Alexis de Tocqueville on the

Covenantal Tradition of
American Federal Democracy
Barbara Allen
Carleton College

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Perhaps no analyst of democracy's potentials for despotism and self-government understood better
than Alexis de Tocqueville the importance of the "favorable circumstances" ofAmerica's republican and
religious origins. America's covenantal heritage inspired the public philosophy of federal liberty and the
federal principle used to establish governments and political associations in colonial New England. The
Puritans, Tocqueville explained, created the bonds and the liberties of citizenship by their assent to eternal,
transcendent principles, as well as by their consent to government. The principles of covenant ultimately
provided the institutional and conceptual foundation of constitutional government, making America's
federal democracy less vulnerable to possessive individualism and democratic despotism. Federal principles
fostered an important indirect role for religion in American politics. Tocqueville not only analyzed the
tension between the requirements of faith and democratic norms, but also distinguished covenantal ways
of negotiating these concerns from the approach taken by later advocates of religious freedom, fames
Madison and Thomas fefferson. He argued that federalism's moral foundations will be difficult to
preserve if this tension is resolved in ways that promote individual autonomy by undermining covenantal
thinking.

Ju ew analysts have perceived democracy's vulnerability to tyranny and

despotism as clearly as Alexis de Tocqueville. Democracy, Tocqueville
believed, manifested in politics the irresistible force of increasing social
equality. He placed American democracy in the context of seven centuries
of social equality, a trend he described as self-reinforcing. Each increase in
material equality made remaining inequalities more untenable, obliging
democratic societies to purge themselves of difference of any kind. As a
philosophical principle and as a political force, equality's effects were com-
plex and not entirely positive.
"Equality," Tocqueville wrote, "[could be] an accessory of absolutism...
[or] the companion of liberty."1 Equality could diffuse a sincere love of law
and sense of civic duty throughout society, but increasing equality could
also promote self-regard at the expense of public life. As a political expres-
sion of equality, democracy, he believed, could nurture sentiments condu-
cive to servitude as well as self-government. Tocqueville found that
expressions of equality that separate individual rights from their social
'Alexis de Tocqueville, The Old Regime and the French Revolution (Garden City, NY: Doubleday Anchor
Books, [orig. pub. 1858] 1955), p. 254.

© Publius: The Journal of Federalism 28:2 (Spring 1998)

1
2 Publius/Spring 1998

purpose promote extreme individualism, materialism, and a preference for

order over justice. When equality took this course, a polity might yet be
called democratic, but it would not be self-governing. Instead, order born
of possessive individualism favored the mild oppressions of a tutelary state,
"a new physiognomy of servitude," democratic despotism.2 For Tocqueville,
the democratic ideal, "the sovereignty of the people," represented only a
philosophical affectation unless citizens used their equal political rights to
take part in public deliberation and decisionmaking.
The Americans, he found, had navigated equality's currents toward self-
government. They owed their success, he said, to three causes: "(1) The

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peculiar and accidental situation in which Providence has placed [them];
(2) The laws; and (3) The manners and customs of the people."3 Of these
factors, none was more important than the mores or "habits of the heart"
that joined individual rights to social purposes. Tocqueville attributed this
mental stance to America's republican and religious origin; institutions based
on this foundation owed their longevity to the enduring influence of "the
first of [America's] political institutions," religion.4
New England colonists had placed some beliefs beyond discussion, anchor-
ing the mercurial world of politics to the moral firmament provided by the
teachings of revealed religion. The more narrow limits of religious belief per-
mitted daring political innovations: a "great experiment" in self-government
American society had been constructed on a new basis, employing "theories
hitherto unknown or deemed impractical," creating Tocqueville said, "a spec-
tacle for which the world had not been prepared by the history of the past."5 By
combining "two distinct elements.. .the spirit of religion and the spirit of liberty,"
the New England colonists developed institutions for the continuing practices
of self-control, self-organization, and self-rule.6
Although he never used the term, the orientation that Tocqueville at-
tributed to America's founders is characterized by Daniel J. Elazar, Donald
S. Lutz, and others as "covenantal."7 The "federal principle" that Tocqueville
analyzed is based in covenantal thinking. America's federal form of
'Alexis de Tocqueville, Democracy in America, trans. Henry Reeves ([orig. pub. 1830-1835], New York:
Vintage, 1945), 2:336.
'Ibid., 1:298.
4
Ibid., 1:316.
J
Ibid., 1:26.
"Ibid., 1:145.
'Contemporary scholarship underscores the importance of the Calvinist and Puritan covenants and com-
pacts at the heart of American constitutionalism. See Donald S. Lutz, The Origins of American Constitutionalism
(Baton Rouge: University of Louisiana Press, 1988); Daniel J. Elazar, The Covenant Tradition in Politics, I:
Covenant and Polity in Biblical Israel (New Brunswick, NJ: Transaction Publishers, 1995); Daniel J. Elazar, The
Covenant Tradition in Politics, II: Covenant and Commonwealth (New Brunswick, NJ: Transaction Publishers, 1996);
Daniel J. Elazar, The Covenant Tradition in Politics, III: Covenant and Constitutionalism (New Brunswick, NJ: Trans-
action Publishers, 1997); Vincent Ostrom, The Political Theory of the Compound Republic, 2nd ed. (Lincoln: Uni-
versity of Nebraska Press, 1987); Vincent Ostrom, The Meaning of American Federalism: Constituting a Self-Governing
Society (San Francisco: ICS Press, 1991); Vincent Ostrom, The Meaning of Democracy and the Vulnerabilities of
Democracy: A Response to Tocquevittt's Challenge (Ann Arbor University of Michigan Press, 1997). Articles that
consider a variety of applications of covenant theory to questions of American constitutionalism and constitu-
tional regimes more generally may be found in Daniel J. Elazar and John Kincaid, eds., Covenant, Polity, and Constitu-
tionalism (forthcoming).
Alexis de Tocqueville 3

government developed direcdy from covenantal agreements. American

political institutions are based on a public philosophy that includes a
conception of individual right that Tocqueville found essential to self-
government, namely, "federal" or "covenantal" liberty.
This article examines Tocqueville's analysis of America's covenantal begin-
ning and the relationship of covenantal thinking to the federal principle.
It then contrasts Tocqueville's insights with the positions taken by James
Madison and Thomas Jefferson as authors of laws and constitutional provi-
sions that have ultimately led Americans to reformulate the relationship
between religion and politics and to reconceptualize the moral basis of

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federal democracy. Tocqueville's assessment of the colonial covenantal ex-
perience suggests that Madison and Jefferson resolved the tension between
religious belief and the norms of liberty in a way that presumed, but did
not preserve, America's covenantal foundations. If Tocqueville understood
the moral foundations of a federal democracy correctly, losing these covenan-
tal moorings leaves liberty vulnerable to equality's excesses.
AMERICA'S COVENANTAL TRADITION:
FEDERALISM AND FEDERAL LIBERTY
Covenants not only established sacred congregations in North America, they also
informed secular constitutions and the emerging federalist form in colonial New
England. In colonial America, citizens covenanted and compacted to form a politi-
cal body, obligating themselves to broadly reciprocal, perpetual relationships.8 The
8
Daniel J. Elazar distinguishes three related forms of agreement, covenant, compact, and contract. As
foundations for consent-based societies, all three types of voluntary agreements can be contrasted with two
alternative models of political foundings, conquest and organic evolution. Within the model of consent-based
foundings, covenants and compacts can be contrasted with contract; all are instruments for creating voluntary
agreements, but the principles and mental stance at the heart of covenants and compacts differ substantially
from the mentality informing contracts. Elazar defines covenant as "a morally informed agreement or pact
based upon voluntary consent, establishing by mutual oaths or promises, involving or witnessed by some tran-
scendent higher authority, between peoples or parties having independent status, equal in connection with
the purposes of the pact, that provides for joint action or obligation to achieve defined ends (limited or
comprehensive) under conditions of mutual respect, which protect the individual integrities of all parties to
it" Elazar, Covenant and Polity in Biblical Israel, pp. 22-23. Covenants establish enduring partnerships character-
ized by their moral and legal dimensions; in politics, covenants constitute relationships that may be institution-
alized through establishing a constitution that includes a frame of government Ibid., p. 24. Compacts, Elazar
explains, are secular creations, based on "mutual pledges rather than guarantees by or before a higher author-
ity." Although compacts, like covenants, establish public, broadly reciprocal relationships, unlike covenants,
their legal dimension is more prominent and more directly binding than their moral dimension. In contrast
to diese broadly reciprocal pacts of unlimited duration, contracts are narrow agreements designed to limit the
obligations and liabilities of the parties to the specific duties designed to facilitate their private relationship.
Ibid., 31. He finds that the terms covenant and compact were used interchangeably in the British North
American colonies until 1791. Donald S. Lutz details the use of covenants and compacts, along with "a plethora
of other terms in creating colonial frames of government" Lutz, The Origins of American Constitutionalism, pp.
16-34. Contracts, Lutz shows, are agreements creating "mutual responsibilities on a specific point," while
compacts were agreements or understandings working "more in the nature of a standing rule."
Ibid., 16-17. Compacts might not enjoy die status of law, yet had that effect, influencing the public activities of
entire communities. Covenants were formal agreements witnessed by die highest relevant authority, religious
or civil. In his extensive analysis of colonial agreements, Lutz shows that the verb forms "to agree," "to com-
pact," and "to covenant" are used interchangeably and that covenants may form secular or religious bodies.
Given that American colonial documents do not always distinguish covenants from compacts on the basis of
their secular or religious content, this article will follow Lutz in simply indicating whether we are speaking of
secular or religious foundings, regardless of the terminology.
4 Publius/Spring 1998

highest relevant authority, God in many instances, was called as a witness

and, often, as a guarantor of such pacts. In many church covenants, God
was a party to the agreement.9 Using covenants and compacts, citizens not
only agreed to create a political body, they, as one body, also affirmed an
obligation to establish their communities according to transcendent law.
Once covenant-based polities were established, the actions of individuals
were judged not only in terms of positive law but also according to eternal,
transcendent principles to which each person and the political body as a
whole were bound by their consent. Colonial covenants and compacts ac-
knowledged the relationship of individual right to transcendent purpose

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and assumed that reasoned private judgment could be harmonized with
the revelatory basis of the community.
Covenants cannot be understood as political instruments outside of the
context of Reformed Protestant theology; likewise, the terms choice,
freedom, and consent had theological as well as political import. In the
theology of covenant, Perry Miller suggested, an omnipotent God has freely
limited divine authority by entering into an agreement, promising not only
to deliver the faithful but also to supply belief, the means necessary for
humans to fulfill their part of the bargain.10 Freedom and an equal capac-
ity to consent are viewed as natural human capacities. Every soul must have
been given the capacity for faith, and every soul must be equally able to use
that gift to assume the covenant offered by God." Miller documented the
effect of this theology on church elections, decisions that not only reflected
God's will but also proceeded with God's assistance. God defined the
authority of office such that:

Church officers cannot make laws, but are to apply "the rules of order
and comeliness taken from the Scripture and common sense"; but "nei-
ther the church, nor the meanest member thereof is further bound unto
these determinations, than they appear to agree with order, and comeli-
ness." Ministers are not in anything "to be obeyed for the authority of the
commander, but for the reason of the commandment, which the minis-
ters are also bound in duty to manifest, and approve unto the conscience
of them over whom they are set."12

Office and official were separated in these electoral practices; the con-
gregation and church government were formed by consent; and the au-
thority of the elected church elders was limited by higher authority and the
approval of the consciences of the electors. While the elders were bound
'Even God's position in the agreement is a matter of some complexity. For many Independents (a type of
Reformed Protestant), the idea that God had articulated a promise to a seventeenth<entury people at all
like the Noahide, Mosaic, or other covenants recorded in Scripture was preposterous or even blasphemous.
'"Perry Miller, Errand Into the Wilderness (New York: Harper Torchbooks, 1956), p. 61.
"Ibid., p. 67.
"Ibid., p. 46. Miller is quoting John Robinson (a Separatist who was strongly influenced by
Nonseparating Congregationalism and whose philosophical presentation of the discipline's main prin-
ciples was transported to New England); Robert Ashton, ed.John Robinson's Works (Boston, MA: Doctrinal
Tract & Books Society, 1851), 3:61.
Alexis de Tocqueville 5

by absolute, transcendent laws, the approval of conscience was, however,

viewed as a public, collective act, rather than a private, individual judg-
ment. The people, not an aggregate of individuals, were the source of the
officer's appointment; God was the source of authority for the people and
their representatives. This characteristic, perhaps more than any other as-
pect of colonial covenantalism, struck Tocqueville as die source of America's
novel political institutions.
Tocqueville drew his conclusions about colonial government from con-
gregational government as it was instituted in Massachusetts under John
Windirop's leadership and, in Connecticut, with Thomas Hooker. Toc-

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queville found that congregational institutions could not be adequately
understood in terms of nineteenth-century political distinctions between
aristocracy and democracy. Those who treated Congregationalism philo-
sophically in the seventeenth-century were careful to show that the equality
found in societyjustified neither popular ("democratical") government nor
the complete supremacy of the individual. Congregational government,
although it was based in social and moral equality and created through
equal consent, was representative government. In some colonies (e.g., Mas-
sachusetts), representation took the form of a tutelary aristocracy of God's
elect; other colonies (e.g., Connecticut) functioned under more popular
institutions.13 In either case, church government, and the secular govern-
ments diat followed, emphasized the collective capacities of a political body
or a body of the faithful. Each person could be accorded equal respect,
regardless of social, political, or ecclesiastical position, and each enjoyed
an equal natural capacity to give or widihold consent in forming the secular or
sacred body, but no person, representative or elector, could pronounce
authoritatively on divine will as conclusions drawn from a private search for
truth.14
Elazar and Lutz, along with Tocqueville, credit this emphasis on the public
dimension of colonial life as the key to understanding covenantal thinking.
As Elazar explains,
covenantalism construed civil society as a republic in the origi-
nal sense of the Latin term res publica, meaning a public thing
.. .The people.. .was a body politic, usually an association of asso-
ciations. The linkage of popular sovereignty and political orga-
nization through the polity of associations dedicated to fulfilling
"Ibid., pp. 20-31; See also Ralph B. Perry, Puritanism andDemocracy (NewYork: The Vanguard Press, 1944).
M
The Puritan conception of equality raises important concerns about gender, power, and authority.
Works that consider equality and the conception of the individual as it relates to women include Janet
Coleman, ed., The Individual in Political Theory and Practice (Oxford: Clarendon Press, 1996); Carole
Pateman, The Sexual Contract (Stanford, CT: Stanford University Press, 1988). For a depiction of the
colonial family, see John Demos, A Little Commonwealth: Family Life in Plymouth Colony (Oxford: Oxford
University Press, 1970). This work suggests that the family functioned as an association guided by "fed-
eral liberty" laying out a political role for women that is similar to the important place held by women and
family in Greek political thought See Arlene Saxonhouse, Women in the History of Political Thought (New
York: Praeger Publishers, 1985).
6 Publius/Spring 1998

high vocation, organized and framed through a proper

constitutional law, resting upon covenant, in which the appro-
priate covenants were those in service of the right vocations, still
remains the basis of a proper political morality for democratic
republics.15
In the New England mind, secular governments were constituted to achieve
sacred as well as mundane purposes, organizing the community in a way
that enabled its members to pursue a life ordered by God's law. Secular
associations provided the material conditions that facilitated this effort,
making material commitments vital, if secondary, elements in fulfilling God's

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covenant.
Tocqueville observed routine political activity that revealed the citizens'
views of their commitments, liberty, equality, and right as a "science of asso-
ciation" in which political right was considered a "public thing," an instru-
ment for making the collective decisions that summed to a self-governing
society. A collective process had established the civil society on which indi-
vidual right depended. For such rights to remain in force, they must con-
tinue to be put to use in ongoing collective decisionmaking. From this
perspective, a civil right is an instrument for collective decisionmaking. "The
people," observed Tocqueville, referred to the body politic, a "society gov-
erning itself for itself," and not to an aggregation of individuals.16 Lutz
provides ample evidence that New Englanders held such a view. Their docu-
ments show that "ultimately, the people as a people, attempted to govern
themselves through their own consent."17 "Popular sovereignty" in Ameri-
can practice reflected neither a holistic nor a purely individualistic method
of determining the public will. In covenanting polities, the phrase "sover-
eignty of the people" applied to a political body as a whole; yet this view of
individuals' collective capacities did not diminish the foundation of civic
engagement, individual assent. Only if citizens were able to create and
govern associations in which they could conduct the public—their
common—business, could the ideal of the sovereignty of the people be
more than a political slogan.
Voluntary associations played this essential role in America, but in other
political circumstances, self-organization might not contribute to the health
of civil society. Tocqueville contended that self-organization is a ubiqui-
tous human response to the exigencies of life and it, alone, is not indicative
of sustained self-government. Without the open public arena character-
ized as res publica, "popular sovereignty" was litde more than a cloak for
factions that direatened to rule die public realm as their private possession.18
15
Elazar, Covenant and Commonwealth, p. 154.
"Elazar, Covenant and Polity in Biblical Israel, p . 59.
l7
Lutz, The Origins of American Constitutionalism, p. 77.
"See Elazar, Covenant and Commonwealth, pp. 153-154 on the covenantal reordering of Medieval civil
society and the consequences for recasting a privatized polity in terms of res publica.
Alexis de Tocqueville 7

The colonial legacy formed by the laws, circumstances, and mores of

covenanting enabled the citizens that Tocqueville observed in nineteenth-
century America to practice an art of association suited to self-government.
Tocqueville attributed America's vibrant associational life to the framework
of government, that is, federalism, and to a view of liberty described in
1645 by John Winthrop as federal liberty.
Winthrop used the Latin root for. covenant, foedus or federal, to express
the relationship between individual right and civic responsibility implied
in covenant-based constitutions. For Winthrop, the terms civil, federal,
and moral were synonymous, implying that these adjectives modified the

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liberty of people in society according to God's commandments as well as
the polity's legal restraints. Quoting Winthrop at length, Tocqueville showed
that "federal liberty" emphasizes the relationship of individual right to "the
covenant between God and man, in the moral law, and the politic covenants
and constitutions, among men themselves."19 Submitting themselves to
God's authority, the members of a civil society renounced natural liberty
and embraced federal liberty, the liberty necessary to perform their duty of
tending the body politic. Civic duty not only derived from a particular
understanding of "public" and "community" but also implied that political
duties originated in service to God. Human political authority and indi-
vidual will were viewed as limited by principles that transcend humanity's
creative efforts and understanding. Winthrop defined federal liberty as
the liberty to do "that only which is good, just, and honest."20 Civil liberty
must supplant the natural liberty that humanity holds in common "with
beasts and other creatures."21
Natural liberty reflected the right of nature in which each person stood
alone, possessing an equal right to do whatever "he lists,...a liberty to evil as
well as to good." Natural liberty, Winthrop contended, "cannot endure the
least restraint of the most just authority." In civil society constituted byjust
authority, actions predicated on natural liberty undermine peace and
oppose God. Those who persist in opposing God are evil; any political
authority that undermines civil liberty "is not authority, but a distemper
thereof."22 In civil order, a different view of liberty must replace natural
liberty. For Winthrop, this liberty reflected a particular form of civil order,
one based on the moral law of a covenant between God and humanity.
Viewing humans as fallible, while also recognizing the individual's capacities
for reason and consent, Winthrop claimed that individuals depended absolutely on
community for their spiritual well being as well as their material good.

"Tocqueville, Democracy in America, 1:44-45.

"Ibid.
"Ibid.; Lutz, The Origins of American Constitutionalism, p. 74, chronicles these two aspects of liberty,
natural freedom and civil liberty in other founding documents, as well.
*rTocqueville, Democracy in America, 1:44-45.
8 Publius/Spring 1998

Federal liberty requires an institutional framework that promotes the

common good and protects individual rights. Tocqueville analyzed the
"proper institutions" of federalism that might achieve this goal. Also tak-
ing its name from foedus, "federalism" denotes the framework of settlements
linked by secular covenants and compacts into larger governing units. Toc-
queville began examining the federal form of the Union by analyzing the
origin and mechanics of the New England township. Townships, Tocqueville
maintained, lay the foundation for American federalism and became the
basis for the compound and extended republic established by The Federalist
as the appropriate framework for American self-government.

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By studying the history of New England townships, Tocqueville concluded
that these political bodies were among the first secular institutions consti-
tuted by colonial compacts and covenants. He also found that the practices
and institutions defined in these agreements were the basis for later combi-
nations that linked such political associations into a federation.23 Tocqueville
illustrated this observation with the Plymouth Colony and its Mayflower
Compact (1620).24 This political covenant called on God as a witness, explained
why the agreement to be made was necessary, created a people from those
who authorized the agreement, created a new institution—a "Civil Body
Politick"—and defined the type of people the agreement would help them
become.25
Lutz's detailed study of these early covenants and compacts supports and
extends Tocqueville's observations. Lutz argues that if the Mayflower Com-
pact had a description of the institutions to be used for collective decision-
making, it would be a complete document on which a political community
could be founded.26 He demonstrates that the first such modern constitu-
tion, the Pilgrim Code of Law, approved in 1636, compiled and organized
all the political practices and institutions in use in the Plymouth colony
since 1620, including the Mayflower Compact.
Lutz's research also verifies Tocqueville's perception that compacts not
only founded communities but were also the form used to knit setdements
together.27 Federalism was evident in the New England Confederation of
1643, joining the colonies of Massachusetts, Plymouth, Connecticut, and
New Haven. Each colony and the several towns comprising it, retained
their governments as they created and approved articles to govern their
common affairs. Federalism developed by agreements that transferred the
spirit of federal liberty from localities to the states and, finally, from the
states to the Union.28 Townships created larger communities, the states, in
a manner analogous to the actions of individuals who establish communities
"See Lutz, The Origins of American Constitutionalism, pp. 25-31.
"Tocqueville, Democracy in America, 1:36/
B
See also Lutz, The Origins of American Constitutionalism, pp. 25-26.
"Ibid., p. 26.
K
Ibid, pp. 31-32.
"Tocqueville, Democracy in America, 1:44; Lutz, The Origins of American Constitutionalism, pp. 18, 31-32.
Alexis de Tocqueville 9

with their equals as covenanting partners. In a similar manner, states

established a union. In each case, the individual person, township, or
state retained rights and incurred obligations by enlarging the sphere of
federal liberty.29
The Union's political life as well as its authority originated in the townships
through the process of linking local governments into a newly compacted
political body. Rather than deriving their powers from a central authority,
"the townships, on the contrary,...gave up a portion of dieir independence
to the state," sharing their power with the governing bodies they created to
handle their common concerns.30 They were seldom subordinated to their

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state or to die Union, and the citizenry believed that the state had no right
to interfere in local affairs. When a state called on citizens to support state
projects, citizens viewed themselves as the beneficiaries and providers for
statewide needs. In examples of statewide public works, townships were
obliged to provide money and supplies; where uniform police regulation
was warranted, townships also enforced the law. These obligations, Toc-
queville observed, were analogous to citizens' duties to take part in collec-
tive action. The township retained an independent right, reflecting the
federal liberty of earlier covenants through its administration of policies
established by collective decisions taken in state government. Neither town-
ship nor cidzen was completely free, but obligations were freely assumed in
each political arena. Tocqueville's description of the individual operating
in the context of federal liberty fit the township as well.
He obeys society, not because he is inferior to those who con-
duct it or because he is less capable than any other of governing
himself, but because he acknowledges the utility of an associa-
tion of his fellow men and he knows that no such association
can exist without a reguladng force. He is subject in all that
concerns the duties of citizens to each other; he is free, and
responsible to God alone, for all that concerns himself. Hence
arises the maxim, that everyone is the best and sole judge of his
own private interests, and that society has no right to control a
man's actions unless they are prejudicial to the common weal or
unless the common weal demands his help.31
Tocqueville viewed die resulting federal framework as virtually self-regulating.
In America's federal democracy, he said, "power exists, but its representa-
tive is nowhere to be seen."32 In this setting, people felt" an equal love and
respect for the laws of which they consider themselves the authors,"
viewing the authority of government "as necessary, and not divine."33

Tocqueville, Democracy in America, 1:67-68; 169-171.

"Ibid., 1:67.
"Ibid.
"Ibid., 1:74,70.
"Ibid., 1:9.
10 Publius/Spring 1998

Federal liberty placed individual rights in the context of the community

good, but neither individuals nor the political bodies they formed submit-
ted to the authority of the governing bodies they created in an unlimited
way. Federal principles and the political institutions they encouraged did
not wholly separate the individual's public and private existence or view
the community as antagonistic to individual interests, rights, and liberties.
In politics, citizens placed their interests in the broad context of the
community's welfare, rather than interpreting their liberty only in terms of
narrower perceptions of self-interest. An issue remained private unless the
good of the whole required a collective judgment. The community's wel-

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fare likewise amounted to more than a utilitarian calculus of the majority's
interests. In treating an individual's or group's interest, the federal prin-
ciple required government to consult the community's long-term interests
without favoring one group of individuals over another.34 In a federal insti-
tutional environment, public life is instrumental in joining common and
private interest. The plurality of interdependent political authorities, Toc-
queville believed, preserved individual rights by offering numerous sites
for deliberation and political action, while the judicial system offered numer-
ous arenas in which citizens had legal recourse, including means for appeal. A
federal frame of limited, distributed, shared constitutional authorities must be
joined to federal liberty if individuals were to continue to exercise their judg-
ment, rights, and liberties in attending to the community good.
It was never assumed in the United States that the citizen of a
free country has a right to do whatever he pleases; on the con-
trary, more social obligations were there imposed upon him than
anywhere else. No idea was ever entertained of attacking the
principle or contesting the rights of society, but the exercise of
its authority was divided, in order that the office might be pow-
erful and the officer insignificant, and that the community should
be at once regulated and free. In no country in the world does
the law hold so absolute a language as in America; and in no
country is the right of applying it vested in so many hands.35
Covenantal, or federal principles bequeathed the rationale and practi-
cal means for uniting people and polities for common purposes, without
negating established boundaries, identities, or moral and political authority. If
federal liberty required a federal institutional environment, die obverse was
also true: federalism required the mental stance of federal liberty. If citi-
zens lacked the sense of self-control, self-government, and civic obligation
found in federal liberty, the federal form of government would be far more
vulnerable to majority dominance and the centralizing tendency of
democratic despotism. Without the common ground of covenant, a polity

"Lutz, The Origins ofAmerican Constitutionalism, p. 77; Tocqueville, Democracy in America, 1:42-44,2:129-135.
^Tocqueville, Democracy in America, 1:73-74.
Alexis de Tocqueville 11

based on the open contestation of opposing ambitions could even be

vulnerable to civil war. In Tocqueville's view, "the federal principle" not
only described specific institutional arrangements, but also indicated the
habits of heart and mind required of citizens who use them.
The choices made in constituting the permanent frame of government,
Tocqueville said, reflected ideas that constitute a people's "character of
mind.. .the whole moral and intellectual condition of a people."36 America's
religious and republican (its covenantal) founding was, for Tocqueville,
the "key" to interpreting the American experiment in self-government.37
The American example showed that political liberty and religious belief

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could be reconciled to avoid the conditions that led democratic citizens to
take a myopic view of their civil obligations.
The tension between the demands of faith and the norms of liberty can
be balanced, but not resolved permanendy. The Puritans had perceived a
community good that transcended the interests of any individual or even
the sum of individual interests, but, Tocqueville found, less confidence was
placed in this view by the close of the eighteenth century. While the Ameri-
can style of virtue, "self-interest righdy understood," could still be linked to
religious sentiments, America's public philosophy and practice increasingly
emphasized the primacy of private interest in calculating die common good.
Lutz identifies this interpretation of interest with the Federalists and con-
trasts their views with those held by the Whigs' more covenantal sentiments.
Whigs saw individual self-interest and the common good as essentially ho-
mogeneous in the long run, whereas Federalists tended to discount the
idea of a single, objectively identifiable common good. Individual interest
being heterogeneous, any common or collective interest could only emerge
from competition and accommodation.38 "Whigs believed that a virtuous
people had moral abilities and a sense of community that led them, when
necessary, to abandon self-interest for the sake of the common good," ac-
cording to Lutz . "Federalists," in contrast, "thought that a virtuous people
were able to assess interests accurately and would then seek and reach agree-
ments or accommodations with others that advanced these interests."39 This
subde change in the definition of individual and common good profoundly
reshaped covenantal thinking in America.
The New England way of covenant continued to influence Revolution-
ary ideals and constitutional framing for confederation and, later, for the
"general" government of the states. Yet a "revolutionary faith" in reason as
the sole basis for democratic political institutions rivaled the Puritan
conception of community as a creation linked to God's revelation. If
the assent of the private judgment led to a complete renunciation of faith,
"Ibid., 1:310.
57
Ibid., 1:29.
M
Lutz, The Origins of American Constitutionalism, p. 156.
"Ibid.
12 Publius/Spring 1998

Tocqueville believed, America would be threatened by possessive

individualism, excessive materialism, and, ultimately, democratic despotism
by a path not foreseen by reason's advocates.
TOCQUEVILLE, MADISON, AND JEFFERSON
ON RELIGIOUS FREEDOM
The first need of democracy, Madison and Jefferson believed, is to control
the effect of faction. In Tocqueville's view, Madison's method of control
presumed a necessary minimum of common belief. Madison did not ex-
tend his analysis into the origins of common belief, a subject to which Toc-

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queville gave considerable thought. Tocqueville concluded that the
teachings of revealed religion provided the belief and mores necessary to
combat equality's excesses.
"Liberty," Tocqueville contended, "cannot be established without morality,
nor morality without faith."40 While people would naturally attempt to "regu-
late the temporal and spiritual institutions of society,...[endeavoring] to
harmonize earth with heaven,"41 not every method of accommodating
religion's teachings and political life gave the desired result. Americans
had avoided a destructive combination of religion and politics by separat-
ing church and state; religious freedom permitted the "simple ideas" com-
mon to most religions (a belief in God, a transcendent purpose to human
life, and assent to the most basic law: to love God and neighbor and self for
the sake of God) to inform the habits and mores of citizens, without
directly imposing religious authority on political choices.42
Constitutional guarantees only partially accounted for religion's posi-
tive influence on American political life; the American understanding of
religious freedom permitted belief to have this profound, yet indirect
effect on self-governing mores. In Tocqueville's view, "religious freedom" meant
the liberty to follow the dictates of conscience in assent to religious principles.
In separating church and state, Americans had notjettisoned religious convic-
tions from political life. If, instead, constitutional framers erected a wall be-
tween religion and politics, later generations would be more likely to harmonize
heaven in terms of earth. For Tocqueville, this dangerous choice increased the
chance that public opinion, religious fanaticism, and ironically, even state-
sponsored religion, would be intolerant new sources of belief.43
Tocqueville, Madison, and Jefferson each considered the tensions
inherent in the relationship of religion and political life. Each believed
that a self-governing polity depends on the moral and intellectual
capacities of its citizens, but they differed in their assessments of religion's
*°Tocqueville, Democracy in America, 1:12.
"Ibid., 1:310.
"Ibid., 2:154; See Barbara Allen, "Tocqueville's Analysis of Belief in a Transcendent Order, Enlight-
ened Interest and Democracy," Journal o] Theoretical Politics 8 (July 1996): 383-414.
"Barbara Allen, "The Spiral of Silence & Institutional Design: Tocqueville's Analysis of Public Opin-
ion & Democracy," Polity 24 (Winter 1991): 243-267.
Alexis de Tocqueville 13

contributions to these qualities. Madison was chiefly concerned with the

potential for majority tyranny to invade the individual's consciousness and
the damage done to religion itself when "pernicious doctrines" are given
political authority. Jefferson was concerned with the enslavement of the
mind and the "mean-spirited hypocrisy" of a clergy exercising political
power.44 Similarly concerned with these issues, Tocqueville also showed that if
democratic people reject religious belief, equality will accompany despotism,
not self-government.
Madison and Tocqueville on Majority Tyranny and Religion in the Republic

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In addition to his writings in support of the ratification of the federal
Constitution and its First Amendment, Madison considered the subject of
religious authority on several other occasions. Taken together, these es-
says, policies, debate notes, and letters reflect a consistent stance on the
subject of transcendent and human authority. In Madison's view, public
morality, government, and religious institutions themselves all benefited
from the separation of church and state. Attentive to the public benefits of
religious freedom, Madison's devotion to religious freedom reflected a more
ultimate concern with individual right that "defined his republican faith:
freedom of conscience."45 His commitment to freedom in religious as well
as political opinions resulted in boundaries between government and reli-
gious institutions that today signify the individual's complete independence
from commonly established beliefs and mores. In contrast, religious
disestablishment, understood in the context of the covenantal tradition
within which Madison wrote, did not sever the connection between govern-
ment and religious belief.
Historians agree that little can be known of Madison's personal faith,
but public and private documents suggest that Madison understood the im-
portance of religion for the well being of individuals and society.46 In response
to Frederick Beasley's request for Madison's opinion on Beasley's pamphlet
discussing God's existence and attributes, Madison, at the age of 75, wrote;
[TJ he belief in a God All Powerful wise & good, is so essential to
the moral order of the World & to the happiness of man, that
arguments which enforce it cannot be drawn from too many
sources nor adapted with too much solicitude to the different
characters & capacities to be impressed with it.47

"Thomas Jefferson, "A Bill for Establishing Religious Freedom," The Complete Jefferson, ed. Saul K.
Padover (New York: Duell, Sloan, & Pearce, 1943), pp. 946-947.
"Drew R. McCoy, The Last of the Fathers (Cambridge: Cambridge University Press, 1989), p. 239.
<5
See also, Ralph L. Ketcham, "James Madison and Religion A New Hypothesis," The Writings of James
Madison on Religious Liberty, ed. Robert S. Alley (Buffalo, NY: Prometheus Books, 1985), pp. 175-196.
•"Robert S. Alley, ed., "To Frederick Beasley from Madison, November 20, 1825," 7<imM Madison On
Religious Liberty (Buffalo, NY: Prometheus Books, 1985), p. 85.
14 Publius/Spring 1998

Madison acknowledged the vital role transcendent belief played in

human communities, but he emphasized humanity's limited comprehen-
sion of the infinite.48 Government, he concluded, can therefore play no
legitimate role in deciphering ultimate truth, a position affirmed by the
public policies that marked his life's work. Drew R. McCoy says that Madi-
son felt his role in passing Virginia's Act for Establishing Religious Free-
dom "marked his own greatest personal achievements."49 Madison's fear of
religious faction articulated in Federalist 10, clarifies the place of these writ-
ings in the theory of an extended and compound republic.
Madison drew specifically on the American experience of religious in-

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tolerance when he argued in Federalist 10 that religion is not only an insuf-
ficient cure but also a potential cause of faction. Neither reason nor religion
will prevent individuals from joining together to the detriment of others or
against the long-term interests of the whole community. Reason, being
imperfect, will lead to different, often conflicting opinions, sowing the seeds
of faction. Enlightened leaders will not be able to use reason to end fac-
tion because they themselves lack the ability to foresee the myriad conse-
quences of their policies. Emphasizing humanity's uncertain knowledge of
all things, Madison observed that religious doctrine may be one kind of
opinion that leads to violent conflicts. Without simultaneous, universal
revelation, it is unlikely that a single religious doctrine will be convincing
to all souls in a political community.50 In fact, Madison maintained that
human fallibility produces contentious dispositions not universal convic-
tions.51
While conflicting interests are expected in plural societies, liberty was
threatened by those who could combine to dominate decisions contrary to
the community's permanent and aggregate interests. Madison concluded
that factions can be regulated only by pitting opposite and rival interests
against each other. He offered the extended republic to deal with majority
tyranny. In this design, the representative "refined" constituent interests,
balancing and coordinating the diverse aims of citizens who lived in such
an extensive geographical region that they were unlikely either to resolve
their differences or to combine for the purposes of governing (or to form a
faction) by confronting each other in person. To control the possibility of
tyranny by the government itself Madison and Alexander Hamilton argued
for a "compound republic" in which power was not only disbursed among
the various offices of the "general" government, but was also shared by
the numerous governing bodies of the states and localities. All political

•"McCoy, The Last of the Fathers, p. 239.

"James Madison, "A Memorial and Remonstrance against Religious Assessments, 1785," The Writings
of James Madison on Religious Liberty, ed. Robert S. Alley (Buffalo: Prometheus Books, [orig. pub. 1785]
1985), p. 56.
''Alexander Hamilton, John Jay, and James Madison, The Federalist (New York: Modern Library, n.d.,
orig. pub. 1787-1788), p. 56.
Alexis de Tocqueville 15

authority was limited constitutionally-either through the Constitution of

the United States or through the state constitutions. This design approxi-
mated a matrix of governments taking on a federal form in which "there
are no higher or lower power centers, only larger or smaller arenas of po-
litical decisionmaking and action."52 The resulting arrangement of shared,
limited, distributed, constitutional powers presented the "substantial occa-
sions" to extinguish the violent conflicts of unfriendly passions.53
The Federalists design is well known, but it relies on assumptions that
merit closer attention. The fortunes of a federal enterprise depend on the
capacities of ordinary citizens. A federal system not only requires consider-

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able public engagement from its citizens, it also demands that even routine
participation be based on exceptional habits of heart and mind. While The
Federalist speaks primarily of private interest as the guardian of the public
right,54 Tocqueville questioned whether self-interest alone could motivate
sufficient civic engagement or encourage the mores required to sustain
federal institutions. Madison's design depended on the public philosophy
found in America's covenantal heritage more than the language of The Fed-
eralist suggests to its contemporary audience.
Tocqueville, like Madison, started with the citizens' material interests,
arguing that self-interested citizens engage in voluntary associations for
mutual gain. As a result of their experiences, Tocqueville suggested, they
may also gain an understanding of the principles of governing. But the
motivation for participating in commercial ventures are not precisely those
required for political or civic associations. In America, citizens join politi-
cal parties, run for office, attempt to solve their common problems collec-
tively, and form clubs and cultural societies because
the citizen... is taught from infancy to rely upon his own exer-
tions in order to resist the evils and the difficulties of life; he
looks upon the social authority with an eye of mistrust and anxi-
ety, and he claims its assistance only when he is unable to do
without it.55
This mental stance is directly drawn from the public philosophy of federal
liberty and directly influences the use citizens make of their extended and
compound republic. Tocqueville concluded,
The Americans have...established a government in their asso-
ciations, but it is invariably borrowed from the forms of the civil
administration. The independence of each individual is recog-
nized; as in society, all the members advance at the same time
towards the same end, but they are not all obliged to follow the
5!
Daniel J. Elazar, "The Role of Federalism," Federalism and Political Integration, ed. Daniel J. Elazar
(Ramat Can, Israel: Turtledove Publishing, 1979), p. 15.
"Hamilton, Jay, and Madison, The Federalist, p. 56.
*Ibid., p. 337.
"Tocqueville, Democracy in America, 1:198.
16 Publius/Spring 1998

same track. No one abjures the exercise of his reason and

free will, but everyone exerts that reason and will to promote
a common undertaking.56
The institutional arrangements described in The Federalist do compel citi-
zens to work with others if they are to achieve various private aims and
secure their rights, but the motivation to undertake this activity depends,
Tocqueville believed, on a preexisting proper understanding of self-inter-
est. In contrast, untutored self-interest would be more likely to lead citi-
zens to abandon their civic responsibilities and the federal form in favor of
a "tutelary state" designed to deliver services. The final actions that lead

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democratic despotism to replace self-government represent a desperate
appeal to "that imposing power which alone rises above the level of univer-
sal depression," a state whose powers are now viewed as wholly separated
from its citizens.57 Self-governing citizens reach this stage by capitulating
their rights gradually in small expressions of self-interested individualism.
Tocqueville's analysis suggests that federal institutions may coordinate and
refine interests, but they must do more than that if citizens are to maintain
their institutions and their rights. A federal institutional framework must
promote the type of associational life diat teaches self-interest rightly under-
stood. In the context of covenantal thinking, a proper understanding of self-
interest signifies more than a rationale for coordinating individual interests.
For Tocquevilie, a right understanding of self-interest meant placing one's
interests in the context of the well being of the whole, not as a method of
manipulating various interests into a self-serving version of common inter-
ests, but as a way of serving the relationship one has with other individual
citizens and with the body of citizens as a whole. Covenants ask the parties
to transcend the narrowly defined duties of their agreements to do what
the relationship requires. Covenants often require action for the sake of
the relationship itself; however, such actions appear to effect immediate
interests; the long-term good is produced by collective action that has as its
basic objective maintaining the covenantal foundation.
To achieve such an aim, Tocqueville emphasized the role of common
belief, gained from experiences with federal liberty and federally governed
associations as well as religious teachings. Using self-interest as a basis for
common action requires citizens to see that their own well-being does,
actually, depend on the good of others. Even when well being simply means
achieving material aims, Tocqueville showed that such interdependence is
often not the case or perception. Tocqueville showed that a right under-
standing of self-interest must be joined to the moral foundations of cov-
enantal thinking for this expectation to be realistic.

^Ibid., 1:205.
5;
Ibid., 2:310.
Alexis de Tocqueville 17

A system of shared powers makes contestation commonplace in political

life. To negotiate some differences, a system of contestation requires foun-
dational beliefs that encourage concern for others even when the connec-
tion between their well being and one's own is not immediately apparent.
A peaceful resolution to ambitious confrontation demands common
ground-shared values and agreement concerning the method for adjudi-
cating disputes. Minimally, Tocqueville believed, a self-governing polity
needed common belief—the simple ideas-and shared intelligence about the
workings of government. Federal arrangements of the sort that Madison
described depend on such common beliefs from the covenantal tradition

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of which he was a part.
The Protestant (no longer specifically Puritan) religious sensibility of
late eighteenth-century America conceived of sacred authority as a rela-
tionship between the individual and God, subject to private, rather than
communal, interpretation. Writing from this perspective, Madison did not
expect everyone to assent to the same creed; therefore, he argued that only
religious freedom could protect the individual's conscience.
In a language and logic that parallel his denunciation of designs giving
an unlimited majority the power to determine all political questions, Madi-
son argued against an unlimited human authority to establish transcen-
dent truths, concluding that religious beliefs and practices must be left to
the conscience of every person as an unalienable right. He explained, "It is
unalienable, because the opinions of men, depending only on the evidence
contemplated by their own minds, cannot follow the dictates of other men;
It is unalienable also because what is here a right towards men, is a duty
towards the Creator."58
Madison argued further that this devotion precedes "both in order of
time and in degree of obligation" the duties demanded of a citizen by civil
society. He drew an analogy between levels of civil obligation, including
our higher duty to constitutional law compared to the authority of subordi-
nate political associations, and our greater obligation to the "Universal Sov-
ereign" compared to any civil authority.59 Madison contended that we live
under an authority greater than the civil sovereign, and that only the indi-
vidual conscience may know this authority. These two propositions yield a
case against state religion, advance a case for civil disobedience and con-
scientious objection, and limit the direct authority of religion in the compound
republic. Madison's argument does not, however, address the negative ef-
fect on democracy when individual conscience leads the body politic to
reject religion altogether.

M
Madison, "Memorial and Remonstrance," p. 56.
w
Ibid., p. 56. For an historical analysis of Madison's writings on religion, see A. E. Dick Howard,
"James Madison and the Founding of the Republic"; Alley, ed., The Writings of James Madison on Religious
Liberty, pp. 21-34.
18 Publius/Spring 1998

In 1789, Madison could expect widely shared Christian belief to provide

the foundation that Tocqueville argued is so indispensable. Beyond these
common Christian ideas, however, were dramatic differences in religious
dogmas. Factious, not tenuous, beliefs trouble the political landscape ob-
served by Madison. The separation of church and state and the distribu-
tion and limitation of all political authority throughout the compound
republic of federal design limit the potential for faction, but these designs
do so by calling on the mores drawn from revealed religion.
One-half century later, in an environment already characterized by fur-
ther erosion of America's original covenantal community, the compound

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and extended republic was, Tocqueville saw, threatened, if not in decline.
Once safeguards against tyranny, the framers control of religious faction
through barriers to religious establishment now attenuated the beneficial
effects of religion's indirect role in American politics, increasing institu-
tional failures. The concentration of political power believed by Tocqueville
to threaten America would weaken barriers against tyrannical majority opin-
ion. As a consequence, religious zealotry could threaten freedom of con-
science through a novel path of reciprocal failures of heart, mind, and
institutions. Tocqueville showed that factious religious sects and dominant
religious dogmas must be regulated in such a way that intolerance is re-
duced while the beneficial aspects of belief are supported. In the context
of a more individualistic view of community, the genuine religious impulse
can appear to threaten unity by precipitating insoluble conflicts, as Madi-
son suggested. In the covenantal amalgam of republican institutions and
religious convictions that Tocqueville ascribed to America's founders, fed-
eral liberty and the federal principle discouraged intolerance. Removing
the federal foundation of federal institutions would promote, not prevent,
faction and zealotry.
Tocqueville's observations not only reflect differences in historical cir-
cumstances, but also philosophical disagreements concerning the place of
reason, revelation, and revolution in our capacities for self-government.
Madison's "republican faith" was defined by freedom of conscience, and a
belief in human capacities for moral progress through the free exercise of
reason. McCoy describes Madison's belief in the powers of a revolution
grounded on reason to ensure liberty's triumph: "Madison's optimism clearly
reflects the extent of his faith in the transforming effects of a Revolution
that had, among other things, given his own life meaning."60
In Federalist 49, Madison argued that a republican regime should not
need to depend on anything but the enlightened voice of reason. In real-
ity, as Madison knew, the large body of the people were not ordinarily im-
mune to the influence of interest and passion in applying "reason" to politics.
As McCoy observes, "IfJefferson's frequent appeals to the people at large-
M
McCoy, The Last of the Fathers, p. 239.
Alexis de Tocqueville 19

assembled in convention-became the rule, Madison never doubted that

'the passions' rather than 'the reason' of the public would usually 'sit in
judgment.'"61 Institutional arrangements, he believed, could go a long way
toward righting this inverted relationship between reason and passion, re-
establishing "the reason of the public alone" as the regulating force in gov-
ernment. Tocqueville maintained that neither institutional arrangements
nor reason alone would support the public philosophy required for liberty.
While Jefferson was more sanguine than Madison that reason could van-
quish error, Tocqueville, was more skeptical. If the Scottish Enlightenment
had affirmed the value of human reason, the French Revolution had dem-

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onstrated its limitations and excesses. Tocqueville considered Jefferson the
most powerful apostle of democracy ever born.62 He linked Jefferson's re-
liance on reason and belief in the powers of human will to democracy itself.
Contrasting Jefferson's and Tocqueville's differences concerning religion
illuminates not only that subject, but also shows how Tocqueville viewed
reason's aposdes in general.
Jefferson and Tocqueville: Reason and Private Judgment
In his Billfor Religious Freedom, Jefferson reveals his belief in a progressive
destiny for democratic revolutions and conditions of equality, as well as his
notorious hostility toward organized religion. Religious disestablishment
was, for Jefferson, a means to achieve greater democracy by dismantling
aristocratic forms, in this case, an aristocratic clergy. While Jefferson be-
lieved that talents were unequally distributed, the "natural aristocracy" that
might arise from rewarding socially valued talents should not be preserved
artificially by aristocratic institutions. The clergy appeared to Jefferson as
such an artificial aristocracy because, he believed, the alliance of church
and state promoted generational succession, the political power of a hege-
monic moral force, and, through compulsory levies for the established clergy's
salaries, unjustly compromised the economic position of minority believers.
Disestablishment, along with laws prohibiting primogeniture and entails, com-
prised the arsenal that laid "die axe to the foot of pseudo-aristocracy."63
Protections for the rights of conscience were paramount for Jefferson,
as they were for Madison. Such protections did not enjoin private religious
beliefs, but combated the power of fallible public functionaries who might
"consider a conquest over the consciences of men either attainable or
applicable to any desirable purpose."64 Religious and political institutions
alike suffer from coerced belief which leave "one-half the world fools, and
the other half hypocrites."65 Religion itself would benefit when unfettered
"Ibid., pp. 50-51; Hamilton, Jay, and Madison, The Federalist, p. 331.
6S
Tocqueville, Democracy in America, 1:280.
"ThomasJefferson, "Aristocracy and Liberty (ToJohn Adams), October 28, 1813," Padover, The Com-
plete Jefferson, p. 284.
"Thomas Jefferson, "To Society of Methodist Episcopal Church," Padover, The Complete Jefferson, p. 544.
K
Ibid., pp. 675-676.
20 Publius/Spring 1998

by political intrigue. Likening religious beliefs to opinions without proof

in the sciences, Jefferson found no reason to connect such belief to the
requisites of citizenship, nor did he see any political harm in disbelief:
The rights of conscience we never submitted [to human rule],
we could not submit. We are answerable for them to our God.
The legitimate powers of government extend to such acts only
as are injurious to others. But it does me no injury for my neigh-
bor to say there are twenty gods, or no God. It neither picks my
pocket nor breaks my leg.66
We have no obligation to extend neighborly care into the arena of religious

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enlightenment, nor is there any role for communal truths or common
dogma as acceptable sources of belief or information in daily life.
Almighty God hath created the mind free;...all attempts to in-
fluence it by temporal punishments, or burthens, or by civil in-
capacitations, tend only to beget habits of hypocrisy and
meanness, and are a departure from the plan of the Holy au-
thor of our religion, who being Lord both of body and mind, yet
chose not to propagate it by coercions on either, as was in his
Almighty power to do...[T]he impious presumption of legisla-
tors and rulers, civil as well as ecclesiastical, who being them-
selves but fallible and uninspired men, have assumed dominion
over the faith of others setting up their own opinions and modes
of thinking as the only true and infallible, and as such endeavor-
ing to impose them on others, hath established and maintained
false religions over the greatest part of the world, through all
time.67
Although he credited the study of God and the deity's relationship with
humanity as well as "the duties resulting from those relations" as "the most
interesting and important to every human being," Jefferson saw no role for
public instruction in such matters. He assumed that the evils of purely
secular education were fewer than the evils of doctrinal instruction.68 Free-
dom of conscience enables human beings to choose, act, and, learning from
their experiences, accept the variety of understandings of God. It is arro-
gant and even irreligious for human beings to interpose themselves be-
tween their fellows and their Creator. Private reason is the source of truth,
and individual truths supply a sufficient basis for a public philosophy fit for
self-government. Citizens develop their ideas through private reason, and
the method for developing these ideas into "common" sense seems to
assume that reason will lead all thinkers to common conclusions. Jefferson
concluded his argument for religious freedom:
"Ibid.
"Thomas Jefferson, "A Bill for Establishing Religious Freedom," Padover, The CompleteJefferson, p. 946.
"Thomas Jefferson, "Freedom of Religion at the University of Virginia October 7,1822," Padover, The
Complete Jefferson, p. 957.
Alexis de Tocqueville 21

[T]ruth is great and will prevail if left to herself, that she is the
proper and sufficient antagonist of error, and has nothing to
fear from the conflict, unless by human interposition disarmed
of her natural weapons, free argument and debate, errors ceas-
ing to be dangerous when it is permitted freely to contradict
them.69
Jefferson saw little that was positive in "civil religion," public religious in-
struction, or religious tenets as a basis for common law. He described
disestablishment as providing a "wall of separation" between church and gov-
ernment, eliminating direct intervention of ecclesiastical power, as well as lim-

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iting religion's indirect role in public life.70 To reach these conclusions, he
assumed that science has a democratizing effect, liberating those who read
and reflect. Science, because it is progressive, promotes and rewards achieve-
ment by merit, kindling feelings of right.71 Crediting reason, not the Puritan
amalgam of religion and politics, for America's enlightened interest, Jefferson
assumed that reason could lead to disinterested concern for die common good
instead of myopic self-interest.72 Jefferson valued common sense, if not com-
mon belief, in public discussion, but die genesis of common sense is ambiguous,
resulting in his ambivalent appraisals of public opinion in the commonwealth.
Citing Pennsylvania's experiment in religious freedom as an example to be
followed, he explained the role that common sense would play in preventing
subversive dogmas: "Religion is well supported; of various kinds, indeed, but
all good enough; all sufficient to preserve peace and order; or if a sect arises,
whose tenets would subvert morals, good sense has fair play, and reasons and
laughs it out of doors, widiout suffering the State to be troubled widi it."73
Although Jefferson argued that reason would prevent coerced unifor-
mity in religious and political opinions, public opinion seems the arbiter of
truth to a greater extent than Jefferson acknowledged.74 Government-spon-
sored manipulation of private conscience has been traded for censorious
public opinion. In the world of covenant that Jefferson still inhabited, such
opinions formed in open public arenas by an engaged citizenry were less
likely to represent factious oppression. In a covenantal context, the
Jeffersonian contrast to freedom of conscience, "religious slavery," raised a
terrible specter. Nevertheless, Tocqueville foresaw a very different path to
conformity, following a route from irreligion to tyrannical opinion.75
"Thomas Jefferson, "A Bill for Establishing Religious Freedom," Padover, The CompleteJefferson, p. 947.
"ThomasJefferson, "To Messrs. Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, A Com-
mittee of the Danbury Baptist Association, in the State of Connecticut, January 1, 1802," Padover, The
Complete Jefferson, p. 519.
"Thomas Jefferson, "Aristocracy and Liberty, (letter to John Adams) October 28, 1813," Padover, The
Complete Jefferson, p. 286.
Thomas Jefferson, "To the Members of the Baltimore Baptist Association, October 17,1808," Padover,
The Complete Jefferson, p. 537; "Christianity and Common Law c. 1765," Padover, The Complete Jefferson, p.
934, in which Jefferson concludes, "that Christianity neither is, nor ever was part of the common law."
"Thomas Jefferson, "Notes on the State of Virginia, 1781-1785," Padover, The CompleteJefferson, p. 676.
"Ibid.
"Ibid., p. 675.
22 Publius/Spring 1998

THE DECLINE OF COVENANT:

SKEPTICISM AND INTOLERANCE
Tocqueville carefully distinguished tyrannical majority opinion and the
problem of democratic despotism from the (equally real) threat of major-
ity tyranny. Majority tyranny can be addressed to a significant extent by
institutions and institutional change. Democratic despotism arises from a
failure of the heart, less susceptible to institutional correction.75 Madison
and Jefferson devoted considerable attention to the problem of majority
tyranny expressed through faction, but they seem not to have anticipated
the threat from democratic despotism that Tocqueville associated with skep-

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ticism a half-century later.
Tyrannical majority opinion diminishes the exercise of private judgment,
leaving the body free and "the soul enslaved."77 Tocqueville explained, "you
may retain your civil rights," including, one supposes, freedom of conscience
and religion, "but they will be useless to you," if you breech the majority
norm, because you are "henceforth a stranger among your people."78 In
contrast to the common belief developed by engaging in public activities
that allow experience to inform mores based on religious teachings, tyran-
nical majority opinion destroys the open public arena and citizens' collec-
tive capacities and facilitates intolerance. In reducing "popular sovereignty"
to absolute majority rule through tyrannical majority opinion, Tocqueville
explained, liberty extended only to electing masters every four years, re-
sulting in citizens who lacked the means to govern themselves collectively.
Virtues essential to self-government, Tocqueville's work reminds us, are ac-
quired with care, through the care of daily life. Without this experience in
the exercise of authority, an experience that includes the public use of pri-
vate reason in self-government, democracy would come increasingly nearer
its despotic potential.
Injacksonian America of the 1830s, Tocqueville observed the decline of
covenantal traditions and the less salutary effects of "fanatical spiritualism"
in pantheism and "religious insanity." He attributed fanaticism and intoler-
ance not to a close alliance of religious and political authority, but to skep-
ticism. He believed that people are naturally inclined to seek meaning and
purpose beyond mere existence. This desire and its religious resolution
can protect liberty in democratic times; alternatively, people can elevate
ideology, mass opinion, and patriot slogans to transcendent significance.
Tocqueville observed religious indifference and intolerance in a world where
people supposed neither that Truth as such exists, nor that reasoned de-
bate would necessarily lead Truth to win out. Skepticism was not the basis
for the methodical examination anticipated by Jefferson, but instead
l6
AlIen, "Tocqueville's Analysis of Belief in a Transcendent Order, Enlightened Interest and Democ-
racy," 390-397.
"Tocqueville, Democracy in America, 2:274-275.
78
Ibid.
Alexis de Tocqueville 23

"reduced [ideas] ...intellectual dust."79 In contrast to Jefferson's

independent diinkers, fear gripped the democratic individual. Adrift spiri-
tually, such individuals "are speedily frightened at the aspect of this un-
bounded independence" and seem to lack the powers of reason. Without
any principle of authority in religion, anxiety destroys personal and politi-
cal liberty. Tocqueville concluded: "As everything is at sea in the sphere of
the mind, they determine at least that the mechanisms of society shall be
firm and fixed; and as they cannot resume their ancient belief, they assume
a master."80 If democracy's love of equality extended to the intellect, with
nothing fixed in the moral world, Tocqueville was not convinced that Truth

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would be left to herself or prevail, as Jefferson desired.
As the American polity abandoned covenantal sentiments, loyalty and
confidence in other citizens and communities were sacrificed to the tight-
ening bond between obedient citizen and governing state. Citizens, Toc-
queville observed, no longer exercised dieir capacities for self-organization,
or loyalties to self-governing communities. Tocqueville instead described a
homogenized, equal, multitude "incessandy endeavoring to produce the
petty and paltry pleasures with which they glut their lives." They lived apart,
strangers to public life. Instead of destroying such a people through tyran-
nical oppressions, the government diey created mastered, compressed,
enervated, and stupefied them.81 A nation created from a covenant of self-
rule was reduced to "a flock of timid and industrious animals, of which the
government is the shepherd."82
In contrast to Jefferson's hopes for rational public discussion and the
salutary effects of reasoned private judgment, by 1830, Tocqueville found
there is "no country in which there is so litde independence of mind and
real freedom of discussion as in America."83 Independentjudgment bowed
to the majority's "perpetual utterances of self-applause."84 Madison's for-
mulation of the "private interest of every individual [as a] sentinel over
public rights"83 similarly depends on a vital public sphere, independent
thought, and public reflection and choice. Such is not the community that
Tocqueville predicted for democracies that embraced individual equality
without the ideas of covenant.

"Ibid., 2:7.
"Ibid., 2:222-223.
"Ibid.
"Ibid., 2:337.
"Ibid.
"Ibid., 1:275.
M
Hamilton, Madison, and Jay, The Federalist, p. 337.
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