67 Pages Posted: 28 Nov 2013
Date Written: November 27, 2013
Equality burst onto the American scene in the 1780s and 1790s, and it appeared in reaction to a theory held by Englishmen and continental Europeans that Americans were degenerate Europeans who should be treated as inferiors. This Article contends that the sudden appearance of the American ideal of equality cannot be understood without understanding the constitutional ideal of inequality that preceded it. The Article makes three points of fundamental importance: First, British imperial policy was premised on the longstanding belief that colonial Americans were degenerate Englishmen who were not entitled to the rights of true Englishmen -- a discrete and insular people who should constitute a permanent underclass in the Empire. The American Revolution was the constitutional counter-statement to this "degeneracy theory." Second, the degeneracy theory was more than a constitutional cause of the Revolution; it had important and enduring constitutional consequences as well. The American response to the imperial ideal of inequality was to affirm an ideal of equality that has occupied center stage in constitutional discourse ever since. Almost overnight an ideal of inequality was completely supplanted by an ideal of equality. Third, the influence of this new ideal reached far beyond constitutional confines, as American reaction to the imperial ideal of inequality led to the beginnings of a reevaluation of domestic inequality based on gender, race, and social status. At the same time, equality did not apply to all people, and from the start American equality had an equivocal character which is still reflected in constitutional discourse.
The importance of the English belief in the degenerate character of American colonists can hardly be overstated, yet it has gone almost unnoticed. English imperial policy-makers described American colonists in a variety of unflattering ways -- as convicts, servants, farmers, laborers, and even as Indians -- intended to remind them that they were not true Englishmen, but imperial servants without either a political voice or constitutional rights. From an imperial vantage point the colonists appeared quite similar to Britain’s other colonial people -- the Indians -- and colonists were being told that like the Indians, their tributary status required them to make imperial contributions even though they had no voice in imperial governance.
Colonists resented the Sugar and Stamp Acts so bitterly because they represented a legal revolution based on the degeneracy theory. The Article traces the origins of this longstanding theory back to colonial Ireland and then follows its career as it passed into colonial America. Then the Article shows how from the middle of the eighteenth century through the 1770s, British policy sought to cement alliances with Indian tribes and to reign in English-American colonists by treating them as a perpetual imperial underclass.
Finally, the Article shows how the degeneracy theory led Americans to endorse a new constitutional ideal -- the ideal of equality -- to an extent which would have been unthinkable before the Revolution. The Founders quickly began to think on a grand scale, and whereas imperial thinkers had insisted that inequality was essential to the well-being of the Empire, the Founders declared that equality was the essential component of their new constitutional polity.
Repudiating the degeneracy critique forced the Founders to explore the depth of their new found attachment to equality. Revulsion inspired by the charge of inferiority led Americans to inquire more deeply than ever before into the desirability of equality based on race, gender, and social status. Understanding the operation of the 200 year-old degeneracy theory and the ideal of inequality on which it was based permits us to see how far-reaching and stunning was its rejection in favor of an ideal of equality. The rejection of the degeneracy critique did not make America into a land of perfect equality; indeed, from its origins the ideal has had an equivocal quality which it maintains to the present day. Nonetheless, the appearance of the ideal of equality did introduce a revolution which has dominated American constitutional discourse ever since. The Founders closed one long chapter in constitutional history, and their ardent desire to repudiate the degeneracy theory forced them to open another.
Suggested Citation: Suggested Citation
O'Melinn, Liam, Our Discrete and Insular Founders: American 'Degeneracy' and the Birth of Constitutional Equality (November 27, 2013). Available at SSRN: https://ssrn.com/abstract=2360796 or http://dx.doi.org/10.2139/ssrn.2360796