In The Age of Federalism, The Early American Republic, 1788-1800, Oxford U. Press, 1993, the authors, Stanley Elkins and Erin McKitrick, discuss the rise of political parties in the U.S., which leads them to question the history of the formation of private associations in general. (See Ch. 10, pp. 451-461.)
From the time of the first settlers, there were no self-formed associations, apart from church and government. Self-created associations were distrusted. When first formed in the late pre-Revolutionary period, the tendency was to distrust them just for being self-created, as they represented an individualistic, go-it-alone tendency not subject to the control of church or state, which was considerably mixed in some colonies. There was always the fear that they would turn into selfish political or voting blocs.
By the time of the Jefferson-Hamilton split in the presidential administration of George Washington, although competing interests began to jell into what became political parties, the very idea of party or faction was anathema. Jefferson and Madison take pains to dissociate themselves from the notion of faction or party, although the actions they took are seen today as party-creating.
Political parties, self-created associations outside the structure of church and state, formed anyway, despite this strongly felt taboo. The founders included no 'freedom of association' in the Bill of Rights, the authors note. It would have been unthinkable, as promotive of social disharmony when the new nation was seen in need of cohesion, not splitsville.
Yet when Tocqueville visited in 1831, he noted that the distinguishing feature of U.S. society was the proliferation of its associational life. Two years earlier William Ellery Channing wrote with astonishment of the energy with which combination or action by joint forces was manifesting itself. Some were to promote specific purposes and others were to provide society and comfort for the individual members through associating together.
"There was no such thing as a general rule of law that applied to the forming of associations," Elkins and McKitrick write. The society as to which there was the greatest resistance was the political club since it stood as a challenge to constituted authority, bespoke faction, and remained outside the community's control. This reminded me of China's stance regarding Falun Gong, uncontrollable, hence it must be suppressed. By the 1790s, the urge to communicate resulted in an enormous increase in post offices and newspapers. An early internet boom, as it were.
In the earlier time of the hamlet or village, the basic social unit above the family itself, the community was so small, self-contained, and to a degree isolated that it could not afford an appreciable degree of conflict or contention. The pressure to conform was, or must have been, enormous. The authors note that the vaunted 'town meeting' of New England was not so much for the purpose of debating issues or inspiring democratic debate, but a device for exacting consent. Nor was majority consent enough. The ideal was unanimity as the town could not afford disaffected minorities. The suffrage was broad, they say, not because of any great attachment to democratic principles, but because of its usefulness in 'consolidating a consensus.' Even the practice of open confession of personal wrongdoing in church involved a curbing of individual pride and will, an affirmation of public values over private or individual. The most infa!
mous form which a conflict in a community could take was faction and party, which could split a town. Democracy, in short, was a value that hit the local level later.
If a community could not afford conflict, nor could it afford diversity. Hence the banishment of Anne Hutchinson from Massachusetts to Rhode Island, as I recall, or as the authors report, the splitting of one town into two when the commercial element reached a critical mass as against the farmers, Newbury and Newburyport.
Nor could business entities easily form, apart from individual proprietorships and partnerships. Incorporation was not common. Early corporate forms were the chartered (by the Crown) companies in return for which they acted as adjuncts to state power and interest. The East India Company comes to mind, not to mention our own chartered colonies. In short, the authors say, "Just as with religion, there were at first no familiar categories in which organized business enterprises might readily be conceived apart from the enveloping aegis of the state." The enactment of general incorporation laws in the Nineteenth century was the ultimate recognition, say Elkins and McKitrick, that a government charter no longer brought with it any exclusiveness. As I understand, the Dartmouth College and Gibbons v Ogden steamboat cases created the conditions that provided the impetus in the business community to incorporate, since private corporations!
would be constitutionally protected as contracts not to be impaired and 'commerce' was to be construed broadly. Corporations sprang up after that, changing the economic landscape from small business into the corporate form of big business we know and love today.
What does this process of community, going from the isolation of yesteryear to the cosmopolitanism of today. have to do with Lawrence?
Simply that 200-400 years later, and with a population of some 280 million, we can now afford diversity. IWe celebrate it as a unifying feature by the fact of diversity alone. I saw red, white, and blue banners on lightpoles on the main drag in Hayward before the Fourth of July celebration recently proclaiming "Unity Through Diversity," which surprised me because Hayward isn't San Francisco.
Today we, most, or many of us at least, take pride in getting along together, group among group. We see that pressuring 'different' groups into hiding, into the closet, as it were, causes more disharmony than recognizing and dealing with them by granting, officially, 'dignity and respect.'
In this light, Lawrence is tantamount to the missing 'Freedom of Association' Amendment that Elkins and McKitrick note, whereby disfavored groups are finally allowed the liberty of their day in the sun, as a matter of constitutional right.
Robert Sheridan
SFLS.
