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Patriotism, American Republicanism, and Seditious Speech

41 Pages Posted: 1 Aug 2011 Last revised: 24 Aug 2011

Robert Garrow

affiliation not provided to SSRN

Date Written: July 1, 2011

Abstract

In the Federalist Papers, Publius defines a republic as a government in which “the people are the only legitimate fountain of power, and it is from them that the constitutional charter...is derived.” The new republic, set forth as a “glorious” example for mankind, will be the first in the world to be based on “reflection and choice.”

A vital question obtrudes: how is republicanism to be maintained after its founding? Original consent sets the regime on its course, but after that fact individuals are born into a system they do not choose; they must in part “depend for their political constitutions on accident and force.” How, then, does American government ensure consent to its laws? Or, how does it derive consent from the background of accident and force? This paper examines these questions by looking at the two works which best address American politics, the Federalist Papers and Democracy in America. I argue that Publius constructs a psychology of sovereignty on the basis of the Constitution which elicits ongoing consent and thus willing obedience to law. He thus advocates for and fosters a psychological disposition to regard the Constitution, presumptively, as good.

In Federalist 49 Publius divides politics between an ordinary and an extraordinary mode. The eventual consequence of this partition, Publius hopes, is to inculcate a sense of veneration for the Constitution and the convention that created it. This is the first aspect, or first path, of Publius’ psychology of sovereignty. Its effect will be to foster the more robust aspect of patriotism: veneration. The second path follows ordinary political life as it will be transformed by the Constitution. Together, these two paths solidify and stabilize the new regime in the minds of American citizens.

However, Alexis de Tocqueville is less confident than Publius in the success of such soul-doctoring. In his Democracy in America, Tocqueville downplays the division between ordinary and extraordinary politics and offers two critiques of Publius’ psychology. His first critique derives from the powerful influence the state governments exert on popular attachment. Neither of the two paths of Publius’ psychology of sovereignty can overcome the deeply felt attachment men feel for their states. Tocqueville’s second critique denies the beneficial effects of whatever centripetal gathering might take place. If Publius hoped to foster confidence in the national government along his two paths, Tocqueville sees in that project a dangerous tendency to encourage, albeit unconsciously, a new kind of despotism. Tocqueville thus clarifies the potential tragedy of Publius’ psychology of sovereignty and constructs a remedy of his own. He relies on prudence, buttressed by the knowledge of the most pronounced and inexorable movements of democratic politics to sustain freedom in equality.

The first two sections and bulk of this paper will offer an analysis of Publius’ and Tocqueville’s positions concerning the maintenance of American republicanism. In the third and final section I will conclude with a brief discussion of seditious speech, in order to illuminate the practical significance of the foregoing analysis.

Keywords: Federalist Papers, Democracy in America, veneration, Publius

Suggested Citation

Garrow, Robert, Patriotism, American Republicanism, and Seditious Speech (July 1, 2011). APSA 2011 Annual Meeting Paper. Available at SSRN: https://ssrn.com/abstract=1902276

Robert Garrow (Contact Author)

affiliation not provided to SSRN ( email )

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