. Every day and in almost every way, the stability and efficacy of communal life—political, social, economic, and religious—depended completely on the active engagement of all the people. Even simply punishing a known criminal required that numerous average citizens go out of their way to contribute to the political order. Because “the law” usually amounted to a few elected officials—a sheriff and perhaps a deputy or two—apprehending and holding a suspect would require a posse of common citizens to leave their work and track the suspect (their unpaid time away from the field or >>

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theory of elite critics, and conclude with dissent theory. As we shall see, popular disorder was widely understood in early America as legitimate in certain contexts and with certain limitations, all dictated by popular disorder’s evolving connection to the traditions and practices of popular politics. But to appreciate fully this medium of political activity, we need to look at the limitations and often overlooked potentials of eighteenth-century republicanism. Britain’s American colonies and, to a lesser extent, early national America were worlds of political deference. Commoners like yeomen farmers and urban artisans were expected to follow the lead of gentlemen of education, wealth, and standing. Women, children, Native Americans, and African Americans were also expected to take their places in line. Even into the 1790s, the white men who were allowed to vote often did not bother to turn up at the polls and when they did, they generally re-elected incumbent gentlemen for additional terms.4 This world of deference was also a world of dependence, and this often left the common man serving the will of the patrician class. But this dependence could cut both ways. Whereas political deference was traditionally inverted only on Election Day—that annual and then biennial and quadrennial occasion when gentlemen deferred to the preferences of common voters—political dependence was ongoing and more robust than we can now easily appreciate. While early Americans routinely deferred to their “betters,” we shall see that they were more than willing to use this political dependence as a source of considerable and increasingly democratic leverage. Moreover, they knew full well what they were doing. What we today would call “jury nullification,” commoners and gentlemen alike understood as the proper role of the jury. Republican theory and Anglo-American jurisprudence during the eighteenth century often conceptualized the jury as a necessary and intentional check on the judicial function, which was otherwise beyond popular influence.5 The Sugar Act of 1764, for example, officially cut the tax on molasses in half, but it effectively raised the duty from zero because it also included provisions for trial by juryless vice-admiralty courts, thus avoiding the colonial American juries that routinely acquitted known smugglers. Similarly, in all three of these “rebellions,” we shall see communities joining together to acquit their neighbors as part of concerted efforts at “regulation” via popular disorder. These three episodes of insurgency—and the myriad other disorders of the early national period—were part of a struggle by some average people to hold on to the egalitarian potential they saw in the radically populist theories and practices of the Revolutionary era. But they also reflect a struggle by

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“good thing,” as Thomas Jefferson famously observed. Ultimately, then, the line between legitimate popular action and illegal riot was often unclear practically and legally.7 We should note, however, that while popular action could be—and in the War became—a matter of substantive dissent, it grew out of a tradition often used to silence dissent and enforce status quo behavior (such as getting a husband to leave his mistress and return to his wife). Even when movements were focused on challenging the status quo, sometimes the practical political demands of unity and strength in numbers led insurgent movements to quash internal dissent and enforce conformity within its own ranks. Even more importantly, these movements relied on procedural conformity; that is, they carefully followed the routines established for the various kinds of rough music. Indeed, the procedural limits of the established traditions were part of what made these insurgencies political statements, not just thuggery. Thus, eighteenth-century American rioters rarely harmed anyone, instead turning to ritual punishments as dissenting statements that were increasingly symbolic and increasingly about measures rather than men. (To appreciate the novelty of this, one need only recall the contemporaneous interpersonal brutality of the French Revolution.) In the American Revolution, the substantive dissent that was expressed often as popular disorder could occasionally be forcible and even violent. But it was brief. Tyranny, the rebellious colonials pointed out, was generally permanent. So in the run-up to the War, “rioting could be tolerated because it offered an important check on the power of government” and the Patriots’ ideology (and their history) reminded them that the people’s liberty was always threatened by ever-expanding governmental power.8 Drawing on this logic and their inherited tradition, the “people out of doors” in the colonial uprising opposed Crown policies but did so in newly empowering ways. Thus, as early as 1766, a New York crowd added a “court” to their ritualized proceedings. Clearly, they were not just trying to discipline transgressors of community norms; they “also sought to gain power in their community permanently” via a public sphere, the courtroom, where these commoners had generally lost.9 Increasingly, crowds would protest the Stamp Act and other tyrannical policies by marching a coffin labeled “liberty” about the town.10 This ceremony made the obvious objection to “tyrannical” policies, but the march of the symbolic coffin simultaneously mocked and even subverted the funeral parades that gentlemen, but not commoners, would routinely receive. Occasionally, then, procedural nonconformity—inventing new norms of popular disorder—could work with substantive dissent to make a case against the British but also for a nascent democratic equality.

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Carolina, the issue was serious but largely unaddressed official fraud and embezzlement. The South Carolina Regulators were the more successful dissenters, eventually attaining a local justice system and de facto legalization of their earlier vigilante activities, including a general pardon of the Regulators themselves.14 Successful or not, these regulations left a precedent for those in western Massachusetts—and throughout the new nation—who were convinced that their distant state government did not understand, represent, or serve their public good.15 Amid the post-War economic depression, British creditors demanded payment from their now truly foreign American debtors. To meet these demands for hard currency, coastal wholesalers turned to merchants who then turned to the yeomen farmers. These farmers, used to paying in crops on a seasonal basis, were now suddenly asked to pay immediately and in specie. But by this time, three-quarters of the visible money supply was in paper and most of that was in the hands of the coastal elite.16 Then, in early 1786, the Massachusetts General Court (their legislature) made matters worse by passing “the heaviest direct tax in specie ever imposed on the citizens of the Commonwealth.”17 Western farmers took to petitions, county conventions, and, when these methods failed them, to court closings, militia marches, and tense armed standoffs with state officials. The Massachusetts backcountry was hardly alone in all this. “In every region of the country,” the historian Woody Holton has shown, “tax collectors and court officers were attacked.”18 By the end of the year, uprisings of “about one-quarter of the ‘fighting men’ in rural areas had surfaced in every New England state except Rhode Island.” Maryland, South Carolina, New Jersey, Virginia, and Pennsylvania all saw backcountry resistance to tax collection and other elite policies that enriched speculators at the cost to average farmers. Other states, the historian David Szatmary observes, “avoided trouble by issuing paper money.” But much of this resistance was short-lived; in nearby Connecticut and New Hampshire the resistance movement was near the coasts, where gentlemen rulers were able to call up local militias for a show of force.19 In inland Massachusetts, however, the Bay State elite were horrified to find that the area’s militiamen simply refused to muster. By February 1787, however, coastal merchants had put together their own army to march toward Springfield to hunt the “rebels.” Meanwhile the legislature passed the Disqualifying Act, which disenfranchised known Regulators and disqualified them from public office including jury work. Daniel Shays and other leaders went into hiding, but many Shaysites were radicalized by the government’s harsh response, and they took to attacking inland

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Elite Theory. In light of their inherited customs, novel ideologies, and, especially, recent experience in the Revolution, the Massachusetts backcountry townsmen understood their use of popular disorder as legitimate. Patrician theorists saw things quite differently. After the Revolution, the historian Alan Taylor explains, “Gentlemen could insist that at one annual event— election day—the distinction between rulers and the ruled dissolved and that until the next election this moment invested rulers with the full power of popular sovereignty.”23 This was, for them, the very core of a constitutional, representative system. Figures as diverse as Thomas Paine and John Adams could agree that insurrections might be legitimate against monarchies, but only very rarely, if ever, against representative governments.24 Accordingly, elite thinkers saw the Shaysites as counterrevolutionaries, because they resisted the very governments the Revolution had established. This claim drew on the ancient republican concern that anarchy would bring tyranny and then a return to monarchy. The popular poem The Anarchiad (playing on Swift’s Dunciad) made this point in memorable satire. With this and other assertions of plebeian anarchy, the so-called friends of government kept the “Revolutionary” label for themselves by calling their opponents “rebels.”25 Vigilance was an important but disputed concept in these competing approaches to the place of political dissent in these new democratic governments. Whereas the so-called friends of liberty represented the commoners and stressed the need for citizen vigilance bordering on distrust, the elite friends of government argued that real liberty came to good (that is, deferential) subjects. “Bostonian” defended the Massachusetts government by insisting that there’s “a wide difference between manly jealousy and mean suspicion.”26 Another critic of the uprising argued that “jealousy, or rather circumspection, to a certain degree, is a political virtue; but carried to excess, [it] defeats its own views.” Accordingly, such circumspection must be strictly limited, or it risks overcoming the confidence we put in our governments; the people’s duty is to obey, even at the risk that the government is wrong.27 “Another Citizen” also argued that opposition tends to destroy government. Annual elections, he insisted, were sufficient popular input into government. Regular town meetings were certainly legitimate, but any popular organization beyond that was treason. In these claims, this pseudonymous author captured the tenor and views of many friends of government. But he also went further to address the Regulators’ claim that dissent via county conventions was legitimate, not least because of its successful and accepted use against the British. This, “Another Citizen” conceded, was true, but the ratification of the Massachusetts Constitution changed everything, making county conventions unconstitutional and popular disorder, such as court

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A doctor from Great Barrington, Massachusetts, named William Whiting provides us with the most detailed analysis of the emerging theory of democratic dissent occasioned by the Massachusetts Regulation. Whiting had been a prominent and active supporter of the Revolutionary cause who took popular sovereignty seriously but also sought to protect the rule of law. As the chief justice of Berkshire County and a former member of Theodore Sedgwick’s conservative circle, Whiting in 1786 was not ambitious for a prominent role in the resistance; indeed, he was the only judge who dared to officiate during the court closings. But as a judicial official who came to share some of the views of the protesters, he soon found himself with a good deal of explaining to do. He did that explaining in an essay, “Some Brief Remarks on the Present State of Publick Affairs,” which, though never published, was handed around and read by (or to) leaders of the insurgency. Tellingly, Whiting wrote as “Gracchus,” a reference to the ancient Roman tribune who had pushed for land reform and had defended small farmers against the schemes of the wealthy. Whiting stressed that the people should have been more active earlier, instructing and actually sending their representatives to Boston rather than passively waiting and then hastily closing down courts. But the state Constitution “solemnly declared,” he pointed out, that “all Power is originally Vested in the people and is derived from them” and that all officers “are no other than their Substitutes and agents, and are at all times accountable to them.”35 The issue was what that constitutional provision actually entailed. Whiting read it in light of the radically populist ideology he shared with many in the new nation’s backcountry. “It is the indispensable duty of the People at large in all free republican governments to watch and guard their Liberties, and to crush the very first appearance of incroachments” upon them. And the problem was not, as the friends of government would claim, that the people have tended to rashly “disturb the government”; rather, “they have been universally too remiss in watching and guarding their Liberties.” There are everywhere ambitious men trying to enslave the people, Whiting maintained. “Therefore whenever any incroachments are making either upon the liberties or properties of the people, if redress cannot be had without, it is Virtue in them to disturb the government.”36 Again, Whiting would have preferred that his fellow westerners had been more diligent in electing, instructing, and sending proper representatives. But in his view, the people had an ongoing right to choose how they exercised their sovereign will. Since your “Substitutes and agents” have done wrong, Whiting maintained, “and in that Case your bill of Rights, Expressly makes them accountable to you, and as no particular mode is pointed out

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petitions was clearly justified by the Massachusetts Constitution. And while the use of conventions was critically important in organizing the movement against Britain, much of the later public debate turned on whether one thought that the threat of governmental oppression was gone forever or naturally recurring. Conclusion. To be fair, the Shaysite county conventions consisted of delegates elected by proper town meetings and they did work to articulate the depth and breadth of backcountry problems. But as organizing tools, they really went no further. The Hatfield Convention Address of January 1787 optimistically claimed that “the majority ought ever to rule the minority, therefore there is a ready method to settle all our divisions, discords and animosities, which are prevalent among us.” Accordingly, the people ought to put down their arms and instead “exert their abilities to come into some uniform method to unite in our petitions to the Legislature.” But the Address never suggests what that method of redress should be or why the politically disadvantaged backcountry residents should have any confidence of success. But if the Massachusetts Regulation of 1786–87 did not clarify the place of popular disorder—and dissent more generally—in a democratic regime, there were a few practical successes for the Shaysites. While the leaders were all disenfranchised and many were imprisoned or had escaped into exile, the spring 1787 election saw people swamp the polls, almost doubling the previous turnout record. That western returns were starkly higher than in their anemic 1786 turnout is not surprising, nor is the election of some accused Regulators. But moderates throughout the Bay State saw the government’s repression, not the Regulators’ limited violence, as the real threat, and they, too, played a role in voting out the old order in the so-called revolution of 1787. Reverend Bezaleel Howard, a Harvard graduate from Springfield, surveyed the state returns and said that Governor Bowdoin “made himself Quit[e] obnoxious [to] the Majority of the People” by the Disqualifying Act, the Riot Act, and the suspension of habeas corpus. Governor Hancock and the new General Court dropped direct taxes to 10 percent of what they had been.41 Yet most of the Regulators’ demands were constitutional, not merely economic. And on that front, the westerners were soundly defeated: the Senate was not abolished, representation was left unbalanced, and the capital stayed in Boston. More significantly for us, the place of dissent and disorder in a democratic republic had been broached but not resolved; rather, for many friends of government, it had been resolved in the negative. Patrician concerns heightened by “Shays’s Rebellion” acted as a catalyst for the expanding nationalist movement that achieved constitutional ratification. And “as the

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foreclosed exceeded the number that had ever fought in the army. In an era analogous to the Great Depression, one-fifth of those in foreclosure had no assets left to sell.45 Like the Shaysites, Pennsylvania settlers made efforts at structural political reform, but they found that effective political organizing was all but impossible in a time with rudimentary communications and an ideology that considered institutionalized political parties to be dangerous “factions.” (As we shall see in chapter 4, the political clubs called “democratic societies” were also seen, at least by the friends of government, as partisan and dangerous.) Precedents and Protests. Shortly after the War, with specie scarce but taxes rising, the farming communities of western Pennsylvania organized locally to protect neighbors who could not pay their taxes. (Private debts were still honored and adjudicated communally.) As the historian Terry Bouton has recently revealed, there were multiple layers of protection. County tax officials would drag their feet; when eastern elites sued them to perform, the local justice of the peace might fail to proceed with the lawsuit. Juries would then acquit insubordinate tax officials if the suit made it to trial; finally, constables could simply refuse to foreclose the subject’s property (and constables were generally so poor that suing them was pointless). Moreover, even foreclosed property requires potential buyers to bid at auction, so the locals would form “no-bid” associations, agreeing not to bid themselves and threatening anyone who would. This is where the continuing tradition of “rough music” came in, for “many Pennsylvanians believed that violence could be consistent with democracy—primarily when it was used to fight oppression.”46 Finally, if the militia were called out to establish order and thus enable the auctions, militiamen would simply refuse to muster in any crisis that seemed a matter of elite self-interest rather than the public good. These various means of protest make it clear that, as Bouton puts it, “ordinary people believed that they had the right to interpret laws and decide what was legal under the 1776 constitution and what was unconstitutional.” Eventually, however, even this concerted system proved insufficient. By the early 1790s, wealthy outsiders would bring wagons into town to make a killing at foreclosure auctions. To avoid this fate, the farmers of western Pennsylvania had one last resort: close the road into town. Ditches were dug, logs piled up, bridges destroyed—they did whatever it took to save their neighbors’ farms. This sometimes worked, but we should note the cost: these settlers were closing out auction wagons, yes, but also newspapers and the mail service. Earlier efforts at organizing for political reform had been so ineffectual that they chose instead to cut themselves off.47

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manner, but rather looted, gutted, and burned Neville’s opulent estate; Neville and his men escaped unharmed. But if they did not break with tradition to seek bloody vengeance, the insurgents did modify established practices to signal their democratic intent: whereas militias were conventionally led by officers, these militias had no officers, and whereas rallies normally assented to their leaders’ declarations without debate, these towns voted on the details of what their liberty poles and flags should say.49 Here then, we see an early inkling of popular disorder being transformed into democratic disorder, that is, a forcible attempt to bring about a more democratic order when all other peaceful avenues are ineffective. Elite Theory. The friends of government, of course, did not see it that way. The Federalist prosecutor and future Supreme Court Chief Justice John Marshall saw the crisis as the single most serious challenge to the early republic. Federalists in even more prominent positions agreed. Treasury Secretary Alexander Hamilton and President George Washington saw the resistance as a serious threat and a chance to demonstrate federal power. They both marched west with a massive army of (eastern) militiamen; once there, they found nothing, because things had settled down and virtually all the resisters had signed pledges of allegiance.50 Leaders were not offered amnesty and therefore they all fled or hid. In the end, the government could only secure two convictions for treason, even with the huge advantage of Philadelphia courts (with their unsympathetic Philadelphia juries). These two men had little to do with the uprising and Washington pardoned them both as mentally incompetent.51 The Federalists’ theory justifying these strenuous actions was novel in its focus on the authority of the national government rather than the states. But it also relied on established republican concerns about individual liberty and faith in social hierarchy. The insurgents, then, had misunderstood the new republican form of government. Free government “must be preserved from contamination by the virtue and vigilance of the people in their elections— and in this way alone,” William Maclay wrote in his private journal. After elections, people must have “a strict and perpetual obedience.” Responding to news that Pittsburgh protesters had agreed to keep petitioning and use “every other legal measure that may obstruct the operation of the law,” Hamilton replied that it is not legal to oppose a valid law; it is a “contradiction in terms.”52 Presumably this was what one mob of “the better sort” had in mind when they tarred, feathered, and paraded a “Whiskey rebel” out of town for damning Congress and cheering “God Save the King”; certainly one witness approved of this instance of pro-government popular disorder because it “wholly silenced the clamors of the malcontents.”53

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“the genius of the people will ill brook the inquisitive and peremptory spirit of excise laws.” Anti-Federalists had not been so sanguine and had argued that the federal government would expand its powers to include excises. Against this claim, the prominent Pennsylvania Federalist James Wilson had insisted that import taxes would be a sufficient source of revenue and that excise taxes were thus unnecessary.58 But the insurgents were resisting a good deal more than merely the tax itself. In fact, even the opposition to the tax was more a matter of concern that the tax proceeds would strengthen the hands of government (and its elite cronies) at the cost to the people’s liberty. And they were right to be concerned about the ongoing double standard: while one whiskey excise was replacing another, Philadelphia’s well-connected wealthy were making inside deals on public lands and giving themselves tax breaks. For example, in 1791, the Pennsylvania government granted speculators their sixth consecutive extension for failing to pay their taxes. On the federal level, Alexander Hamilton, as Treasury Secretary, was going easy on merchants while he was in the process of cracking down on western farmers. Echoing critics of the pre-Revolutionary Stamp Act, objectors to the whiskey excise pointed out the risk that the collection officers would be corrupted into agents of governmental power.59 In the words of one insurgent, “It is not the excise law only that must go down, [but] your high offices and salaries. A great deal more is to be done; I am but beginning yet.”60 As the protests expanded practically and ideologically in 1792 and afterward, a number of prominent local moderates were drawn into the conflict by the hardening of positions and narrowing of options: They could either join the cause and hope to play some moderating role as a leader or be lumped with the government men and lose all influence (then and probably in the future). Prominent western figures such as Hugh Henry Brackenridge, Albert Gallatin, and William Findley were all, to varying degrees, drawn into the movement in this way, and each later felt the need to publish a justification of his own behavior. Their accounts in turn give us a sense of the emerging notions of justifiable dissent. Brackenridge, for example, told one crowd that the protest and ensuing violence at Neville’s house (the burning of his buildings after the death of two protesters) “might be morally right but it was legally wrong”; indeed, he thought it amounted to treason.61 What was legal as well as moral, according to Brackenridge, was a communal agreement to shun excise officers and passively resist the tax. He had been elected as a delegate to the Pittsburgh convention of August 21, 1792, but he declined to serve. Without him, the meeting resolved that if any local men accepted the office of collector, all assembled would

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government [tyrannical],” as, in Gallatin’s view, Massachusetts had become since that time.66 Given his concern for avoiding extra-legality, Gallatin played a significant leadership role in persuading the insurgents to submit in September 1794. As the author of Fayette County’s convention Declaration, he admonished the people by declaring that “resistance by force against oppression is lawful only when no legal and constitutional remedy is within the reach of the people, and when the evils arising from the oppression are excessive, when they far surpass those that must ensue from the resistance.” Moreover, Gallatin claimed that “every mode of redress which can exist under a republican form of government is still open to you.” Many insurgents probably disagreed, so he continued by arguing that more expensive whiskey was not an oppression significant enough to justify a minority of the people of the nation (the western Pennsylvanians) to resist the majority.67 Submitting this Declaration to Pennsylvania Governor Thomas Mifflin, Gallatin stressed that there had been a large majority in favor of submission to the government. Conceding that there had been some hotheads who left the meeting without signing, he noted that this was not an indication of ongoing resistance, but rather simply proof of human pride. Many who had come to state their resistance, he said, “were convinced by the arguments made use of, though their pride would not suffer them to make a public retraction on the moment, and they went off without giving any vote.”68 Gallatin’s belief in the importance of dialogue was similarly evident in his major treatment of the issue of legitimate dissent in his speech of October 1794. He stressed that the “circulation of opinions” was necessary for the “constitutional privilege” of assembly, remonstrance, discussion, and publication. In a defense of free speech that was also a rejoinder to the views of Hamilton and other Federalists, Gallatin said that “we must distinguish between a publication and acting.” “Whether the opinion be right or wrong, as long as it is only an opinion, everybody has a right to express it.” With this in mind, none of the many declarations, petitions, and remonstrances were illegal. His only “political sin,” as we have seen, was resolving with others to try to undermine the execution of the laws. Gallatin also noted, as had Brackenridge, that “despotic governments” can use crises like this one to increase their power; but he was sure that “such mean and wicked policy is beneath the free governments of America.”69 Attacking how the law had been enforced, Gallatin agreed with many westerners that dragging defendants all the way to Philadelphia for trial was an attack on public liberty and a break with established norms. “Our security depends no more on the independence of our judges than on the impartiality of the popular branch of our courts of justice,—of the juries.” Such juries

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Given this history and these ongoing concerns, settlers must be allowed to meet and publish their resolves, just as had been done against the British in the War; in this vein, Findley pointed out that many gentlemen had joined such movements during the War. So the backcountry conventions must be allowed to meet “without the imputation of combining against the government. Their characters indeed are responsible to public opinion for the indiscreet use of that right, and their persons and property to the laws for the infractions committed on them.”74 Nonviolent protests were legal and sometimes necessary for Findley because Pennsylvania, especially, was a diverse state and thus more susceptible to crafty politicians. “The greatest dangers to republican governments arise” not from popular disorder but “from combinations and political finesse” of “refined politicians.”75 Sounding a radical republican mantra, he went on to stress that government was intended solely for the people’s happiness and security. But Findley went further to insist on a natural right of popular control of government, a right that existed even if the 1790 state constitution, unlike the radical 1776 charter, did not expressly declare it: “The power of altering or amending governments is expressly declared to be in the people, who are judges of their own happiness, by some constitutions. It is, however, radically in them, whether expressed in a written instrument or not.”76 Nevertheless, Findley argued that the more extreme protesters had gone too far and led the people astray. Everything that has a tendency to agitate the public mind to an unusual degree, ought to be avoided, because when the mind is highly agitated with respect to public measures it is too much disturbed to judge deliberately, and is predisposed to act without discretion. The public mind may be agitated by those who cannot direct or control its exertions. We are under a moral obligation to respect government, not only as a divine ordinance, but also as a moral compact, binding the people to one another for its support.

Thus, opposition to laws such as stamp or tea acts—or whiskey excises—can be moral yet imprudent.77 Despite this tactical moderation, Findley went further than anyone else in theorizing the importance of dissent and even popular disorder. At one point in his History, he suggests that the Shaysites’ insurgency was an understandable response to speculators’ inside deals. “The [Massachusetts] legislature removed the causes of complaint after the opposition was subdued, and the insurgents were treated with leniency. The conduct of that state on this

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and numerous other leaders had been Federalists, at least until the QuasiWar with France and the Sedition Act Crisis in 1798, and they had marched against the Whiskey Boys in 1794. What, then, could turn Federalists and government army troops into insurgents? The very serious economic depression of the post-War years continued, as did the awareness that heavy taxes were rewarding speculators. For example, concerned that the rich were manipulating government for their own benefit, the militias of southeastern Pennsylvania in the late 1780s simply refused to march against the settlers in the Wyoming Valley, where rival land-speculation companies were competing for control.80 Thus, when the new “Direct Tax” was instituted a decade later to pay for the Quasi-War with France, the people of southeastern Pennsylvania again simply refused. The new tax was laid directly on the people’s homes, something the federal government had never before dared to do. While consumption taxes can be avoided by abstaining from the luxury item taxed, and even excises could be avoided if you could somehow shun distilling whiskey, the Direct Tax applied to anyone who had built a home. More important, if the federal government was prepared to usurp this authority—which had previously been the sole purview of the local or state government—then there seemed to be no clear limits on its powers. And for the resisters, more taxes during hard times could eventually mean no taxable wealth would be left, and thus the end of the right to vote. Economic concerns blended in with political principles. In addition to a new standing army—a traditional tool of governmental power and threat to the people’s liberty—there was the long-standing concern that tax bureaucracies brought patronage and thus corruption.81 These political concerns are perhaps best seen in one liberty pole’s sign: “The Constitution Sacred, No Gagg Laws, Liberty or Death.”82 The intrusive new tax was the triggering issue, but the regulators of 1799 had bigger concerns that in fact centered on democratic politics. Precedents and Protests. While the traditions of popular disorder, as we have seen, involved liberty poles among much else, the liberty pole is an apt emblem for the 1799 Regulation. In an age when gentlemen still occasionally resolved their differences with loaded pistols, the absence of violence in this movement—even the traditional symbolic violence of someone being burned or hanged in effigy—marks an important moment in the development from popular to democratic disorder. Admittedly, insurgents did threaten violence as part of ritualized protests (and their wives took to pouring hot water on snooping tax assessors, hence the derisive name the “Hot Water War”). The major event of the whole insurgency came when a militia forced the release of a number of jailed tax resisters. At an earlier rally, a

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conclude the new protests were a rebellion. What is noteworthy, however, is how quickly the leaders of the other nascent political party, the DemocraticRepublicans, moved to distance themselves from the resisters. Having been tarred with the same brush as the democratic societies after the 1794 Regulation, Democratic-Republicans like Thomas Jefferson sought to rein in radically democratic ideas or practices. “Insurrection would check the progress of public opinion” toward nullification of the Alien and Sedition Acts, and turn opinion toward government. “But keep away all show of force,” Jefferson wrote to Edmund Pendleton, and the people would “bear down on the evil propensities of the government, by the constitutional means of election and petition.”88 Federalists, though, again had more principled reasons for criticizing popular dissent in Pennsylvania or elsewhere. For example, when the Freeholders of Prince Edward County in Virginia had the audacity to send their resolutions to President Adams, declaring that the Alien and Sedition Acts deserved their “bitterest censure” and that it was “highly criminal to infringe” the Constitution, Secretary of State Thomas Pickering responded, asking, “Do not such declarations tend to excite disobedience to the laws? hatred to the government? insurrection and revolt?”89 In a time of war, “quasi” or declared, many Federalists could not abide any dissent—hence the Sedition Act’s ban on criticism of government—especially not democratic disorder. When President Adams pardoned Fries and two other leaders who had been convicted of treason, many Federalists, including Hamilton and Pickering, broke with him, thinking his behavior flatly “inexplicable.”90 But the real irony was that the Federalist fear of insurrection led them to these sorts of draconian laws, which in turn only increased the Democratic-Republican opposition and the Pennsylvania insurgency.91 Fries and his fellow Federalist “rebels” became Democratic-Republicans and, much more broadly, the Federalists lost the electoral “Revolution of 1800.” Dissent Theory. The Quasi-War with France and the Sedition Act Crisis of 1798–1800, the historian Robert Churchill observes, “brought into full focus the question that was central to debates over the meaning of the Revolution: whether the people might resist oppressive acts undertaken by a government of their own creation.”92 More to the point, we might ask, how—through which procedures and with which limits—can they resist their own elected government? The Federalist theory was that all citizens should have confidence in the chosen government and wait until the next election. Many moderate opponents of the government saw the need to “pursue the constitutional mode of protecting [the Constitution], which is by convening together in either township or county meetings,

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Resolutions makes it clear he was trying to preclude popular nullification: “The constitutional form of action for this commonwealth as a party with respect to any other party is by its organised powers & not by its citizens in a body.”95 He went on to strike out this passage, probably because it was obvious enough (at the time) what he was doing in placing the nexus of constitutional resistance in the state governments. For if we look beyond the framers to the farmers, we find that state nullification was a middle way between federal supremacy and the more radical option of popular nullification.96 Taking popular sovereignty as being more fundamental than state sovereignty, the radical democrats that informed the context in which Fries and his fellow resisters would act insisted that the people could legitimately declare unconstitutional acts “null,” void, and of no effect. Accordingly, they did not simply refuse to follow such laws or even to agree quietly to resist together. Rather, they publicly declared their reasons for nullifying these acts, and they did so in precisely the form that Jefferson rejected: as “citizens in a body.” These citizen resolves, then, routinely explained the logic behind the unconstitutional nature of the nullified acts, primarily the Alien and Sedition Acts. The citizens of Richmond, Virginia, addressed their representative in Congress, conceding that fairly elected legislative majorities can usually be trusted, but also stressing that history showed that legislative majorities have occasionally given up constituents’ rights. “Our confidence in legislative majorities, should therefore be qualified and restrained,” they maintained. And we should note the language here: while Virginians had every reason to expect that their assembly would protest these laws, Richmond’s citizens did not scruple to assert that their confidence in “legislative majorities” in general was qualified. But these citizens were not interested in depending on legislatures to declare laws unconstitutional: Acts that violate our chartered rights have no binding force, and are not entitled to the respect or obedience of the people; and where they must choose between an obedience to measures adopted by their own servants, and an adherence to the constitution, it must not be doubted, but that they will cling to the constitution as the rock of their political salvation:—Nor is the legislature to be the judge when that constitution is infringed. The people are the dread tribunal.

For, if the legislature was the final word, “it would secure to political crimes, political impunity, and put redress out of the reach of the people,” who must

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Essex County, Virginia’s “Memorial” conceded that citizens must obey constitutional laws, “however oppressive” until the general voice of the nation shall concur in requiring its repeal. But when laws are made contrary, both to the spirit and letter of the constitution, your memorialists are of opinion, that such laws encroach on the sovereignty of the people and are in their nature void, that the authority which enacts such laws is self-created, and unconstituted, and that every attempt to execute them is tyranny.

This “Memorial” not only suggested that the federal government was being tyrannical, but also actually explored the way the heavy-handed Sedition Act chilled (to use our modern legal language) speech that was essential to democratic self-government: By our federal and state constitutions, our public servants are amenable to us. We ought, therefore, to know everything respecting their conduct. Every man ought to state his opinion, whether that opinion be right or wrong. Every man ought to be the judge of the truth or falsehood of what he himself writes or speaks. But will not a man hesitate in delivering his opinion, when he does not know but that a state of prosecution is hanging over his head? Will not truth itself be frequently punished by this law?102

While this can fairly be described as a theory of democratic disorder, the “Memorial” does not go quite so far as to explain that popular nullification was legitimate, or especially legitimate, because other democratic avenues of redress had been closed off. Conclusion. This more nuanced argument about the place of democratic dissent in a constitutional, representative system would have to await the more sophisticated and further elaborated theories of James Madison, Tunis Wortman, William Manning, and Thomas Cooper. But the claim that the federal government was no longer democratic, and thus no longer worthy of obedience, was starkly made by residents of Washington County, Pennsylvania. Its “Remonstrance” addresses Congress not in the usual obsequious manner but spoke with respect only “because [the congressmen] represent the majesty of the whole people of the United States.” The traditional tone of deference was equally lacking in the closing. In between, these citizens publicly and pointedly asked, “Why should [the people] give [the name “republican,”] the most nominally free, to the most actually slavish form of government”? But they would not bother withholding the label. “It matters but little

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political principle. It was part of a broader movement that sought to justify the notion of popular nullification as a more democratic instrument than mere representation. But that movement was unsuccessful, neither achieving its immediate goals nor establishing forcible dissent’s legitimacy. This was ultimately the moment in which even democratic disorder came to be seen as mere disorder. To recover the undercurrent of our tradition that is more open to dissent, we need to begin by returning to the theoretical struggles that emerged in the wake of the Massachusetts Regulation, the “great debate” over the Constitution.

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3 “Secret Plodders” Anti-Federalism, Anonymity, and the Struggle for Democratic Dissent

How dare they? It was bad enough, some Pennsylvania Anti-Federalists thought, that the eastern aristocrats in Philadelphia had managed to hoodwink and corral enough votes to force the proposed new Constitution through the hastily called state ratification convention.1 But then, on December 26, 1787, in the Anti-Federalist stronghold of Carlisle, Pennsylvania, the local Federalists went about celebrating the news of ratification publicly, practically rubbing it in the faces of backcountry democrats and refusing to halt the celebratory cannon fire. It was just too much, so a number of “anticonstitutionalists” set upon the Federalists, beating them with barrel staves and quickly dispersing the gathering. Undeterred, Carlisle’s Federalist minority came out the next day and— better armed—held a noontime demonstration and retired to a tavern for the usual scripted toasts, such as those to General Washington and, now, to the Constitution. The Anti-Federalists, in turn, held a counterdemonstration, parading through town and mocking effigies of the prominent Pennsylvania Federalists Thomas McKean and James Wilson. In keeping with the longstanding tradition of “rough music,” the effigies were treated in the manner of mere common criminals: whipped, tried, and executed (for effigies, via burning). As the historian Saul Cornell explains, “By their actions, the rioters explicitly rejected Federalist pleas for deference to society’s natural aristocrats.”2 While we might try to make a strict separation between speech and action, many early Americans were more likely to see them on a continuum. Thus, the ritual execution of “James Wilson the Caledonian” was followed a couple of months later by a satirical exchange in a purported letter between the Massachusetts Federalist James Bowdoin and “James de Caledonia.” Here again, Wilson was mocked for alleged aristocratic pretensions (as well as his Scottish origins).3 >>

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that moment liberty is at an end. I admit, sir, that if the ferment rises to an extreme it is an evil; but as it originates from a blessing, those who wish to preserve their freedom must bear with its inconveniences.”7 Even the backcountry’s favorite Anti-Federalist author, the widely reprinted Centinel [Samuel Bryan], was a tireless proponent of the view that democracy required opposing viewpoints, especially when plebeian voices questioned the elite. He even defended a brief period of anarchy as a price worth paying for rejection of the Constitution in an article published only three weeks after the Carlisle riot.8 Yet a few weeks later Centinel also lamented the practical, political implication of the disorders of the Massachusetts Regulation (Shays’s Rebellion): they had led even right-minded people to support the Constitution.9 These various conceptual tensions are indicative of the difficulties of the founding generation’s unprecedented effort to theorize the place of dissent in democracy. This would be a decades-long process and one never completely embraced by mainstream American thinkers. But the Anti-Federalist movement was a critical turning point, because it reflected the first sustained effort to conceptualize and practice a democratic dissent. In the end, the ratification crisis and the “Great Debate” it engendered would broach but not resolve many of the significant issues raised by those seeking to give dissent pride of place in democratic theory. For starters, there was the very real question of whether dissent should be rejected as a kind of treason. And if it was to be allowed, should anonymous dissent be permitted despite the mask it provides to prejudice and self-interest? Or should it be encouraged, in order to neutralize the overawing “authority of names” like Washington? On a more practical level, the dynamics of dissent were yet to be seriously explored, especially the power of those who controlled the terms of debate or the various institutions of discourse (most important, the press and the post office). Ultimately, there was the more conceptual, epistemological question of the nature of truth: was the truth revealed by discourse or created by it? Or, as Another of the People claimed, was truth merely sullied by dissent? Amid other fundamental issues raised in the ratification debates, early Americans wrestled with these questions, drawing on episodic colonial efforts to answer them. The proper role of popular disorder—even violence— was always in the background, but it largely stayed there. As even Centinel admitted, the regulation in western Massachusetts had colored the ratification debate. The riot in Carlisle had been preceded by a Federalist mob’s intimidation of Anti-Federalist convention delegates in Philadelphia, but, in fact, violence was rare.10 As we shall see, Philadelphiensis captured much of the most insightful Anti-Federalist thinking, and while he felt that an avid

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and education but did no more than hint at his age and dismissed the other “senseless questions.” What’s more, from that first issue on, the Courant complained that local notables expected the traditional deference to their views, based solely on their presumed authority, “on the Merits of their Characters, and for no other reason.” When this view and the critiques it encouraged began to annoy and even pressure the local elite, James Franklin, the printer, was banned from printing without a license. To skirt this limitation, James’s sixteen-year-old brother, Benjamin, became the official printer of the Courant, and the contributing authors continued to aim their barbs at Boston’s grandees. These contributors reintroduced the paper but again refused to provide their names: “Nor will it be of any Manner of Advantage either to [the readers] or to the Writers, that their Names should be published.”15 Their refusal thus drew on one of the most prominent justifications for anonymity: The writer’s argument was what mattered, not his social position. When young Benjamin soon after ran away to Philadelphia, he took this dissenting logic (and his publishing talent) with him. Drawing attention to the arguments was not the only reason dissenters often chose to keep their names secret; unknown authors avoided punishment, even though known printers did not. Accordingly, the ministerial efforts to quash dissent during the political controversies of the 1760s put a premium on nonattributed writing. But the culture of anonymity also expanded alongside heightened concerns about accurate information and hidden enemies. As the historian John Howe observes, “Forgeries and false information were . . . commonplace.”16 Loyalists knowingly published misinformation to harm the Patriot cause. And fraudulent information could have a powerful influence, especially in a rapidly changing context where sources were few and transmission slow. Throughout the eighteenth century, then, the necessity of relying on newspapers for accurate information would continue, despite concerns about unreliable information.17 Even in the modern world, where we repeat the mantra “don’t believe everything you read,” we often do believe what we read, because we have to, at least to some extent. We may have a plethora of possible sources and instant access, but we still often lack the time to check the veracity of any claim, much less every “fact.” Even more than us, however, our early American forbears needed information they could trust, and this led to reasonable concerns about nonattributed writing. Nevertheless, a culture of anonymity flourished, not least because avoiding real names worked. For example, in 1768, Joseph Warren was doubly protected; he could hide behind his pseudonym, A True Patriot, but he hardly needed to. Because his full-throated condemnation of the Massachusetts governor avoided using the official’s name, the state

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As we have seen, one of anonymity’s oft-claimed virtues was its tendency to focus the reader on the author’s argument, rather than on his (unknown) name and social standing. “Who the Author of this Production is, is wholly unnecessary to the Public, as the Object for Attention is the doctrine itself, not the man,” Paine conventionally declared. “Yet it may not be unnecessary to say, That he is unconnected with any Party, and under no sort of Influence public or private, but the influence of reason and principle.”20 So even here, in the postscript added to the introduction in the third edition, we begin to see the ambivalence in early American notions regarding nonattributed dissent. A writer’s identity should not matter, but practical reality often raised concerns of self-interested and even fraudulent authors. Paine’s “Forester” letters, defending Common Sense from critiques by Cato [William Smith], make this tension clear, even in the opening lines of the series: “To be nobly wrong is more manly than to be meanly right. Only let the error be disinterested—let it wear not the mask, but the mark of principle, and ’tis pardonable. It is on this large and liberal ground, that we distinguish between men and their tenets.” The errors of well-meaning authors should be corrected and forgiven. Cato, however, does not deserve the “benefit of the distinction” according to Paine, and so the letter attacks this presumed Tory as well as his arguments. Paine’s logic here is suggested later in the letter when he commends the exposure of a different letter in another newspaper as being from a Tory, “which it was the duty of every good man to detect, because the honesty of the press is as great an object to society as the freedom of it.”21 Some uses of anonymity were justifiable, while others were suspect. As we have noted, generally accurate and widely available information is essential to popular participation and was especially important in the context of Revolutionary America. But Paine’s apparent contradiction here was too obvious to go unnoticed. When Cato quoted Common Sense’s prefatory remarks back to Paine, he was forced to explain himself in “Forester II”: “ ‘the object for attention is the doctrine itself not the man;’ that is, not the rank or condition of the man.” Whether he had already, or not yet, made his fortune is no matter. “But the political characters, political dependencies, and political connections of men, being of a public nature, differ exceedingly from the circumstances of private life.” Paine, then, was calling for attribution, because the lack of any information about the author might lead the reader to mistake “plausibility for principle. Could the wolf bleat like the lamb, the flock would soon be enticed into ruin; wherefore to prevent the mischief, he ought to be seen as well as heard.”22 In Paine’s efforts to explain himself, to backtrack and qualify—indeed, to explore the existing conceptualization of nonattributed dissent—we see the

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had done little to resolve how one determines which divisions were selfish. But he had, much more than most Americans in 1787, a faith in the power of salutary, even fiery, “collisions of opinion.” Soon his countrymen would sorely need that faith. Anti-Federalists and the Practical Silencing of Dissent The very first newspaper critique of the proposed Constitution conceded that it was a “well-wrought piece of stuff ” that deserved a quick and unanimous ratification; the anonymous author then “submitted with diffidence” some criticisms on “inferior” matters. Despite this mildness, a reply two days later accused this “anonymous scribbler” and “mock-patriot” of trying to “sow dissensions among the weak, the credulous, and the ignorant,” and signed the harangue by noting that “an incensed people  .  .  . perhaps may honor him with a coat of TAR and FEATHERS.” When “Fair Play” admonished him in the next day’s papers for threatening violence, “Tar and Feathers” soon admitted that force did not win converts but pointed out “we [tar and feathers] have frequently during the Revolution terrified the Tories, or Antifederalists of those times.”25 This antidissent response would set the stage for the practical challenges faced by Anti-Federalists. They would be denigrated as beneath consideration, accused of Toryism, threatened with force, and left to debate using language crafted by their opponents, the so-called Federalists, who were proposing a new government that was in fact less federal than the existing Confederation. Characterizing critics as mere “scribblers” denigrated the value of dissent generally while it suggested that these particular critics lacked the stature to be taken seriously. For many early Americans, even middling men had no place entering into this debate. As the Federalist Caesar explained in his second newspaper essay, if the people have a right to decide on the new government, they should exercise “a tractable and docile disposition” since the American masses, like those of other countries, “cannot judge with any degree of precision.” Even the radical Anti-Federalist, Samuel Bryan, writing as Centinel, lamented that “the science of government is so abstruse, that few are able to judge for themselves,” leaving a dire need for writers to explain political principles and thus “better enable the people to make a proper judgment.”26 When an Anti-Federalist, of any rank, dared criticize the Constitution, the accusation of Toryism was never far behind, drawing on the belief that British agents wanted to see the Constitution fail and American government remain weak and chaotic. In part this was simply an ad hominem attack, a

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as when Benjamin Franklin reportedly said of John Jay that he ought to put his real name to his pseudonymous essay series “to give it additional Weight at this awful crisis.”34 If Anti-Federalists could get average American citizens to put aside their traditional deference and shield their eyes from the glare of great names, they would still be entering a debate wherein the very terms of discourse were created by the Federalists for their own advantage. The Federalists, to be sure, had established the subject of debate by completing the hard work of drafting the new Constitution. But what would the terms of the debate be? From a purely descriptive stance, it made little sense to call the proponents of the new Constitution “Federalists” because they were in favor of a greater national consolidation of powers than the existing Confederation provided. (Indeed, since they were advocating for ratification, more apt terms—as Elbridge Gerry would later quip—might have been “rats” and “anti-rats.”35) By effectively taking the name “Federalists,” the proponents were able to downplay the novel, national features of their proposal and stress the more familiar, federal aspects. This was a powerful rhetorical move not lost on those soon called “Anti-Federalists.” William Petrikin’s satirical Federalist identity, “Aristocrotis,” conceded that the proposal was really a consolidated government, but he used the term “federal” so the masses “may be brought to adopt it under this plausible sanction; also by calling the constitution federal, we can apply the odious term Antifederalists to our opponents with more propriety.”36 In addition to the rhetorical advantage of revered authorities supporting a proposal conceptualized in positive terms, the Federalists were also able to press more practical advantages, thereby limiting dissent further. Probably most important was the Federalists’ influence over much of the press of the day. As a historian of Anti-Federalism, Saul Cornell, has observed, the Anti-Federalists had “a much more difficult time finding outlets for their materials.”37 Federalist power in this regard began with the simple fact that newspapers—then as now—were businesses that served businesses, and the Federalists were strong in the merchant seaport cities. At the extreme, some Federalists organized boycotts of papers that printed Anti-Federal pieces. For example, Samuel Bryan, privately under his own signature and publicly as Centinel, lamented how Federalist economic strength in the cities led to efforts “to suppress information and intimidate public discussion,” including the eventually successful boycott against Boston’s American Herald.38 But the boycotts were hardly necessary; in much of the nascent United States, AntiFederalist essays rarely appeared. From October to December 1787, only six Anti-Federalist pieces appeared in Connecticut newspapers, and “imported” pamphlets from New York were confiscated and destroyed.39 A Federalist

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least, throw newspaper circulation into a confused state—and do so at a pivotal moment. Anti-Federalists railed; Centinel, for example, insisted that this “new arrangement at the Post-Office” was an obvious effort to suppress the newspapers and “enslave” Americans.45 A printer named Eleazer Oswald insisted that the free “exchange” papers were a critical means of communication across the country and had “sterling antiquity on its side”; A True Federalist was more specific, pointing out that even after Lexington and Concord, British postmasters did not dare halt printers’ exchange papers.46 This was not merely Anti-Federalist hysteria; Federalists were forced to admit that the debates in the newspapers were being shut down at a critical phase. By mid-March, all eight Philadelphia printers—the majority of whom were Federalists—petitioned the Pennsylvania assembly to instruct the state’s congressmen to work to restore the free printer exchange. “The public greatly benefitted” from this practice, which was “so conducive to the preservation of liberty,” removal of prejudice, and development of understanding “between distant colonies.” Perhaps George Washington put it best: “If the privilege was not from convention an original right, it had from prescription strong pretensions for continuance” especially during the ratification debate. He and other Federalists, he told John Jay, “wished the public to be possessed of every thing that might be printed on both sides of the question: but it has afforded its enemies very plausible pretexts” for their claims of silenced dissent.47 Congress would eventually formalize free exchange between printers, but not until 1792; in the meantime, Hazard would be one of the few government officers Washington did not reappoint.48 The lack of a reliable public mail service was a blow especially for the Anti-Federalists as they tended to lack the national networks of friends, relatives, and business associates to which the better-connected and often more affluent Federalists could turn for information. Because dissent involves challenging the existing elite, understanding the nature of elite privilege is an important theoretical step. Indeed, reflecting on their disadvantages, a few Anti-Federalists began to think a bit more deeply about the nature of political communication and the sort of organization required for effective democratic dissent. The backcountry radical and plebeian democrat William Petrikin lamented that despite efforts to publicize “against this Fedrall conspiracy,” Anti-Federalists simply were not as wealthy as Federalists, who were also better connected in a social network that allowed for “a constant intercourse” among them.49 Bryan also privately observed that it must have been easy for the Federalists to coordinate their efforts due to “their Situation in the great Towns & many of them being wealthy Men & Merchants, who have continual Correspondence with each other.”50

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his pseudonym to express or amplify his meaning. An author’s mask was “one of the most important ideological tools available to persuade an audience.”54 The Manlius referenced here was presumably the famously demanding leader of republican Rome who let his own son be tried and executed for violating orders, despite the son’s good motives. Similarly, the most famous Federalist author was—and remains—Publius, a reference to Publius Valerius Publicola, one of the leading figures in founding Rome’s republic. (Publius’s chief AntiFederalist critic was Brutus, named after the famous republican Caesar slayer Marcus Junius Brutus, as well as his distant ancestor Lucius Junius Brutus, the only Roman with a stronger claim than Publius to advancing the founding of the republic.) As we have seen, pseudonyms also protected writers from libel charges and let them attack men and measures as they saw fit. Even in the relatively small circle of early American politics, the historian John Howe explains, “It often proved impossible even for the most politically astute readers, to penetrate the masks of pseudonymity.” Indeed, even when the writer was pretty well suspected, the “mask” was felt to provide some special allowance. Early Americans knew the old quip that a pseudonym allowed for less restraint, even if the veil was transparent and the author known.55 Accordingly, Anti-Federalist essays almost always appeared under pseudonyms. Despite established tradition, Federalists “attempted in the late 1780s to silence Antifederalist writers by demanding that they publicly acknowledge their work,” Howe observes.56 The movement began with a fairly typical—and anonymous—Federalist accusation that “he cannot be a friend to his country, who upon a production on the subject, will conceal his name”; accordingly, the unnamed author asked “whether it will be best to publish any production, where the author chooses to remain concealed.”57 Picking up on this suggestion, the Federalist printer of the Massachusetts Centinel, Benjamin Russell, announced he would only publish Anti-Federalist essays if he was permitted to provide author’s real names upon request. In a practical sense, Russell’s policy would have little immediate effect, because his paper had not previously published any opposition material, and Federalists continued to publish in his paper without attribution.58 The broader effect of this policy, however, is hard to overstate, as it cast a pall over all efforts at dissent, since the implicit threat was that all critics of the proposed Constitution would be publicly tarred as traitors. The Massachusetts Gazette soon followed Russell’s policy, though it did refrain from naming a critic who wrote before the policy was in effect and whose “only wish was for discussion and deliberation, but not for opposition.” He also vowed to say nothing more.59 This is what free speech theorists now call a “chilling effect,” in that such a policy puts a freeze on speech before it is articulated (or even contemplated).

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the low critiques of the mere rabble. (It was one thing if a fellow member of the “better sort” deduced the author and disagreed with him, quite another to have some cobbler carping at him.) In addition to such social norms, the economic reality of America until at least the 1790s meant that there was little money to be made from pamphlet sales. Paine’s Common Sense is the exception that proves the rule, and it also points to another reason for nonattribution: Republican theory expected citizens to sacrifice self-interest for the public good. Accordingly, Paine never took a penny for his unprecedented best-seller and was careful to be seen as avoiding any personal fame the pamphlet might have brought him. Republicanism also involved expectations of accountability of public “servants” to the people, and this put some stress on norms of openness in public affairs. This tension over whether and when accountability is better served by open government or by “whistle-blowers” and journalists’ “unnamed sources” is still with us. A second tension that emerged in the ratification debates would get much more attention, though it, too, was not resolved and continues into the present. Up to and especially through the Revolutionary War, writers tended to conceptualize language in two divergent ways: either as a “fixed and unvarying medium” with an “unambiguous . . . capacity to express universal truth” or as a historically embedded “medium through which nature’s truths, in politics as elsewhere, were continuously contested.” The shift in emphasis from the former to the latter was, as the historian John Howe has ably demonstrated, “fundamental to the emergence of a democratic (albeit white male) politics.”66 The older view maintained that truth was, as Jefferson put it, “self-evident.” Universal truths were out there, waiting to be discovered and revealed. What’s more, getting them exactly right was essential to political morality. As Jefferson had written earlier in the “Albemarle County Instructions,” “Vague and uncertain laws, and more especially constitutions . . . are the very instruments of slavery.”67 Colonial critics of ministerial policies in the 1760s and ’70s were always arguing over the exact definition of colonial rights vis-à-vis Parliament. This desire for specific descriptions of—and limits on—governmental powers was central to the Anti-Federalists’ oft-repeated concerns that the new Constitution lacked a bill of rights. As the Anti-Federalist Federal Farmer explained, “We do not by declarations change the nature of things, or create new truths, but we give existence, or at least establish in the minds of the people truths and principles which they might never otherwise have thought of, or soon forgot.”68 Despite their radicalism on other issues, the Anti-Federalists often followed the traditional notion that the truth was universal and preexisting.

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pursue the finer points of epistemology. Nevertheless, their defense of nonattributed speech reveals an underlying disagreement over whether political truth was discovered like a natural element or invented like a human tool. The Federalist approach presented a more fluid conceptual landscape, one more open to possibility and—ironically—to dissent, for where there is one fixed and knowable truth, less is open to debate.72 For example, the need for some sort of declaration of rights seemed to Anti-Federalists to be an obvious truth, discovered as long ago as the English “Bill of Rights” (1689), or even the Magna Carta (1215), and to question it meant to throw everything into doubt. “If pointing out the unlimited powers of the new Congress . . . be not an argument against it, there remains no fixed determinate idea to be annexed to the term argument,” Philadelphiensis reasoned; “indeed, on such principles right and wrong, freedom and slavery have no essential difference, and the human mind is a mere chaos.”73 Certain political truths, it seems, are simply beyond reasonable debate. In this way, the Anti-Federalists’ epistemology presented an unexamined conceptual obstacle to valuing dissent fully, one that later radicals would have to explore. If the widely reprinted Philadelphiensis here typifies the Anti-Federalists’ more traditionalist stress on a single preexisting truth and predetermined linguistic meaning, it is also true that he elsewhere captures many of the most insightful aspects of the radical critics’ emerging understanding of the centrality of popular dissent. For him, a sphere of reasoned public debate was essential to democratic politics (and to uniting a vast, disparate country without resort to deference or force). The anonymous speech that Federalists were attempting to delegitimize was essential to allowing that debate and to opening it to citizens of all ranks. Russell’s attempt to limit his newspaper to those contributors who supplied their names meant he deserved to be hanged in effigy, Philadelphiensis believed. But he also refused to encourage such behavior for fear of “inflaming the multitude under a free government.” The danger was not—as it would be for many who came to eschew popular disorder in the 1780s and ’90s—the propaganda tools it provides one’s opponents, but rather that justice was often “sacrificed” in the process.74 Like Centinel and other radical democrats, Philadelphiensis had begun to see that the contestation of public debate would not be fair or democratically valuable until the manifold advantages of the status quo were neutralized. Forcing plebeian dissenters to reveal their names undermined the point of public debate, which was not an author’s name but “his reasoning, which if it were just ought not to be suppressed, and it if were fallacious should be refuted.” Just as important, some men, especially those who were not “our well born,” “would be deterred altogether from publishing their sentiments.”

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is cast as a sign of guilt, but any reply can be characterized as a desperate effort to hide the truth. And the accused will be seen as self-serving, even if he genuinely wants to set the record straight for the good of the public. “For such is the weakness of the most part of men,” according to A Friend to Harmony, “that they never have the generosity to make truth independent of the man who preaches it.” Instead, “the vulgar, who always unite truth to their own interests, have the injustice to unite it in others.”79 The most accurate and well-meaning denial, then, will likely be dismissed as merely self-interested. From there, matters actually get worse. Not only will the public “quickly, and without allowing themselves time for examining, receive the first impressions” created by the accusation, but further “they will defend with eagerness what they have credited so hastily.” “Prepossession [the human tendency to prejudge] means every thing makes against [the accused;] even the arms which he finds in truth, are levelled at him.” A published defense might seem to make sense, but it is “always long and tedious” while calumny is quick and pithy. As a result, the populace often will not read the defense; instead, “every individual waits till the publick opinion is known.” Then, presuming others have done a careful scrutiny of the defense, they “excuse themselves from that disagreeable task; they conform to the publick opinion” with certainty, as if they had really investigated the matter themselves. Perhaps the worst of it is that scandalmongers know all of this, and so they “say, let us strike—the blow will have its effect.” “Nor is the calculation false,” due to “the sluggish and careless disposition of the publick.”80 This sophisticated, if jaundiced, analysis of contentious public debate might well lead one to embrace libel law. It certainly led Pennsylvania Chief Justice Thomas McKean to embrace broadly defined libel law to get at the libeler, whom he said was worse than both the poisonous assassin and the midnight arsonist.81 A Friend to Harmony, to the contrary, saw such an approach as problematic in practice. If libel laws are broad and vague enough to actually reach scurrilous accusers, then they endanger press liberty and the kind of critique needed for a democracy. Narrow laws, however, are simply dodged; for example, detractors had long identified the accused with initials rather than whole names in order to avoid prosecution. “Besides,” as we have seen, “[accusers] may keep on the anonimous veil.” Sometimes even the printer or bookseller can be hard to identify, leaving libel law without a target.82 The deeper problem with libel law concerns the centrality and nature of the public in popular government. The law simply does not have power over public opinion, which “is in itself a law.” Thus, even a jury ruling against the accuser might not sway public opinion, which knows that juries sometimes

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in office receives from anonymous writings, the same mean, the mean of publishing is left him to justify himself.” And since position as well as wealth confers benefits, a public officer will always be in a good position to defend himself. In fact, if he is genuinely worthy, he will not even need bother: “the publick voice will precede him, and stifle calumny. Therefore anonymous writings are only to be dreaded by the guilty,—by such rich men whose conduct is not unimpeachable.”87 Platitudes like this one—“anonymous writings are only to be dreaded by the guilty”—might make it all too easy to dismiss and ignore Candid Considerations. But given the lengths A Friend goes to earlier in the work to detail both the weaknesses of public contestation and the essential lessons it provides, lessons that in turn provide the very foundation of popular government, it is clear that he is envisioning a privileged place for democratic dissent. In a final footnote, he explains that contention can encourage genius. Other people’s criticisms “contribute, though unintentionally, to the improvement and unfolding of abilities, by contending with [genius] for victory,—they render it more brilliant, and its consequences are more advantageous.” In fact, “take away that self-love which induces man to set a higher value on his own ideas than on those of others, and he will no longer dispute, he will no longer contradict discoveries; indifference will prevail in his mind as well as among the publick.”88 As A Friend had already explained, public indifference can only be countered with public enlightenment via popular dissent. A Maryland Farmer Whereas A Friend to Harmony is important for theorizing a privileged place for dissent in a democracy and for a nuanced appreciation of the weaknesses and potential of the public mind, his precursor, the Maryland Anti-Federalist author A Farmer goes even further and lays the groundwork for later theories of dissentient democracy. In the context of a radically democratic theory, he provides a robust analysis of the elite assets that advantage the status quo and proposes possible institutions of public education that will empower dissenting voices. Writing as A Farmer in early 1788, John Francis Mercer was, in some respects, a fairly typical Anti-Federalist. Like other radical populists such as Centinel and Philadelphiensis, A Farmer wrote for common citizens as well as middling men, and he stressed conflict based on social rank.89 His main adversary was Aristides (Alexander Contee Hanson), a prominent lawyer in Maryland, who almost immediately sought the name of his pseudonymous

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law, only submit bills and “printed reasons” “to the free deliberation of the freeholders.” Only that plebiscite could make laws, which would now really be “the will of the people.”93 Or at least the landholding (and adult white male) people, for the careful reader will see that A Farmer let the unpropertied vote for the assembly but gave only freeholders sovereign authority to make law. “I mean not the lowest populace—I mean that class of citizens to whom this country belongs,” Mercer explained. “They who hold the property of the soil, are alone entitled to govern it.” He was hardly alone in wondering whether the illiterate poor were ready for the full powers of democracy. Just as A Friend to Harmony thought that all people—but especially the general populace—needed practical training in assessing public debate, A Farmer thought self-government was currently too much to ask of the American people. “That the people are not at present disposed for, and are actually incapable of, governments of simplicity and equal rights, I can no longer doubt.”94 Yet just as important are his very next words: “But whose fault is it? We make them bad, by bad governments, and abuse and despise them for being so. Our people are capable of being made any thing” even if they are not “now capable of sustaining the weight of SELF-GOVERNMENT.” Mercer extends this argument in a later essay in the series: “If I am told that the people are incapable of governing themselves—I shall answer that they have never been tried in America, except among the native Indians, who are free and happy, and who prove that self-government is the growth of our soil—And I also answer that they are more fit for self-government, than they are at present for any of the safe and solid governments founded on representation.”95 If a direct democracy is the most promising form of government for America, how can all the citizenry be readied to bear the enormous responsibility of unfettered self-government? Whereas Centinel hinted at corresponding societies for political information and A Friend to Harmony espoused the ongoing training of a dissentient public sphere, Mercer’s Farmer goes furthest in proposing “seminaries of useful learning” in every county, teaching “the principles of free government” and other useful education. “The light would then penetrate, where mental darkness now reigns.”96 Such an educated and informed populace would be necessary, because A Farmer sought to further democratize Pennsylvania’s radical 1776 constitution, which already had a hegemonic unicameral popular assembly and weak executive council. The state should go further—and thus be a “ray of light” for others—by allowing a mere third of the assembly to submit a “contested law” to a plebiscite of freeholders, thus allowing revision by “the great body of the people by actual vote.”97

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For Mercer, the ongoing dissent of organized opponents is essential to proper self-government. Such public liberty depends, however, on an awareness of elite advantage and informal as well as formal practices of popular engagement and education. Conclusion Even the most insightful critics of the proposed constitution like Mercer had only broached the subjects of the central role of public opinion or the implications of privileging ongoing dissent and disagreement. In the hurried months of the ratification crisis, they never really asked the question of whether dissent is productive when it is false. And their traditional approach to truth left little room for an appreciation of the innovations of the Federalists and certainly no room for an appreciation of how a diverse country might develop—or at least debate—multiple political truths. The Anti-Federalists had, however, demonstrated in practice the importance of dissent to American popular government and had begun to explore a host of related issues: the dangers and advantages of nonattributed speech, the conceptual as well as practical obstacles to robust opposition, and the powerful hegemony of the status quo and the elites it benefits. Furthermore, in the hands of Centinel and A Farmer, with the later help of A Friend to Harmony, they had analyzed the need for—and pointed the way toward— a communication network that would go beyond the post and the press to establish interconnected associations of like-minded critics of government. Once the policies of the new national government seemed to realize the worst fears that the Anti-Federalists had voiced in the ratification debates, the urgent necessity of building that network would prove unmistakable.

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4 Institutionalizing Counterpublicity The Democratic Societies of the 1790s

“The evening proving stormy, very few of those who intended forming themselves into a Society appeared” at Seabury’s Tavern in Newark, New Jersey, on Thursday, March 6, 1794. In the spirit of Centinel’s 1788 call for political societies that would enlighten and invigorate the citizenry, and following the lead of several other recently formed clubs, a meeting had been advertised to form a “Republican Society” that would serve as an institution “peculiarly devoted to political enquiry.”1 But if the inclement weather drove away the club’s supporters, “the storm did not deter the enemies of the institution, from collecting all their force, & appearing at the place of the meeting . . . to oppose the institution.” One gentleman argued that political matters were beyond his capacity and another maintained that their chosen representatives in Congress were a sufficient check on the national government. The meeting then resolved, with only “three or four . . . dissenting” votes, that the proposed political club was “improper and unnecessary” and that the proposer of the club deserved censure.2 Undeterred, one supporter immediately published news of this “extraordinary” political “crisis” and the effort to suppress “a society of the most inoffensive kind.” The Federalist maneuver was “one of the most audacious acts of superlative impudence, that ever disgraced the annals of usurpation.” Even more shocking was the argument that political issues are “beyond the reach of common capacities.” Such a statement was “as slavish a doctrine as ever disgraced the creed of the vilest minion of the most despotic tyrant, and is the source from which much oppression springs.”3 This is some pretty strong language, and it strikes us now as hysterical, bordering on being paranoid.4 But the rhetoric and the episode more generally reveal a central facet of this moment in American history that it is difficult for us now to fathom. The world historical achievement of a modern republic with an unprecedented breadth of popular engagement was at risk of >>

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part, a reflection of the model set by the populist “Jacobin clubs” in France; it was the French ambassador Edmund Genêt who suggested the “democratic” label to the Philadelphia society. But the American clubs really were different from the French or English models. Nor were they quite like the various Revolutionary Committees of Safety and of Correspondence that spurred the Patriot movement of two decades earlier in America.9 As we shall see, these later associations were really a new form of political institution, aimed at contributing to public debate. Still, the title “democratic” is fitting, as this is the moment when the term was losing its negative connotation and assuming a positive meaning, at least for many people, suggesting an enriched role for “ordinary citizens in the daily business of politics.”10 Ordinary citizens made up the core of the democratic societies and this fact owes a great deal to the distinctive mind-set of common people in this era. European travelers repeatedly commented on the average American’s obsession with politics and newspapers.11 So it is perhaps not surprising that newspaper notices for political clubs brought out a great many mechanics and farmers. The most thorough modern study of the clubs suggests that membership may have been as much as two-thirds craftsmen of various sorts; the Philadelphia society, however, and perhaps other prominent, urban clubs may have had a larger ratio of gentlemen, especially in leadership positions.12 Whatever the precise numbers, the political base was made up of the lower orders, the so-called “subterranean gentry.”13 In their more generous moments, Federalists, like arch-conservative William Cobbett, might simply have pointed out that even the leaders were rarely men of property; in his more usual, acerbic manner, Cobbett dismissed the membership as “butchers, tinkers, broken hucksters, and trans-Atlantic traitors.”14 As inclusive as the democratic clubs were with regard to rank and social position, we should not lose sight of the silent but effective exclusion of women and African Americans, free or enslaved. Though some members were manumitting their slaves, and some club leaders were among the more prominent critics of slavery, “the clubs themselves,” the historian Eugene Link observes, “avoided definite action on the emotion-charged question.” Nevertheless, the democratic societies made up the more radical wing of the emerging Democratic-Republican movement, which was itself “willing to open up the political process to a somewhat wider constituency than the Federalists.” The opposition newspapers that served the democratic societies carried abolitionist articles and excerpts from Mary Wollstonecraft’s Rights of Woman, while virtually never printing explicit arguments for excluding either group. As one recent historian explains, the anti-slavery pieces are especially surprising, considering that the editors had little to

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that “the real public opinion [could be] known, as much as possible, by those in power.” For the “many Americans who had rejected the republican ideal of rule by a virtuous elite,” the historian Seth Cotlar observes, “it was precisely the vague but inspiring notion of public opinion that held out the possibility of putting the doctrine of popular sovereignty (in its most literal sense) into operation.” But as another historian puts it, in “helping to play out the logic of popular sovereignty,” the societies effectively “forced for the first time a discussion of the place and limits of legitimate political opposition.”17 Federalists were having none of it. In their view, the democratic societies were insurrectionary, even revolutionary, and were trying to establish themselves as self-created authorities, utterly inappropriate in the new representative system. The claim that the clubs were self-created had little theoretical or even political bite, though it was factually true. The Federalists tended to distinguish charitable “associations” from “self-created societies,” which seemed tools for ambition.18 Nevertheless, the democrats were quick (and tireless) in pointing out that many other organizations had simply created themselves, not least the Order of the Cincinnati, the hereditary association of former Revolutionary War officers (and their male heirs), headed by none other than George Washington. More important, self-creation was part of the point of the clubs, and the members were only exercising their rights as citizens, for as Joyce Appleby has pointed out, “no one had ever questioned the propriety of mere citizens who happened also to be considered gentlemen discussing public measures or bringing pressure to bear upon their legislators.”19 Indeed, one group of Federalists conceded, while forming their own club, that there was nothing inappropriate about being “self-created.”20 The claims that the democratic societies were insurrectionary had a little more theoretical power and a lot more political force. The theoretical power came from the clubs’ vague similarity with the Committees of Safety and of Correspondence during the Revolutionary era (not to mention their philosophical support of France’s revolutionary Jacobin clubs). The democratic societies were “breathing war and confusion” merely for “their private interest and popularity,” lamented one Federalist. Another, Alexander Hamilton’s associate William Willcocks, reasoned that because the clubs could be dangerous, they probably were dangerous, especially given their tendency to meet under cover of darkness, in “nocturnal meetings.”21 Some Federalist members of the Tammany Society, a social club in New York, took the opportunity presented by a poorly attended meeting to pass some resolutions critical of the democratic societies, and they made the point more carefully: “We claim it as the unquestionable right of citizens to associate, to speak and to publish there [sic] sentiments whether for or against the laws, but such

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Society” were responsible. Nevertheless, given the “small prospects of being useful in a society under suspicions,” Reddick withdrew himself from the society and recommended that the whole club “dissolve themselves entirely if they think as I do.”26 Once the revered Washington had implicated them in the Whiskey Rebellion, it did not matter how many society members marched with their local militias to put down the insurrection. The president’s reputation was the Federalists’ “trump card,” the historian Gordon Wood observes, “and they played it over and again with particular effectiveness.”27 The democratic societies began to fade and like-minded citizens simply abandoned the clubs. Democrats and other plebeian Jeffersonians would not regain their place in the public sphere until later in the decade when they slowly and quietly took over the Masons and formed a majority of their own militia companies.28 This “strategic retreat,” as one historian has called it, was a concession that they had lost this battle over whose conception of citizenship would be predominant.29 Still, in just a few years of existence, the democratic societies had managed to flesh out—in both theory and practice—the essential elements of a democratic public sphere, and they had even begun to conceptualize a new mode of leveraging dissent in the face of the advantages of the status quo. Debating the Clubs’ Legitimacy Like the Anti-Federalists before them, then, the members of the democratic societies were forced to defend their notions of an active and engaged citizenry. Similarly, the democrats, as we will see, had to compete with their opponents’ benefits of education, wealth, and media access, not to mention the continuing “glare” of great names. Stressing their constitutional right to free speech and preferring what the modern political theorist Jürgen Habermas calls the “forceless force of the better argument,” the societies rejected what they called the “argument of immediate coercion,” whether it was Regulator violence or a heavy-handed government reaction. A “constant circulation of useful information, and a liberal communication of republican sentiments, were thought to be the best antidotes to any political poison, with which the vital principles of civil liberty might be attacked.”30 As unassailable as these ideas might seem today, these radical commoners had an uphill battle. To understand fully the theoretical advances they wrought, we must appreciate just what they were up against. These dissenting political clubs were attempting to justify their existence at a time when the concept of a “loyal opposition” was seen, at least by Federalists, as simply incoherent.

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The Federalist view was grounded in the long-standing view that while governmental power is theoretically derived from the populace, the resulting practical power existed at a considerable remove from the nonelected. When one defender of the societies asserted the political power of the people, “Theophilus Demophilus” wrote the Federalist Gazette of the United States to correct this misguided assertion. “Civil power may be said to be in, or belong to the People  .  .  . i.e. it is in them, virtually and potentially, not formally, as e.g. sharpness is in a whet-stone.” Returning to this theme in the second installment of the essay two days later, he continued: “When we the People do in a sense create our rulers by election, by that very act we constitute the relation of superiors and inferiors.” Public officials, then, “are, while in office, no more the servants of the people than parents are the servants of their children—While they continue to be rulers, and are acknowledged as such by us, we are their subjects.”37 It was a good thing that the general citizenry was not involved in deliberating over policy, because they were utterly incapable of doing so properly. Moderate Federalist Nathaniel Chipman explained these shortcomings in a published letter to his friend in New York City, Alexander Hamilton. Chipman was afraid that Hamilton would think him a supporter of “anarchy” after the Associated Democratic Society of Chittenden County (Vermont) had quoted from Chipman’s Sketches of the Principles of Government in their “Principles of Formation.” His letter stressed that assemblies of the people “are impatient of discussion; that they are fatally incapable of reasoning, but they are highly susceptible to passions. To those the more artful direct their whole attention.” “Complicated affairs of civil society,” Chipman continued, require considerable “information, and frequently, diligent investigations are necessary. The knowledge of the people will follow, but can rarely precede a public discussion. They will generally approve or disapprove with judgment, but in dictating, are exposed to all the rashness of ignorance, passion, and prejudice.” Mocking democratic club leaders in his Jacobiniad, J. S. J. Gardiner was blunt: “However well qualified such a person may be, for mending shoes, we cannot think him equally well qualified for mending laws.” Thus, he should “leave the task of legislation and reformation, to more skillful workmen.”38 A proper citizen “voted in elections,” the historian Seth Cotlar summarizes, “but then let his chosen representatives take on the complicated business of policy and law making undisturbed.”39 That is all citizens needed to do, according to this Federalist theory. Given that most government positions were directly or indirectly elected—not to mention the checks and balances built into the system—the popular engagement in public debate

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only a few years earlier—that annual (and generally direct) elections were fundamental to public liberty. Drawing on recent experience with representative institutions cut both ways, however. To the Federalist argument that checks on government were superfluous since “the different branches of government, are the constitutional centinels over the liberties of the people,” one newspaper essayist replied, that “to set up the government, as a watchman over itself, is perfectly absurd and ridiculous.”44 Perhaps, but only thirty years earlier patriots defended the rights of colonial assemblies on the grounds that the elected assembly was the people’s defender against the governor and his appointed upper house.45 Nevertheless, radicals in the societies were now insisting that even the most perfect representative system could not erase a historical truth grounded in humans’ imperfect nature: power corrupts. The Patriotic Society of Newcastle County, Delaware, found “this solemn truth recorded in large characters” in the “lamentable annals of mankind,” “that all governments however free in their origin, have in the end degenerated into despotism” due to the “want of vigilance in the people.”46 But if the logic here is timeless, the societies were in fact thinking in new ways, analyzing the weaknesses of representative government and how the clubs might ameliorate them. Even “in elective governments, the security of the people . . . is not confined to the check which a constitution affords, or the periodical return of elections; but rests also on a jealous examination of all the proceedings of administration, and an open expression of their sentiments thereon.” Believing, contra the Federalists, that “rulers have no more virtue than the ruled,” democrats argued that “the equilibrium between them can only be preserved by proper attention and association; for the power of government can only be kept within its constitutional limits by the display of a power equal to itself, the collected sentiments of the people.” This, then, was a unique role for clubs of opposition voices. “Solitary opinions have little weight with men whose views are unfair, but the voice of many strikes them with awe.”47 Because it was “impractical for the citizens to assert their rights and interests in a proper and efficacious manner, unenlightened by mutual communications, and unaided by joint operation,” theorized “Democritus,” it was necessary and proper for small groups—“where no constitutional mode is pointed out for calling forth the declaration of the popular sentiment”—to discuss, and then publish “the result of their deliberations for approbation or correction.”48 Beyond serving as a nexus for citizen vigilance, the democratic societies saw themselves as contributing to the public debate that would inform public opinion and, thus, influence the government and its policies. Even before the

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men and measures that I perhaps approve of, and that without my consent.” “The great principle of Republicanism was, that the minority should submit to the will of the majority,” Samuel Dexter lectured the House. “But these people have elevated themselves into tyrants.” Even in a private letter to his friend Thomas Dwight, Fisher Ames sarcastically said of the societies, “It is a pleasant thing for the yeomanry to see their own government taken out of their hands, and themselves cipherized [i.e., made meaningless] by a rabble formed into a club.”52 In a world where the legitimacy of the democratic public sphere was unclear, these were valid concerns. Nathaniel Chipman was again one of the Federalists’ most nuanced analysts. He conceded that the club members’ “professed design has been to promote political knowledge; but wherever they have established themselves, they have assumed a dictatorial style in their resolves.” Worse yet, “like the demagogues of simple democracy they have applied wholly to the passions and jealousies of the people.” The result was that their influence would “in a great degree, prevent the happy effect of the wisest and best measures,” amounting to “an engine to govern the majority by a minor faction.” Indeed, recent research suggests that the Federalists were right to criticize the societies’ resolutions as coming from a relatively small number of authors. Though widely circulated, the resolutions may well have been unrepresentative.53 The Federalists are on to something here, something our historical remove can make it difficult to see. Yet at the time it was not at all evident whether it was truly democratic for any group to alter the course of public policy from the official mandate of the last election. If an effective grass-roots group could shift public opinion enough to make it impossible for elected officials to follow through on their long-declared policies, then there is real risk of an unrepresentative, undemocratic, minority rule. But if the Federalists were on to something, so were the democrats, who began to conceptualize a permanent, democratic public sphere existing between election seasons, not simply to check government, or even merely to inform and enrich elections. They would make the case for an ongoing debate in which public reason was sovereign and public opinion, not merely elections, was the final arbiter. As insightful as the Federalist critique was, it presumed three claims the democrats categorically denied. First, the Federalists, lacking any theory of legitimate opposition (much less democratic dissent), saw all (nonelite) criticism of government as “dictatorial,” rather than an appropriate contribution to a healthy public dialogue. A second, related presumption was that elections were enough, that popular government really only required a few weeks of discussion before electing another

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the weapons of argument, over the minds of their fellow-citizens.” The clubs “can pretend to no other authority” than that which comes “from the conviction that irresistible truth and reason must impress in every wise and virtuous breast,” claimed one supporter in the New-York Journal. Given that these were only appeals to public reason, it was improper (and perhaps telling) that public officials—or, rather, public servants—took exception to them. The clubs’ “communications, unsupported by any colour of force to give them currency, save the conviction of truth and justice must enforce on the public mind, can never be hostile to the faithful servant of the state.”56 Anticipating the modern theorist Jürgen Habermas’s appeals to legitimacy based on “the unforced force of the better argument,” the New York club called on its critics, “if our opinions are founded in political error, if they are calculated to mislead, counteract their evil tendency by the force of argument. Truth may be suppressed by violence, but it will ever triumph amidst freedom of enquiry.” “We publish our opinions not from a confidence in our numbers, or importance,” announced the Chittenden, Vermont, society. But trusting in public reason, “we now submit [our regulations and resolutions] to the free and full discussion of every individual in the community.”57 Indeed, public deliberation that would inform public decision making was the whole point: “If the complaints of the self-created societies are well founded, they will obtain from the public, and we hope from the government, that attention which well founded complaints ought to receive,” reasoned the Newcastle club. Nor was this any threat to representative government, because “on the other hand, if those complaints should appear to proceed from a restless, wayward spirit . . . they will necessarily fall into well merited contempt, and consequent dissolution. Such must be the natural and peaceable issue of this business.” The Baltimore society answered the pressing rhetorical question, “Let our fellow-citizens judge? On the opinions of men accustomed to think for themselves, cheerfully, we rely.”58 Not only was ongoing discussion and debate among citizens of all ranks— either in or out of clubs—perfectly legitimate for the popular government the democrats were conceptualizing, it was absolutely necessary. Elections simply were not enough. One up-or-down vote every couple of years, choosing from among two or three likely candidates does not—cannot—effectively express a rich and evolving public sentiment. And when the candidates were all elite gentlemen, it was even less likely that elective government would deliver average people the political weight their numbers deserved. So while the Federalists continued to believe, in the words of one historian, that “popular participation began and ended on election day,” thinkers in the emerging Democratic-Republican movement were making an active public

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a forum for discussion of public matters generally, and opposition to the status quo in particular. But if they were serious about their claim to free public discussion, what were they doing having private meetings? At night? That is a good question, one that Federalists frequently pressed. William Willcocks railed against the clubs’ “nocturnal meetings” in newspapers while William Loughton Smith on the floor of Congress questioned their “nocturnal meetings . . . where they shut their doors, pass votes in secret, and admit no members . . . but those of their own choosing.” When a group of Federalists in Elizabeth, New Jersey, decided to establish their own political club, a “Constitutional Society,” which was intended to oppose the democratic clubs (and last only as long as those clubs did), they stressed that their “doors are to be considered as ever open not only to the attendance, but the arguments of any citizens of the United States.”64 Town meetings were acceptable, Congressman Smith allowed, since their “deliberations were cool and unruffled.” “If the citizens think proper to meet and consult,” a Boston newspaper correspondent asked, “what better club can be desired than a town meeting, where all is day light, and the law has regulated the proceedings in such a manner as to secure to every man his fair and equal privilege.”65 Put on the defensive, democrats insisted that the Federalist complaints about night meetings, closed doors, and restricted membership were mere “pretense.” The clubs met at night simply because, given the preponderance of farmers and laborers, daytime meetings were burdensome. More important, “our doors never prevented the admission of strangers,” as one club asserted.66 “No man shall be precluded a seat in this society, merely on account of his religious or political principles,” declared the Political Society of Mount Prospect’s constitution, nor shall it allow any distinctions, “except between virtuous and licentious characters.” The club then invited even those with aristocratic or monarchical views to vindicate their cause, in the “open field of reason.” In a joking reference back to the exclusion of licentious people, the club added, “but we fear, their characters will exclude most men of your opinion.”67 This quip is actually telling, because in fact many clubs restricted membership with rules and votes for inclusion or expulsion. One society went so far as to provide for expulsion, by majority vote, if a member “openly contradict[s] any acknowledged principle of Republican government,” though the first time he would only be admonished.68 In one sense, membership rules were not at all unusual. Membership in the Cincinnati was, of course, restricted to Revolutionary War officers and their (male) heirs. Yet the Cincinnati was not (formally) political, but rather fraternal, like the Masons or the Tammany club (at least until 1795). The New York Manumission Society, however,

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they were experiencing a tension at the heart of counterpublicity. On the one hand, an extremely important aspect of their activities was theorizing and instituting, as we have seen, an active, ongoing, democratic public sphere. Publicizing their constitutions, resolutions, declarations, letters, and addresses— and then calling on their opponents for a public response—all created that public sphere. But the club members also felt the need to have a separate space, their meetings, where they could engage with their sympathetic colleagues before stepping back into the communal glare of the broader public. As monumental as is their practical creation of the democratic public sphere, then, we must not let that lead us to miss the other side of what the societies were doing. They were not simply writing essays and speaking at public meetings; they were creating clubs that met privately, with membership effectively restricted to like-minded individuals. While we rightly note “their emphasis on publicity,” we must avoid simply accepting the societies’ claim that this emphasis “belies the frequent Federalist charges of cabal and secrecy.”74 In this sense, Chipman was right in his critique of the democratic societies. If all the members really wanted to do was create and enliven the general public sphere as a forum for general deliberation, then individuals could simply write newspaper essays that presented “reasons for and against a measure,” as he said. Criticisms like Chipman’s about their private, nocturnal meetings would ultimately contribute to the downfall of the societies in the aftermath of the “Whiskey Rebellion” and Washington’s public effort to connect them to the violence. So the democrats were bearing a very high political cost for conducting their meetings in an effectively exclusive fashion. But they were willing to bear these costs because they valued—in fact, needed—the solidaristic benefits of a counterpublic. Whereas an elite gentleman might think nothing of turning out a polished, learned political essay, drawing on a solid education, wide reading, and countless private conversations with similarly privileged gentlemen, a typical democratic society member faced a much more uphill battle. Lacking time, education, and perhaps even complete literacy, the common laborer would have to enter the public glare in a highly deferential culture. The private space provided by the clubs allowed members to air their tentative views to a sympathetic audience and then hone their arguments before exposing them to public critique. This provided the “subterranean gentry” with a commodity they sorely lacked: confidence. It also gave them, as we shall now see, the organizational strength to balance out the more powerful forces of the status quo. Theorizing this new practice of counterpublicity proved difficult for the democratic societies, in part because of its unprecedented nature, but also

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Here again, some of the more insightful Federalists revealed a further tension in the emerging notion of counterpublicity, a problem scholars now call “groupthink.”79 If the larger purpose is to dissent against the status quo, to counter the elite hegemony of the general public sphere, then the call to solidarity can undermine the norm of dissent, at least within the association. “For the most part men who have united themselves to a party or set in government are the greatest slaves under heaven; for they dare not express their thoughts if they differ in the most trivial matter from their party.” If members do disagree with their associates, continued this newspaper critic of the societies, they’ll be “persecuted, insulted, and suspected.”80 In fact, the documentary record bears out this conservative critique of the societies, because their resolves and even their meeting minutes show only rare instances of disagreement within the groups. As we have seen, these associations publicly and repeatedly called for tolerance of differing political opinions. The historian Seth Cotlar even suggests that the clubs rarely appealed to the obvious, if imperfect, precedent of the Revolutionary-era Sons of Liberty (as a justifiable, “self-created” political organization) in part because such groups suggested “a lack of tolerance for opposing viewpoints. American democrats wanted to identify their project as dedicated to abstract reason rather than embodied, collective force.”81 In the end, however, the democratic societies, like most counterpublics faced with a general public sphere that is insufficiently welcoming of dissent, were forced to adopt a norm of internal consensus to achieve sufficient empowerment to contest effectively the Federalist status quo. This tension, and the clubs’ need for solidarity, is perhaps nowhere more evident than in the Philadelphia club’s struggle to respond to accusations that they supported the Regulation of 1794. When the society split, 30–29, on some resolutions concerning the “intemperance of the Western Citizens,” the resolution’s paragraphs were then taken up one at a time. The paragraph resolving that the insurgents’ refusal to accept the government’s pacification plan was “an outrage upon order and democracy” proved to be the sticking point. “An unusual warmth took place among some of the members,” according to the minutes. The unrecorded but clearly heated debate soon lead to a walkout by the club’s president, Blair McClenachan, and his twenty-eight followers, leaving the original, bare majority to consider what to do. They decided to withdraw the offending passage and moved to publish the rest.82 In the end, this effort at salvaging their solidarity was in vain. The society would meet a few more times, but in the aftermath of the “Whiskey Rebellion” and Washington’s denunciation, the Philadelphia democratic society— the so-called Mother Club—began to fade away.

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signed as “your humble Servants.” But at the society’s meeting on July 3, 1794, the letter was “read and debated by paragraphs” and amended so that it was addressed to, and signed by “Fellow Citizens.”84 While this may not seem like a sweeping shift—French revolutionaries had been using the title “citizen” for a couple of years—for Americans to do so in documents that criticized their elected officials was a new step. Even the “Shays rebels,” when they petitioned the “honorable” legislature, spoke in the language of humility and submission.85 In both word and deed, then, the American democrats were using the sanctuary of their counterpublic spaces to amass their collective wisdom and to find a shared voice, enabling them to dissent from the norms of a deferential culture and take their rightful place in the democratic public sphere, a forum for popular debate that they were simultaneously creating and invigorating. But if they were absolutely certain that active citizen deliberation in the public square was essential to democratic theory as they understood it, they never really came to terms with the concept of the counterpublic or their role in one. They had more serious practical problems on their hands. Plural Disadvantages If the democrats were not able to theorize clearly the way counterpublics helped them enter the public sphere, they did begin to see—dimly—that power inequalities hampered their ability to engage in public debate once they got there. Accordingly, they began to theorize certain ways in which the Federalists’ power involved leveraging material differences to their advantage in public discursive contests. Then as now, wealth and hegemony over education, the law, and the media brought political spoils to the status quo and its powerful elite. The political disadvantages experienced by average citizens as a result of economic inequality were some of the most obvious but also were among the more difficult to address. Arguing that society made private property possible, some radical thinkers began to conceptualize limits on private wealth. But the democrats never managed to form a clear alternative agenda. They did, however, see how economic inequality could undermine popular politics, so time and again they returned to the argument that “a great inequality of . . . fortunes” was, as one newspaper correspondent put it, “entirely contrary to the spirit of democratic government” since it would undermine the people’s “equal right to agree or dissent.”86 As early as the New York constitutional ratification convention in 1788, Melancton Smith explained that one significant advantage of wealth was

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to empower. “Every insignificant conception against democratic societies is echoed and reechoed, till it dies upon the ear; whilst any thing in their defence can scarcely find a channel to the public eye.”90 The way in which a biased press can distort the public reason that should infuse an open discussion was becoming painfully clear to these popular associations. Paraphrasing and referencing Alexander Hamilton’s Federalist 84, one of the clubs declared that “Public opinion . . . is the foundation of all our liberties.” But, they asked, how is this opinion to be formed? Is it to be the result of a careful and attentive deliberation, are you to hear and impartially weight the arguments on both sides of all questions, and decide as the scale of reason is found to preponderate? By no means, say our enemies, let the presses teem with publications in justification of every measure of the government, however impolitic or arbitrary.91

The problem here was clear to the democratic societies. What to do about it, however, would be a problem for another day and later theorist. Another problem posed by the existing power structure was the ruling gentry’s educational advantages, and this was a challenge the democrats could envision overcoming. It was clear that common citizens would have to become more literate and informed if they were ever going to minimize the deference paid to those who were considered learned. Furthermore, the much more active role the democratic societies conceived for average people gave those people a larger responsibility. In a government aimed at the “universal good and welfare of the people,” declared one club, “it becomes a duty more particularly incumbent on individuals, to require a perfect knowledge of the government and political institutions of their country, the administration of which they may one day be called upon to take an active share.”92 Given its very nature, popular government, more than any other form, required that mere citizens have a “perfect knowledge” of politics. And since the members of the democratic societies, unlike the Federalists, thought it appropriate that such plebeian citizens should occasionally hold public office, such knowledge would be essential. One institutional home for that civic learning was the local democratic society itself. Everything they did—forming and ratifying constitutions, debating policy, publishing resolutions—were practical lessons in the theory of “democratical” representative government they espoused. Recognizing this, the Reverend Ebenezer Bradford called the societies “Schools of Political Knowledge” in a sermon that one association promptly published.

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reason that ideally emerged from citizen deliberation. One practical means of avoiding the legal maneuvers of the privileged was attempted by the Republican Society at the Mouth of the Yough, in Pennsylvania, which set up mediation boards that bypassed the elite-dominated legal system entirely. This was simply a more developed, practical response to the general logic that held that “any court or jury is more competent” without “attorneys, than with them.”96 Expanding on this critique of legal dominance and its effects on the people’s limited traction in the fledgling public sphere led one club member to begin to see how elite legal hegemony was connected to discursive power— the control over the concepts, interpretations, and narratives that provide the very language of popular politics. Well-placed lawyers might not only dig up some obscure precedent to skirt around a more equitable outcome, but they also might simply reinterpret the words to the same effect. “Who can forget the democratical and limited constructions [those pretended republicans] gave the constitution . . . before its adoption,” queried one democrat, “and the very different constructions . . . given to it by the same men . . . since and at present.”97 The democrats’ nascent awareness of how discursive power limited their ability to dissent effectively built on the Anti-Federalists’ attacks on the “glare of great names” and the misguided notion that the propertied elite, but not mere mechanics, could be personally “disinterested” and thus serve the singular and knowable public good.98 For the club members, the assault on the power of “great names” was really a linguistic element of their multipronged attack on deference and the civic apathy it caused. It was one thing to call each other “fellow citizen”; it was quite another—and altogether more difficult—to counter the rhetorical power of having a revered figure like President George Washington arguing against your very legitimacy. As the historian of the societies concludes, in order “to discountenance the societies and in fact all democratic tendencies of the time, the conservatives made use of the glorified personage of George Washington.” Even a Federalist like William Wyche could lament, in a speech given at the Tammany club before its partisan split, “the easiness with which great names may blindly lead a number of followers.” The democratic societies could only agree and then bewailed that the “aristocratic faction” was “so artful as to envelop [its] machinations with the garb of Patriotism.” “Supported by the influence of characters and great names, [their denunciations of the clubs] too frequently obtain a currency, which they are by no means entitled to either on the score of justice, propriety, or even common sense.”99 Closely allied to this improper and unjust rhetorical advantage held by elite “great names” was the persistent discourse of disinterestedness that the

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citizen, the respectable mechanic, and the industrious yeoman.”104 To be sure, the opposition between a power-hungry government and vigilant citizens is about as traditional and revered an aspect of the radical—and Revolutionary—political tradition as one can imagine. But here it is used to undermine the very concept of “disinterestedness,” all while making mechanics the “respectable” ones. The attempt here to undermine the rhetoric of “disinterestedness”—or, failing that, claim the mantle for average citizens—suggests an inchoate awareness of discursive power that was only just emerging as an aspect of radical democratic thought. If the members of the democratic society could not combat the manipulation of public discourse, they would be its victims, and their voices of dissent would be silenced. John Taylor explained that the reviled “paper junto” would use various methods to amass power and serve their private interests, including “distract[ing] the public mind” while it undermines popular government. Logan agreed that certain educated men will use a “variety of stratagems . . . to deceive the People,” including “all the arts and sophistry of acute logicians.” Nevertheless, he remained optimistic that “American rulers” “will find a spirit of resistance in the People which will not submit to be oppressed, and a fund of good sense which cannot be deceived by the arts of false reasoning or false patriotism.”105 One response to false reasoning is valid reasoning, with some authoritative evidence as support. That is how the New York association reacted when they were critiqued for calling themselves not “Republican, but Democratic,” which was claimed to specify “a government composed of the whole mass of the people, and not a representative government.” In response, the New York club cited Samuel Johnson’s dictionary, then nearly forty years old, to establish that the terms were, in fact, “synonymous,” making the criticism “absolutely false and groundless.” Moreover, the Federalist Papers were paraphrased to present the case that the term “republican” had been so variously applied, as to have lost a definitive meaning. Tellingly, the club saw that this passage not only absolved them from the criticism in this instance, but also suggested why the Federalists wrote a constitution that guaranteed each state a “Republican” form of government: Federalists would then be “able, at some future convenient opportunity, to affix to the term Republican such meaning as [they] should find best to comport with their wishes and intentions.”106 This was not the only instance, the democrats were coming to see, when the powerful manipulated ambiguous language to their advantage. “By a peculiar kind of political legerdemain, the different terms, federal and constitution, have been confounded into one meaning.” “Some considerable degree of perplexity has also been produced,” the democratic newspaper

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Anti-Federalists did. Yet even as they were losing the struggle for public opinion, they espoused the principles of rational liberty and reasoned debate. Since they lasted as major political actors for only a couple of years, it is perhaps not surprising that they did little more than reveal a host of challenges presented to any dissenting movement. The government officials and elite citizens that support the status quo tend to have numerous advantages: financial leverage, media influence, educational credentials, legal resources, and, most important of all, privileged control over the concepts and narratives that define us. Simply identifying the contours of these recurring challenges to dissentient democracy was an important analytical achievement. These insights were only possible because of the democrats’ insistence that average citizens—neither elected nor elite—had a significant role in popular politics via the democratic public sphere. Their lasting legacy to democratic theory and practice remains in their moral argument (and practical demonstration) that campaigns, elections, and representation do not exhaust the civic potential of democracy. The democratic clubs, precisely because they were clubs, made a further theoretical contribution. Given the massive practical, political, and philosophical advantages of their opponents, radical critics of the Washington administration found they needed a refuge where they could steel themselves for the discursive battles of the general public sphere. Though it understandably created a tension with their professed role as contributors to open debate, inhabiting a counterpublic gave them the confidence to stand up to a powerfully deferential culture and to declare that their voices and their views were deserving of consideration. Then as now, the dissent that animates democracy will not emerge if people are cowed from publicly declaring any opposition views. Repeatedly, democrats maintained not only their own right to “self-create” societies, but they declared that others could do the same, forming “aristocratical” clubs if they so choose. Yet given their fleeting existence and their underdog status, it is impossible to know if they really would have welcomed other publics and even counterpublics that choose to oppose their dissent. And despite the occasional offer of shared membership with other democratic clubs, they never really organized nationally, at a time when politics was being nationalized. Theorizing that broad country of clashing opinions and multiple publics would have to be the work of others. But given the adamant critiques of Federalists, what was needed first was a more robust and more nuanced theory of the central place of public opinion in a large, democratic nation.

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5 James Madison Public Opinion and Dissentient Democracy

James Madison’s defense of the beleaguered democratic societies—in no less a venue than the House of Representatives and on no less an occasion than the debate over a formal response to President George Washington’s denunciation of the societies—provides a mere hint of his pivotal place in the emergence of the theory and practice of dissentient democracy in American politics. Madison had been the “Father of the Constitution” and one of the two principal authors of the Federalist Papers, along with Alexander Hamilton. But here he was, only a few years later, no longer a Federalist and instead the chief legislator of the nascent opposition—the Democratic-Republican party. For many scholars, this apparent inconsistency has posed what the historian Gordon Wood has recently called a “Madison Problem” of how to understand the “two” Madisons.1 One solution has been to follow Alexander Hamilton in seeing a major shift in Madison’s thinking in the early 1790s, due primarily to Thomas Jefferson’s influence but also to Madison’s own reaction to the direction of the new government under Washington and Hamilton.2 This Hamilton-oriented approach tends to dismiss or leave unexplained Madison’s own claims to consistency. A second and even easier solution is to focus exclusively on the nationalism, elitism, pluralism, and liberalism found in his Federalist essays, especially numbers 10 and 51.3 Thus, many scholars continue to read the early Madison as someone who wanted to “avoid democracy” or at least design government to “cancel out” competing popular interests.4 But some historians and political theorists have substantiated a much more democratic Madison of the 1780s and especially the 1790s, an interpretation that better explains his post-Federalist writings. Through a careful rereading of all of Madison’s writings up to the early 1790s, the historian Lance Banning uncovered a less nationalistic and more democratic early Madison than had been previously known. The political theorists Colleen Sheehan and Alan Gibson have each followed Banning in elucidating a Madison who is genuinely committed to popular >>

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kind of legal limbo during the Revolutionary War and its status was ambiguous.8 Recognizing this problem, Madison in 1784 voted with other members of the Virginia assembly to pass an Incorporation Act to clarify the legal status—and confirm the property holdings—of what had been the state church. A staunch opponent of established religion, Madison voted for incorporation “with reluctance,” as a stalling tactic, hoping to have thereby “parried” the “much greater evil” of additional efforts to further establish the church.9 Madison’s tactic bought him some time, but he could not be sure it would be enough. In the aftermath of the war, there was widespread concern that wartime conditions had led to a dangerous rise of sinfulness. Given these concerns, many legislators, including the gifted orator Patrick Henry, pushed for an additional law that would institute a tax—a general assessment—to support religious ministers. As Madison recalled years later, “the progress of the measure was arrested by urging that the respect due to the people required in so extraordinary a case an appeal to their deliberate will. The bill was accordingly printed & published with that view.”10 Virginia’s House, in voting to postpone action on the assessment bill, specifically provided for handbills printed with the bill and the postponement votes to be distributed throughout the state, “and that the people thereof be requested to signify their opinion respecting the adoption of such a bill, to the next session of Assembly.”11 Madison had been concerned for months about the movement for a general assessment bill, especially after an initial version of the bill passed two readings with a solid majority early in the October 1784 session. Its support among prominent public figures such as George Washington, John Marshall, and especially Patrick Henry only made matters worse. Throughout the spring, Madison listened for word of the emerging public sentiment on assessment, but he was inclined to let public opinion develop on its own.12 Nevertheless, “at the instance [i.e., urgent entreaty] of Col: George Nicholas, Col: George Mason & others,” Madison later recollected, he wrote the famed “Memorial and Remonstrance” as an anonymous petition to be circulated among the people for signatures.13 Madison scarcely had time to consider Nicholas’s entreaty before noting to Jefferson on April 27, 1785, that “the Bill for a Genl. Assesst. has produced some fermentation below the Mountains & a violent one beyond them. The contest at the next Session on this question will be a warm & precarious one.”14 Only a month later, in late May, a letter to Monroe suggested the tide was beginning to turn: I have heard of several Counties where the late representatives have been laid aside for voting for the Bill, and not of a single one where the reverse

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knew how bold this approval of civil disobedience was, even in a private letter to a friend; he originally wrote and then crossed out “I own the Bill appears to me to justify this strong language.”19 With popular dissent increasing, many petitions against the assessment bill along with Madison’s emerged and circulated during the summer. And the public discussion was clearly having an effect. Soon, not only Presbyterian ministers were rethinking their advocacy of state taxes to support “Christian teachers.” A number of citizens of Dinwiddie County who had signed one of the earlier petitions in favor of assessment had changed their minds and wanted the assembly to know it. Pleased to be able to “retract their [earlier] Opinions in as publick a manner as they gave them,” the Dinwiddie petitioners were confident “that it will be thought by . . . all Rational men much more consistent with a man’s honour and his conscience publickly to renounce an erroneous Sentiment than by persisting in it to produce . . . Consequences which he will forever have cause to lament.”20 There is no evidence that Madison read this particular petition, though he was a member of the legislature being petitioned, and we know he was familiar with the language of other anti-assessment petitions.21 But it was clear to everyone that many minds were being changed and previously silent opponents were finding their voice. By the opening of the new legislative session in the fall of 1785, an unprecedented number of petitions came into the House, “chiefly in opposition to assessment.”22 In the face of this public opinion, the fact that the assembly’s “membership had not changed very greatly” during the spring elections did not matter much;23 the assessment bill never even came up for a vote. As Madison fondly recalled years later, “when the Legislature assembled, the number of Copies & signatures prescribed displayed such an overwhelming opposition of the people, that the proposed plan of a genl assessmt was crushed under it; and advantage taken of the crisis to carry thro’ the Legisl: the Bill . . . establishing religious liberty,” Jefferson’s famed “Statute for Religious Freedom.”24 Madison’s “Memorial.” How much of a role did Madison’s “Memorial” play in this episode of popular deliberation and public political reform? Perhaps not as much as we might think. While Madison’s “Memorial” was submitted with 1,552 signatures on 13 copies of the petition (some of them on large paper to lend them a special authority),25 a more popular but still anonymous petition had 4,889 signatures on 29 separate versions.26 But even if the “Memorial” was not the most influential statement at the time— indeed, partly because of its distinctive character—it gives us a revealing window into Madison’s view of the nature and proper role of public opinion and popular sovereignty. It also says a great deal about his view of religious

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preeminence of the people is further elaborated when Madison chooses to include statements explaining the proper role of citizens in a republic. The people signing the “Memorial” were not signing on to the language of deference and humility nor demonstrating their veneration for, or confidence in, a representative assembly. Rather, as we have seen, citizens have a duty to remonstrate publicly and declare their reasons. This civic duty is further seen in Madison’s next reason against assessment—“3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution.”29 Such “prudent jealousy” not only obliges the citizens to remonstrate, but it might require even more. Within a day or so of privately informing Monroe of the “very warm opposition” to assessment and the ensuing declarations of its invalidity, Madison chooses to have his subscribers hint publicly at civil disobedience. In paragraph thirteen, the “Memorial” notes that “obnoxious” laws “slacken the bands of Society” and asks, “If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority?”30 Recalling that George Nicholas’s letter that asked Madison to write against assessment had mentioned the prospect of “revolution” if enforcement was attempted,31 the scholar Eva Brann suggests that the “Memorial” here hints at more than civil disobedience.32 The very next paragraph (the penultimate paragraph) further demonstrates Madison’s commitment to a vigorous popular sovereignty. Should “the Representatives” continue to “espouse the dangerous principle of the Bill” and thus “disappoint us,” the Memorialists proclaim, “it will still leave us in full confidence, that a fair appeal to the [people] will reverse the sentence against our liberties.”33 Brann reads this as a “veiled threat,” and she may be right.34 This “fair appeal” to the people is certainly a very early example of Madison’s principled belief in the ultimate authority of public opinion, a conviction that he would fully develop in the essays of the early 1790s and eventually in the Virginia Report of 1800. As we have seen, existing scholarship would lead us to expect any popular “appeal” endorsed by Madison in the 1780s to involve not active, ongoing public participation, but only election and representation. Yet the surrounding text demonstrates that Madison is actually calling into question the accuracy of the existing representation: “No satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured.” “Representation must be made equal, before the voice either of the Representatives or of the Counties will be that of the people.”35

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Madison’s petition goes still further, hinting that public opinion is not only a negative, checking force but also a positive, proposing force that could point toward new, better policies. As we have seen, the plebeian signatories were declaring their “full confidence” that a future “fair appeal” to the people—of whatever sort—would overturn the assessment bill, should the assembly overstep its derived authority and pass it. Then the signatories to the “Memorial” closed by “earnestly praying” that God will, on the one hand, “turn [the Assembly’s] Councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his blessing, may redound to their own praise, and may establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.”41 While this call for a new policy direction may seem vague or subtle from our historical distance, it was clear enough at the time; as we shall soon see, other petitions would subsequently be expanded to include passages from Jefferson’s six-year-old bill for religious freedom.42 And again, these appeals for a firmer establishment of the people’s liberties were successful in the very next session, bringing not only the end of the assessment bill but also the passage of the Statute for Religious Freedom. The “Memorial” Compared. The simple fact that Madison wrote a public petition to oppose the assessment bill should not be taken as conclusive evidence of an energetic view of popular sovereignty or a conception of democratic public opinion. In this episode and in many others, gentlemen who were loath to involve (and thus empower) the broader public in political disputes would find it necessary to do so, especially whenever they seemed to be losing the contest. But Madison was not simply writing in opposition to the proposal for a tax to support religious ministers. He could perhaps have responded to Nicholas’s and Mason’s requests by writing a pseudonymous newspaper essay, as he often did in similar contexts (and as others did in this episode).43 Given the “very warm opposition” and “violent [fermentation]” he had described to Monroe and Jefferson, such an essay, or at most a modest petition focused exclusively on religious freedom, might have been the more prudent strategy.44 He chose instead to write an anonymous public petition to be signed by common citizens and to be presented as their views. And their vision of republicanism, in Madison’s mind and words, was one in which the political response to the moral problem of majority tyranny was to rely on the active, reasoned sovereignty of the people. A pluralistic system would likely help, and elite gentlemen might often (but not always) help, yet it really was up to the people—they had to pause, reflect, and perhaps restrain themselves, if justice was to be served.

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important, substantive arguments for religious freedom and would even make relatively timid statements about the obligation of remonstration. But because they envisioned a more deferential role for the people, only one of them dared to follow, even diffidently, Madison’s declaration of an avowedly active public opinion and a genuinely popular sovereignty. Finally, we should recall that Madison had no strategic need for his fervently democratic language: Other petitions chose not to use it and were also popular—in one case, considerably more popular, garnering more than three times the signatures for a more deferential and narrowly drawn petition. In fact, Madison was reluctant to write the “Memorial” and sought to ensure it did not appear as his petition.48 He thought public opinion would work itself out, and he had confidence it would choose correctly (i.e., to protect religious freedom). This was not about elite guidance, since Madison saw the people largely leading the charge. But when he does agree to write the “Memorial,” he gives his subscribers a distinctive theory of popular sovereignty with public opinion at the core, acting as a censor that might correct elites and previous unthinking majorities, and even as a constructive political force that might request new laws that would better serve justice, such as Jefferson’s languishing bill. The new law Madison’s Memorialists hinted at, Jefferson’s long-tabled statute, was just that—a mere statute, not a constitutional provision; accordingly, it was as open to later revision or revocation as any law. The final paragraph of the statute notes this yet it still takes the trouble to declare that any future repeal or abridgment “shall be an infringement of natural right.” By closing his “Memorial” with the hope that the assembly would be guided into “every measure which . . . may establish more firmly the liberties” of Virginia, Madison was seeking to have citizens sign on to a petition that asked for a declaratory law that would act primarily as a reminder to later citizens—perhaps themselves—of the justice of protecting religious liberty. In this pre-Federalist instance, as in so much of Madison’s later writings, the solution to majority tyranny for this committed democrat was not primarily a body of enlightened statesmen, an extended sphere, or even a polity of diverse, competing interests, but rather a reflective, deliberate, and empowered public opinion. The Federalist Papers If scholars have ignored the popular and dissenting nature of the “Memorial,” they have also tended to focus exclusively on the apparent elitism of certain Federalist essays. But Lance Banning has shown that Madison is best understood as a “liberal republican” who wanted both individual rights and

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of democratic public opinion that Madison was expounding after 1790 (to which we turn below).55 Sheehan’s pathbreaking works on the French Enlightenment’s influence on his thinking on public opinion56 have led her to the conclusion, which I share, that “Madison is a more unhesitating democrat than is generally believed. . . . Madison [is] the philosophic architect of the politics of public participation and republican self-government in America.” Madison’s active notion of popular sovereignty is centered on a view of public opinion that went beyond a “general spirit” of the people and their grand constitutional statement. More dynamically, it included the “censorship of governmental measures” expressed by means of “state political organs and by educated men via the media.” Beyond these defensive measures, “the directive agency of public opinion manifests itself through the constitutional mechanisms of free elections and representation.”57 As we have seen, Madison encouraged not only the educated men Sheehan specifies but also the broader citizenry to act as government censors and policy advocates in the religious freedom controversies of 1785. First, we should note that there are important reasons beyond Banning’s analysis of Federalist 10 and 51 to consider a more democratic Madison before the early years of the 1790s. As we saw earlier, several influential scholars have argued that Madison makes a stark theoretical shift in these years.58 Sheehan, however, demonstrates that when Madison focuses on the central role of democratic public opinion in his “Notes for the National Gazette Essays” (1791–92), he explicitly considers himself as providing a more “thorough investigation” of the argument in Federalist 10, which he told Jefferson was only partly explained in 1787.59 This evidence, then, suggests that if the “full discussion” he alluded to in the letter to Jefferson had been possible at the time, the Federalist essays would have elaborated on the popular control of—as well as institutional restraints on—republican government. However, we need not rest on these inferences alone to support Madison’s concern that his argument for an extended republic not be taken beyond the “practicable sphere” for “defensive concert.”60 First, there is the logic of his claim: “no nation can be too large if the object is to thwart majority rule,” Sheehan observes. “Nor can it be oversized if the aim is merely pluralism.”61 Accordingly, even in Federalist 10, there is a “mean” between representative districts that are neither too small nor too large. Moreover, Madison explicitly cautions his readers, even as he discusses “framing a government” in Federalist 51, that such structural arrangements are only “auxiliary precautions.” “A dependence on the people is, no doubt, the primary control on government.”62 Similarly, while Federalist 10 explains how an extensive and diverse republic can interrupt majority tyranny, Madison’s next essay only eight days

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in Madison’s next essay, number 14, published eight days later. However, by number 39, a month and a half after 14, Madison is defining a republic with no such distinction and allowing for its power to derive “directly or indirectly” from the people. The distinction resurfaces briefly in Federalist 48, but by number 58 the distinction is forgotten, as Madison discusses the “ancient republics” as places “where the whole body of the people assembled in person.” Similarly, in private letters, the distinction is ignored; less than a month before Federalist 10 Madison recaps the Philadelphia convention for Jefferson and criticizes those who “contend for a simple Democracy, or a pure republic.”72 Democracy, then, in the sense of “the rule of the people,” was Madison’s central concern. Of course, Madison had a narrow sense of “the people,” as did almost all of his contemporaries. Compared to many of those contemporaries, Madison was somewhat more democratic in defining the people to include white men without restrictions on rank. Even more important, as we have seen, his conception of what it meant for people to “rule” was considerably more robust than existing interpretations of his philosophy appreciate. None of this is to deny that Madison, in the Federalist and throughout the 1780s, was concerned about the weaknesses of the demos and the dangers of popular rule. He was concerned and saw representation as a valuable “auxiliary precaution.”73 But if we extend the work of Banning and Sheehan, we can see that, before, during, and after the convention, Madison is comfortable with empowering the people even as he notes the weaknesses of public discussion. In an August 7, 1785, letter to James Monroe in which Madison had bemoaned the impotence of the Confederation Congress, he also disparages those “minds unaccustomed” to larger issues such as foreign policy; nevertheless, Madison says he is willing to see Congress be “otherwise constituted: let their numbers be encreased, let them be chosen oftener, and let their period of service be shortened.”74 There is no effort here to move power farther from the people. The people could be a problem, of course, when united in a majority faction, as Madison’s Federalist essays make clear and his traditional interpreters emphasize. His pre-convention sketch, The Vices of the Political System of the United States, laments that groups of “individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets.” Yet in republican government, the majority “ultimately give[s] the law,” so disempowering them is not the answer.75 Nor is it necessary: if their individual consciences would know enough to “revolt” at the injustices of factious majorities, then what is really needed is opportunity for individual reflection before popular decision.76

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that Madison had supported the Constitution; Madison explained that the “real danger to America and to liberty lies in the defect of energy & stability in the present establishments.” Because Mazzei had left America and now had “the evils resulting from too much Government all over Europe fully in your view,” Madison lectured him, “it is natural for you to run into criticisms dictated by an extreme on that side. Perhaps in your situation I should think & feel as you do.”80 Only nine weeks later and with the sitting of the First Federal Congress still months away, we find Madison already hinting that the situation in America may soon tip the scales toward too much government. “Philosophers on the old continent in their zeal agst. tyranny would rush into anarchy,” he cautioned Mazzei. “Here perhaps the inconveniences of relaxed Government have reconciled too many to the opposite extreme.” “Hitherto the error in the U.S. has lain in excess” of liberty, explained Madison, but we also see here his awareness that his countrymen may already be moving toward an unsafe reliance on energetic government with too little popular input.81 A few years later, when Alexander Hamilton’s plans for an expansive and vigorous federal government would transform these hints into dire realities, Madison would see the need to theorize more explicitly the place and nature of democratic public opinion.82 Hamilton’s personal explanation for Madison’s alleged shift, we should recall, was Jefferson’s sway over Madison once Jefferson had returned from Paris. Yet a year before Jefferson’s return, and just after the first of these letters to Mazzei, Madison tells Jefferson that limiting government via a bill of rights was not essential to the Constitution. “Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the majority.” Nevertheless, even at this early date, Madison agrees that too much governmental power could endanger popular liberty: “there may be occasions on which the evil [of oppression] may spring from” “usurped acts of the Government.”83 In the fall of 1788, Madison had no reason to expect that the new federal government would have a tendency toward tyrannical expansions of power—indeed, without a federal veto power over the states and with the Senate chosen by the state legislatures, Madison expected the states to act as avenues of popular control and to overpower the national government. But once the Constitution was safely ratified, not only were amendments no longer a threat, they were seen by Madison as an important effort to reconcile Anti-Federalists to the new political arrangement.84

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The problem of minority tyranny had always been a part of Madison’s theory of popular government, as we have seen. But his expectation in 1786–87 that it would be the less troublesome aspect of representative selfgovernment had proven too optimistic. The Washington administration, driven by Hamilton’s political vision and skill, and abetted by congressional acquiescence and public apathy, was taking on new powers, both formal and informal, that made popular control a much more pressing concern. In this context, Madison sought to develop a “thorough investigation” of the nature of “stable and free Govt.,” based not solely on the Montesquieuian balance of governmental powers, “tho’ that is not to be neglected” (and of course would not be at a constitutional convention); rather, he now had the opportunity— and the incentive—to elaborate the “best provision” for such a government: “an equilibrium in the interests & passions of the Society itself.”91 That project led him to theorize explicitly, for the first time, the centrality of democratic public opinion in popular self-government. This fuller discussion is to be found in Madison’s “Notes for the National Gazette Essays” and the resulting series of newspaper articles he published anonymously from late 1791 through 1792. Some of the articles drew heavily from notes he took in the 1780s and even as early as 1779, but by and large they were novel, driven by the need to explain the details of democratic government in the face of Hamilton’s efforts to expand federal power much further than Madison thought was prudent or even authorized by the new Constitution. The unprecedented nature of that Constitution provides the fundamental underpinning for much of the theory Madison would elaborate during this period. For his part, Madison’s theory would itself be unprecedented in making democratic public opinion the essential medium of popular sovereignty; in this way it laid the groundwork for the arguments of the democratic societies that we examined in chapter 4. His National Gazette essay entitled “Public Opinion” begins with the stark declaration “Public opinion sets bounds to every government, and is the real sovereign in every free one” (echoing his own Federalist 49).92 “In one sense,” the political theorist Alan Gibson has maintained, “Madison simply asserted that the rule of public opinion was the fact of the matter in a nation that recognized popular sovereignty.” David Hume, the Tory-leaning philosopher, had decades earlier made a similar point. Following Hume, Madison would expand on this point in the subsequent essay “Charters.” “All power has been traced up to opinion. . . . The most arbitrary government is controuled where the public opinion is fixed. The despot of Constantinople dares not lay a new tax, because every slave thinks he ought not.”93

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must be owned, is the natural propensity of every government.”99 The state governments were necessary mechanisms of popular control in such a large territory. (Madison, as we shall see, will demonstrate his commitment to this view in the “Virginia Resolutions” and the Virginia Report.) But as important as the state governments are, the chief problem here is the impotence and resulting apathy of public opinion, “the public mind.” The proper goal for America is a government that is popularly, not self, directed. Another essential mechanism for the democratic direction of government was the free press. Here again, Madison would echo and elucidate one of his arguments from The Federalist Papers. Just as Federalist 14 had stressed the importance of easy communication throughout the nation, rendering it effectively smaller, so he pursued a similar logic now. If the press could be abolished, he reasoned in his Notes, a country would act as if it were ten times larger. On the other hand, “Whatever facilitates a general intercourse of sentiments,” he declared in “Public Opinion,” such “as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among every part of them, is equivalent to a contraction of territorial limits, and is favorable to liberty, where these may be too extensive.”100 A nascent mass media, then, made it possible for a nation of extensive size to avoid both minority and majority tyranny; this “original, momentous insight,” Colleen Sheehan rightly observes, “belonged to James Madison.”101 We should also note that representatives are here seen solely as a medium for what really matters to Madison: effective public opinion. A robust public sphere was critical not just to make an extensive sphere “practicable” for popular government; it was also necessary in order to make the public mind better informed (as well as sovereign). Only a month later, Madison beseeched the House to cut the postage on newspapers in half because the failure to increase the de facto subsidy “amounted to a prohibition in [effect] of the distribution of knowledge and information [throughout] the Union.” Unsuccessful on this occasion, he spent 1792 making repeated attempts, private as well as public, to make newspapers cheaper and thus more readily accessible to common citizens.102 By December, he was appealing to Edmund Pendleton, insisting that it is “of great importance” to remove barriers “in the way of information to the people. In all Govts. the public censorship is necessary in order [to] prevent abuses. In such an one as ours, where the members are so far removed from the eye of their Constituents, an easy & prompt circulation of public proceedings is peculiarly essential.”103 Members in Congress would, of course, have access to all necessary public information, and if they were to rule for the people, that might have

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how the “dress” and “disguises” of Hamilton’s arguments meant their “true character” was hidden; had they been “nakedly presented to the public,” they would surely have been rejected.108 Recognizing that exposing and responding to Hamilton’s theory would alone not be enough to sway public opinion, Madison joined James Monroe in drafting some Resolutions on Franco-American Relations that were to be used as models by disparate counties in an effort to develop and articulate a less-Federalist public mind-set. But in sending a copy of the Resolutions to Jefferson, Madison privately mourns the recurring weaknesses of public opinion formation that have become obvious to observers in the ensuing centuries (and would soon be the bane of the democratic societies): If the genuine sense of the people could be collected on the several points comprehended in the occasion, the calamity would be greatly alleviated if not absolutely controuled. But this is scarcely possible. The Country is too much uninformed, and too inert to speak for itself; and the language of the [commercial] towns which are generally directed by an adverse [i.e., Federalist] interest will insidiously inflame the evil.109

An uninformed and unengaged populace poorly serves democratic public opinion, especially when influenced by the power of economic interests, according to Madison.110 Nor was this an altogether new concern for him, driven by the success of Hamilton’s foreign policy. In fact, part of his notes for the National Gazette essays focused on the unique capability of popular self-government to act back on itself. A section entitled “Checks devised in Democracies marking self-distrust” reviewed various institutional means, such as senates, that allow democracies to control themselves. Tellingly, he also highlighted the checking power of cultural norms, such as those against orators who “deceive the people” in exchange for gifts.111 The self-reflective character of the democratic public mind was an important feature of its moral value. Accordingly, Madison had repeatedly sought structural mechanisms to encourage this kind of self-correction, from senates to a vigorous political press. The Virginia assembly’s call for comment on the assessment bill was an earlier attempt to induce serious public reflection and the Dinwiddie County petitioners, we should remember, took the opportunity to correct their earlier opinion. Madison and other prominent gentlemen played leading roles in this, and so we should not be surprised to find him jotting in his 1791 Notes that “the class of the literati is no less necessary than any other. They are the cultivators of the human mind—the manufacturers of useful knowledge—the agents of the commerce of ideas—the censors

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Given the unprecedented political power and moral responsibility lodged in the people by popular government, Madison insisted the citizenry should be informed and enlightened. Be that as it may, he is ultimately willing to make democratic public opinion the effective standard of political right in a very real sense, even when the future of republican government is at stake. Public opinion for Madison, then, in both theory and practice, was not “prejudice”116 or “veneration”117 for the government or the law, as some scholars have claimed, nor was it “essentially inert”118 or merely a matter of electing good, elite politicians.119 Rather, public opinion was to be the core of an active and genuine popular sovereignty, so much so that Madison’s renowned defense of the democratic societies a few years later was predictable: politically important but theoretically uneventful. When Washington’s Presidential Address to Congress blamed “certain self-created societies” for inciting the Regulation of 1794 (the “Whiskey Rebellion”), the Senate’s formal Reply simply echoed his denunciation. As he privately wrote Monroe, Madison saw this as “perhaps the greatest error of [Washington’s] political life” and so drafted a reply for the House that ignored the condemnation of the clubs. When efforts were made to add a line denouncing the societies, the reader will recall, Madison argued on the House floor that such a censure violated the principles of republicanism, in which “the censorial power is in the people over the government, and not in the government over the people.” Any publications of the democratic societies should and will “stand or fall by the public opinion.”120 Madison rejected any obstruction of legitimate statutes by forcible opposition as a violation of the Constitution, and he further lamented, as he reminded Monroe, “the general tendency of insurrections to increase the momentum of [governmental] power.” He was also well aware of the “game” of “party advantage” being played in Congress, seeking to associate his Democratic-Republicans with the democratic societies and through them, with the “Rebels,” while the Federalists could additionally frame themselves as defending the president and lawful order.121 But what was most important to him, in his House speech and reiterated in his private correspondence with Jefferson, was the “attack on the most sacred principle of our Constitution and of Republicanism, thro’ the Democratic Societies.” Ultimately, “time must decide” whether the American people were “so far degenerated already as not to see or to see with indifference, that the Citadel of their liberties is menaced by the precedent before their eyes.”122 Here again, Madison’s faith in popular government and in the public opinion at its core was not limited to philosophical principle but extended to political reality.

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nullification. John Taylor, an associate of Jefferson and Madison, formally presented the Resolutions and framed them as “only an appeal to public opinion,” a “middle way” that rejected both timidity and armed resistance.128 Later in the legislative debate, Taylor “concluded with observing that the will of the people was better expressed through organized bodies dependent on that will, than by tumultuous meetings.”129 Indeed, moving from popular petitions to legislative resolves was precisely the approach Madison had in mind for the 1793 Resolutions on FrancoAmerican Relations he drew up with Monroe. “I am not sanguine however that the [county-level petition] will succeed,” he wrote Jefferson. “If it does not, the State Legislatures, and the federal also if possible, must be induced to take up the matter in its true point of view.”130 Similarly, when a 1797 grand jury—encouraged by a charge from a Federalist judge—issued a presentment against a Virginia congressman, charging him with published criticisms of the federal government, Madison advised Jefferson on a petition protesting the violation of freedom of speech; the petition was to be distributed to counties for signatures and then delivered to the House of Delegates.131 When the congressman was not indicted, stalling the petition in the House, Jefferson followed up in late 1798 with a second petition, this one calling for the popular election of juries. Notably, though the petition was drafted by Jefferson, Madison recommended that he revise the language to highlight the power of juries to rule on the law as well as the facts of a given case.132 Juries—and possible jury nullification—were then widely seen as important avenues for popular participation in the legal system, a point we often overlook but one that was never forgotten by Madison.133 Formal resolutions of state legislatures, then, were comparatively moderate avenues of democratic dissent. Importantly, they were also demonstrably majoritarian statements. Before either Madison or Jefferson had drafted a word of either Resolution, “Philo-Agis” had made this point explicit in the Kentucky Gazette. While he encouraged the “people at large” to continue petitioning, he also worried that “a paucity in numbers” in any one petition might make the movement seem insufficiently “formidable.” But if several state legislatures joined in condemning the acts, “thus will the unanimous voice of a very considerable part of this continent” be focused on a “single point.” “Philo-Agis,” it seems, had learned from the experience of the democratic societies about the need for support from public organs whose legitimacy was beyond question. He then even calls on Jefferson to “devise some plan” and steer “the mid-course between the extremes of faction and discord on the one hand, and those of a servile and sordid submission to tyranny and despotism on the other. Petitions, remonstrances and addresses are the only

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employing—for over a decade, a theory that had public opinion at its core. As in the National Gazette essays, Madison stresses that America is unique. The Federalists’ frequent comparisons between the Sedition Act and England’s similarly restrictive free speech laws failed to appreciate that the American “case is altogether different. The people, not the government, possess the absolute sovereignty.”141 Thus, if a state’s people chose to proclaim that certain federal laws were unconstitutional, this action was “unexceptionable.”142 In this regard, Madison could not refrain from reminding Federalists that they had “emphatically” argued during the ratification struggle that the state governments would check federal encroachment by “sound[ing] the alarm to the public,” words that echoed language Hamilton had used not once but twice in The Federalist.143 The robust—indeed, unprecedented—freedom of political expression then being exercised by individuals and communities was necessary to make democratic accountability meaningful, especially given the “peculiar distance” between the federal government and the mass of people.144 Such an extensive territory also made elective representation almost meaningless, unless a free press allowed for “the right of freely examining public characters and measures” as part of its broader role as “the only effectual guardian of every other right.”145 For Madison, dissentient public opinion was about much more than keeping representatives accountable at the ballot box.146 Rather, it is the “duty as well as the right of intelligent and faithful citizens to discuss and promulge [government proceedings] freely,” both to “control them by the censorship of the public opinion” and to “promote a [constitutional] remedy.”147 But if this “censorship of the public opinion” is to be adequate to the demands of democracy, any government censorship of dissenting voices is unacceptable. In order for this kind of broad and active political participation to be “effectual,” the Constitution must protect political speech “from subsequent punishment as well as previous restraint.” Here Madison is addressing the problem we now call “the chilling effect,” whereby dissenters self-censor legitimate discourse for fear of being punished after the fact. As we saw above, this was a problem that Anti-Federalists faced during the ratification struggle and Philadelphiensis began to analyze. Madison now maintained that such a policy was a “mockery,” because the threat of subsequent punishment would have “a similar effect” to granting a government censor the power of prior restraint. Similarly unthinking was the repeated Federalist claim that the Sedition Act was a legitimate, even tolerant, version of freedom of the press because it allowed for evidence of the truth of the alleged libel to be offered as a

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Conclusion A robust, active public opinion, invigorated by dissent, could spur and inform public reflection, ultimately resulting in governance that was both democratically legitimate and morally correct. Madison not only believed this personally and articulated it theoretically, but also witnessed it politically. When recollecting the Sedition Act Crisis thirty years later, Madison concluded, “The interposition of [the ordinary control of the people and legislatures of the states], as the event showed, was equal to the occasion.”152 Traditional “Hamiltonian” readings of Madison have for too long obscured this more accurate understanding of the “Father of the Constitution,” and even more recent readings have not fully appreciated that a genuinely democratic Madison was consistently committed to an active, popular government from at least the mid-1780s.153 Over a decade and a half, he developed and articulated his democratic theory in the face of episodic challenges to an inherited republican tradition that stressed both the public good and (increasingly) individual rights, both deference to elites and (increasingly) public participation. At times, a hyperactive and unreflective populace seemed to pose the greatest threat; at other times, it was a surprisingly powerful if formally limited government. Throughout, however, Madison insisted that popular government required an engaged and empowered populace. Certainly, electing worthy representatives would be a necessary and significant civil duty. But undergirding these elections—making them both practically possible and philosophically meaningful—was public opinion. What’s more, this civic force was not merely defensive, keeping elected officials in check, but also directive, pointing out problems and suggesting appropriate “remedies.” Madison was thus the first to make public opinion the core element of democratic theory.154 For him, public opinion was politically supreme and thus morally legitimate, even in spite of its admitted weaknesses. To his dying days, he was sanguine about the possibilities of popular wisdom.155 A vigorous public sphere gave rise to civic reflection and moral correction, whether it was the Dinwiddie county petitioners in 1785 or the vast American public in 1800. And given its ability to invigorate debate, dissent became an increasingly conspicuous element of Madison’s theory as he developed it over his lifetime. Despite these extraordinary contributions, there were also limits to the role dissent played in Madison’s democratic theory, limits that we will soon see other theorists transcend. “Political Contests are necessary sometimes as well as military [contests] to afford exercise and practice[,] and to instruct in the Art of defending Liberty and property,” wrote a twenty-three-year-old Madison in 1774.156 But as he matured as a political philosopher, contestation

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Federalists made a valid argument about the overbearing manner of the anti-treaty forces, yet they were no more solicitous of popular dissent against the administration’s treaty than was Hamilton. Indeed, labeling all of the protesters “Jacobins” (and even “terrorists”)6 was also an effort to denounce and thus silence them en masse. Once the president ratified the treaty in the fall, Federalists went about appealing to the people’s great trust in Washington and, for good measure, played up fears of war with Britain should the treaty fail; accordingly, public opinion did quiet down and soon came to favor the treaty. But the greater campaign against dissent (and in favor of popular deference) was only just beginning. The Sedition Act’s effective criminalization of dissent was in many ways the formal, legal culmination of this movement. But as the historian Seth Cotlar has recently demonstrated, the Sedition Act was only part—and, indeed, the less successful part—of a broader, coordinated project to “shape the way ordinary Americans discussed politics.” In the early 1790s, discourses that supported the exclusion of average citizens from the political sphere would have seemed too aristocratic for public avowal. But starting in 1795, “Federalist orators called upon American citizens to reject popular politicization and embrace a virtuously passive conception of citizenship.” Hamilton’s proposed resolutions were just one example of this trend. Common people were encouraged to “focus on election day as the primary moment of political action, and leave the decision-making up to their more qualified, chosen leaders.”7 Federalist literature—stories, orations, and essays—increasingly modeled “a passive version of virtuous citizenship for non-elites” and stressed the need for average men to get out of political clubs and get home to take care of their families.8 This renewed culture of deference and the Sedition Act it fostered amounted to an unmistakable assault on the very principle of dissent. Coming on the heels of the demise of the democratic societies and the failure of the Jay Treaty protests, radicals of the late 1790s collectively seem to have come to the realization that they needed to defend the principle of democratic dissent. Even nameless, plebeian writers criticized Federalists “who preach up submission to the constituted authorities, but [take] for disorganizing every thing opposed to your wishes, [and] who would ruin and destroy [men] who would dare to dissent from your doctrines.” Such “diabolical machinations,” it was now clear, deserved “infamy.”9 But it is one thing to lambast your opponents for failure to welcome the other—that is, your—side of the argument; it is quite another to insist that all sides get a fair hearing, especially in an increasingly partisan time and place. Just such a time and place was George James Warner’s 1797 Fourth of July Oration delivered to a host of Jeffersonian New York clubs: the Mechanics

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Warner’s call for tolerance of opposing views is only fleeting, even if its context gives it special power and the theoretical connection with an independent public sphere shows rare insight. For the most developed theory of democratic dissent to emerge before the Sedition Act pressed the issue, we must turn to the still-unknown newspaper essayist “Numa.” In choosing a classical pseudonym, the author was making some claim to an educated status. The legendary second king of ancient Rome, Numa was known for his wisdom, piety, and peacefulness, and the writer seems to draw on the peaceloving aspect of his namesake in his call for an end to partisan efforts to stigmatize “worthy men” of the opposite party.13 Yet it is his wisdom that makes Numa important to the evolution of dissentient democracy, for in the space of fewer than 1,400 words, he not only theorizes the inevitability of different opinions but also espouses the benefits derived from political disagreement and even hints at the idea of a culture of democratic dissent. A newspaper essay lamenting the partisan nature of the times was unremarkable in the 1790s: The amorphous movements of Federalists and Democratic-Republicans were just beginning to exhibit the outlines of modern political parties, and the traditional, republican notion of one, unifying public good was being challenged as never before. But rather than bemoan this development, Numa embraces this oppositional dynamic and explains its proper role in democratic politics. Most strikingly, he does so by analyzing the fundamental nature of truth and does this in 1796, two years before the Sedition Act’s stipulation of truth as a defense against seditious libel charges would make this issue more salient. Numa traces both the criticism of political differences and their use in vilifying one’s opponents to the same source: a misunderstanding of the peculiar nature of political “truths.” Whereas the long-standing (but rarely articulated) belief in the one objective Truth underwrote the sense that those who were Right could justly silence those who were Wrong, Numa opens up the role for dissent by arguing against the idea of one, exclusive Truth, at least in politics.14 While a Federalist judge would shortly instruct a Sedition Act jury that “truth has but one side,” Numa instead argued that “political truths are not like those of science, found in intuition, or susceptible of demonstration; they are the result of probable reasoning only.” Since “probability in every degree implies some mixture of doubt,” he explained, “there is great ground for variety of sentiment, and great reason for candor and tolerance upon such subjects.”15 This probabilistic, speculative nature of political truths was, for Numa, one of many reasons why differences of opinion were natural and inevitable. People had differing views of human nature and of society, varying

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Finally, we should be careful to note the inclusion here of references to the “spirit” of society, what we might call the culture of democratic dissent.17 Numa wants “tolerance” as well as “collision.” An act of dissent not only helps us to avoid error and spread good information among the citizenry, but it also engenders a habit, even a norm, of dissent by exercising “the virtues of toleration and forbearance.” In conceptualizing a fundamental place in “free” government for a “spirit of patriotism, moderation, and tolerance,” Numa seems to be pointing to the necessity of a public culture of dissent to animate the democratic public sphere (and public media) that Madison articulated. John Thomson: Useful Errors and Lustrous Truths Numa’s insistence on inevitable disagreement and his explicit praise of dissent were novel claims that take us far from the traditional condemnation of factious disagreement and expectation of a happy consensus, if only other men were not deluded by a designing few. The allusions to a “spirit” of dissent are provocative, if fleeting. That such a newspaper essay would even be written and printed in the relative calm of 1796 suggests that some broader rethinking of dissent was perhaps under way. In any event, a much deeper discussion would soon be necessary. While the Jay Treaty improved American relations with Great Britain, it only served to sour America’s dealings with her erstwhile ally and ostensible sister republic, France. And when American diplomatic efforts were only met with French contempt, the two countries soon found themselves engaged in naval skirmishes off the American coast. By 1798, Federalists led by President John Adams (and, from behind the scenes, Alexander Hamilton) had responded to the “Quasi-War” by preparing for a possible declared war, including establishing a massive new army and passing a number of laws aimed at supporting the war effort. One of these laws, the Sedition Act, the reader will recall, criminalized criticism of Congress or the president (both Federalist). The Act fit with the Federalists’ cultural critique of dissent and thus, notes the historian Saul Cornell, “forced opposition theorists to grapple with the meaning of dissent in novel ways.”18 John Thomson was one of those opposition theorists. And, unlike Numa, we do have his real name. Beyond that, however, we seem to know nothing of his biography.19 At least we have his book, An Enquiry Concerning the Liberty and Licentiousness of the Press, which at eighty-four pages allows Thomson not only to condemn the concept of seditious libel, but also to be among the first to suggest that even mistaken, erroneous, false dissent is advantageous. Along the way, he elaborates a few of the claims made by Numa.

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the channel” of public opinion, and he pointed to the deaths of Socrates and Jesus for evidence.24 The public, on the other hand, should be entrusted with completely unlimited political discussion. Only conduct should ever be punishable. “In no case whatsoever use coercive measures. Truth is at all times sufficiently powerful. Coercion may silence, but it never can convince.” Indeed, Thomson took this principle further than almost anyone, insisting that even civil suits for damages to private reputation must be inadmissible for public figures.25 To be sure, Thomson’s free speech absolutism fit with those whom he thought had been excluded from public debate. “Let [the middle and lower classes], if investigating public affairs, boldly speak what appears to them to be true,” he declared. And “let great men never be offended at little men for freedom of political investigation. Notwithstanding all that has been said to the contrary,” Thomson continued, “the poor man has as much at stake, and is as much interested in the stability of government, as the richest man in the country.” If the views of the lower orders turned out to be mistaken, he was confident that the error would be detected and the views harmlessly rejected.26 Thomson’s free speech absolutism was an aspect of a broader theory that articulated the value of democratic dissent. Though he prefaces his book with the humble observation that “it is not to be expected that many new ideas can be found upon a subject of this nature,” he in fact elaborates views that, though not entirely unprecedented, extend some of Numa’s central claims. Humans were naturally diverse, according to Thomson, and so attempting to enforce a uniformity of opinions was inevitably futile, even irreligious: “Vain would be the task of him who should attempt to make all mankind of one opinion. Why then dare to attempt a thing which God has thought fit to render impossible?” Writing in the aftermath of the Sedition Act, Thomson is forced to address the Federalist view that the Act’s allowance for evidence of truth as a defense was sufficient to protect correct political discussion, and this in turn leads to analysis of the nature of truth. For Thomson (and Numa), the claim that difference of opinions was divinely and permanently ordained militated against the notion that there was one clear, objective political truth that must be protected from the corruptions of error. Judge Alexander Addison’s address to a Vermont grand jury explains the Federalist’s underlying logic: “But will you say,” Addison asked, “We desire to hear both sides, that we may know the truth. My friends, truth has but one side, and listening to error, and falsehood is indeed a strange way to discover truth.”27 Thomson, like many DemocraticRepublicans, countered that the legal provision was effectively meaningless,

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In denying a legal avenue for recovery of civil damages resulting from false claims against private figures, Thomson’s views are even more extreme than the uniquely strong protection of free speech that America has maintained since the Supreme Court announced the “actual malice” standard in New York Times v. Sullivan in 1964.34 More importantly for the theory of dissentient democracy, he was asserting that public debate must be open even to erroneous dissent, not only because no one—and certainly not government—could be trusted to establish political “truth,” but especially because the contrast with such errors will add luster to the verities that result. More than fifty years later, John Stuart Mill would make this claim famous. Yet even then, Mill would see this vigorous and even erroneous dissent as a challenge for democracy, whereas Thomson makes such dissent very much at home in democratic public debate. Tunis Wortman: A Culture of Democratic Dissent Both Numa and John Thomson advanced views that embraced dissent— even erroneous, misguided dissent—for fostering better democratic decision making. If Numa left us with no real name, but provocative hints about the dissentient “spirit” or culture, and Thomson left us with only his real name and a free speech absolutism that saw practical advantages in falsity, then Tunis Wortman left us at least a rough biography and a much more detailed model of dissentient democracy. Though he was a New York lawyer, we know little about Wortman until he appears as secretary to the New-York Democratic Society in its earliest official publications in March 1794. An inveterate joiner, Wortman was also a member of the city’s Manumission Society, as were Federalists such as Alexander Hamilton and John Jay, and the Tammany club, which (as the reader will recall) lost its Federalist members after a dispute over how to respond to Washington’s denunciation of the “self-created societies.” Indeed, as a prominent member of the Tammany club following the dispute, Wortman became more partial to the Jeffersonian cause. Once Jefferson and other Democratic-Republicans were in power, Wortman was named the clerk for the city and county of New York, an office he held until 1807, during which time he “certified Irish immigrants as citizens, then walked them to the polls.”35 Even with this official status (and income), Wortman never really rose beyond the middling strata of society. In July 1804, we find him writing obsequiously to the former president of the Democratic Society, James Nicholson, begging for more time to repay a debt.36 Wortman not only joined clubs, but he also was a strong advocate for the importance of such associations in democratic society and an astute theorist

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were appropriate.42 Together, these two provisions would provide wide latitude for virtually all political dissent. Wortman’s nuance as a theorist of democratic free speech is perhaps nowhere more evident than in his attention to the need for some governmental secrecy. Eighteenth-century advocates of free expression almost never addressed this issue, but he was willing to concede “necessary secrecy” concerning military plans and diplomacy. Still, “publicity should constitute an essential characteristic of political transactions.” Thus, Wortman explained, “such exception is confined within extremely narrow bounds. It will principally relate to Subjects of extraordinary occurrence.”43 Here again, he was mindful of other, competing values in democracy but wanted to make as much room for vigorous dissent as possible. Wortman is so careful about his allowances for private libel suits and government secrecy precisely because he knows a dissentient society must avoid creating what we now call a “chilling effect” that might dissuade potential dissenters. Civil suits for personal injury had to be strictly limited: otherwise the law “will constantly damp the energy of Public Spirit and awe the timid and the irresolute into an abdication of their rights.”44 And though he was a lawyer, Wortman conceded that even if well drafted, such laws risk doing some active harm: “It will be the continual tendency of such [a] system to damp the ardour of Political Enquiry and to inspire the mind with terror. The investigation of public measures will incessantly be associated with the dread of prosecutions and penalties; and the apprehensions of fines and imprisonment will everywhere pursue us. In vain shall we attempt to estimate the precise extent of prohibition.”45 Such public timidity would leave “the people with the semblance and unsubstantial shadow of liberty.” To avoid this, “no superintendance should be introduced except what is exercised by the percipient faculties of Society.46 Society—and not government—can and should correct or reject the views of misguided critics. But, according to Wortman, society should do no more, and it should not go to the extreme of disorder. “Public Opinion is the only check which can be judiciously opposed to the encroachments of [any government’s] Prerogative. All other resistance would not only be ineffectual and perilous, but subversive of every valuable principle of the social state. Disorder and Violence should be severely discountenanced by every enlightened advocate of Freedom.”47 Violent revolution is justified only “when all hope of redress from any other remedy has completely vanished.” This, unsurprisingly, is the Lockean argument concerning limited government common to heirs of America’s War for Independence. But Wortman adds a further requirement

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also enabled to form a tolerably correct opinion of the measures and morality of the cabinet.”52 Politics does not rely on access to some transcendental truth, according to Wortman; rather, popular government is animated by the “tolerably correct” judgment of a dissentient public sphere. The (relatively) inclusive debate Wortman conceptualized followed Madison in stressing the centrality of an active and sovereign public opinion. Both men agreed with the standard Humean observation that “with relation to government, public opinion is omnipotent.” “Or rather,” Wortman adds, “to speak more correctly, it is impossible that any government should exist in direct contravention of the general will.” Elucidating the point perhaps more clearly than Madison, Wortman explains what makes popular government unique: “The governments of Turkey and Russia maintain their authority rather in consequence of the public acquiescence, than by virtue of any distinct and previous decision of the national will. The government of the United States is the genuine offspring of a pre-existing determination of public volition.” To be sure, government officials are empowered to handle most day-to-day matters, but public opinion must be the animating force: “Governments are entrusted with the exercise of the ordinary powers of sovereignty: but Society is nevertheless the real and substantial sovereign.”53 Where Wortman does break with Madison is in regards to the role of government in shaping public opinion. Madison, as we have seen, expected government to generally follow public opinion, but he does approve of government “influencing” the public’s opinion when and where it is “not fixed.”54 Wortman is not sanguine that government is qualified to “assume the province of an Instructor.” Rather, “if Government is destined to become improved, the power by which it is amended must act independently of its controul.”55 In a democratic system, it is the public sphere via the press that must form the sovereign public opinion. “The Press particularly harmonizes with the establishment of the Representative System.” “The light it diffuses will continually increase the number of accomplished individuals, and enable Society to select and distinguish Merit. The Press is, therefore, an excellent auxiliary to promote the progressive perfection of the Representative System.” Newspapers, reaching beyond the elite to the masses, are especially important. Their “extensive circulation” and manageable size make them “peculiarly serviceable to those whose circumstances are limited and whose time is chiefly occupied by necessary labour.” This public sphere of print “affords to Learning a more general and extensive dissemination, and becomes the useful Instructor of the people.”56 Precisely because this was meant to be a popular government, Wortman rejected arguments that sought to marginalize the masses with the claim that

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Like many previous opposition theorists, Wortman critiqued the exalted norm of “disinterestedness” as unfairly diminishing the diversity of views available in public debate. But rather than simply claim that the wealthy were immoral or even argue that everyone is selfish, he theorizes that selflessness is unnatural and unnecessary. “True virtue cannot require that men should become totally detached from themselves.” Our individual diversity must be what animates our collective judgment. “Society does not constitute an intellectual unity”; rather, “each of its members necessarily retains his personal identity and his individual understanding. By Public Opinion we are, therefore, to imply an aggregation of individual sentiment.”63 Democratic decision making will require that the majority rule, but individuals must not be forced to conform their views to some communal consensus. At town or county meetings, for example, “every individual might deliver his sentiments and pronounce his will. It is probable that upon most subjects some dissenting voices would be found. Perfect unanimity is seldom to be expected.”64 Even when minority viewpoints are theoretically welcomed, however, they can be practically excluded, as the Anti-Federalists and their successors have made clear. Concerns lingered that the “glare” of “great names” would blind the public, and Wortman, in his pseudonymous Solemn Address defending Jefferson from charges of deism, echoes the now-standard line that his arguments should be judged on their own merit. Pressing the point, he adds, “I have no blind respect for names alone, claiming the privilege of thinking for myself.”65 But given his cast of mind, Wortman focuses more on the way influential institutions can be problematic for dissent. As we have seen, he was more worried than Madison about the role the government played in molding public opinion and this view was predicated on the continuing conviction that “all Governments have an inevitable tendency to aspire” to more power, “even . . . the rulers of the free.” And by all governments, Wortman meant to include even the administrations he supported. His Address celebrating Jefferson’s inauguration cautioned that moderate jealousy was still needed, because “power naturally begets power.”66 This natural tendency for governmental power to expand is especially troubling for the quality of dissent because “government will ever possess an imperious advantage in the argument,” Wortman explained. “There are more [people] that will always be ready to vindicate than to censure its measures from selfish or sinister considerations.”67 Given the powers and privileges of officeholding, the current administration will always have structural advantages—legal, political, economic, cultural—that will draw supporters and defenders. A related difficulty is the tendency for the media, more often than not, to support the existing government. The press was often criticized for

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some need to explain his spirited defense of his favored presidential candidate, Jefferson. “If I write with warmth, it is because I am interested in the subject, and feel its importance.” His “earnestness” is justified, because “upon such a subject, the want of enthusiasm would be coldness.” And while he did not mean to engage in partisanship, “neutrality would amount to a criminal abandonment of principles.”73 For Wortman, then, rationality’s “coldness” can sometimes be suspect. And sometimes, passions can be noble—at least to an extent. Even after Jefferson’s election, as he looked back on the development of the DemocraticRepublican movement, Wortman conceded that he and others had been a bit too enamored of the French Revolution. “The love of freedom, the noblest of the passions, too strong, too powerful to be resisted, rendered us incapable of thinking with coldness.” Similarly, in the Treatise, he praises rational argument but also commends the press for making room for ridicule: “Ridicule, indeed, should never be considered as a test of Truth: but yet it may be successfully applied in exposing Folly, and combating what may be termed the Minor Vices.”74 These passages are, at most, suggestive, and Wortman continues, like his contemporaries, to place reason above affect. Still, he is unique among our eighteenth-century radicals in expanding the concept of democratic dissent to make room for ridicule and other kinds of spirited engagement. He is most important, however, as the first theorist of a dissentient public culture. Madison points us toward such a society with his notion of an “extended sphere” of political debate tied together by a national press in service of a democratic public opinion. The democratic societies, in words and deeds, sought to institutionalize such a society. And Numa, as we have seen, touched on the concept of a broad public “spirit” of toleration. Yet it was really Wortman who first theorized in terms of a dissentient public culture, complete with the norms and practices that would make dissent an integrated as well as integral part of democratic politics. That Wortman should play this role is not surprising. Certainly his concerns for strictly limiting the reach of private libel claims, government secrecy, and any “chilling effects” on dissent all speak to this broader concern with the mores of democratic citizenship. His first published work was Oration on the Influence of Social Institution, which he gave to the Tammany Society in 1796. As we might expect, he praised the role of clubs like the Tammany. But he also explored the ways in which “social institution”—his term for the elements of civil society—shaped its participants. These same themes return in the Treatise, where he has the space to connect individual habits, civil society, and democratic governance. “It is the force of social

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At that point, and in the spirit of dissentient democracy, “Society, at length having heard the arguments and examined the pretensions of both parties, will finally decide the controversy.”78 With Wortman, then, we find a theory of representative democracy that not only tolerates dissenting viewpoints but also is built around the principle of dissent. Accordingly, his model works to protect dissent both legally and culturally. Legally, the public sphere must be widened to allow all political debate, not in spite of the erroneous views that will inevitably be publicized, but rather with the understanding that it is only through the resulting collision of sentiments that political truths can gain the necessary public acceptance and support. Culturally, many of the norms that unreflectively protect the status quo will have to be replaced by customs that welcome dissent, even impassioned dissent. Expecting such developments, Wortman remained steadfastly optimistic about the eventual advance of popular judgment. But what if the biases of status quo thinking are woven into the very language available to the public sphere? William Manning: Ongoing Contests of Multiple Discourses Though never more than a middling farmer his whole life, William Manning was part of an established family in Billerica, Massachusetts, a small village in the countryside more than twenty long miles from Boston. His greatgrandfather was a Harvard graduate and a prominent political figure in the early days of the village. Despite having less than six months’ schooling in his whole life, Manning would serve as a village official on a few occasions. And though he almost never traveled from Billerica, he did arrive in Concord just in time to see some action before that famous battle ended.79 Still, the family had come down in the world and he was probably better known in the area for the tavern he ran for many years out of his farmhouse. If his body stayed close to home and only dabbled a little in local politics, his mind traveled far and wide as he avidly read through newspapers and critically analyzed the public affairs of his turbulent era. Like many radical democrats, Manning was critical of the conservative 1780 Massachusetts Constitution (largely the work of John Adams), but he did draw on it as a prominent model of free government, tellingly stressing the passages of its Declaration of Rights that empowered the people. Always a critic of violent resistance to the new, popular governments of America, he opposed the Massachusetts Regulation and helped get supplies to the hired militias as they passed through Billerica on their way west. Manning thought that the events had at least ended well for popular government: new elections voted

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It is also possible, finally, that the Adamses figured that Manning’s ideas were already sufficiently public that there did not seem to be much market for a printed version. Manning’s biographers speculate that the itinerant speaker, David Brown, may have been reading from The Key as he crisscrossed the Massachusetts countryside with a sheaf of manuscripts, including Thomas Paine’s The Age of Reason. Certainly, Brown is reported to have said things that sound very familiar to Manning’s text.85 But we will never know for sure; even though he was tried and convicted of seditious libel, Brown’s papers have been lost to history, as has so much else of the plebeian political thought of eighteenth-century America. There is thus no way to be sure whether Manning and Brown were lonely voices or whether their work was the tip of the iceberg of radical, backcountry thinking. We do know that Manning thought of himself as writing as a laborer, for the mass of laborers. Indeed, in a clever subversion of the standard practice whereby elite gentlemen such as John Dickinson would write as a mere “Pennsylvania Farmer,” Manning chose to sign his work, “by A Labourer,” knowing full well that his forthright style, egregious spelling, and poor grammar would make it clear he was a laborer. As his biographers note, he found “little encouragement in the prevailing forms of dissent,” and so he thought that the “Many” needed an independent club where they could learn about and debate politics.86 Accordingly, The Key envisions just such a society. Whereas the democratic societies were local institutions that occasionally reached out to other cities’ clubs, Manning’s organization would be national in structure, with the neighborhood or village meetings contributing to a pyramid of town, county, state, and national meetings. The “Laboring Society” would also publish and distribute (and thus control) its own weekly newspaper and monthly magazine.87 Retrospectively, we can see the proposed nationwide society as an institutional step beyond the democratic societies and toward what would become political parties. Yet whereas the parties would be top-down organizations, Manning clearly expected the Laboring Society to work from the bottom up. An important goal was organization, as Manning realized that one of the chief ways in which the Few outmaneuver the Many is through better organization. He even empowered the meetings to “manage impeachments” at a time when it was widely believed that individual citizens had the authority to launch impeachment proceedings against public officials (much like many states that today have citizen-driven recall provisions).88 Such impeachments would be very rare if the society succeeded at its main mission. If the people would only get informed, organized, and engaged, Manning reasoned, government officials would change and begin to “act as servants and not

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whole people and not by the craft, cunning, and arts of the few.” This further meant that no law can be construed “contrary to [its] true meaning without becoming a nullity.” In short, “the poor man’s shilling ought to be as much the care of government as the rich man’s pound.”95 The laboring masses had corresponding duties. They must respect the laws and the federal constitution, and “speak their minds freely” on public measures and men, “and to point out the disadvantages they feel or fear from them.” Significantly, “there is also a duty to listen” to others, as well as the obligation to educate oneself and one’s children about democratic principles. “It is from the neglect of these duties that free governments are destroyed.” Accordingly, Manning reasoned, “to support such a government, it is absolutely necessary to have a larger degree or better means of knowledge among the people.”96 That, of course, is where the society comes in. The society would encourage an informed and engaged populace, and it would also support democratic government in the sense that forcible opposition would be avoided. The “Shays Affair,” for example, “never would have happened” if the people knew their rights and duties and if they had attended to the elections.97 In the 1799 draft of The Key, Manning defends the doctrine of substantive invalidity of laws, presumably with his mind on the Alien and Sedition Acts. “Any law contrary to the Constitution and declared rights of the people . . . cannot be binding on any person.” Yet he seems to be supporting passive resistance, for he again rejects a more active popular nullification: There is “no remedy for grievances but by petitioning and using their rights in elections.”98 Indeed, the society’s covenant includes a pledge that members “will always be ready to support the Constituted Authorities in the suppression of Insurrections.”99 But note his logic: “Above all, keep from insurrections, riots, and rebellions and never oppose any of the constituted authorities by force. For this always gives advantage to the Few.”100 Manning sought to limit the inherent advantages of the elite Few in order to level the playing field for opposing ideas, not because he saw the Few as innately more immoral. But neither were they any more sheltered from the effects of self-interest, as the standard claim of gentlemanly disinterestedness suggested. “Selfishness may be discerned in all persons, let their conditions in life be what they will.” In fact, the higher a man’s station, the “greater are his temptations to do wrong and gratify those selfish principles.” For everyone, “Self . . . is like an object placed before the eye that hinders the sight of everything beyond.” What is more, this distortion affects not only our real interests but also our “ideas thereof.”101 Manning may have had a fairly crude model of social divisions, but he was well aware that the conceptions that guide our behaviors could be systematically distorted as they are shaped in the public sphere.

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That knowledge, in turn, is constructed by and through the concepts and discourses of our political language. Anti-Federalists and other theorists had analyzed how the “glare of great names” shifted the dynamics of the argument. Manning appreciated that the status quo is fortified not only by prominent advocates and legal interpretations but also by historical narratives. No grand scholar, Manning largely relies on elite renderings of historical events, such as the “many scraps of history” he possessed on ancient republics. He repeatedly and explicitly drew on the “Free Republican” essays he read in the Independent Chronicle.107 But refusing to accept the dominant line presented there, Manning “searched other histories” to develop, present, and draw on an alternate version that underwrites his argument throughout The Key.108 The text itself, then, amounts to a demonstration of the need for and process of opposing discursive power. If the populace was to have any chance to counter the dominant narratives supporting the status quo, they needed to have fuller knowledge of political matters and the education to make use of it. “Learning is of the greatest importance to the support of free government, and to prevent this, the Few are always crying up the advantages of costly colleges” and yet oppose cheaper, more inclusive schooling, “the only or principle means by which learning is spread among the Many.”109 Accordingly, Manning champions a truly unparalleled system of town schools, county academies, and state colleges, attended “by both sexes, summer and winter, and no student or scholar to pay anything for tuition.” Furthermore, “every person [would] be obliged to send his children to school, for the public are as much interested in the learning of one child as another.”110 As important as this knowledge and learning is, we profit little if it has no outlet, no medium into the public sphere. The existing newspapers in the 1790s were perhaps better than nothing, but they predominantly served the merchant class or were at least cowed by them. The result, Manning realized, was that newspapers had become “so numerous, lengthy, and contradictory, that farmers and laborers cannot be at the expense of the time and money they cost.”111 Common people need to be able to “read with confidence” and this is only possible if they get their “knowledge independent of any orders of men, or individuals who may be interested to deceive or mislead them.”112 They needed popular, independent, and noncommercial publications if they were to have any chance of countering the narratives and tactics of the well-positioned Few. However this “great scuffle between the Few and the Many” played out, Manning clearly expected it to be an ongoing feature of democratic government. Much of the distinction between the elite Few and the laboring Many was a matter of wealth, and given “the great variety of capacities, strength,

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Conclusion Those contradictions were inevitable and unceasing, sown as they are into the nature of man and the contests—discursive as well as electoral—of democratic government. Manning’s model of dissentient democracy went deeper than any of the others in its appreciation of the myriad powers of the status quo. Inequality of property and wealth was unavoidable, but other imbalances could be addressed. Education, organization, and access to the public sphere were clear and significant advantages in need of correction. One further advantage was subtle but penetrating: the leverage provided by dominating the narratives and interpretations that were the very elements of public debate. With this insight, Manning helps us better appreciate the challenge of government by dissent. Though he would fall ill in 1803 and die in 1814, Manning did manage to revise The Key again after 1800, removing the passages about Federalist abuses, yet adding no new criticisms of the Jefferson administration. Even if he was generally satisfied with the new political order, the very fact that he bothered to undertake a revision demonstrates that he still thought more serious democratic reforms were necessary.120 But if the ascendance of the Democratic-Republican party did not satisfy the need for the Laboring Society, it did reflect a limitation in Manning’s vision. For just as the nascent twoparty system would serve to channel a diverse myriad of voices into only two paths, Manning’s notion of the Few and the Many was similarly reductionist. A more robust theory of dissentient democracy would privilege dissent at all times, for all sides.

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7 The “Saucy Sons of Enquiry” Thomas Cooper and Democratic Dissent

When Edmund Burke denounced him in Parliament as one of the “worst men in the kingdom,” Thomas Cooper was clearly not surprised. Indeed, his published Reply calmly noted that the supposition was “probably mistaken,” at least while Burke was “alive to make the assertion.”1 It was 1792 and Cooper had just returned from a visit, on behalf of the Manchester Constitutional Society, to the Jacobin Club in revolutionary France. His political writings of the previous five years had earned him some notoriety as a radical critic of monarchical England. Though Cooper enjoyed his visit to France, he also had fears of the enforced orthodoxy of its revolutionary leaders. “I went over to France in 1792, an enthusiast,” he recalled years later, “and I left it in disgust.”2 Dumas Malone, still Cooper’s authoritative biographer, calls him an “apostle of liberty,” noting that Cooper “disapproved of conservative, aristocratic England and turbulent, radical France for essentially the same reason. In neither land could one be truly free.”3 The scion of a wealthy London family and a successful barrister in Manchester, England, Cooper (1759–1839)—like many an aspiring gentleman in 1780s England—took up a variety of interests. He presented some of his earliest writings to the Literary and Philosophical Society of Manchester in 1787, and he would go on to publish works on chemistry, psychology, medicine, law, ethics, and theology, among much else. His early political writings were quite radical for his native England—or, for that matter, anywhere at the time. By 1793, Cooper continued to disapprove of British governance and was even more disappointed with the French. “And not being an advocate for propagating liberty by the bayonet, or terrifying a nation into freedom by the guillotine, I [chose],” Cooper explained, “ . . . to quit a country whose politics I cannot approve.”4 Increasingly unwelcome in England—where the “Priestley riots” razed the home and church of his dear friend, the theologian and chemist Joseph Priestley—Cooper made an exploratory visit to America and found that he >>

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partisan. In Malone’s flowery phrasing, Cooper, “when embroiled in political controversy, . . . frequently lost his grip on himself, made extravagant assertions, and descended to the level of sheer demagoguery. He loved liberty not unwisely, we feel, but at times certainly, too well.”9 John Adams was more brusque and less sympathetic, calling Cooper a “learned, ingenious, scientific, and talented madcap.”10 Though he “is unknown to most historians of modern philosophy,” the early, radical Cooper plays an important role in the development of a dissentient democratic theory, fashioning a theory that is liberal, utilitarian, and, starkly proto-Millian in its stress on the essential role of dissent—even when utterly false—in the pursuit of truth.11 But whereas John Stuart Mill’s mid-nineteenth-century theory exists in a liberal tension with a genuine democratic impulse, Cooper’s earlier theory makes dissent the foundation of a radically inclusive popular sovereignty. Cooper, as we shall soon see, supports a conception of free and open political deliberation and debate, claiming such discourse is more essential to democracy than even elections. In this, he follows James Madison and Tunis Wortman. Moreover, Cooper’s philosophy challenges the status quo by asserting that power and property have too many advantages already, so the idea of an unbiased elite must be rejected and economic and educational reforms (including public schooling for poor girls as well as boys) must be enacted. Most importantly for us, while much of American thinking was still marginalizing dissent as seditious, or at least as a result of a suspect “jealousy” of power, Cooper was stressing vigorous dissent as central to the very legitimacy of democracy. Indeed, we will see Cooper go so far as to insist that false dissent is even more important to democracy than are passive truths. In this way, Cooper carves out his own place in the emergence of dissentient democracy and in American political thought more generally. Democracy: Government of and for the People The radical, democratic views that characterize Cooper’s most important American years had roots over a decade earlier in his Propositions Respecting the Foundation of Civil Government, which were publicly read in 1787 and first printed in 1790. Failing to find “something decisive and satisfactory as to the rights of the people” in the existing canon of political theory, Cooper took what he learned at Oxford, through legal training at the Inner Temple, and in his own library in a starkly radical direction.12 Cooper’s Propositions briskly undermine many traditional theories about the source of legitimate political authority, espousing instead an extreme Lockean position based on

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Cooper’s view of gender equality had a similar evolution. In 1787, his theory of consent had few exceptions; one was coverture, the legal doctrine that held a married woman’s rights were subsumed by her husband’s rights, leaving her with no individual legal standing, and thus no role in consenting to government. But here, too, Cooper’s coming change was already suggested: “With respect however to unmarried women at years of discretion, the common practice of nations appears to be inequitable, and perhaps indeed to the married.”20 When he appended his Propositions to his Reply, he left this passage in and added a long footnote insisting that women could be the political equals of men, if only society would allow them to be: Since these Propositions were first published, I have repeatedly considered the Subject of the Rights of Women, and I am perfectly unable to suggest any Argument in support of the political Superiority so generally arrogated by the Male Sex, which will not equally apply to any System of Despotism of Man over Man. The first of these Propositions on Civil Government [i.e., consent is the only legitimate source of power], is just as applicable to Women as to Men. The fact is, that we behave to the female sex, much in the same Manner as we behave to the Poor. We first keep their Minds, and then their Persons in Subjection. We educate Women from Infancy to Marriage, in such a Way as to debilitate both their corporeal and their mental powers. All the accomplishments we teach them are directed, not to their future benefit in Life, but to the Amusement of the Male Sex; and having for a Series of Years with much assiduity, and sometimes at much expence, incapacitated them for any serious Occupation, we say they are not fit to govern themselves, and arrogate the right of making them out Slaves thro’ Life. . . . Let the Defenders of male Despotism answer, if they can, “The Rights of Women.”21

Though no modern feminist, Cooper was, for his day, radically democratic. Nor was this mere idle talk for Cooper. This same (long) footnote in his revised Propositions also recalls his many conversations with learned women in France and England, episodes when he “often felt [his] own inferiority.”22 And half a decade later, serving as interim editor of a newspaper in Pennsylvania, he made room for Elizabeth Ryland Priestley (Joseph Priestley’s daughter-in-law) to respond to Cooper’s own critique of the practice of government officials declaring fast days. This speaks to both his respect for Priestley’s intellect and his commitment to democratic dissent. On the importance of dissent, they completely agreed; when Cooper added an essay “On the Propriety and Expediency of Unlimited Enquiry” to his 1800 edition

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who reply to Facts by a Fine, and to Arguments by the Pillory; and who like the true Slave-drivers of Despotism, stand ready with the Lash of the Law to flog the saucy sons of enquiry into torpid Apathy and quiet Submission.”30 Cooper took this logic further than even most radicals, being one of the first to declare “that actions alone, and not opinions” could be regulated.31 Society can only punish “upon the general ground of preventing and repressing injurious conduct.” Taking a line Mill would echo many years later, Cooper admonished that to punish someone solely “because we think his conscience is misinformed would be a gross act of injustice; and equally applicable against ourselves as against him.”32 Allowing the “saucy sons of enquiry” this much free rein would certainly lead to many criticisms of public officials, but Cooper did not hesitate to advocate it. He did insist, like Wortman, that only public matters received this protection. “With the private conduct of individuals the public ought have nothing to do.” Still, this would mean public office would likely bring public criticism, and so candidates had to consider this disadvantage. Cooper did not think this a major problem, however, because “ingratitude is not a vice common to the public mind.” Rather, the people were more likely to err on the side of too much veneration.33 This public reticence was especially problematic in Cooper’s view precisely because the deliberation of public men and measures was at the core of democratic legitimacy. “Upon the servants of the public, in whatever situation, there is no effectual check but public opinion,” he maintained. Public opinion “can never be well grounded, but on public investigation, on perfect unrestricted discussion.”34 Elections were important, of course, but for Cooper, as for Madison and other democrats, they presupposed deliberation: “What is the use of Election in a free Government, but for the People to express whether their Supreme Magistrate and their Legislators deserve their further confidence or not?”35 Cooper even pointedly insisted that, “compared indeed with the great questions of public policy, it is of very small moment whether Mr. A or Mr. B be chosen.” Deliberation’s preeminence was central to Cooper’s view. “I hope [despotic measures] will be steadily opposed, but opposed in the only justifiable way of opposition under free government, by discussion in the first instance, and a change of persons by constitutional election if no other method will succeed.”36 Here, the measures he opposed were the Alien and Sedition Acts, along with other heavy-handed measures taken by the Adams administration. But Cooper was quick to concede that they had democratic legitimacy drawn not from elections per se but from public deliberation: “Most of them have been adopted after a fair discussion, and sanctioned by the highest constitutional authority of the People; until

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passage here as it stands, because it contains a summary of the arguments on the side of the question which I have abandoned.”42 Cooper provides no more explanation, because for him none is necessary:43 it is just good sense to present contrasting views, even though he views them as false. Earlier, he appended to his Letters on the Slave Trade his replies to the claims of slavery’s defenders, even though he sees these claims not really as arguments but merely as “excuses.”44 Recall, too, that as the interim editor of a Pennsylvania newspaper a dozen years later, Cooper acted similarly when his own essay condemning government-sanctioned religious fast days brought a withering critique from Elizabeth Priestley. Cooper wrote, “I propose on all occasions to keep this paper open to both sides of every question of importance” and so provide this “good-tempered [and] elegant refutation.”45 He prides himself—justifiably, the evidence suggests—for having “shown no backwardness in publishing the opinions of others in opposition to [his] own when the opportunity has been given.”46 Cooper’s dissentient democracy, then, even requires that we make room for mainstream rebuttals (such as Priestley’s) of dissenting views (such as Cooper’s)—even or perhaps especially when the dissenting views are our own. But Cooper saw more clearly than virtually all other radicals of the time the need to challenge the status quo if dissent was to be robust enough to bear the weight of democratic legitimacy. On a practical level, this meant making sure that the people did not feel insecure in their right to challenge existing political officials. As a lawyer as well as a radical, Cooper was one of the first to attack the Federalist claim that allowing truth as a defense in seditious libel cases was an effective safeguard of free political expression. This supposed protection of legal proof was simply insufficient, Cooper explained, because well-known truths sometimes cannot be proven by a courtroom’s forensic manner. And if dissent is not simply allowed but is to be privileged, then legal requirements must not discourage it: “The expence of producing such evidence, even where it could be obtained, is sufficient to discourage any author from stating a known fact, where the purse of the government is to be employed against him.”47 In all this, Cooper presciently foresaw his own dilemma before a Sedition Act court; indeed, he anticipates the Supreme Court’s logic in New York Times v. Sullivan (1964). More important, Cooper follows Philadelphiensis and A Farmer (John Francis Mercer) in raising the concern about “chilling” speech and, as we shall soon see, goes even further to stress the need to actively encourage dissenting voices. Cooper was also mindful of other, more nuanced ways in which a powerful status quo rendered opposition suspect. A chief method, as we have seen in other contexts, was to control the terms of debate. In particular, Federalist

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Society cannot do better than to establish meetings and Clubs . . . for reading and conversation.”53 Discussing his future life in America, Cooper said, “I hope to see the time when not only the childhood, but the youth of the poorest inhabitant in this country, female as well as male, shall be employed in the improvement of their understanding, under some system of national education.”54 Once he had been in Pennsylvania several years and had seen the state’s plan for public schools stall, Cooper was more specific, and more demanding, calling for “public schools supported at public expence, and open to all children, male and female, for the purpose of learning to read well, to write well, to attain a knowledge of the principles of Grammar, and the elements of Arithmetic and Geography.” From there, he reasoned, each student could go on as far as talents would take him or her. And since “it is not from want of principle that the poor give way [to the propertied elite], but from want of Knowledge,” public education would give the people the knowledge to oppose “State-craft.”55 Educational reform, as important as it was to Cooper, was not going to be enough. Economic reform was also critical. To be sure, this was not only a matter of fostering dissentient democracy. Cooper, quite simply, “detest[ed] the manufacturing system” that was creating much of the economic inequality in the late eighteenth century, especially in his native England. “You must on this system have a large portion of the people converted into machines, ignorant, debauched, and brutal, that the surplus value of their labour of 12 or 14 hours a day, may go into the pockets and supply the luxuries of rich, commercial, and manufacturing capitalists.”56 But this economic status quo was also a barrier to genuine popular sovereignty, as Cooper, like William Manning, understood. An economic system wherein “nine tenths of the nation may be mere machines to execute the Labour of which the other tenth enjoys the Profit” is one that diverts the poor and their children from knowledge and education. Cooper put it simply: “Under any State of Society, Property always has had and will have, full as much Influence as it ought.”57 Accordingly, Cooper supported progressive taxation for America as one way that “artificial inequality of fortunes can be counteracted” and the influence of the rich offset.58 The cumulative effect of these myriad inequalities meant that Cooper, unlike Manning, could not quite rule out violent opposition. But in America, where Cooper saw some efforts to lessen the privileges of the status quo (e.g., New England’s public schools, some progressive taxes, and less reliance on manufacturing), the scope of justified forcible resistance narrowed considerably. In his 1790 Propositions, Cooper follows Locke in maintaining that “after every peaceable method of obtaining any political change, has been repeatedly

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information, they may well be in the right: But these do not confer infallibility” and so the tendency of their conduct is a fair point of discussion.65 Because no one is infallible, even those with superior talents and ample information, we need dissenting voices if we are to make better democratic decisions. Cooper’s view of the critical role an understanding of human fallibility plays in legitimating dissent is perhaps best developed in “On the Propriety and Expediency of Unlimited Enquiry, Part II,” published in 1800 and read by the likes of Jefferson and Madison.66 Here, Cooper explains our problematic tendency to prejudge and how a due regard for fallibility and the advantages of dissenting arguments can lead to the robust public knowledge that provides the foundation of a “government in which the people have a voice”: It is the general diffusion of knowledge—it is the free discussion, that eradicates the prejudices of the people: a prejudice, or pre-judgment, is a view of one side of a question, and an opinion formed and acted on from this partial view, before all the facts and arguments that may be conveniently obtained, are fairly considered. It is self-evident that the right we contend for is the cure of prejudice. In like manner, people will be governed by their passions, if they are not governed by their reason. What is the cure for this evil? Surely to call their reason into play—to incite them to reflect—to teach them that every question has two sides—that as their neighbour is not infallible, so neither are they. In short, to accustom them to free enquiry on all subjects.67

Here we see Cooper praise reflection and reason while condemning prejudice and passion. For him, free enquiry—predicated on a recognition of fallibility and built around each side having its say—is the proper model for democratic citizens. But in leaving his former arguments to be reprinted unedited, Cooper does more than demonstrate the stress he places on human fallibility. He also suggests his sense that dissent is central to democracy precisely because even falsity can actually lead us to greater truth. Cooper’s arguments for this view perhaps lack the subtlety of Mill’s arguments in On Liberty—they certainly lack Mill’s insight into the “despotism of custom”—but Cooper’s arguments were radical in his day and are apparently unprecedented, going further than any of the thinkers we have analyzed in the preceding chapters. The traditional view was explained by his prosecutor during his seditious libel trial: “Error leads to discontent, discontent to a fancied idea of oppression, and that to insurrection.”68 Indeed, Cooper comes to his novel view only by thinking about seditious libel during the Sedition Act Crisis, and even prior

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Continuing this remarkably proto-Millian argument, Cooper concludes, “Nor indeed can any well founded hypothesis be regarded as thoroughly established, till the opposite opinions, and all the objections have been urged as forcibly and as plausibly as the nature of them will admit. Nor can this be so well done as by those who really and conscientiously maintain the erroneous opinion, and have full liberty to state and defend it in their own way.”72 Here, then, Cooper makes the case that truth, knowledge, and human improvement generally are advanced by dissent, even when the dissenting view is false. What matters here, as it would later for Mill, is that the opposing but false argument be expounded as powerfully as possible by people who genuinely hold it, in an actual discourse with others. “Unlimited Enquiry” further shares with On Liberty the claim that well-argued falsity is often more valuable than poorly argued truth. But perhaps most important, for Cooper as for Mill sixty years later, our whole faith in established views relies on their having actually undergone what Cooper earlier called the “contests of opinion.” Cooper’s significance, however, is not simply a matter of his having predated Mill’s famous use of these arguments by many decades. Rather, what is so valuable in Cooper’s arguments is that he advances them as essential elements of a radically democratic theory, unlike Mill, who is relatively cautious about empowering common citizens. While Cooper’s philosophy grows out of some individualist and utilitarian precepts, his writings of the 1790s— especially those published for an American audience—embrace an inclusive, deliberative democracy and place genuine dissent at the center of such a theory. Thus, while some of the proto-Millian passages above are quoted verbatim in 1799 from the preface to 1789’s Tracts, the very few changes Cooper chooses to make to them stress that he is conceptualizing actual dissent on practical issues facing the community. For example, when insisting on the need for dissenting views, in 1799 he adds that this is best done by those who “really and conscientiously” hold the dissenting view and “who have full liberty to state and defend it in their own way.”73 Nor is there some failure on Cooper’s part to appreciate the insight that would be the theme of Mill’s On Liberty: the tension between democracy and individual rights. Cooper, having lost faith in the French revolutionaries due to their violent insistence on (ever-changing) orthodoxies and having been run out of England because he differed with the Crown, was more aware of this tension than the comfortable Mill could ever be. Yet for Cooper, it was neither individual liberty nor utilitarianism that required the privileging of dissent, but democracy. Cooper would have little opportunity in the months after writing and publishing “Unlimited Enquiry” to theorize more fully his conception of

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“settled as far as sound argument can settle it.”77 Cooper here clearly realizes that “sound argument”—even if it attended to opposing argument, as Madison’s Report does—is often not enough to settle political disputes. This perhaps explains why Cooper never quite renounces his early view that—at the extreme, at least—forcible opposition may be legitimate. If certain limits of dissentient discourse were apparent to Cooper, we should be just as certain to assess the limitations of his own theory. Perhaps the most startling aspect of Cooper’s democratic vision is his failure at this stage to discuss the place of free and enslaved African Americans. Whereas William Manning seems to have wanted to bring free black men into public life via his “Society of the Many,” Cooper appears to break with his earlier opposition to slavery; at the very least, he is suspiciously silent on the subject (until his later pro-slavery turn in South Carolina). Manning is also much more open to the agonistic qualities of democratic discourse, insisting on multiple publics (including his own institutionalized counterpublic, the Laboring Society), rejecting the notion of one truth, and pointing instead to an ongoing contest of discourses. Cooper had early maintained that “there is no doubt, but truth will in the end prevail.”78 And as Malone observes, “He never entirely lost his youthful ideal of truth and the betterment of humanity.”79 By 1800, he was more likely to stress that, “as there is no infallible judge of truth, each man must decide for himself in the first instance, and put in his claim to the discovery before the tribunal of the public.”80 Still, Cooper maintained that truth was “permanent.”81 Like Wortman at about the same time and Jürgen Habermas today, Cooper shared with his sometime coauthor Elizabeth Priestley the faith that “on questions of real importance to the welfare of society, particularly political questions, the common sense of mankind cannot, after deliberate investigation, materially differ.”82 Finally, while Cooper’s critique of passion and rhetorical devices such as nicknames seems to place him in contrast to Wortman (not to mention current theorists of agonistic democracy), Cooper was often an impassioned debater who frequently employed rhetorical methods as well as more “rational” forms. His Letters on the Slave Trade (1787) uses what Iris Young calls “storytelling” and others have called “testimony”:83 eyewitness accounts of the horrors of slavery. What is more, Cooper does this in a direct appeal to the reader’s outrage, rather than the reader’s reason. Nor is this rhetorical approach limited to his earliest works. Cooper’s Account of his seditious libel trial is presented, in part, as the dramatic story of a martyr for liberty. Cooper, then, like Wortman and many current critics of deliberative democracy, saw a legitimate place for narrative and rhetoric in democratic

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apparently supporting the Post Office ban on abolitionist newspapers and the congressional “gag law” against abolitionist petitions. As Malone puts it, even the later Cooper “always championed freedom of speech—on all subjects save abolition.”88 Like so many of us, then, Thomas Cooper’s practical commitment to the theory of dissentient democracy proved too demanding for him, or it came to seem too politically ambitious. But just as his early arguments for racial equality are not disproved by his later pro-slavery views, so his later intolerance for abolitionism does not undermine, for us, his earlier theory of democratic dissent. It should, however, give us caution and remind us—if any reminder is necessary—of how easy it is to overlook the centrality and value of dissent, and to balk at the demands of dissentient democracy.

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8 Conclusion

Though Thomas Cooper demurred, we need not look far for an encouraging example of someone who stayed true to his own vision of dissentient democracy, even in the most trying of times: James Madison. Though other thinkers would take the theory further, Madison early and insightfully envisioned popular government as much more than elected representation, federal structures, and separated powers. Beneath these and other “auxiliary precautions” lay a democratic public opinion animated by the dissentient public sphere. There, he expected dissenting voices to inspire self-reflection and consideration of opposing viewpoints, even in the face of deferential norms and the advantages of the government, the press, and the wealthy. And once he was the center of that powerful government, as president from 1809 to 1817, he remained committed to his vision. Almost as soon as war was declared against Britain in June 1812, Federalists used legislative addresses and published pamphlets to encourage obstruction of what they called “Mr. Madison’s War.”1 Madison did indeed sign the congressional war declaration, but neither he nor his allies in Congress had made any preliminary arrangements, leaving the country “singularly unprepared” for war.2 Indeed, the lack of military and financial preparation created a precarious situation that made Federalist opposition, especially from New England, extremely dangerous. As early as August he wrote despairingly to Jefferson, “the seditious opposition in Massachusetts and Connecticut, with the intrigues elsewhere insidiously co-operating with it, have so clogged the wheels of the war that I fear the campaign will not accomplish the object of it.”3 The war would rage for more than two years and came to present a genuine existential threat to the union. The British invaded numerous parts of the country, even occupying Washington and burning the White House in August 1814; meanwhile, talk of New England secession, which began in 1809, continued to grow, eventually leading to the (unsuccessful) Hartford >>

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Jeffersonians to move to “safer forms of political opposition,” especially the political party.7 But the party of Jefferson, Madison, and then Monroe had no need for challenges to the status quo; it was the status quo, especially after the demise of the Federalist party in 1815. More fundamentally, though political parties can be avenues for substantive dissent, their conventional practices have increasingly come to delineate “normal” politics. Then as now, parties do not want or require unorthodox ideas; they need support. They have little place for self-critical citizens; they need voters. And the binary logic of partisan support—you are either with us or against us—leaves precious little room for tolerating, much less valuing, dissent.8 Perhaps most emblematic of this momentous theoretical shift is the change in the meaning of the word “politician.” During the 1790s, a “politician” was anyone—even a female servant—who scrutinized and debated political issues ranging from current world events to theoretical questions.9 But in the early 1800s, this term came to mean an elected or appointed public official, often someone with little principle and plenty of self-interest. And so it is today. If we are to recover dissentient theory and practice, that forceful undercurrent of the American political tradition, we will have to attend more carefully to those earlier “politicians” and conceptualize a similarly robust democratic citizenship. Resuscitating Our Enervated Politics Contemporary political theorists have not been blind to the decay of democratic politics. In various ways, political philosophers have sought to enliven the norms and forms of modern politics. The French theorist Pierre Rosanvallon, for example, has recently advocated what he (somewhat confusingly) calls “counter-democracy,” the emerging practices of public oversight that supplement (and do not actually counter) democracy as generally understood. From the perspective of dissentient democracy, Rosanvallon’s approach seems promising in its support for “a durable democracy of distrust, which complements the episodic democracy of the usual electoralrepresentative system,” by adding a focus on “vigilance, assessment, pressure through revelation, obstruction, and judgment.”10 In his view, the “critical sovereignty” of parliamentary and political opposition has declined, leaving us today with nothing more than the “negative sovereignty” of “malcontents” who can undermine new proposals but are otherwise impotent, lacking any real mechanism for positive change.11 Rosanvallon is certainly right that healthy skepticism can bring the kind of positive citizen vigilance that the early American radicals praised but can

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that dissent alone is sufficient to achieve democracy, only that it is necessary, more necessary than is generally understood. The radical democrats of the 1790s knew that political action and dissentient questioning could not be incessant. (For example, they knew full well that those beyond the gentlemanly elite had to work for a living). Yet they refused to let popular politics be merely evanescent; they refused to let the daily toil of farm or worktable get in the way of political reformation. An invigorated and dissentient democracy might best be thought of neither as a slate of new oppositional organizations (though they often help) nor as fleeting moments of ungovernable contention (though they, too, will have their place), but rather as an ongoing “revolution both permanent and quotidian,” in Jürgen Habermas’s apt phrase. Habermas, the reader will recall, was the prominent deliberative democratic theorist who encouraged us to address the inevitable illegitimacies—both foundational and ongoing—of any democratic regime by understanding the process of democratic constitution making as a continual “self-correcting learning process.”19 As evidence that we are in fact engaged in such a process, Habermas points to the “New Deal” of the Roosevelt era, which certainly did involve remaking the American constitutional order—after much dissent, both institutionalized and more freewheeling. But pointing to instances such as this one (Reconstruction is another common example) hardly illustrates a democratic legitimation process that is meant to be “quotidian.” Worse yet, by focusing our attention on such rare moments of monumental progress, we risk shifting our gaze from the ongoing failings of our current politics. “Faith in progress and even advocacy on its behalf,” the political theorist Bonnie Honig observes, “tends to encourage self-satisfaction and undermine practices much needed by democracies—self-examination, genealogy, and critique.” Though it privileges dissent, a dissentient approach cannot guarantee that we will avoid selfsatisfaction and instead actively engage in productive self-examination and critique; but underestimating the centrality of dissent virtually guarantees that the status quo will continue its illegitimate ways. Dissentient Democracy Now Given the human tendency to inertia and deference to the status quo, the need for democratic dissent is as pressing today as it has ever been. Early American radicals theorized and practiced dissentient democratic action even in the face of constitutional and military crises that threatened the fledgling union. For all that, there were of course limits to their vision, and so there remain issues for modern democrats to work out, or at least work

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“designed to hinder the formation of closed, self-perpetuating elites” and to avoid partisan capture,25 however, we might do best to focus our political energies on less institutionalized avenues of opposition, lest we risk taming the genuine dissent we direly need to foster. The democratic societies, after all, laid the groundwork for the emergence of the party system and its narrower channels for dissent. More recently, efforts to recover some of the independent spirit of the original Boston Tea Party have given rise instead to organizations that highlight a number of these concerns. Though the Tea Party movement that emerged in early 2009 involved a genuine grass-roots challenge to certain status quo norms, it has since also demonstrated a number of the pitfalls discussed above. For example, the political anger of the well-known August 2009 town hall meetings on health care reform may not have had the laudable results I discussed in the introduction—opening up previously closed avenues of democratic debate to voices that are otherwise silent.26 Certainly, the influence of preexisting elites became quickly evident as “elite media impresarios” and “super-rich fat cats” successfully “manipulated Tea Party activism.”27 Finally, a considerable amount of “groupthink” has also been observed by social scientists studying the movement.28 We might, then, do better to privilege dissent in the broader and more amorphous public sphere. Certainly, public media of various sorts will continue to play an especially pivotal role, just as Madison envisioned. We should begin, then, by realizing that news organizations have a democratic value that exceeds what can be readily recompensed by dwindling advertising revenues. News media have been experiencing economic troubles for decades, but the recent Internet culture has created an emerging crisis by encouraging citizens who value public information to become consumers expecting “freemium” content. Early American printers also had to rely on advertising income and subscribers who were reluctant to pay what they owed. But at least early printers could draw on a public culture that appreciated that political expression needed a medium and was thus willing to subsidize, formally as well as informally, newspapers. Public subsidies for twenty-first-century media organizations—especially if focused on smaller, marginalized startups—would constitute a first step in engendering a dissentient culture.29 The propriety of anonymous speech is something our radical thinkers debated intensely and something we rightly continue to discuss. A Friend to Harmony candidly considered the many disadvantages of anonymous criticisms, not least our tendency to read and credit the accusation and our reluctance to bother with the (always tardy) retraction or refutation. But if we still tend to believe a bit too readily what we read (and hear and see), it is also

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to status quo norms and privileges. Importantly, the Occupy movement avoided “capture” by elite institutions such as the Democratic Party and eschewed “groupthink” by insisting instead on maintaining its diversity of voices. The Wall Street assembly, for example, has been intentionally leaderless and inviting of dissent.33 Whether such lightly organized movements are sustainable over time in a way that constitutes a quotidian revolution remains to be seen. But it is the duty of dissentient democrats to encourage such movements. Just how far should we go, must we go, in privileging dissent if we are to be true to democracy, if our practices are to bear the burden of democratic legitimacy? I have been suggesting, of course, that we must do much more than we have been doing. But this is a practical rather than theoretical question, one whose answer will depend on many contextual factors. Indeed, the tension between moderation and contention is endemic to dissentient democracy, which is predicated on an agreement to disagree. For an extensive, heterogeneous country, this is a monumental task. Writing as A Farmer, John Mercer conceded that there would always be “difference[s] of sentiment” across the nation. The dissentient democracy he saw only then beginning to emerge, “from our divided and dispersed situation, and from the natural moderation of the American character . . . has hitherto proved a warfare of argument and reason.” Maintaining such a political culture requires that we “learn [or re-learn] this most difficult and necessary lesson . . . Whenever men are unanimous on great public questions . . . freedom ceases and despotism commences.”34 Government by dissent is what can keep us from that stifling, undemocratic consensus. Dissent, as we have said, is not enough. We still need elections, parties, interest groups, and the other mainstream institutions of representative democracy. But only by recovering and privileging the necessary cross-current of dissent can we hope to shape a politics that can bear the ceaseless burden—and sustain the monumental achievement—of democratic legitimacy.

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Notes

Unless otherwise specified, eighteenth-century sources were accessed via the Readex Early American Imprints and Newspapers digital collections.

Chapter 1 1. Though the term “Boston Tea Party” would apparently not surface until the 1820s,

it is clear that many Patriots glorified the event as, in John Adams’s words, “the most magnificent Movement of all”; see Benjamin L. Carp, Defiance of the Patriots: The Boston Tea Party and the Making of America (New Haven: Yale University Press, 2010), 5, 223. 2. Locke famously developed a notion of “tacit” consent that inferred meaningful consent from the act of “barely traveling freely on the highway” and then expected little dissent, because people are “more disposed to suffer than right themselves by resistance,” at least until there is a “long train of abuses, prevarications and artifices”; see John Locke, Two Treatises of Government, vol. II, secs. 119, 230, 225. For early American conservatives who strategically presumed consent in the absence of active resistance, see, for example, George Cabot to Rufus King, August 14, 1795, in Henry Cabot Lodge, Life and Letters of George Cabot (Boston: Little, Brown, 1877), 85. 3. However, after noting this (p. 8), Sunstein himself focuses on the sociology of dissent and on dissent’s broad social advantages; connections with democratic theory are limited. For example, see Sunstein, Why Societies Need Dissent (Cambridge: Harvard University Press, 2003), 50–58. Related efforts that focus more on justice and free speech, respectively, include Ian Shapiro, Democratic Justice (New Haven: Yale University Press, 1999), and Steven Shiffrin, Dissent, Injustice, and the Meanings of America (Princeton: Princeton University Press, 1999). See also Ian Shapiro, Democracy’s Place (Ithaca, N.Y.: Cornell University Press, 1996), and John A. Guidry and Mark Q. Sawyer, “Contentious Pluralism: The Public Sphere and Democracy,” Perspectives on Politics 1 (2003): 273–74. 4. See, for example, Robert Carter Nicholas, Considerations on the Present State of Virginia Examined (Williamsburg: 1774), 40; and Columbian Patriot [Mercy Otis Warren], Observations on the New Constitutions, and on the Federal and State Conventions (Boston: 1788), 17. The term “dissenter” was also used: see, for example, Joseph Nicholson to James Nicholson, September 4, 1798, Nicholson Family Papers, New-York Historical Society. 5. Shiffrin, Dissent, 93. 6. Dissent is also more than (yet inclusive of) “critique,” in the sense often used by academic philosophers and political theorists to refer to “critical theory.” Critical theory is an approach to social theory that adapts Marx’s concept of a reflexive theory that analyzes the social structure with an eye to human emancipation. To be sure, dissent usually aims at emancipation of one sort or another, but in some cases it might aim precisely at liberation from Marxist norms of “emancipation.” 7. For an insightful discussion of ways by which status quo powers can manipulate aspects of dissent into an effective legitimation of the existing order, see Herbert Marcuse, “Repressive Tolerance,” in Robert Paul Wolff, Barrington Moore Jr., and Herbert Marcuse, A Critique of Pure Tolerance (Boston: Beacon Press, 1969).

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23. Simone Chambers, “Rhetoric and the Public Sphere: Has Deliberative Democracy Abandoned Mass Democracy?” Political Theory 37 (June 2009): 331. 24. Chambers, “Rhetoric and the Public Sphere,” 334. 25. Ibid., 329. 26. Ibid., 337. 27. Ibid., 338, 339; see also John S. Dryzek, “Rhetoric in Democracy: A Systematic Appreciation,” Political Theory 38 (2010): 320, 335. 28. Chambers, “Rhetoric and the Public Sphere,” 345. 29. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1996 [1992]), 450; see also 304. 30. Jürgen Habermas, “Political Communication in Media Society: Does Democracy Still Enjoy an Epistemic Dimension? The Impact of Normative Theory on Empirical Research,” Communication Theory 16 (2006): 416, emphasis added. 31. Habermas, “Political Communication in Media Society,” 417–18. 32. Ibid., 421. 33. Chambers, “Rhetoric and the Public Sphere,” 341. 34. Habermas, Between Facts and Norms, 327, 379. 35. Frank I. Michelman, “How Can the People Ever Make the Laws? A Critique of Deliberative Democracy,” in Deliberative Democracy: Essays on Reason and Politics, ed. James Bohman and William Rehg (Cambridge: MIT Press, 1997), 164; Hannah Arendt, On Revolution (New York: Viking, 1963), 184; Bonnie Honig, “Dead Rights, Live Futures: A Reply to Habermas’s ‘Constitutional Democracy,’ ” Political Theory 29 (2001): 796. 36. Jürgen Habermas, “On Law and Disagreement: Some Comments on ‘Interpretative Pluralism,’ ” Ratio Juris 16 (2003): 189; Frank I. Michelman, “Constitutional Authorship,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), 91. 37. Arendt, On Revolution, 184. 38. Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory 29 (2001): 768. 39. See Kevin Olson, “Paradoxes of Constitutional Democracy,” American Journal of Political Science 51 (2007): 332. 40. Habermas, “Constitutional Democracy,” 774. 41. Michelman, “Constitutional Authorship,” 77. 42. Arendt, On Revolution, 184. 43. Most recently, see Jason Frank, Constituent Moments: Enacting the People in Postrevolutionary America (Durham: Duke University Press, 2010); and Pierre Rosanvallon, Democracy Past and Future, ed. Samuel Moyn (New York: Columbia University Press, 2006), especially 79–97. See also Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000); Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997); and Aziz Rana, The Two Faces of American Freedom (Cambridge: Harvard University Press, 2010). 44. Like Sean Wilentz, I define democracy broadly (here, “rule by the people”) to avoid narrowing definitions that would only obstruct our ability to analyze evolving definitions from early America; see Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2005), xviii–xix.

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2. For a more detailed analysis of the ways in which colonial and Revolutionary-era politics empowered the “people [to] overrule their representatives and dispute the validity of laws,” see Barbara Clark Smith, The Freedoms We Lost: Consent and Resistance in Revolutionary America (New York: New Press, 2010), especially 17–46. 3. Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending to the American Revolution (New York: Oxford University Press, 2007), 217, 218. 4. For more on these notions of deference and their decline, see Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2009), 21–31. 5. Smith, Freedoms We Lost, 18–41; Shannon C. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall (Princeton: Princeton University Press, 1990). 6. William Pencak, “ ‘The Fine Theoretic Government of Massachusetts Is Prostrated from the Earth’: The Response to Shays’s Rebellion Reconsidered,” in In Debt to Shays: The Bicentennial of an Agrarian Rebellion, ed. Robert A. Gross (Charlottesville: University Press of Virginia, 1993), 5, 7; Steven J. Stewart, “Skimmington in the Middle and New England Colonies,” in Riot and Revelry in Early America, ed. William Pencak, Matthew Dennis, and Simon P. Newman (University Park: Pennsylvania State University Press, 2002), 78. 7. Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765–1776 (New York: Knopf, 1972), 16, 17, 43, 23, 19; Thomas Jefferson to James Madison, January 30, 1787, in Papers of James Madison, ed. Robert Rutland, William T. Hutchinson, and William M. E. Rachal (Charlottesville: University Press of Virginia, 1962–91 [hereafter, PJM]), 9: 248; see also Paul A. Gilje, Rioting in America (Bloomington: Indiana University Press, 1996), 21; and Smith, Freedoms We Lost, 40–41. 8. Gilje, Rioting, 21. 9. Thomas J. Humphrey, “Crowd and Court: Rough Music and Popular Justice in Colonial New York,” in Pencak et al., Riot and Revelry in Early America, 116. 10. Gilje, Rioting, 39. 11. Gouverneur Morris to Thomas Penn, May 20, 1774, quoted in Gilje, Rioting, 37. 12. Simon P. Newman, Parades and the Politics of the Street: Festive Culture in the Early American Republic (Philadelphia: University of Pennsylvania Press, 1997), 24; Paul A. Gilje, “Republican Rioting: Traditions of Anglo-American Mob Behavior in Revolutionary New York City,” in Authority and Resistance in Early New York, ed. Conrad Edick Wright and William Pencak (New York: New-York Historical Society, 1988), 222; see also Smith, Freedoms We Lost, 201–6; and Gilje, Rioting, 37–38. Slave resistance is beyond our scope here because, as Gilje rightly notes, the “extreme nature of American slavery prevented any overt group challenge short of rebellion” (Gilje, Rioting, 6), which leaves such resistance less a matter of developing democratic dissent and more a matter for just-war theory. 13. Gilje, Rioting, 42. 14. Rachel N. Klein, “Ordering the Backcountry: The South Carolina Regulation,” William and Mary Quarterly 38 (1981): 679. For more on these regulations and similar backcountry movements, see Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2005), 16–20. 15. Massachusetts Regulators would have known of the Carolina regulations through the Massachusetts newspapers: see Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002), 65, 177n5.

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35. Whiting, “Some Brief Remarks on the Present State of Publick Affairs,” in Stephen T. Riley, “Dr. William Whiting and Shays’s Rebellion,” Proceedings of the American Antiquarian Society 66 (1957): 146, see also 148; and Worcester Magazine, October 5, 1786, 321. 36. Whiting, “Some Brief Remarks,” 132. 37. Ibid., 153. 38. Ibid., 159. 39. Stephen T. Riley, “Dr. William Whiting and Shays’s Rebellion,” Proceedings of the American Antiquarian Society 66 (1957): 130–31. 40. Worcester Magazine, October 12, 1786, 338. 41. Pole, “Shays’s Rebellion,” 429; Brooke, Heart of the Commonwealth, 225; Howard quoted in Richard D. Brown, “Shays’s Rebellion and Its Aftermath: A View from Springfield, Massachusetts, 1787,” William and Mary Quarterly 40 (1983): 612; Richards, Shays’s Rebellion, 119. 42. Lienesch, “Reinterpreting Rebellion,” 182. 43. Thomas Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution (New York: Oxford University Press, 1986), 15, 13, 18. 44. Slaughter, Whiskey Rebellion, 73. 45. Bouton, Taming Democracy, 89, 91, 99. 46. Ibid., 159. 47. Ibid., 200, 215. 48. Slaughter, Whiskey Rebellion, 117. 49. Bouton, Taming Democracy, 238. For a brief overview of the regulation, see Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2009), 134–39. 50. This army “was roughly as large as the entire Continental Army that had defeated the British in the Revolution” (Wilentz, Rise of American Democracy, 64). 51. Richard A. Ifft, “Treason in the Early Republic: The Federal Courts, Popular Protest, and Federalism during the Whiskey Insurrection,” in The Whiskey Rebellion: Past and Present Perspectives, ed. Stephen R. Boyd (Westport, Conn.: Greenwood, 1985), 176. 52. Maclay quoted in Slaughter, Whiskey Rebellion, 133; Alexander Hamilton to John Jay, September 3, 1792, in Papers of Alexander Hamilton, 27 vols., ed. Harold C. Syrett and Jacob E. Cooke (New York: Columbia University Press, 1961‒87 [hereafter, PAH]), 12: 316. Hamilton wanted the “rebels” prosecuted for obstructing the tax through their public statements; see PAH 12: 311–12, 316, 331–32. 53. Quoted in Slaughter, Whiskey Rebellion, 213. 54. Jeffrey A. Davis, “Guarding the Republican Interest: The Western Pennsylvania Democratic Societies and the Excise Tax,” Pennsylvania History 67 (2000): 51. 55. Alexander Addison, Reports of Cases in the County Courts of the Fifth Circuit, and in the High Court of Errors & Appeals, of the State of Pennsylvania. And Charges to Grand Juries of those County Courts (Washington, Pa.: John Colerick, 1800), 96, 97–98, 98. 56. Addison, Reports, 110. 57. Ibid., 116. 58. Alexander Hamilton, Federalist 12, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961 [hereafter, FP, followed by essay number and page number, if applicable]), 93 (see also Federalist 36); Boyd, Whiskey Rebellion, 93n12.

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92. Churchill, “Popular Nullification,” 105. 93. Newark Centinel of Freedom, December 18, 1798; “Resolutions of the Freeholders of Dinwiddie County,” Aurora, December 18, 1798. 94. Alexander Hamilton, Federalist 78, 476. For radicals quoting Hamilton to support the argument for substantive invalidity, see, for example, George Nicholas, A Letter from George Nicholas to His Friend in Virginia (Philadelphia: James Carey, 1799), 20; see also Churchill, “Popular Nullification,” 112. 95. Papers of Thomas Jefferson XXX: 541n1. 96. Churchill, “Popular Nullification,” 107; Newman, Fries’s Rebellion, 41. 97. “Address of the Citizens of Richmond,” Aurora, August 20, 1798 (emphasis in the original); see also Nicholas, Letter, 31–34. 98. Albany Register, April 18, 1799 (emphasis in the original). 99. Churchill, “Popular Nullification,” 137n44. 100. Aurora, January 4, 1799. 101. Nicholas quoted in James Morton Smith, “The Grass Roots Origins of the Kentucky Resolutions,” William and Mary Quarterly, 3rd series, 27 (1970): 231. See also Nicholas, Letter, 20, 31–34; “A Friend to Peace,” Kentucky Gazette, July 11, 1798; and “Philo-Agis,” Kentucky Gazette, August 22, 1798. 102. “Memorial of the People of Essex County,” Aurora, December 7, 1798. Though the Virginia Constitution of 1776 did expressly state that “magistrates are [the sovereign people’s] trustees and servants, and at all times amenable to them,” the federal Constitution comes no closer than protecting the rights of assembly and petition from congressional abridgment. 103. “Petition and Remonstrance of Washington County,” Aurora, December 11, 1798. 104. Bouton, Taming Democracy, 261, 262.

Chapter 3 1. Pennsylvania Federalists pushed hard to pass the formal call for a ratifying conven-

tion as soon as possible, even to the point of forcibly dragging assemblymen back to the assembly room to achieve a quorum; at the convention itself, “the Constitution’s supporters,” according to one recent historian, “had insisted on ramming [the Constitution] through.” See Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 59–64, 123. 2. Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 110. See also Jason Frank, Constituent Moments: Enacting the People in Postrevolutionary America (Durham: Duke University Press, 2010), 93–95. 3. Independent Gazetteer, February 27, 1788, in The Documentary History of the Ratification of the Constitution, ed. Merrill Jensen et al. (Madison: State Historical Society of Wisconsin, 1976‒ [hereafter, DHRC]), XVI: 240. 4. Another of the People, Carlisle Gazette, January 16, 1788 (DHRC, 2: 680). 5. For more on Federalists losing faith in the possibility of minimal, popular government, see Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2009), 54, 105–7. 6. One of the Anti-Federalist leaders in Carlisle, William Petrikin, certainly espoused the value of dissent and an unrestrained liberty of the press. See Aristocrotis [William Petrikin], The Government of Nature Delineated (Carlisle, Pa., 1788) in The Complete

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7. 8. 9. 10.

11. 12.

13. 14. 15. 16. 17. 18.

19. 20. 21. 22.

23. 24. 25. 26.

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Howe, Language and Political Meaning, 176. One of the People, Massachusetts Centinel, October 17, 1787 (DHRC, 13: 394). Maier, Ratification, 318. Samuel Bryan to Aedenus Burke, Post, December 5, 1789, in Saul Cornell, ed., “Reflections on ‘The Late Remarkable Revolution in Government’: Aedenus Burke and Samuel Bryan’s Unpublished History of the Ratification of the Federal Constitution,” Pennsylvania Magazine of History and Biography 112 (1988): 125. Centinel II, Freeman’s Journal, October 24, 1787 (DHRC, 13: 458, 459); A Plebeian, An Address to the People of the State of New York (New York, 1788) (DHRC, 17:166). Centinel I, Independent Gazetteer, October 5, 1787 (DHRC, 13:330); see also Cornell, “Reflections,” 114. On the continuance of monarchical thinking in Federalist circles through the 1790s, see Wood, Empire of Liberty, 74–85. New-York Journal, May 23, 1788 (emphasis in the original); Aristocrotis, Government of Nature (CAF, 3: 208). John Vaughan, DHRC, 17: 102; for Vaughan’s similar paraphrasing of Franklin to John Dickinson, see DHRC, 17: 78. Even the Federalists had to address the tendency to defer to authority when those authorities were esteemed Anti-Federalists; see, for example, Madison to Washington, December 20, 1787 (DHRC, 8: 253); and Brutus, Virginia Journal, November 22, 1787 (DHRC, 14: 152). See also Howe, Language and Political Meaning, 173. Annals of Congress, 1: 759 (August 15, 1789). Aristocrotis, Government of Nature (CAF, 3: 209); see also Maier, Ratification, 157. Cornell, Other Founders, 124. Maier calculates that “only twelve of over ninety American newspapers and magazines published substantial numbers of essays critical of the Constitution during the ratification controversy” (Maier, Ratification, 74). Bryan, in Cornell, “Reflections,” 129; Centinel XII, Independent Gazetteer, January 23, 1788. See also Maier, Ratification, 101, and, on other boycotts, 75, 142. Maier, Ratification, 130, 133. New Hampshire was almost as bad; see Maier, Ratification, 218. A Countryman II, New Haven Gazette, November 22, 1787 (DHRC, 14: 172). DHRC, 16: 540; 17: 103; similarly, see Maier, Ratification, 312. The American tradition against government surveillance of the mail was formalized in the Post Office Act of 1792, and this contrasts with the British system of clerks responsible for excluding newspapers that were too critical of the government. See Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge: Harvard University Press, 1995), 41. DHRC, 8: 517. John, Spreading the News, 32. For example, see Alexander Contee Hanson to Tench Coxe, March 27, 1788 (DHRC, 8: 520–21). Centinel IX, Independent Gazetteer, January 8, 1788; Centinel XI, Independent Gazetteer, January 16, 1788 (DHRC, 16: 542, 543). Eleazer Oswald, Independent Gazetteer, March 12, 1788; A True Federalist, New-York Journal, March 25, 1788 (DHRC, 16: 558; 570). Petition of the Philadelphia Newspaper Printers to the Pennsylvania Assembly, March 20, 1788; Washington to Jay, July 18, 1788 (DHRC, 16: 562; 596). John, Spreading the News, 36. The Post Office Act of 1792 also imposed a modest fee on delivery, making it both more systematic and more reliable (see John, Spreading the News, 34–38).

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78. Leonard Levy cites “A Friend” only to dismiss him; see Levy, Emergence of a Free Press (New York: Oxford University Press, 1985), 290. Others do little better: see Jeffery A. Smith, Printers and Press Freedom: The Ideology of Early American Journalism (New York: Oxford University Press, 1988), 81; and Robert W. T. Martin, The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800 (New York: NYU Press, 2001), 117. 79. A Friend to Harmony, Candid Considerations, 6, 7. 80. Ibid., 9, 10. 81. McKean also lambasted the “dishonorable security of an anonymous signature”; see “A Gentleman of the Law,” The Case of the Commonwealth against Eleazer Oswald (Philadelphia: William Spotswood, 1788), 6. 82. A Friend to Harmony, Candid Considerations, 13, 14. 83. Ibid., 15, 16. 84. Ibid., 10. 85. Ibid., 17. 86. Ibid., 19. 87. Ibid., 20. 88. Ibid., 21. 89. Eric Robert Papenfuse, “Unleashing the ‘Wildness’: The Mobilization of Grassroots Antifederalism in Maryland,” Journal of the Early Republic 16 (1996): 97. 90. A Farmer VI, Maryland Gazette, April 1, 1788 (CAF, 5: 51, 52). 91. A Farmer II, Maryland Gazette, February 29, 1788 (CAF, 5: 17, 29, 28). 92. Ibid.; A Farmer V, March 25, 1788; A Farmer VII, April 4, 1788; A Farmer II, February 29, 1788 (CAF, 5: 19, 43, 56, 42). 93. A Farmer V, Maryland Gazette, March 28, 1788 (CAF, 5: 46, 51). 94. A Farmer III, Maryland Gazette, March 7, 1788 (CAF, 5: 30). 95. Ibid.; A Farmer V, March 28, 1788 (CAF, 5: 30, 49). 96. A Farmer V, Maryland Gazette, March 28, 1788 (CAF, 5: 50). 97. A Farmer VII, Maryland Gazette, April 22, 1788 (CAF, 5: 68). 98. Ibid. 99. Ibid.; A Farmer III, March 7, 1788 (CAF, 5: 68, 32). 100. A Farmer III, Maryland Gazette, March 18, 1788 (CAF, 5: 36), emphasis in the original; see also Hofstader, Idea of a Party System, 27.

Chapter 4 1. “Cato,” Newark Gazette, March 12, 1794, in Philip S. Foner, The Democratic-Repub-

lican Societies, 1790–1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts (Westport, Conn.: Greenwood, 1976), 143; Centinel XIII, Independent Gazetteer, January 30, 1788. 2. “Cato,” Newark Gazette, March 12, 1794, in Foner, Democratic-Republican Societies, 143; Walter R. Fee, The Transition from Aristocracy to Democracy in New Jersey, 1789–1829 (Somerville, N.J.: Somerset, 1933), 41. 3. “Cato,” Newark Gazette, March 12, 1794, in Foner, Democratic-Republican Societies, 144. 4. See John R. Howe, “Republican Thought and the Political Violence of the 1790s,” American Quarterly 19 (1967): 147–65; and more broadly, Richard Hofstadter, The Paranoid Style in American Politics and Other Essays (New York: Knopf, 1965). 5. Matthew Schoenbachler, “Republicanism in the Age of Democratic Revolution: The Democratic-Republican Societies of the 1790s,” Journal of the Early Republic 18 (1998): 250.

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22. New-York Journal, January 21, 1795, in Foner, Democratic-Republican Societies, 206. 23. Link, Democratic-Republican Societies, 148n108; see also Jeffrey A. Davis, “Guarding the Republican Interest: The Western Pennsylvania Democratic Societies and the Excise Tax,” Pennsylvania History 67 (2000): 43; and Koschnik, “The Democratic Societies of Philadelphia,” 634. 24. Annals of Congress, 906 (November 1794). More generally, see Annals of Congress, 899–945. 25. Annals of Congress, 899, 917, 919, 934–35; see also 905. 26. David Reddick, Philadelphia Gazette, January 23, 1795, in Foner, Democratic-Republican Societies, 136–37. 27. Wood, Empire of Liberty, 203. 28. Brooke, “Ancient Lodges and Self-Created Societies,” 324–26; see also Koschnik, “The Democratic Societies of Philadelphia,” 634–35; and Alfred F. Young, The Democratic Republicans of New York: Origins, 1763–1797 (Chapel Hill: University of North Carolina Press, 1967), 399, 403, 405. 29. Brooke, “Ancient Lodges and Self-Created Societies,” 354. 30. Jürgen Habermas, Between Naturalism and Religion: Philosophical Essays (Cambridge, U.K.: Polity Press, 2008), 157; Foner, Democratic-Republican Societies, 93, 66. For Habermas’s original formulation of this view, see, Jürgen Habermas, Legitimation Crisis (Boston: Beacon Press, 1975), 108. 31. Koschnik, “The Democratic Societies of Philadelphia,” 625. 32. Washington to Lee, October 16, 1793, in Writings of George Washington, ed. John C. Fitzpatrick (Washington, D.C.: Government Printing Office, 1940), 33: 133; Washington to Adams, August 20, 1795, in Writings of George Washington, 34: 280. See also Robert M. Chesney, “Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic,” North Carolina Law Review 82 (2004): 1554–55. 33. FP, 70: 427. 34. Hamilton to Washington, September 2, 1794, in PAH, 17: 187; see also Frank, Constituent Moments, 140. 35. Foner, Democratic-Republican Societies, 444; “Tammany Federal,” New-York Journal, January 21, 1795, in Foner, Democratic-Republican Societies, 206. 36. Columbian Centinel, September 27, 1794. 37. Theophilus Demophilus, Gazette of the United States, January 21 and 23, 1795. See also Benjamin Rush, “Address to the People of the United States,” American Museum 1 (1787): 9. 38. [Chipman], “Copy of a Letter,” New York Daily Advertiser, July 12, 1794 (for a slightly different version, see Chipman to Hamilton, June 9, 1794, in Papers, 16: 465–70); John Sylvester John Gardiner, Remarks on the Jacobiniad (1795), quoted in Cotlar, Tom Paine’s America, 197. See also Fisher Ames, “Dangers of American Liberty” (1805), in Works of Fisher Ames, ed. Seth Ames (Boston: Little, Brown, 1854), 2: 393. For more on Chipman, see Wood, Empire of Liberty, 227–28. 39. Cotlar, Tom Paine’s America, 189; see also Schoenbachler, “Republicanism in the Age of Democratic Revolution,” 254; and Wood, Empire of Liberty, 253. 40. Hezekiah Packard, The Plea of Patriotism (1795), quoted in Cotlar, Tom Paine’s America, 195; Fisher Ames, November 26, 1794, Annals of Congress, 924. For Gordon Wood’s characterization of Ames’s address as “the most powerful congressional speech against the political clubs,” see Wood, Empire of Liberty, 203. 41. William Vans Murray, November 25, 1794, Annals of Congress, 907.

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Aurora, January 31, 1795, in Foner, Democratic-Republican Societies, 138. See also Link, Democratic-Republican Societies, 113–14. Political Society of Mount Prospect, New Jersey, Wood’s Newark Gazette, March 26, 1794, in Foner, Democratic-Republican Societies, 141, 142. Foner, Democratic-Republican Societies, 234; see also 82. See, for example, February 4, 1785, New York Manumission Society Minutes, Volume 6, New-York Historical Society. Foner, Democratic-Republican Societies, 247, 246. Nathaniel Chipman, Vermont Gazette, September 19, 1794; Vermont Gazette, October 10, 1794. Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge: MIT Press, 1992), 123; Brooke, “Ancient Lodges and Self-Created Societies,” 316. Michael Warner, “Publics and Counterpublics,” Public Culture 14 (2002): 86. Frank, Constituent Moments, 151. Foner, Democratic-Republican Societies, 280. Democratic Society of New-York, “To the Democratic Society of Pennsylvania” (draft), January 1, 1795, New York City Miscellaneous Manuscripts, Box 14, New-York Historical Society. Tammany Society Minutes, New-York Public Library Manuscript Collection. Foner, Democratic-Republican Societies, 82, 190. See, for example, Cass Sunstein, Why Society Needs Dissent (Cambridge: Harvard University Press, 2003), 140–44. New-York Journal, July 5, 1794, New-York Historical Society. Cotlar, Tom Paine’s America, 247n47. Foner, Democratic-Republican Societies, 92. Wilentz, The Rise of American Democracy, 58; see also Frank, Constituent Moments, 153. Democratic Society of Pennsylvania, July 4, 1793, in Foner, Democratic-Republican Societies, 67. See Sioli, “The Democratic-Republican Societies,” 288; see also Schoenbachler, “Republicanism in the Age of Democratic Revolution,” 251. Independent Gazetteer, February 15, 1794; see also Cotlar, Tom Paine’s America, 133–34. Cited in Young, The Democratic Republicans of New York, 392; see also Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 354. A Farmer [George Logan], Five Letters Addressed to the Yeomanry of the United States (Philadelphia: Eleazer Oswald, 1792), 12, 11; Schoenbachler, “Republicanism in the Age of Democratic Revolution,” 252. New-York Journal, August 3, 1793, New-York Historical Society. Foner, Democratic-Republican Societies, 109. Ibid., 179 (emphasis in the original). Ibid. Link, Democratic-Republican Societies, 164; Sioli, “Democratic-Republican Societies,” 298, citing “Constitution of the Democratic Society of Washington,” William Rawle Family Papers, 1: 18, Historical Society of Pennsylvania; Foner, Democratic-Republican Societies, 108, 322, 323. New York as well as Delaware would pass public education funding laws in 1795 and 1796, respectively: see Foner, Democratic-Republican Societies, 15.

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3. For example, Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press,1956), 1–33; Martin Diamond, “Ethics and Politics: The American Way,” in The Moral Foundations of the American Republic, ed. Robert H. Horowitz (Charlottesville: University Press of Virginia, 1986), 75–108, especially 85–95. Recently, some scholars have avoided these “Hamiltonian” readings of Madison and “saved” him from inconsistency by stressing his ongoing liberal or libertarian principles, principles that he unswervingly applied to shifting political conditions. This approach makes Madison more consistent but places his democratic commitments in a very subordinate position; see James H. Read, Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson (Charlottesville: University Press of Virginia, 2000), 25–53; Gary Rosen, American Compact: James Madison and the Problem of Founding (Lawrence: University Press of Kansas, 1999); and John Zvesper, “The Madisonian Systems,” Western Political Quarterly 37 (1984): 236–56. 4. Lawrence R. Jacobs and Robert Y. Shapiro, Politicians Don’t Pander: Political Manipulation and the Loss of Democratic Responsiveness (Chicago: University of Chicago Press, 2000), 299; Melissa S. Williams, Voice, Trust and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton: Princeton University Press, 1998), 39; see also Dahl, Preface to Democratic Theory, 30; Garry Wills, Explaining America: The Federalist (Garden City, N.Y.: Doubleday, 1981), 24–33; and Richard K. Matthews, If Men Were Angels: James Madison and the Heartless Empire of Reason (Lawrence: University Press of Kansas, 1995), 159. Even some of those scholars more recently willing to focus on “Madison the democrat” end up stressing his nationalism and pluralism; see, for example, Samuel Kernell, “ ‘The True Principles of Republican Government’: Reassessing James Madison’s Political Science,” in James Madison: The Theory and Practice of American Government, ed. Samuel Kernell (Stanford: Stanford University Press, 2003), 101, 119. 5. James Madison, “Memorial and Remonstrance against Religious Assessments,” in PJM, 8: 300, 299. 6. Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995), 98, 130, though Banning does also note that the “Memorial” was “expressing public opinion,” 91. See also Lance Banning, “James Madison, the Statute for Religious Freedom, and the Crisis of Constitutional Convictions,” in The Virginia Statute for Religious Freedom, ed. Merrill Peterson and Robert Vaughan (Cambridge: Cambridge University Press, 1988), 109–38; and, most recently, Colleen Sheehan, James Madison and the Spirit of Republican Self-Government (New York: Cambridge University Press, 2009), 152. Similarly, the “Memorial” is seen exclusively as Madison’s “classic argument for religious freedom and liberty of conscience” in Sheldon, The Political Philosophy of James Madison, 33. Rosen, American Compact, 18–26, sees a political dimension in the “Memorial” but focuses on its social compact language. 7. PJM, 1: 175. As Ralph Ketcham rightly notes, this view of the young Madison may have been influenced by his earlier reading of Philip Furneaux’s Essay on Toleration, and this was consistent with his lifelong view that neither government’s nor religion’s reputations needed legal protection. See Ketcham, James Madison: A Biography (New York: Macmillan, 1971), 66. 8. The former Anglican, now Episcopal, Church in Virginia was not divested of its extensive lands and other properties, but the taxes and thus salary support for its clergy were halted, formally for only a year, but these supports did not return; see Sheldon, The Political Philosophy of James Madison, 32. If Madison’s proposal had been accepted in its entirety, any “privileges” for any church would have been proscribed (PJM, 1: 174).

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31. Ibid., 8: 264. 32. Eva T. H. Brann, “Madison’s ‘Memorial and Remonstrance’: A Model of American Eloquence,” in Rhetoric and American Statesmanship, ed. Glen E. Thurow and Jeffrey D. Wallin (Durham, N.C.: Carolina Academic Press, 1984), 35. 33. PJM, 8: 303, 304. 34. Brann, “Madison’s ‘Memorial,’ ” 36. 35. PJM, 8: 303. 36. For example, FP, 10: 82; 14: 102–3; and “Public Opinion,” PJM, 14: 170. 37. PJM, 14: 304. 38. Ibid., 8: 304. 39. On “disinterestedness” more broadly, see Gordon Wood, “Interests and Disinterestedness in the Making of the Constitution,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Richard Beeman et al. (Chapel Hill: University of North Carolina Press,1987), but note that Wood’s claim that the Constitution seeks to allow elite statesmen to rule (91–93) is belied by Madison’s critique of elite bias in the “Memorial” and remarks in the Federalist (55: 342). 40. FP, 55: 342. 41. PJM, 8: 304. 42. The Presbyterian Convention would eventually follow Madison and explicitly ask that Jefferson’s Statute be passed; see Madison to Jefferson, January 22, 1786, PJM, 8: 474. 43. See, for example, the Virginia Journal (Arlington), March 31, 1785. 44. PJM, 8: 268, 306. 45. See Marco M. Sioli, “The Democratic-Republican Societies at the End of the Eighteenth Century: The Western Pennsylvania Experience,” Pennsylvania History 60 (1993): 288. 46. Memorial of the Presbytery of Hanover, October 1784. See also Memorial of the Presbytery of Hanover, August 1785. Nor are the Presbyterian petitions of the mid-1780s aberrations; for a similarly deferential tone, see the Revolutionary-era Memorial of the Presbytery of Hanover, October 24, 1776. 47. Memorial of the Presbytery of Hanover, May 1784. 48. Madison to Jefferson, August 20, 1785, PJM, 8:345; see also editorial note, PJM, 8: 296–97. 49. Banning, Sacred Fire, 181. Behind Banning and other recent interpreters of a more democratic Madison lies the pluralistic stress of Martin Diamond, “Democracy and the Federalist: A Reconstruction of the Framers’ Intent,” American Political Science Review 53 (1959): 52–68. 50. Banning, Sacred Fire, 352. 51. FP, 51: 325, 10: 83. See also Banning, Sacred Fire, 209–10. 52. Madison to Jefferson, October 24, 1787, PJM, 10: 214; see also “Vices of the Political System of the United States,” PJM, 9: 356–57. 53. PJM, 10: 76. 54. Banning, Sacred Fire, 219. 55. Evidence of Madison’s radically populist views is predominantly drawn from “Notes for the National Gazette Essays” (PJM, 14: 157–69) and the essays themselves, especially “Public Opinion,” “Government,” “Charters,” “British Government,” “Government of the United States,” and “Who Are the Best Keepers of the People’s Liberties?” (PJM, 14: 170, 178–79, 191–92, 201–2, 217–19, 426–27). On the limits of Madison’s conception of public opinion, see Robert W. T. Martin, “Between Consensus and Conflict: Habermas, Postmodern Agonism and the Early American Public Sphere,” Polity 37 (2005): 378–88.

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70. Ball, “ ‘A Republic—If You Can Keep It,’ ” in Conceptual Change and the Constitution, ed. Terence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988), 145. As we have seen, A Farmer, writing three months after Madison’s Federalist 10, is one of the very few Anti-Federalists even discussing direct democracy, and even he says the American populace is not yet ready. 71. PJM, 10: 32–33. 72. Ibid., 10: 212. 73. FP, 63: 385. 74. PJM, 8: 335, 334. 75. Ibid., 9: 356, 355. 76. On Madison’s presumption that his fellow citizens would be enlightened enough to know the principles of justice, see Sheehan, James Madison, 88–89, especially 88n11. 77. In convention, June 26, 1787, PJM, 10: 76; FP, 63: 384; 10: 80–81. See also Madison to Caleb Wallace, August 23, 1785, PJM, 8: 351. 78. Madison to Jefferson, December 9, 1787, PJM, 10: 313. Gary Rosen (“Madison’s Princes and Peoples,” 240) cites a similar passage in a private letter to Edmund Randolph as evidence of Madison’s “low estimate of popular prudence” but this overstates the case and ignores the context of the letter, which was not a summary or report of the current state of affairs, as was the letter to Jefferson, but rather an appeal to the vanity of a wavering friend, contending that the people would follow a leader like Randolph if he continued to seek a second convention and thus threaten the product of the Philadelphia convention. See PJM, 10: 355–56. 79. Madison to Edmund Pendleton, February 24, 1787, PJM, 9: 295. See also Madison to Jefferson, March 19, 1787, PJM, 9: 318, 9: 322n; and compare with Alexander Hamilton, in PAH, 4: 192. 80. Madison to Philip Mazzei, October 8, 1788, PJM, 11: 278, emphasis in the original. 81. Madison to Philip Mazzei, December 10, 1788, PJM, 11: 388–89. 82. For a similar interpretation, see Read, Power versus Liberty, 34, 37. For a recent example of the claim that Madison’s view changed sharply, see Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2009), 148–50, 251, but compare with Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2005), 48–49. 83. Madison to Jefferson, October 17, 1788, PJM, 11: 298, 299, emphasis in the original. See also Sheehan, James Madison, 108. 84. Madison to Jefferson, October 17, 1788, PJM, 11: 299; see also Madison to George Eve, January 2, 1789, PJM, 11: 404–5; and Wood, Empire of Liberty, 69, 87. 85. Madison to Jefferson, October 17, 1788, PJM, 11: 299. 86. Madison in House, June 8, 1789, PJM, 12: 204–5; see also Madison to Richard Peters, August 19, 1789, PJM, 12: 347. 87. Madison in House, June 8, 1789, PJM, 12: 202, 201. 88. On the breadth and depth of Hamilton’s plans, see Wood, Empire of Liberty, 89–103. 89. Madison to Benjamin Rush, March 7, 1790, PJM, 13: 93–94. 90. Madison to Jefferson, August 8, 1791, PJM, 14: 69; see also his National Gazette essay criticizing those who, “by pampering the spirit of speculation within and without the government, disgust the best friends of the Union” (PJM, 14: 274). 91. Madison, Notes for the National Gazette Essays, PJM 14: 158–59; see also Sheehan, “Madison and the French Enlightenment,” 931, and Sheehan, “Madison vs. Hamilton,” 187.

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116. Gibson, “Veneration and Vigilance,” 9; Rosen, American Compact, 127. See also Gabrielson, “James Madison’s Psychology of Public Opinion,” 441. 117. Gibson, “Veneration and Vigilance,” 17. 118. James Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis (New Haven: Yale University Press, 1993), 45. 119. Richard K. Matthews, “James Madison’s Political Theory: Hostage to Democratic Fortune,” Review of Politics 67 (2005): 52. 120. Madison to Monroe, December 4, 1794, PJM, 15: 406; Madison, “House Address to the President, November 27, 1794, PJM, 15: 391. 121. Madison to Monroe, December 4, 1794, PJM, 15: 406; see also to Jefferson, November 30, 1794, PJM, 15: 397. On the continuing political influence of the “public confidence in the P[resident],” see Madison to Jefferson, May 25, 1794, PJM, 15: 338. 122. Madison to Jefferson, November 30, 1794, PJM, 15: 396, 397–98. 123. For a brief discussion of French minister Edmond Charles Genêt’s counterproductive effort to appeal to the American people over Washington’s head, see Wood, Empire of Liberty, 185–89. 124. Read, Power versus Liberty, 47. See also Sheehan, James Madison, 132; Madison to Everett, August 1830, Report appendix, 250, 253; and, more generally, Koch and Ammon, “Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” William & Mary Quarterly 5 (1948): 145–76. 125. Sheehan, James Madison, 132. 126. Douglas Bradburn, “A Clamor in the Public Mind: Opposition to the Alien and Sedition Acts,” William and Mary Quarterly 65 (2008): 566. 127. Papers of Thomas Jefferson, 30: 541n1. 128. Taylor, “Debate on Virginia Resolutions,” Report, 114. Taylor, at Jefferson’s behest, had added language declaring the laws “utterly null, void, and of no force or effect,” but Taylor successfully moved to strike these words, and the Resolutions were passed without them; see Report, 150, and editorial note, PJM, 17:188. Nevertheless, the version with the added language was the only one reprinted outside Virginia: see Bradburn, “Clamor in the Public Mind,” 592. 129. Taylor, Report, 121; see also 113; and Mercer, Report, 41. 130. Madison to Jefferson, September 2, 1793, PJM, 15:93. 131. Koch and Ammon, “Virginia and Kentucky Resolutions,” 153; see also PJM, 17:34. 132. Madison to Jefferson, November 3, 1798, PJM, 17: 173. See also Koch and Ammon, “Virginia and Kentucky Resolutions,” 154; and Shannon Stimson, The American Revolution in the Law. 133. For example, in neighboring Kentucky, George Nicholas, a Madison associate, published his “Political Creed” in 1798 hoping to get himself arrested for violating the Sedition Act, which he was sure would prompt upstanding jurymen to acquit, thereby nullifying the law, leaving it “waste and dirty paper.” Quoted in James Morton Smith, “The Grassroots Origins of the Kentucky Resolutions,” William and Mary Quarterly, 3rd series, 27 (1970): 231. 134. “Philo-Agis,” Kentucky Gazette, August 22, 1798; see also Smith, “Grassroots Origins,” 236. Agis was a Spartan king who tried to return Sparta to Lycurgus’s founding laws and principles. 135. FP, 26: 172; 84: 517 (Hamilton). 136. “Consolidation,” National Gazette, December 3, 1791, PJM, 14: 138, 139.

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158. House Address to the President, November 27, 1794, PJM, 15:391. 159. Madison to James Monroe, December 4, 1794, PJM, 15: 406, 407. 160. Madison to Jefferson, February 12, 1798, PJM, 17: 79.

Chapter 6 1. New York Argus, July 20, 1795; see also Stanley Elkins and Eric McKitrick, The Age

of Federalism (Oxford: Oxford University Press, 1995), 421, 835n130; Todd Estes, The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Political Culture (Amherst: University of Massachusetts Press, 2008), 76; Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven: Yale University Press, 2002), xiii. 2. Elkins and McKitrick, Age of Federalism, 420; more broadly, see Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2009), 198–200. 3. Boston Columbian Centinel, August 19, 1795; see also Philadelphia Federal Intelligencer, August 29, 1795. 4. Estes, Jay Treaty, 104. 5. Philadelphia General Aurora, September 19, 1795; Communications No. 6, Columbian Centinel, October 31, 1795. 6. Columbian Centinel, October 31, 1795. 7. Seth Cotlar, “The Federalists’ Transatlantic Cultural Offensive of 1798 and the Moderation of American Democratic Discourse,” in Beyond the Founders: New Approaches to the Political History of the Early American Republic, ed. Jeffrey L. Pasley, Andrew W. Robertson, and David Waldstreicher (Chapel Hill: University of North Carolina Press, 2004), 278, 286, 277. 8. Cotlar, “The Federalists’ Transatlantic Cultural Offensive,” 286, 290; see also Seth Cotlar, Tom Paine’s America: The Rise and Fall of Transatlantic Radicalism in the Early Republic (Charlottesville: University of Virginia Press, 2011), 189–206. 9. New-York Journal, April 28, 1798. 10. Simon P. Newman, Parades and the Politics of the Street: Festive Culture in the Early American Republic (Philadelphia: University of Pennsylvania Press, 1997), 98. 11. George James Warner, Means for the Preservation of Public Liberty: An Oration (New York: Greenleaf and Judah, 1797), 14. 12. Warner, Means, 12–13, 14. 13. Numa, New-York Journal, November 15, 1796. 14. On the way that truth “precludes debate,” see Hannah Arendt, “Truth and Politics,” in Between Past and Future: Eight Exercises in Political Thought (New York: Penguin, 1993), 228–64, especially 239–45 (quotation at 241). 15. Alexander Addison, Liberty of Speech, and the Press: A Charge to the Grand Juries of the County Court (Vergennes, Vt.: Samuel Chipman, 1799), 15; Numa, New-York Journal, November 15, 1796. 16. Numa, New-York Journal, November 15, 1796. 17. Benjamin Rush also stressed the importance of the larger social world influencing politics, though he wanted to moderate popular participation and channel it to elite-controlled institutions; see Frank, Constituent Moments, 101–27. 18. Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 230. For a brief survey of the Federalist reaction to the Quasi-War, see Wood, Empire of Liberty, 240–67.

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Wortman, Treatise, 175–76; see also 156. Ibid., 192. Wortman, Address, 21. Wortman, Treatise, 66. Ibid., 121, 48. Ibid., 49, 60. Ibid., 24, 118. Madison, “Public Opinion,” PJM, 14: 170. Wortman, Treatise, 130; see also 133. Ibid., 246, 244. Ibid., 48, 40, 49. Ibid., 55, 64, 111. Ibid., 74; see also 18. Ibid., 151–52; see also 38–42. Ibid., 198. In 1859, J. S. Mill would use a similar technique in leaving the legality of owning gambling houses and brothels to be decided by his readers and the public more generally, after a thorough summary of the predominant and dissenting views; see On Liberty, in Collected Works, 18: 296–97. Wortman, Treatise, 104, 119. Ibid., 120. Wortman, Solemn Address, 33, 34. Wortman, Treatise, 175–76, 30; Wortman, Address, 9. Wortman, Treatise, 162. Ibid., 248; see also 249. Ibid., 195. Wortman, Address, 20; for more reports of boycotts and blackmail, see Eugene Perry Link, Democratic-Republican Societies, 1790–1800 (New York: Columbia University Press, 1942), 187, 187n61. Wortman, Treatise, 197. Ibid., 43, 254. Wortman, Solemn Address, 9, 34. Wortman, Address, 17; Wortman, Treatise, 247. Wortman, Treatise, 33, 180. Ibid., 18, 42, 60. Ibid., 160, 156, 122–23. Ibid., 199, 123, 266. Michael Merrill and Sean Wilentz, “Invention of American Politics,” in The Key of Liberty: The Life and Democratic Writings of William Manning, ed. Michael Merrill and Sean Wilentz (Cambridge: Harvard University Press, 1993), 3, 8. Ibid., 25; William Manning, The Key of Liberty [1798], ed. Samuel Eliot Morison, William and Mary Quarterly, 3rd series, 13 (1956): 243. Manning, Key [1798], 234; Merrill and Wilentz, “Invention,” 27; Manning, Key [1798], 204. Merrill and Wilentz, “Invention,” 36. Viewing society as divided between the few and many, the aristocrats and the democrats, was becoming more common; see Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2009), 216.

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Manning, Key [1798], 218. Ibid., 230. Ibid., 248. Ibid., 249. Ibid., 250. Merrill and Wilentz, “Invention,” 77.

Chapter 7 1. Thomas Cooper, A Reply to Mr. Burke’s Invective (Manchester, U.K.: M. Falkker,

1792), 5. 2. Thomas Cooper, Narrative of the Proceedings against Thomas Cooper (Lancaster, Pa.: William Hamilton, 1811), 6. 3. Dumas Malone, The Public Life of Thomas Cooper, 1783–1839 (Columbia: University of South Carolina Press, 1961 [1926]), 68. 4. Thomas Cooper, Some Information Respecting America (Dublin: P. Wogan et al., 1794), iv. 5. Ibid., 76, 77. 6. Ibid., 53. 7. Thomas Cooper, Letters on the Slave Trade (Manchester, U.K.: C. Wheeler, 1787), 30; see also Cooper, Considerations on the Slave Trade (London: Darton and Harvey, 1791), especially 14–15, and Cooper, Supplement to Mr. Cooper’s Letters on the Slave Trade (Warrington, U.K.: W. Eyres, 1788). 8. See, for example, Cooper to Mahlon Dickerson, March 16, 1826, in “Letters of Dr. Thomas Cooper, 1825–32,” American Historical Review 6 (1901): 729; see also Thomas Cooper, Two Essays (Columbia, S.C.: J. M. Faust, 1826), 45–48; Malone, Public Life, 387; and Maurice Kelley, Additional Chapters on Thomas Cooper (Orono: University of Maine Press, 1930), 50–54. 9. Malone, Public Life, 209, 118. 10. Adams to Jefferson, July 22, 1813, in Lester J. Capon, ed., The Adams-Jefferson Letters (Chapel Hill: University of North Carolina, 1959), 2: 362–63. 11. Udo Thiel, “Introduction,” The Philosophical Writings of Thomas Cooper, 3 vols., ed. Udo Thiel (Bristol, U.K.: Thoemmes, 2001), 1: v; see also Thiel, “Introduction,” 1: vi. For some recent attention to Cooper, see Eugene Volokh, “Thomas Cooper, Early American Public Intellectual,” New York University Journal of Law and Liberty 4 (2009): 372–81, and, more generally, Thiel, Philosophical Writings of Thomas Cooper. 12. Cooper, Two Essays, iii. 13. Thomas Cooper, Propositions Respecting the Foundation of Civil Government [1790], appended to A Reply, 102. 14. Malone, Public Life, 13. 15. Cooper, Propositions, 93; see also Letters on the Slave Trade, 3. 16. Cooper, Propositions, 97, 113. 17. Cooper, “An Account of [Priestley’s] Political Works and Opinions,” appended to Joseph Priestley, Memoirs of Dr. Joseph Priestley (London: J. Johnson, 1806), 350. 18. Cooper, Propositions, 105, 106. 19. Cooper, Reply, 70. 20. Cooper, Propositions, 98. 21. Ibid., 98–99n. 22. Ibid., 99n.

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Cooper, Reply, 33; Cooper, Account of the Trial, 18. Thomas Cooper, “Political Arithmetic, No. II,” in Cooper, Political Essays, 51. Cooper, Reply, 70; see also Priestley, “Unlimited Enquiry, Part I,” 62, 65. Cooper, Reply, 77, 76, 78. Cooper, Some Information, 77. Cooper, “An Account of [Priestley’s] Political Works, 370; Cooper, Reply, 70. Cooper, Some Information, 77. Cooper, Reply, 76, 70; see also 75, 77. Cooper, “On the Assessed Taxes,” in Political Essays, 3. Cooper, Propositions, 108; see also Cooper, Letters on the Slave Trade, 19. Cooper, Propositions, 109. Cooper, “Unlimited Enquiry, Part II,” 84. Cooper, “Assessed Taxes,” 3. It bears noting, however, that after Cooper had publicly complained of newspaper criticisms of him while he was in jail, the editor responsible was threatened and then physically assaulted by associates of Cooper’s, though suffering little injury. See Malone, Public Life, 137; Philadelphia Gazette, October 13, 1800; Gazette of the United States, October 11, 13, 1800. Cooper, Some Information, 76. Cooper, “Address . . . June 29, 1799,” 33. In fact, Jefferson took pains to make certain Madison got a copy; see Jefferson to Madison, March 25, 1800, in PJM, 17: 373, 374n1. Cooper, “Unlimited Enquiry, Part II,” 84. William Rawle, quoted in Cooper, Account of the Trial, 16. Cooper, “Extract from a Speech of Mr. Erskine on the Doctrine of Libel,” in Political Essays, 11. Cooper, “Sedition Bill,” 15, 16. Ibid., 16. Cooper, “Unlimited Enquiry, Part II,” 88. Ibid. Also, compare Cooper, Tracts, preface, xiii‒xiv; more broadly, see Cooper, “Unlimited Enquiry, Part II,” 74–78. Cooper, “Account of the Trial,” 19. Cooper, “An Account of [Priestley’s] Political Works, 357. Cooper, Account of the Trial, 64 (emphasis in the original). Other Democratic-Republicans agreed that Chase had behaved as “a vindictive and implacable enemy” (Stevens Thomson Mason to James Madison, April 23, 1800, in PJM, 17: 382) and he would later be impeached but not convicted for his conduct in another seditious libel trial. Cooper, Account of the Trial, 58. Cooper, Tracts, 526. Malone, Public Life, 129. Cooper, “Unlimited Enquiry, Part II,” 87; this is from one of the passages added in 1800. Ibid., 78. Priestley, “Unlimited Enquiry, Part I,” 68. Young, “Communication and the Other,” 129; Lynn Sanders, “Against Deliberation,” Political Theory 25 (1997): 347–76. See, for example, Rosemarie Zagarri, Revolutionary Backlash: Women and Politics in the Early American Republic (Philadelphia: University of Pennsylvania Press, 2007), especially 154–64.

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11. Rosanvallon, Counter-Democracy, 122, 172. 12. Ibid., 24, 183, 258. 13. Mark Warren, “Voting with Your Feet: Exit-based Empowerment in Democratic Theory,” American Political Science Review 105 (2011): 683–701; see also Kevin Olson, “Legitimate Speech and Hegemonic Idiom: The Limits of Deliberative Democracy in the Diversity of Its Voices,” Political Studies 59 (2011): 543; and Stephen K. White and Evan Robert Farr, “‘No-Saying’ in Habermas,” Political Theory 40 (2012): 32–57. 14. Rosanvallon, Counter-Democracy, 298–99; more generally, see 294–302. 15. Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought, expanded ed. (Princeton: Princeton University Press, 2006), 605–6, 604, 602. 16. Edward Wingenbach, Instituting Agonistic Democracy: Post-Foundationalism and Political Liberalism (Burlington, Vt.: Ashgate, 2011), 84. 17. Jacques Rancière, Hatred of Democracy, trans. Steve Corcoran (London: Verso, 2006), 49. 18. Wingenbach, Instituting Agonistic Democracy, 46. 19. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1996), 471; Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory 29 (2001): 774. 20. Chambers, “Rhetoric and the Public Sphere,” 323–50; John S. Dryzek, “Rhetoric in Democracy: A Systematic Appreciation,” Political Theory 38 (2010): 319–39. See also Susan Bickford, “Emotion Talk and Political Judgment,” Journal of Politics 73 (2011): 1025–37. 21. Dryzek, “Rhetoric in Democracy,” 320. 22. Cass R. Sunstein, Why Societies Need Dissent (Cambridge: Harvard University Press, 2003), 140–44. 23. Hannah Arendt, “Truth and Politics,” in Arendt, Between Past and Future: Eight Exercises in Political Thought (New York: Penguin, 1993), 241. 24. See R. Randall Rainey and William Rehg, “The Marketplace of Ideas, the Public Interest and Federal Regulation of the Electronic Media: Implications of Habermas’ Theory of Democracy,” Southern California Law Review 69 (1996): 1923–87, especially 1973–85. 25. Rainey and Rehg, “Marketplace of Ideas,” 1981. 26. For a cogent analysis of how political anger has been used to close off rather than open up democratic debate, see Holloway Sparks, “Mama Grizzlies and Passionate Patriots: The Intersectional Politics of Anger in the Tea Party Movement,” paper prepared for presentation at the annual meeting of the Association of Political Theory, October 2012, University of South Carolina. 27. Theda Skocpol and Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism (New York: Oxford University Press, 2012), 202, 204; see also 83–153. 28. Skocpol and Williamson, Tea Party, 200–201. 29. See Robert W. McChesney and John Nichols, The Death and Life of American Journalism: The Media Revolution That Will Begin the World Again (New York: Nation Books, 2010). 30. See Lee C. Bollinger, Uninhibited, Robust, and Wide-Open: A Free Press for a New Century (New York: Oxford University Press, 2010), 120–25. 31. See also Susan Bickford, The Dissonance of Democracy: Listening, Conflict, and Citizenship (Ithaca, N.Y.: Cornell University Press, 1996).

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Index

“Actual malice” standard, 157 Adams, Abijah, 158 Adams, John, 47, 153, 167, 179 Adams, Thomas, 168 Addison, Alexander, 38 Affect, 6–8, 164–165, 193–194, 202 Agonism, 6–7 Alien and Sedition Acts (1798), 1, 17, 47, 140, 183; expire, 142. See also Sedition Act Ames, Fisher, 92, 95 Anger, political, 14 Anonymity. See Non-attributed writing Another of the People (pseud.), 56 Anti-Federalists, 15, 55–58; 63–74, 77–81, 202 Appleby, Joyce, 87 Arendt, Hannah, 9, 10, 202 Aretus (pseud.), 98 Aristocrotis (William Petrikin), 64, 65, 72 Articles of Confederation, 10 Assessment controversy (1785), 116–125. See also Madison, James; “Memorial and Remonstrance Against Religious Assessments” Bailey, Francis, 62 Ball, Terence, 128 Banning, Lance, 115–116, 125–126 Battle of Seattle (1999), 1, 13 Benhabib, Seyla, 6–7 Berkshire Constitutionalists, 28 Bill of Rights (1791), 16, Boston Tea Party (1773), 1, 13, 202, 207n1. See also Tea Party movement Bouton, Terry, 35 Bowdoin, James, 33, 55, 168 Brackenridge, Hugh Henry, 39–40 Bradford, Ebenezer, 107 Brann, Eva, 121 Brooke, John, 100

Brown, David, 169 Bryan, Samuel, 18, 57, 64, 65, 67. See also Centinel Burke, Edmund, Cabot, George, 92 Caesar (pseud.), 63 Carlisle riot, 55–56, 58 Centinel (Samuel Bryan), 57, 63, 64, 67, 68, 70, 72 Chambers, Simone, 7–9, 200, 201 Chase, Samuel 192 Chilling effect, 51, 69–70, 73–74, 143, 158, 185, 204 Chipman, Nathaniel, 91, 95 Cincinnati, Order of the, 87, 174 A Citizen (pseud.), 62–63 Cobbett, William, 85 Coercive Acts (1774), 28 “COLLISIONS of OPINION,” 62–63, 152, 156, 166, 178, 181–182, 184–185 Common Sense (Paine), 60–62 Confidence, citizens place in government, 29, 47, 238n24; citizens place in themselves, 80, 104. See also Vigilance Cooper, Thomas, 19, 177–197 “Corporation for Public Interest Speech and Debate,” 202–203 Cotlar, Seth, 87, 98, 103 “Counter-democracy,” 199–200 Counterpublicity, 100–103, 146, 202–203; and citizen confidence, 104; and solidarity, 104. See also Public sphere Culture of dissent, 76, 90–91, 151–153, 158, 160, 165–167, 204–205; education as foundation of, 79–80 Declaration of Rights (Virginia), 116, 120 Deference. See Status quo Deliberative democracy, 6–11, 73

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Mazzei, Philip, 130–131 McKean, Thomas, 55 “Memorial and Remonstrance Against Religious Assessments” (Madison), 116–125 Mercer, John Francis (A Farmer), 77–81, 110, 185, 205 Michelman, Frank, 9–11 Mill, John Stuart, 1, 4–5, 157, 179, 183, 191 Moderation, 80, 205 Morris, Gouvernour, 26 Mouffe, Chantal, 6 Murray, William Vans, 92 National Gazette essays (Madison), 133–139, 142, 143 “Natural aristocracy,” 17, 72 New-England Courant, 58–59 New York Times v. Sullivan (1964), 157, 185 Nicholas, George, 117 Non-attributed writing, 59–62, 64, 68, 69, 70–74, 76, 77–78, 203–204 Nullification (state), 48, 140–141. See also Jury, nullification; Popular nullification Numa (pseud.), 151–153, 155, 165, 202 Occupy movement, 204–20 Opposition, 3, 13, 16, 87 Overt acts doctrine, 41, 144, 155–157, 158, 183 Packard, Hezekiah, 92 Paine, Thomas, 60–62, 71, 169 “Paradox of founding,” 9–11, 201 Parks, Rosa, 12 Participatory elitism, 7–9, 200 Patriotic Society of Newcastle (Delaware), 93, 108 Pendleton, Edmund, 47, 118 Pennsylvania Regulation of 1794, 17, 22, 34–44 Pennsylvania Regulation of 1799, 18, 22, 44–52 Petrikin, William. See Aristocrotis Philadelphiensis (pseud.), 57, 70, 73, 143, 185 Philo-Agis (pseud.), 141 Pickering, Thomas, 47 A Plebeian (pseud.), 64 Political Essays (Cooper), 181–182

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Virginia and Kentucky Resolutions, 18, 48, 140–141 Virginia Report of 1800 (Madison), 121, 142, 193 War of 1812, 197-199 Warner, George James, 149–151 Warner, Michael, 100 Warren, Joseph (A True Patriot), 59–60 Warren, Mark, 200 Washington, George, 15–17, 37, 67; criticizes the democratic societies, 87–88, 89, 90; supports Assessment bill, 117 “Whiskey Rebellion.” See Pennsylvania Regulation of 1794 Whistle-blower protection laws, 204 Whiting, William, 31–32 Willcocks, William, 87, 92, 99 Williams, Roger, 58 Wilson, James, 39, 55 Wingenbach, Edward, 200 Wolin, Sheldon, 200 Women’s rights, 11, 180–181, 194 Wood, Gordon, 115 Wortman, Tunis, 18, 157–167, 193 Wyche, William, 109 Young, Iris Marion, 6–7, 193

About the Author

Robert W. T. Martin is Professor of Government and Chair of the Government Department at Hamilton College. His works include The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800, and The Many Faces of Alexander Hamilton (coedited with Douglas Ambrose), both from NYU Press.

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