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By: Lael Weinberger
June 3, 2016

he Americans Alexis de Tocqueville met in 1831 were joiners. They formed, he wrote in Democracy in America, clubs, societies, and associations “of a thousand…kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive.”

The Making of Tocqueville’s America is historian Kevin Butterfield’s provocative account of how this culture of association developed. It shows that the rise of associations in post-Revolutionary America was dramatic—and not easy. Americans disagreed vigorously about associations’ virtues and vices, their powers and limitations. These questions are abiding, not simply historical, as the recent debate about whether religious organizations should be able to get exemptions from the so-called “contraception mandate” makes clear. Butterfield’s book is valuable for any American who wants to think seriously about private organizations’ rights and responsibilities.

In the immediate aftermath of the Revolution, former officers of the Continental Army formed the Society of the Cincinnati as a way to remain in contact with each other, preserving bonds of friendship forged in the hard years of war. But, to the surprise of the organizers, the society’s formation elicited cries of alarm. The Society was an attempt to create a new aristocracy, some critics said, while others warned that it would facilitate conspiracies and secret combinations, jeopardizing liberty in the republic.

The Cincinnati controversy was not sui generis. Americans worried that associations would be dangerous and oppressive, inherently opposed to democratic principles and norms. Again and again, Butterfield finds people worrying that associations would create interest groups detrimental to the common good, even ones capable of tyrannizing their own members.

Notwithstanding such fears, Americans associated, frequently and enthusiastically. Landowners in Virginia organized a mutual aid society, promising to cover each other’s costs in case of fire (a precursor to private insurance). Irish immigrants in Philadelphia formed benevolent societies to assist new migrants. A group of women in Norwich, Connecticut decided to organize themselves into a formally constituted book discussion society.

How did these avid joiners respond to apprehensions about associations? According to Butterfield, law shaped the organizations from both outside and inside. Externally, the courts provided a check on the power of associations. Private associations often incorporated under the laws of the state, after which courts were quite happy to review members’ grievances. Members expelled from mutual aid societies, for example, frequently sought relief from the courts, complaining that they were kicked out without cause or due process. Such suits often succeeded, with the court ordering the association to restore the member.

Internally, there was a widespread belief that clear rules and procedures were essential to a well-run organization. Americans drafting constitutions and bylaws for even the smallest associations, Butterfield shows, were remarkably attentive to law. Model constitutions, templates for organizing a voluntary association, circulated widely. Alongside the diversity of purposes for creating associations, there was a strong consensus about the basic constitutional forms that every well-ordered association should follow.

These internal and external applications of law often solved the problem of private associations in a democratic polity. As the 19th century progressed, new associations ceased to provoke fears of conspiracy as the Cincinnati had. Legal strictures also quieted fears that organizations’ members would be subjected to tyrannical majorities from within, leading to a decline in judicial interventions in private organizations. By the 1830s, courts were increasingly taking a hands-off approach, so long as members knew exactly what they were getting into when joining, and the organizations then followed their own rules. Americans were free to join organizations as they saw fit, and exercised this freedom to create a diverse, dynamic world of associations.

Controversies over the anti-Masonic movement and labor unions show that the post-Cincinnati solution was not perfect. And, regrettably, Butterfield says very little about churches, early America’s most important voluntary associations. The Making of Tocqueville’s America provides little information on how churches interacted with the other kinds of associations over the tumultuous decades from the Revolution to the Second Great Awakening.

The challenges that Americans grappled with some 200 years ago are still with us: Can the Boy Scouts exclude homosexual scoutmasters? Can a religious student group on a university campus limit its leadership to people who share its beliefs? Must a family-owned business provide its employees healthcare options that the proprietors find immoral?

Butterfield doesn’t pretend that there are easy answers. Some readers might see in this history a precedent for a heightened role for the state. Others can find a historical rationale for institutional autonomy: as long as people know what they have signed up for, associations in a pluralistic country should be free to take their own course. In either case, The Making of Tocqueville’s America suggests that associations wishing to preserve their autonomy have a responsibility to foster a culture of full disclosure and fair procedures for dissenting members. Private associations and majority opinion will sometimes collide. But Butterfield’s history can help us think more wisely about how to respect wide-ranging diversity under the umbrella of a common law.