Original methods originalism embeds the Constitution in the Anglo-American tradition and militates against the abstractions of the French philosophes.
A reader might expect France Before 1789: The Unraveling of an Absolutist Regime to live up to its subtitle and be a book about the unraveling of the ancien régime. Its author, Jon Elster, tells us that the book can be read as a long footnote to Tocqueville’s The Ancien Régime and the French Revolution (1856), and that is certainly a book about the long-drawn-out crisis of the old regime. His book is shaped, he says, by the need to understand the “transformation and breakdown” of that regime. But, alas, there is no transformation and no breakdown, there is no unraveling here.
The book started, he tells the reader, as a study of the making of the American constitution (1787) and the French constitution (1791). But it grew. What we now have is what will be the first volume of a trilogy: a volume on America Before 1787: The Unraveling of a Colonial Regime will follow, and finally we will get the volume he originally set out to write, 1787 and 1789: The Making of Two Constitutions. Now I suppose it is perfectly possible that the discussion of the lengthy unraveling of the old regime will appear in volume 3; but that seems unlikely as that volume seems to be addressed to the years (in France) 1787-1791, and his purpose in this book, he tells us, has been “to illustrate permanent features of the old regime.” Thus what we actually get is a study, not of unraveling, but of permanence, of things that went on and on as if immune to change.
So here we have a basic problem: this book which claims to be about the unraveling of the old regime is actually about permanent features of the old regime, and a book about permanent features naturally cannot properly address “transformation and breakdown.” In the process of moving from one project (a single-volume study of two constitutions and their making), to a much bigger project (a three-volume study of two revolutions), Elster seems to have become (I hesitate to say this) genuinely confused about what he is trying to do.
If we turn to Elster’s account of Tocqueville’s book (in The Cambridge Companion to Tocqueville) we learn that Tocqueville thought that by around 1750 the collapse of the old regime was inevitable; it was just a question of what particular circumstances would trigger that collapse, and how it would be handled. So a history of unraveling would have to begin well before 1750, and it would show how the foundations of the regime had imperceptibly been eroded, as the waves eat into the face of a cliff until eventually it falls. Of course, you can treat the cliff as a permanent feature right up until the moment it collapses; but if you do, you will get no closer to understanding that collapse, which has long been inevitable.
Why did the old regime collapse, given that in so many respects its structure and functioning appeared permanent and unchanging? That’s the question. There would seem to be two obvious lines of argument that one might want to employ. The first, and surely the most straightforward, is that it collapsed because it was built for war, but it ceased to be able to successfully finance wars, and as a consequence began to lose them. This was not because it got worse at raising money, but because other states got much better. One would thus need to study the history of France in this period alongside, for example, John Brewer’s The Sinews of Power: War, Money, and the English State, 1688-1783 (1989), and show how France failed where England succeeded. In such a comparative study, the Seven Years War (1756-63) would probably mark the decisive turning point, though one might go further back to the hopeless performance of France when faced with the rise of Prussia after 1740. But there is no trace of such a comparative analysis in this book.
Quite apart from the fact that the French state was being overtaken by other, more modern states, one might want to argue that it was being slowly undermined by the spread of Enlightenment ideas. Here we come to perhaps the strangest feature of this book: its complete failure to discuss ideas. Elster is happy to write about what he calls “beliefs” (we might say, assumptions and values), but not about ideas, that is the arguments and doctrines that one finds in books. Indeed, he doesn’t discuss books at all. There is an obvious, extraordinary contrast with Tocqueville here, for Tocqueville devotes two important chapters to Enlightenment ideas. And there is a striking detachment from much recent discussion of eighteenth-century France: the text and bibliographical essay contain, for example, not a single reference to the work of the great historian of 18th-century France, Robert Darnton.
Why leave out ideas, and, with them, books? Elster acknowledges that ideas may be of some significance, but remarks that their impact is hard to measure—one might reasonably protest that everything he discusses in this book is hard to measure, and certain aspects of the world of ideas (the print runs and prices of books, for example) are actually quite easy to measure. The problem is more fundamental: it is that ideas don’t fit into Elster’s project of describing human behaviour in terms of rational and irrational choices, where those choices are assumed to be universal in nature. Thus he discusses emotions at length: the index (which I have to say in passing is quite simply the worst index I have ever seen in an English-language academic book) points us to anger, contempt, enthusiasm, envy, fear, hatred, hope, hubris, indignation, shame, and sympathy. He makes fine distinctions, between egoism and egocentricity, to take one example. He even discusses arguing (defined as “persuasion without the use of threats or promises”), remarking that it is hard to assess its importance, but that
One can assume, nevertheless, that as in assemblies everywhere [note the slide by which books are implicitly excluded], arguing sometimes led to the elimination of a proposal [note the preoccupation with choices] when shown to be Pareto-inferior (not preferred by anyone) to another proposal. Also, as in assemblies everywhere, some participants must have been sensitive to arguments ad hominem, in the sense in which Locke used that expression: ‘to press a man with consequences drawn from his own principles and concessions.’. . .
But of actual argument, of real debate, the book contains no trace. And on the subject of the Enlightenment, of Voltaire, Rousseau, Diderot, Helvétius, and so on, Elster has (in effect, for there are passing mentions, such as the quotation from Locke we have just seen) nothing to say.
The Importance of Ideas
Let me now turn to a decisive example of this failure of analysis. In 1750 the state was trying to tax the clergy. A work was commissioned defending this policy: the Ne Repugnate of Daniel Bargeton (a work, despite its title, written in French). Shortly after publication, the book (still in its first edition) was banned. A year later every pamphlet and book discussing the question of clerical taxation, whether for or against the government’s policies, some 40 in all, was banned, and the government retreated from its attempt to extend its authority. Elster claims Ne Repugnate was “published only [in order] to be condemned,” and the intention was thereby to foster prejudice against the clergy amongst people who would never read the book.
Unfortunately there is no evidence that he has actually read Ne Repugnate which is an admirable example of what Tocqueville called “the dangers of pure theory.” Its argument is that government exists only to serve the happiness and welfare of the people; that human beings give up none of their natural rights when they enter into civil society; and that privileges (such as the privileges of the clergy) can only be justified if they serve the happiness and welfare of all. Bargeton acknowledged that it was difficult, on this basis, to defend the privileges of the nobility; any intelligent reader would have grasped that it was equally difficult to defend the privileges of the Crown. Bargeton’s argument implied that subjects always retain a right to revolution. It is a most extraordinary text. If the government thought it would be helpful to its case it can only have been because a set of radical assumptions had come to be so generally accepted that even the Crown thought it must pay lip service to them.
What the pamphlet war of 1750-51 demonstrated was that the Crown couldn’t find a way of defending constructive innovation. Bargeton’s arguments were far too radical: they led straight to revolution. Conservative arguments trapped the monarchy within traditional structures which no longer worked. And the Church, long the supporter of royal authority, did not hesitate to attack the Crown in defence of its own interests. The complete ban on all publications discussing the subject was an admission of the intellectual bankruptcy of the royalist position; it had become clear that any debate would simply serve to undermine the regime. The waves had already carved away at the cliff face; the regime was already on the brink of collapse. 1750 was indeed a turning point.
Bargeton’s text appeared in at least six editions after it was banned, was reprinted in at least four collections, and was extensively debated and attacked: as often, royal and papal condemnation (the work appeared on the Index in 1751) simply boosted sales. The lesson readers drew from the condemnation was surely not just (as a contemporary remarked) that the Crown both wanted to appease the clergy and simultaneously advertise an argument against them; it must also have been that the Crown was prepared to turn upon its own supporters, and was incapable of offering a consistent defence of its own policies. Standing side by side, Ne Repugnate and the royal condemnation advertised a simple fact: the Crown had run out of arguments.
In 1787 and 1791, ideas mattered. It may be that they matter less now; that in the age of Facebook, Twitter, and Parler, gifs and memes are more important than facts and arguments. If so our liberties are in danger, for liberty requires cool heads and thoughtful deliberation. “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob,” wrote Madison. The internet (I quote Jeffrey Rosen, writing in 2018) has created “virtual versions of the mob”; and now, in 2021, the mob is no longer simply virtual. A comparative study of the American and French Revolutions cannot possibly succeed if it does not address the role of ideas in those extraordinary, cataclysmic events; and such a discussion might perhaps help us understand the weakness of facts and arguments in our own political world.