¹ Pitkin, Timothy, A Political and Civil History of the United States of America (New Haven, CT: Hezekiah Howe and Durrie and Peck, 1828), 1:3Google Scholar. For an overview of the historiography of the early period, related to the Founding, see Cohen, Lester, Revolutionary Histories (Ithaca, NY: Cornell University Press, 1980)Google Scholar.

² Tocqueville, Alexis de, Democracy in America, trans. Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), 31, 32CrossRefGoogle Scholar. Hereafter cited as DA.

³ This term was coined by Zuckert, Michael, The Natural Rights Republic (Notre Dame, IN: Notre Dame University Press, 1996)Google Scholar.

⁴ This term is derived from Pocock, J. G. A., The Ancient Constitution and the Feudal Law (New York: Norton Books, 1957), 36, 37Google Scholar.

⁵ DA, 143, 144. Tocqueville lauds the character of the Founders, who were “remarkable for their enlightenment, more remarkable still for their patriotism,” and he judges the framework they produced to be “superior to all the state constitutions” (143). His greatest praise of the Founders' originality comes in his account of their invention of what we know as federalism: “This constitution … rests on an entirely new theory that will be marked as a great discovery in the political science of our day” (147).

⁶ DA, 106, 107 (emphasis added).

⁷ The Federalist, No. 38.

⁸ DA, 399.

⁹ DA, 295. “I am convinced that the happiest situation and the best laws cannot maintain a constitution despite mores, whereas the latter turn even the most unfavorable positions and the worst laws to good account” (ibid.).

¹⁰ DA, 29. I include the term germe, translated variously as “germ,” “seed,” or “kernel,” because of its importance in other accounts of Customary History.

¹¹ DA, 56.

¹² The Federalist, No. 43.

¹³ DA, 56.

¹⁴ For one of the early treatments of these thinkers, see Berlin, Isaiah, Against the Current, ed. Hardy, Henry and Hausheer, Roger (New York: Viking, 1980), chap. 1Google Scholar.

¹⁵ DA, 7, 56.

¹⁶ See West, Thomas, “Misunderstanding the American Founding,” in Interpreting Tocqueville's “Democracy in America,” ed. Masugi, Ken (Lanham, MD: Rowman and Littlefield, 1991)Google Scholar. Although careful to point out that Tocqueville eloquently defends the importance of individual rights, West notes that he does not do so by reference to the standard of natural rights. Tocqueville discusses the importance of individual rights in Democracy in America, 672 and 227–28, among other places. The latter passage is reminiscent of John Locke's treatment in Some Thoughts concerning Education, especially in its references to children.

¹⁷ Chesterton, G. K., What I Saw in America (London: Hodder and Stoughton, 1922), 7Google Scholar.

¹⁸ In addition to West, see Rahe, Paul, Soft Despotism, Democracy's Drift: Montesquieu, Rousseau, Tocqueville, and the Modern Prospect (New Haven, CT: Yale University Press, 2009)Google Scholar.

¹⁹ Reid, John Phillip, “The Irrelevance of the Declaration,” in Law in the American Revolution and the Revolution in the Law, ed. Hartog, Hendrik (New York: New York University Press, 1981), 46–89Google Scholar. Reid's view is that “natural law principles played a relatively minor role … in motivating Americans to support the Whig cause” (48). For a summary of the republican school's position, see Gibson, Alan, Interpreting the Founding (Lawrence, KS: University Press of Kansas, 2006), 22–36Google Scholar, and Pangle, Thomas, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988)Google Scholar.

²⁰ See Rodgers, Daniel, “Republicanism: The Career of a Concept,” Journal of American History 79, no. 1 (1992): 11–38CrossRefGoogle Scholar, and Gibson, Alan, Interpreting the Founding. Carl Becker's The Declaration of Independence (New York: Harcourt Brace, 1922)Google Scholar was for many years considered the major work in this area. It stressed the centrality of the ideas of the Declaration, in particular the importance of the natural rights doctrine.

²¹ Rodgers, Daniel develops this point in his survey of discourse on political concepts in early America in Contested Truths (Cambridge, MA: Harvard University Press, 1987)Google Scholar. Rodgers explains (69–71) that natural right discourse, having served in a perfunctory way in the early decades of the century, had been revived by the late 1820s, not only because of the celebrations attached to the fiftieth anniversary of the Declaration in 1826, but also because elements of the Jacksonian movement had begun to employ natural rights claims in political debates relating to economic issues.

²² Tocqueville to Chabrol, Ernest de, July 16, 1831, in Lettres choisies, souvenirs, ed. Mélonio, Françoise and Guellec, Laurence (Paris: Gallimard, 2003), 205–6Google Scholar. Tocqueville commented that the reading of the Declaration was “really a fine spectacle … it seemed that an electric current made the hearts [of the audience] vibrate” (ibid.). For further discussion of this event see Pierson, George Wilson, Tocqueville in America (Baltimore: Johns Hopkins University Press, 1996), 179–84Google Scholar, and Rahe, Soft Despotism, 195–96.

²³ DA, 249. See also Tocqueville's characterization of Jefferson as “the greatest democrat who has yet issued from within American democracy” (193). In addition, there are whole passages of Democracy in America, especially in the chapter “On the Three Races That Inhabit the United States,” in which Jefferson's analysis lies in the background, though it is not explicitly cited (see, e.g., DA, 341–48).

²⁴ Jefferson to Lee, Richard Henry, May 8, 1825, in The Writings of Thomas Jefferson, ed. Lipscomb, Andrew and Bergh, Albert Ellery (Washington, DC: Thomas Jefferson Memorial Association, 1903), 16:118Google Scholar.

²⁵ Tocqueville, Alexis de, The Old Regime and the Revolution, trans. Alan S. Kahan (Chicago: University of Chicago Press, 1998), 196Google Scholar.

²⁶ DA, 415, 416.

²⁷ DA, 407. He goes on: “in order that there be a society … it is necessary that all the minds of the citizens always be brought and held together by some principal ideas” (ibid.).

²⁸ DA, 225. In another passage, Tocqueville expresses some doubts about whether the modern theoretical basis of solidarity can ever work entirely: “What maintains a great number of people under the same government is much less reasoned will than the instinctive and in a way involuntary accord resulting from similarity of sentiments and resemblance of opinions” (358).

²⁹ DA, 32.

³⁰ Adams, John, The Works of John Adams (Boston: Little and Brown, 1850), 2:371 (emphasis added)Google Scholar.

³¹ Lincoln, Abraham, speech at New Haven, March 6, 1860, in Complete Works of Abraham Lincoln, ed. Nicolay, John G. and Hay, John (New York: Century, 1894), 2:619Google Scholar.

³² The interpretation that follows develops one aspect of Montesquieu's thought, not the whole of it. More than perhaps any other political theorist, Montesquieu articulated his thought in different “parts,” the harmony among which has long been a subject of debate. For example, certain chapters of the work indicate that Montesquieu also favored a public doctrine of natural law. He should perhaps be seen as providing a number of alternative foundations, the choice (or mixing) among which must be at the discretion of the legislator, as context would dictate. For arguments on the importance of history as a standard along with or in place of natural law, see Stoner, James, Common Law and Liberal Theory (Lawrence, KS: University Press of Kansas, 1992), 154Google Scholar, and Manent, Pierre, The City of Man (Princeton: Princeton University Press, 1998)Google Scholar.

³³ Gibbon, Edward, The Decline and Fall of the Roman Empire, ed. Mueller, Hans-Friedrich (New York: Modern Library, 1995), 167Google Scholar.

³⁴ Because many readers use different editions of The Spirit of the Laws, references here are to book and chapter number. The edition used is Montesquieu, , The Spirit of the Law, trans. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone (Cambridge: Cambridge University Press, 1989)Google Scholar.

³⁵ For an account of “Gothic history” and its use in America, see Colbourn, Trevor, The Lamp of Experience (Chapel Hill: University of North Carolina Press, 1965)Google Scholar.

³⁶ The term “historical sense” comes from the German historian von Savigny, Friedrich Carl, Vom Beruf unserer Zeit für Gesetzgebung und Rechtwissenschaft (Hildesheim: Georg Olms Verlagsbuchandlung, 1967), 5Google Scholar.

³⁷ In a letter to his friend Louis de Kergorlay, Tocqueville spoke of the three thinkers who influenced him most (“the three men with whom I live a bit every day”): Pascal, Montesquieu, and Rousseau (letter of November 10, 1836, in Oeuvres complètes, vol. 13.1, ed. André Jardin and Jean-Alain Lesourd [Paris: Gallimard, 1977], 418). Scholars have disputed the degree of influence among the three, but I follow Raymond Aron and Jean Claude Lamberti in assigning the prize to Montesquieu.

³⁸ DA, 7. Virginia helped to form the general mores of a romantic and more aristocratic slave nation in the South (31). Although the book's central theme is democracy, Tocqueville provides extensive treatment of the South's national character.

³⁹ DA, 315, 29.

⁴⁰ The only connection Tocqueville makes between America and the Goths is between not the Goths and the European settlers but the Goths and the Indians. Tocqueville speaks of the “resemblance that exists between the political institutions of our fathers, the Germans, and those of the wandering tribes of North America, between the customs recounted by Tacitus and those I was sometimes able to witness” (315).

⁴¹ DA, 28.

⁴² His is the first fully rational Customary History. As for other options—for example, treating Pennsylvania as the most influential colony (as George Bancroft would shortly do)—Tocqueville either did not know enough about these possibilities or found the arguments unconvincing. The greater part of historical work in America at that time concentrated on New England.

⁴³ DA, 31–32. This is a point many historians today might dispute and was also called into question in George Bancroft's famous nineteenth-century history, which develops the thesis of multiple traditions in the American colonial period.

⁴⁴ DA, 43.

⁴⁵ Montesquieu appeared quite content to omit religion from the principal narrative of the early development of liberty. But when he directly takes up the theme of religion (especially in book X), he supports a moderate form of Christianity.

⁴⁶ DA, 39.

⁴⁷ DA, 43.

⁴⁸ DA, 62.

⁴⁹ Tocqueville never offers a full, discursive treatment of his understanding of natural right, which must be pieced together from various portions of his work. Instances can be found at DA 98, 184, 282, 284, 348, and 510. Natural right often appears in passages having a poetic quality, as when Tocqueville speaks of men building monuments to history, of the Indians being driven from their native lands, and of the strivings of those with great souls and great ambition. Tocqueville leaves open the question of how revealed religion helps man to understand right in all of its dimensions.

⁵⁰ Choate, Rufus, The Works of Rufus Choate with a Memoir of His Life, ed. Brown, Samuel Gilman, vol. 1 (Boston: Little, Brown, 1862)Google Scholar.

⁵¹ DA, 43.

⁵² Rahe, Soft Despotism, Democracy's Drift, 195.

⁵³ Tocqueville, The Old Regime, 201.

⁵⁴ Other versions of the two-founding thesis were already under discussion or had been sketched. Included here was Daniel Webster's Plymouth Oration, December 22, 1820.

⁵⁵ Choate, Works 1:414–38.

⁵⁶ Abraham Lincoln, address before the Young Men's Lyceum of Springfield, January 27, 1838, in Complete Works 1:12.

⁵⁷ DA, 415.

⁵⁸ DA, 15, 416.

⁵⁹ See especially Tocqueville's letters to Theodore Sedgwick, Edward Childe, and Jared Sparks from 1857 in Tocqueville on America after 1840: Letters and Other Writings, ed. and trans. Craiutu, Aurelian and Jennings, Jeremy (Cambridge: Cambridge University Press, 2009), 226, 224, 240Google Scholar. In addition, Tocqueville took the (for him) unprecedented step of publishing a public testimony in America against slavery in 1855, which appeared first in the Liberty Bell and was reprinted elsewhere. In this testimony he inches toward a natural law position, though the final source he cites is God's conception of man.