Commons Democracy: Reading the Politics of Participation in the Early United States

By Dana D. Nelson

Commons Democracy highlights a poorly understood dimension of democracy in the early United States. It tells a story that, like the familiar one, begins in the Revolutionary era. But instead of the tale of the Founders’ high-minded ideals and their careful crafting of the safe framework for democracy—a representative republican government—Commons Democracy examines the power of the democratic spirit, the ideals and practices of everyday people in the early nation. As Dana D. Nelson reveals in this illuminating work, the sensibility of participatory democratic activity fueled the involvement of ordinary folk in resistance, revolution, state constitution-making, and early national civic dissent. The rich variety of commoning customs and practices in the late colonies offered non-elite actors a tangible and durable relationship to democratic power, one significantly different from the representative democracy that would be institutionalized by the Framers in 1787. This democracy understood political power and liberties as communal, not individual.

Ordinary folk practiced a democracy that was robustly participatory and insistently local. To help tell this story, Nelson turns to early American authors—Hugh Henry Brackenridge, James Fenimore Cooper, Robert Montgomery Bird, and Caroline Kirkland—who were engaged with conflicts that emerged from competing ideals of democracy in the early republic, such as the Whiskey Rebellion and the Anti-Rent War as well as the enclosure of the legal commons, anxieties about popular suffrage, and practices of frontier equalitarianism. While Commons Democracy is about the capture of “democracy” for the official purposes of state consolidation and expansion, it is also a story about the ongoing (if occluded) vitality of commons democracy, of its power as part of our shared democratic history and its usefulness in the contemporary toolkit of citizenship.

• Language: English
• Publisher: Fordham University Press
• Release date: Dec 15, 2015
• ISBN: 9780823268405

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COMMONS DEMOCRACY

COMMONS DEMOCRACY

Reading the Politics of Participation in the Early United States

DANA D. NELSON

Fordham University Press

NEW YORK

2016

Copyright © 2016 Fordham University Press

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, or any other—except for brief quotations in printed reviews, without the prior permission of the publisher.

Modified sections of Chapter 2 appeared in ‘Indications of the Public Will’: Modern Chivalry’s Theory of Democratic Representation, ANQ 15, no. 1 (2002): 23–40. A different version of Chapter 3 appeared as Cooper and the Tragedy of the Commons, in What Democracy Looks Like: A New Critical Realism for a Post-Seattle World, ed. Cecelia Tichi and Amy Schrager Lang (New Brunswick, N.J.: Rutgers University Press, 2006), 161–72.

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Library of Congress Cataloging-in-Publication Data

Names: Nelson, Dana D.

Title: Commons democracy : reading the politics of participation in the early United States / Dana D. Nelson.

Description: First edition. | New York : Fordham University Press, 2016. | Includes bibliographical references and index.

Identifiers: LCCN 2015018249 | ISBN 9780823268382 (cloth : alk. paper) | ISBN 9780823268399 (pbk. : alk. paper)

Subjects: LCSH: Political culture—United States—History—18th century. | Political participation—United States—History—18th century. | Protest movements—United States—History—18th century. | Commons—United States—History—18th century. | Community development—United States—History—18th century. | Social classes—United States—History—18th century. | Democracy—United States—History—18th century. | United States—Politics and government—To 1775. | United States—Politics and government—1775–1783.

Classification: LCC E310 .N45 2016 | DDC 306.2097309/033—dc23

LC record available at http://lccn.loc.gov/2015018249

Printed in the United States of America

18 17 16   5 4 3 2 1

First edition

for Kirk

CONTENTS

Commons Democracy: An Introduction

1. Telling Stories: Vernacular versus Formal Democracy

2. Between Savagery and Civilization: The Whiskey Rebellion and a Democratic Middle Way

3. The Privatizing State: The Pioneers and the Closing of the Legal Commons

4. Settler Self-Governance: Democratic Politics on the Frontier

5. From Nothing to Start, into Being: The Anti-Rent Wars, the Indian Question, and the Triumph of Liberalism

Conclusion: Those Wayward, Multitudinous People

Acknowledgments

Notes

Bibliography

Index

COMMONS DEMOCRACY

Commons Democracy: An Introduction

What, then, is the American, this new man? Crèvecoeur famously questions in a preamble to what is surely one of the most anthologized passages in American literature:

Here individuals of all nations are melted into a new race of men, whose labours and posterity will one day cause great changes in the world. Americans are the western pilgrims who are carrying along with them that great mass of arts, sciences, vigour and industry which began long since in the East; they will finish the great circle . . . Here the rewards of his industry follow with equal steps the progress of his labour; his labour is founded on the basis of nature, self-interest; can it want a stronger allurement? . . . The American is a new man, who acts on new principles; he must therefore entertain new ideas and form new opinions. From involuntary idleness, servile dependence, penury and useless labour, he has passed to toils of a very different nature, rewarded by ample subsistence. This is an American. (69–70)

Downplaying the fact that the citizenship Crèvecoeur celebrates is British and not American, anthologists have long loved this passage for the way it celebrates two familiar signposts of U.S. democratic belonging: the ethnic melting pot and the self-interested individual who in America encounters conditions that enable economic self-making and self-advancement.

But the selective anthologizing of this passage, which comes from the opening of the long third letter from the eponymous Farmer James to his European interlocutor, Abbé Raynal, arguably (as is often the case in anthologized passages) distorts its message. Soon after this widely known and (in no small part for that reason) thrilling passage, Farmer James’s focus changes from the individual to the collective. As he will shortly declare using first person plural, We know, properly speaking, no strangers (80). Crèvecoeur’s story in Letter 3 without doubt emphasizes individual industry. But his point is that such industry finds its reward not because of solitary heroic effort, but because individual effort can flourish in a social economy devoted to a collective good. To illustrate this point, he tells the story of Andrew the Hebridean. Indeed, the emotional climax of Letter 3 comes on the day that Scotch immigrant erects his house. This passage, worth quoting at length (because it is almost never anthologized and is largely read only by scholars who study Crèvecoeur), celebrates something other than the self-interested individual assimilating in the American melting pot. Rather, Crèvecoeur spotlights as typically American a practice of commonwealth formed in communal labor, creation, comity, and celebration:

About forty people repaired to the spot; the songs and merry stories went round the woods from cluster to cluster, as the people had gathered to their different works; trees fell on all sides, bushes were cut up and heaped; and while many were thus employed, others with their teams hauled the big logs to the spot which Andrew had pitched upon for the erection of his new dwelling. We all dined in the woods; in the afternoon, the logs were placed with skids and the usual contrivances; thus the rude house was raised and above two acres of land cut up, cleared and heaped.

Whilst all these different operations were performing, Andrew was absolutely incapable of working; it was to him the most solemn holiday he had ever seen; it would have been sacrilegious in him to have defiled it with menial labour. Poor man, he sanctified it with joy and thanksgiving and honest libations: he went from one to another with the bottle in his hand, pressing everybody to drink, and drinking himself to show the example. He spent the whole day in smiling, laughing and uttering monosyllables; his wife and son were there . . . The powerful lord, the wealthy merchant, on seeing the superb mansion finished, never can feel half the joy and real happiness which was felt and enjoyed on that day by this honest Hebridean, though this new dwelling, erected in the midst of the woods, was nothing more than a square inclosure, composed of twenty-four large, clumsy logs, let in at the ends. When the work was finished, the company made the woods resound with the noise of their three cheers and the honest wishes they formed for Andrew’s prosperity. He could say nothing, but with thankful tears he shook hands with them all. Thus from the first day he had landed, Andrew marched toward this important event. (103–4)

This important event, and the happiness Andrew feels—what Crèvecoeur alternately terms the municipal blessing (83)—has to do with a key aspect of becoming American, what the narrator describes as an ascension into self-making community. We forget this communal aspect of democratic belonging in the late colonies when we only read the early sections of Crèvecoeur’s famous letter.

In the spirit of Crèvecoeur’s forgotten celebration of American commonwealth, Commons Democracy takes up an unexplored layer within the history of United States democracy. This dimension of our political legacy that has been hidden in plain sight: we haven’t seen it because the time-honored story of the growth of U.S. democracy trains us not to see it as such. This history also begins in the late colonies and Revolutionary era. But differently from the more familiar story of the Founders’ high-minded ideals and their careful crafting of the safe framework for democracy—a representative republican government—this book pursues a story about the democratic spirit, ideals, and practices created by ordinary white settlers in the early nation and practiced well into the antebellum period: what I call vernacular or commons democracy.

If democracy is a term used so commonly it almost defies careful definition, commons is a term far less familiar. For that reason, I want clarify how I’m using each, as well as what I mean by putting them together. Let’s start with the commons. When we think of the commons today, we usually think of things like Wikipedia, open-source software, or maybe the anti-copyright Creative Commons (cc), the legal way to own your work that lets you share rather than restrict its use. These modern commons, enabled by an Internet that allows people to pool their intellectual resources and creative abilities for a common good, appeal by invoking an older type of commons, where interactions are face-to-face rather than virtual, and where the goods that peer networks create can proliferate. When we cast our mind back to those older forms of commons, we typically recall shared natural resources, often those imperiled because of overuse or misuse: drinking water, the air we breathe, the night sky, the world’s fisheries, seeds or minerals, the ozone layer, forests (as both timber and vital sources of carbon dioxide), topsoil. These are goods that humans have habitually drawn on with more and less attention to their relative abundance and well-being. Differently from the Internet commons, we usually think of these material commons as something separate from humankind and available for its use: commons as a natural resource.

Garrett Hardin’s influential 1968 essay The Tragedy of the Commons offered another powerful frame for understanding the commons, one that aimed at scholars and policy-makers in its effort to refine the notion of the commons as a shared natural resource. In that piece, Hardin argued that man’s inevitable selfishness leads ineluctably to the overuse and destruction of commons. Thus, he insisted, the only recourse for sustainability is either government takeover or privatization. To say this argument was influential understates its impact: tragedy of the commons became a commonsense wisdom that spurred decades of research, response, and policy. From the more expert angle proffered a half century ago by Hardin, people have tended to think of the commons as a modern policy problem, driven by population pressures, progress, and development, a difficulty of supply and demand that must be solved by expert research, professional management, and markets. In this expert framework, like the more informal one with which we began, the commons is natural resources separate from people. And after Hardin the commons came to be viewed as something demanding protection from people by larger institutions. In Hardin’s resonant framing, the tragedy is that people—here meaning alternately non-experts and non-owners—can only degrade and harm the commons. Thus the only way to save commons is to keep ordinary people from using them as such, and for governments or markets to intervene, to manage the resources for the people.

This perspective on the commons has reigned in both the hard sciences and the social sciences, and in public policy for several generations now. But Hardin’s tragedy, as many have pointed out, is based on a false premise. There’s a difference between a commons and an unfenced or unguarded natural resource with no management system. Commons does not properly refer to natural resources because commons do not preexist human action. And so my point is that two of our most familiar ways of framing environmental commons are fundamentally mistaken. No natural resource exists as a commons—something valued, held, and cared for in common by human communities—until it is viewed and treated as such by people, acting together. Commons are always a complex admixture, created from natural supplies plus the labor, social values, rules, and norms of the people in communities who participate in and draw on them. In this far less widely held understanding, the commons exists precisely because of the local stewardship, labor, practices, and traditions of governance of people.

From the perspective of this third and more correct framing, we can see that the commons and commoning have a long history, and one with distinctively political and social, and not simply ecological entailments. When we think of the commons historically, we tend to picture shared pastoral fields in England. Commoning, though, didn’t end with the British Enclosure Acts of the eighteenth and nineteenth centuries and wasn’t limited to agricultural practices in Europe. Quite otherwise: commoning has been practiced in the old world and the new, in ancient and modern times, and in a variety of forms, some more successful than others. The Romans, for instance, distinguished between three types of property—res privatae, res publicae, and res communes—the latter referring to, in Yale legal scholar Carol Rose’s term, things open to all by their nature, where the character of some resources makes them incapable of ‘capture’ or any other act of exclusive appropriation (Roads, 93). This category referred broadly to the oceans and what we might think of as the biosphere, and registers the long centrality of the idea of commons to legal understandings of ownership practices. Roman law was, however, less attentive than English Common Law would become about the potential exhaustibility of nature’s bounty. As historian Peter Linebaugh outlines, when the barons faced off against King John at Runnymede, the agreements they produced in 1215, the Magna Carta and Charter of the Forest, among other things, focused on access to energy reserves (not yet coal or oil, but wood) by limiting the king’s right to monopolize forests and timber supply. Importantly, too, these documents acknowledged commoners, assumed a commons, and defined limits of privatization (28, 40). These documents protected as fundamental the right of individuals and communities to subsistence and insisted on a world of use-value and common access.

These rights needed articulating in the thirteenth century perhaps because of the new and growing pressures of emerging capital and its companion forces: privatization and monopoly. Indeed, as soon as the Magna Carta and Charter of the Forest declared limits on enclosure, the Statutes of Merton and Westminster (1235 and 1285) authorized the enclosure of manorial waste. Merchants and the emerging bourgeoisie began promoting commodity and property value. A battle between common and private use-rights that had sparked in the thirteenth century caught fire between the sixteenth and nineteenth centuries. And this conflict was in no way limited to agricultural fields, the iconic commons from which England’s poor were so dramatically enclosed. Rather, it was a battle with vast implications, one that fueled and contoured the emergence of modernity, colonialism and empire, capitalism, liberal individualism, and the nation-state. In other words, practices of enclosure jumped the pond with colonization, and had widespread input into the formation of political and legal ideals and practices in the early United States. As Joanna Brooks frames the point in her recent and achingly moving book Why We Left, England colonized its own lands and dislocated its own indigenous peoples before colonizing abroad. Commoners in England were enclosed and improved out of . . . [their] homelands, and then . . . crossed the ocean to try and make some gain (often, as she notes, by doing unto others as had been done to [them]) (19–20). Brooks underscores that the experiences of dislocation and disposability that have characterized modernity for so many people . . . [were] very broadly distributed, and that modernization has entailed substantial losses even for those who believe or have been led to believe they benefited from it (21).

But it wasn’t just the logic of enclosure that crossed the Atlantic. When we reflect on the era of English and European enclosure, which coincided exactly with the colonization of the Americas, it’s hard to ignore how many poorer immigrants to the British and French colonies of North America would have brought with them what the eminent British historian E. P. Thompson calls customs in common. These customs are a local vernacular, in the sense of the plethora of ordinary, domestic practices cultivated in local communities. They are informal, seldom officially codified, and function for the well-being of a self-defined community. We could thumbnail the culture of the commons as a practice of self-provisioning and mutual support. It emphasized the sharing of material resources, such as seeds, or foraged wood, flora, and fauna. As importantly, it emphasized the sharing of labor as well as creative resources: communal barn-raisings, traditional folk ballads and tales, sharing fires and beds with travelers and remedies with neighbors, local traditions for keeping the peace, or serving in local self-governing militias. Commoning was never then only about the sharing of ecological materials, as our habitual associations with environmental commons assume. It has always been, like human language, a communal labor in communication, sharing, and meaning-making. It is about the sharing of work and materials: not just the bounty of nature but also the bounty of what people can produce together in local community. Commons are produced, regulated, and maintained both in and as local vernaculars.

Above all, the culture of the commons is both distributive and productive. And this productive dimension is significant. Functioning optimally, commoning produces a specific good, nurturing practical experiences of communal, self-determining power. As David Bollier reminds, Cicero had a great line: ‘Freedom is participation in power.’ The commons decentralizes power and invites participation. People are invited to contribute their creativity on a decentralized, horizontal scale. They don’t need to remain supplicants to the elites who manage centralized hierarchies and expert-driven institutions, whether of business or government or nonprofits (Healing Logic). In other words, commoning cultivates a political sensibility, one specifically grounded in use-value, in face-to-face community and negotiation. This sensibility, in which people daily experienced their own self-governing powers, is democratic, if by democracy we mean a state of being in which people have power over the terms of their daily lives: demos (the people) + kratia (power). Thus, by the definition I’m mapping here (and will illustrate in the history and fiction of the early United States), the democratic power of the commons is not experienced via the representative institutions we familiarly associate with U.S. democracy. Rather, it is immediate, informal, and non-delegable. And significantly, it is not individual, but instead grounded in community. Not ritual in the sense of voting, the democratic power of the commons is both colloquial and routine: a daily practice.

The problem for any practicing commons is that the democratic outcome is never guaranteed. It’s important to emphasize that commoning, a significantly understudied aspect of our democratic history, is not a political panacea and should not be romanticized as such. Though I’m aiming to demonstrate that a commons sensibility was an important part of the United States’ developing democracy, I’m not arguing that things would have been better had it somehow emerged as the predominant understanding of democracy rather than the Framers’ liberal version. As Susan George reminds, Life in the commons is no more idyllic than anywhere else, quarrels arise and some people refuse to respect the rules (xiii). At its worst, commoning can be exclusive, exclusionary, and bullying. Local tyrants tyrannize; free riders loaf and take advantage; majorities discriminate; mobs deliver rough justice.

It deserves emphasizing (because of contemporary trends to idealize the commons and commoning) that commoning practices are inevitably bound to culture and history, and, crucially, that they are always systems of exclusion: part of constructing a commons involves making rules for who can participate and who can’t. Contemporary and historical outsiders often find these rules worth debating and criticizing. Elizabeth Maddock Dillon offers a specific historical framing for these caveats in her important book New World Drama. There she details the emergence of a performative commons of an Atlantic public in colonial and early national theaters from London to Charleston, Kingston, and New York City. Dillon argues that this commoning practice emerged at the site of the non-identity of capitalist enclosure and popular sovereignty (29). In the eighteenth- and nineteenth-century theaters of the colonial trans-Atlantic, she uncovers an important archive for understanding struggles against enclosure and for popular sovereignty. New world drama bodied forth a vernacular commons that contests both official representations of the people in government as well as abstracted versions in the print public sphere. That this commons was fundamentally shaped by what Dillon terms the colonial relation, which interlocked modern ideals of political freedom with systems of enforced labor, enclosure, and violent dehumanization in the form of race slavery (31–32), helps her frame, for instance the dynamics by which audiences actively and politically present the physical proximity of bodies—including the monstrous intimacies of slavery on colonial ground—even while performances on stage cite and erase such intimacies (59). Having acknowledged that commoning is inextricably bound with culture and history does not mean that investigating them yields only predictable results. She concludes, As much as the performative commons are themselves racializing and colonizing—engaged in acts of erasure as much as representation—the performative nature of this commoning does include resources for thinking beyond and outside coloniality, thus offering imaginative and strategic resources that could wield force and hold possibility for today (254).

It is precisely access to such imaginative and strategic resources that we gain in studying the significance of the contributions of the non-elite to United States democratic history and theory. Recovering and understanding these resources requires scholars to test the bounds of their training as well as of the archives, reading against the grain of often-hostile representations of such people and ideals (I’ll say more about that in the next chapter), and working against the wisdom both of our training as scholars and as good democratic citizens. The rhetorical framing of our familiar story about the growth of democracy has for too long encouraged us to see it as the rational and institutionally structured bequest of the Framers. Ordinary people and their contributions to the Revolutionary era have certainly been studied. But here they are most often studied individually, as exemplary representatives, rather than systematically, as though they might have had an organized political ideology worth understanding, one generated before, and not bequeathed to them by the political leadership in the Revolution. And thus even though history from below has led most scholars to take seriously the role of non-elite actors, our familiar framing of the history of democracy nevertheless encourages even some of the best and inventive contemporary scholars to see ordinary people as somehow limited in their understanding—driven primarily by passion, habit, necessity, and emotion, or by mob violence, racism, land greed, or debt. This habitual association of non-elite actors with limitation too often leads scholars to limit their own investigation into the alternative democratic ideals which non-elite people supported and on which they acted. We see this, to take a recent example, in historian Benjamin Irwin’s notable study of the Continental Congress’s use of symbols and rituals to attract patriotic support for the new nation, where he associates such attempts (sometimes ham-fisted, sometimes miscalculated, sometimes remarkably effective) with the Framers’ rational and forward-looking comprehension of the problems of nation-building, and quite differently associates the out-of-door resistance of ordinary people (which he also respects and admires) with reactive, undisciplined emotion and with atavistic or premodern folk traditions of misrule.

If we do try to understand the rational contours of the democratic ideals, expectations, and practices of ordinary actors¹ in the late British colonies and early United States, though, we see that this vernacular democratic practice presents some interesting alternatives to its companion and competitor, liberal democracy. Importantly, too, commons democracy offers a challenge to a durable truth of political realism, which takes for granted that ordinary people have no interest in or time for the daily work of political self-governing. As we will see in this book, commons democracy existed through and fostered a participatory, democratic vernacular practice. This participatory sensibility fueled—as historians have begun to recognize and map—the involvement of ordinary folk in resistance, Revolution, state constitution-making, and early national civic dissent. The rich variety of commoning customs and practices across the colonies in the Revolutionary era offered non-elite, European-descended Americans a tangible and durable relationship to democratic power, one significantly different from the representative democracy that would be institutionalized by the Framers in 1787. Indeed, the culture of commons democracy that I’ll describe in this book cultivated a sensibility that challenges the supposed ubiquity of the selfish, rational, utility-maximizing model of homo economicus described by the liberal economists of the eighteenth century (and seized on in 1968 by Hardin). As the colonies moved toward their revolutionary claim of independence from England, practitioners of commons democracy understood democratic liberties as communal, not individual, and emphasized the common good of the many over and against an order that would facilitate the good of individual actors as a primary means for achieving national strength.

What I’m calling commons democracy was understood in practice in the late colonies and early United States as the political power not just of the many, some abstract majority, but specifically of ordinary, poor—common—folk: the people. As political theorists remind us, democracy’s radical innovation in its classical incarnation was to put the demos—the many, the common, the ordinary—at the center of political power. The Greeks, as Ellen Meiksins Wood puts it, invented free labor, the peasant citizen (181; see also 204). This idea, that political participation, power, and direction could come from the bottom of the social order, was an exact inversion of how political power had been long been understood by the elite, and it stood as a challenge to the many conceptions and configurations of power and political order that came after. The nascent commons democracy of the eighteenth and early nineteenth century similarly challenged and struggled with the liberal democratic ideals and practices that would triumph in the United States over the course of the nineteenth century.

Our nation’s consensus story about its founding omits the challenges offered and the contributions made by non-elite citizens—common folk and their vernacular political practices—to our nation’s democratic history. It does so at least in part because these ideas and practices offered both an often pointed and coherent rebuttal, and a vibrant alternative to the form of liberal, representative democracy institutionalized for us by the Framers. The democracy these ordinary citizens envisioned was robustly participatory, insistently local, roughly equalitarian, and grounded in varieties of exclusion. Quite differently, the democracy framed by the nation’s political leaders, beginning in the Constitution, channeled equalitarian political passions through abstracting political institutions into liberal individualism, a scaffolding for capitalism and expanding state power. They used the ideal of equality to justify a system that would claim property and income inequality as a necessary and indeed healthy feature of its functioning. Liberal democracy exalted and protected the private individual as a competitive, not cooperative, economic actor: in this project, it privatized and re-stratified the democratic good that common people in the early United States had insisted—often with vehemence and sometimes with force—was a shared, public good, a commonwealth.

It’s worth noting that the commons democracy envisioned by ordinary actors in the early nation was not anti-capitalist. Grounded in labor and in the demonstrated competence of male economic actors, families, and consenting communities, it did not resist markets, or credit, or individual ownership so much as it insisted on sufficiency for the many rather than accumulation for the few, and on an economy that served and worked through the input of the ordinary citizens. Indeed, commoners generally (though not always) demonstrated commitments to some kinds of privately held property. In the British colonies and the early United States especially that often (thought by no means always) meant ownership of land—both