Scholars Bernadette Meyler of Stanford Law School, Alison LaCroix of the University of Chicago Law School and co-editor of the new book, Cannons and Codes: Law, Literature, and America's Wars, and political scientist Catherine Zuckert of the University of Notre Dame and Arizona State University recently joined Jeffrey Rosen for a discussion exploring the ways literature—including the works of Daniel Defoe, James Fenimore Cooper, Jane Austen, Mark Twain, Tracy Smith, and others—has intersected with the Constitution and American democracy from the nation’s founding, to the Civil War, and beyond.
Or, listen on Apple Podcasts or Spotify.
This episode was produced by Jackie McDermott, Tanaya Tauber, Lana Ulrich, and John Guerra. It was engineered by David Stotz.
PARTICIPANTS
Bernadette Meyler is the Carl and Sheila Spaeth Professor of Law, Professor, by courtesy, English, and Associate Dean for Research and Intellectual Life at Stanford University. She is also a 2020 Guggenheim Fellow in Constitutional Studies. Meyler is the author of Theaters of Pardoning, and the co-editor of two volumes on law and literature: New Directions in Law and Literature and The Oxford Handbook of Law and the Humanities.
Alison LaCroix is the Robert Newton Reid Professor of Law, Associate Member of the Department of History at the University of Chicago. She is the co-editor of several volumes on law and literature, including the new volume, Canons and Codes: Law, Literature, and America's Wars. LaCroix also serves on the editorial advisory board of the American Journal of Legal History, and was recently appointed to serve on the Presidential Commission on the Supreme Court.
Catherine Zuckert is Nancy Reeves Dreux Professor of Political Science, Emeritus at the University of Notre Dame and a visiting professor in the School of Civic and Economic Thought and Leadership at Arizona State University. She is the author of Natural Right and the American Imagination: Political Philosophy in Novel Form, and has written on politics and literature for journals such as The Journal of Politics and PS: Political Science and Politics.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Alison LaCroix, "The Lawyer’s Library in the Early American Republic," in Subversion and Sympathy: Gender, Law, and the British Novel
- Alison LaCroix, Common-Place: The Journal of Early American Life, “The Founders’ Fiction”
- Thomas Jefferson, Letter to Thomas Skipwith (1771)
- Laurence Sterne, The Life and Opinions of Tristram Shandy, Gentleman
- Bernadette Meyler, Cornell Faculty Publications, “Daniel Defoe and the Written Constitution"
- Daniel Defoe, The Life and Adventures of Robinson Crusoe
- Daniel Defoe, The General History of the Pyrates
- Catherine Zuckert, Natural Right and the American Imagination: Political Philosophy in Novel Form
- British Library, "Jane Austen"
- William Writ, Sketches of the Life and Character of Patrick Henry
- Bernadette Meyler, Southern California Law Review, “Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War”
- Claudia Rankine, Citizen: An American Lyric
- Tracy Smith, "Declaration," in Wade in the Water
- Sacvan Bernovich, The American Jeremiad
- Mark Twain, The Adventures of Huckleberry Finn
- Catherine Zuckert, The Claremont Review of Books, “Huckleberry Finn at 100: A review of The Adventures of Huckleberry Finn, by Mark Twain”
- James Fenimore Cooper, The Pioneers, or, The Sources of the Susquehanna
- James Fenimore Cooper, The Last of the Mohicans
- Mark Twain, North American Review, “Fenimore Cooper’s Literary Offenses”
- Nathaniel Hawthorne, The Scarlet Letter
- National Constitution Center, Interactive Constitution, "Shakespeare and the Making of America"
- Suzan Lori Parks, The America Play and Other Works
- Herman Melville, Billy Budd, Sailor
- Wikipedia, "Walter Jackson Bate"
- Wikipedia, "Maria Edgeworth"
- Wikipedia, "Frances Burney"
- Walt Whitman, Leaves of Grass
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TRANSCRIPT
This transcript may not be in its final form, its accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. American literature has intersected with the constitution and American democracy and fascinating ways. NCC president Jeffrey Rosen recently discussed those interactions with scholars, Bernadette Meyler, Alison LaCroix, and Catherine Zuckert. Here's Jeff to get the conversation started.
Jeffrey Rosen: [00:00:24] Ladies and gentlemen, welcome to the National Constitution Center and to today's convening of America's Town Hall. I am Jeffrey Rosen, the president and CEO of this wonderful institution. I'm so excited about the learning ahead this morning and let us inspire ourselves for it by reciting together the National Constitution Center's, meaningful mission statement. The national constitution center is the only institution in America, chartered by Congress to increase awareness and understanding of the constitution among the American people on a nonpartisan basis. Before we start, I want to share some exciting programs that are coming up. This Friday we have a scholar exchange as part of our live classes for all ages. It's on the second amendment and our guests will be Clark Neily of the Cato Institute. He was co-counsel in the landmark Heller case and he joined us on a really interesting We The People podcast episode this week about the state of play of the Second Amendment.
If you haven't checked out We The People which I host every week, please do. It's such a wonderful font of learning and light for all of us. Next Thursday, a week before the anniversary of the start of the constitutional convention, we host a program exploring key texts, authors and sources, the founders look to when drafting the constitution.
It will be a wonderful continuation of the conversation we're going to have today about the founders and literature. And our guests will be Richard Albert of the University of Texas, Jonathan Gienapp of Stanford, and Colleen Sheehan of Arizona state. And later this month, we conclude the school year for 2021 with a very special guest, Justice Steven Breyer on May 28th, so please join us for that. We'll be taking your questions throughout the program today, so please put them in the Q and A box and I will ask them as best I can. And now it is sn honor to introduce our panelists -- three brilliant scholars who have shed so much meaningful light on the crucial and illuminating connections between law and literature.
Alison LaCroix is the Robert Newton Reid Professor of Law at the University of Chicago Law School. She's also an associate member of the 'sniversity of Chicago. Department of h=istory. She's the author of The Ideological Origins of American Federalism, which we have discussed on the We The People podcasts.
And in addition to her important writings about law, she's co-edited several books on law and literature, including Power Prose and Purse: Law, Literature, and Economic Transformation, and most recently Cannons and Codes: Law, Literature, and America's Wars. She's currently writing a book about US Constitutional discourse between 1815 and 1861.
Bernadette Meyler is the Carl and Sheila Spaeth Professor of Law, Professor by courtesy of English, and associate Dean for Research and Intellectual at Stanford Law School. She is also a 2020 Guggenheim Fellow in constitutional studies. She is the author of Theaters of Pardoning and the co-editor of two other books on long literature, the Oxford Handbook of Law and the Humanities and New Directions in Law. And she's written many important articles, including "Daniel Defoe and the Written Constitution."
And Catherine Zuckert it is the Reeves Dreux Professor of Political Science at the University of Notre Dame and visiting professor in the School of School of Civic and Economic Thought and Leadership at Arizona State University.
She's the author of Natural Right and the American Imagination: Political Philosophy in novel form. And she's written many important articles on politics and literature and political theory, including Machiavelli's Politics and Leo Strauss and the Problem of Political Philosophy. It is such an honor to welcome our panelists.
I'm so excited about the discussion and I'm going to jump right in with you professor LaCroix. You have a wonderful article about the lawyers library and the fact that many of the greatest founders, including Jefferson and Joseph Story and John Marshall believed that reading literature and novels was crucial to the cultivation of virtue and teaching us how to live.
And you note that Thomas Jefferson, in response to a request by his prospective brother-in-law, Robert Skipworth, drafted a list of 148 recommended reading titles, which he broke down into a whole bunch of groups which included in the fine arts category, 75 titles, including plays by Malaya and Dryden, the poetry of Homer and Virgil, and several works of fiction, including Don Quixote, Tom Jones, Chaucer, and others.
Tell us more about that. Thomas Jefferson's reading list and why he and the other important members of the founding era, who you mentioned, believed that as Jefferson wrote, everything is useful, which contributes to fix in the principles and practices of virtue.
Alison LaCroix: [00:05:27] Thank you very much for inviting me to be here, Jeff, and for this great discussion and questions.
So yes, I think the Jefferson's lists from 1771 is just this wonderful and revealing document that tells us so many different things. So first of all, as you said, Jefferson wrote it in response to a query from a prospective brother-in-law, a sort of near relation and he wrote it in 1771. So this is before the American Revolution. Jefferson at this point was a member of the Virginia House of Burgesses., so Virginia's colonial legislature. So it's sort of early in the career of Thomas Jefferson, as we know him. But obviously even then all his kind of Virginia connections and family members and so forth knew that he was someone for whom libraries and reading were very important. So I think it's really interesting that Skipwith, Robert Skipwith, wrote him this letter.
And there's a lot of discussion, you know, of course, about reading and sort of the value of libraries and what Skipwith was trying was to basically create a shelf that would make him look like an educated Virginia gentlemen. I think that might've been some of the motivation behind the request, but it also went a lot deeper.
So it wasn't just an instrumental kind of, what are the things I can put on my shelf? They didn't have Zoom obviously, but what would look good behind me on a Zoom shelf? There was really the sense of cultivation and kind of what does it mean to be an educated person? And so as you said, it's striking, I think to the modern eye, how much of Jefferson's list was fiction.
So it wasn't all kind of improving non-fiction or political philosophy. There was a real sense fiction: Don Quixote, Tom Jones, Pamela, and a lot of less familiar work. So for instance, Peregrine Pickle, Memoirs of Miss Sydney Biddle -- these are sort of in the fringes of literary history. And I think the other thing I would note, too, is this isn't just a Jefferson story.
So lots of other members of the founding generation were really, really deeply kind of immersed in reading literature and thought of it not as a... not as a kind of guilty pleasure, but as something that was part of their intellectual process. And this included women as well: so John and Abigail Adams were both so steeped in Tristram Shandy, this massive doorstop novel, and throughout their letters for their entire lives, they would refer to people as characters, interests from Shandy.
And this is, of course, in addition to Abigail Adams, John Adams, and others taking on pseudonyms from the classics. So it's just this whole worldview about none of this being sort of outside the political realm, but actually very much a part of the political realm that I think is really fascinating.
Jeffrey Rosen: [00:08:06] Wonderful. Love the Tristram Shandy recommendation.
We'll try to keep track of these in the chat and so folks can read them later. And the vision of Abigail and John, as you say, referring to themselves, both by classical pseudonyms and also recommending novels is inspiring. Bernadette Meyler, you have an inspiring article, "Daniel Defoe and the Written Constitution."
And as it happens, not long ago I was reading the sources that inspired Benjamin Franklin to create his famous list of 13 virtues. And they included Daniel Defoe's "Essay on Projects", which I hadn't heard of before but I read when I saw Franklin recommended it, as well as Plutarch's lives, Cotton Mather on doing good and a latitudinarian sermons of John Tillotson.
So Defoe was unfamiliar to many of us. The SN project is kind of a how to manual about how to be ingenious and make inventions. Tell us about why Defoe was so important to the founding generation for his views on written constitutionalism and how those views were reflected, both in Robinson Crusoe and in his other writings.
Bernadette Meyler: [00:09:15] Thanks so much. First of all, for having me on this wonderful program, Jeff. I'm really excited about the discussion. And I think your experience of encountering a reference to an essay by Defoe that you didn't know before is one that most of us have shared because Defoe was unbelievably prolific and it turns out that he wrote on most topics. And so if you think that he didn't write on something, it's probably, that's probably the wrong view. Defoe wrote in the early 18th century, most of his most famous works. He might be most known this year for his diary of a plague year since that was particularly relevant to our situation in COVID.
But one noteworthy fact about Defoe is that his Robinson Crusoe was widely read in early America. And it was really one of the foundational novels at the time of the founding. And it was a novel that had a lot of political implications as Alison was mentioning the members of the founding generation read novels partly as political guides. Tristram Shandy may have been one of those. Defoe's Robinson Crusoe was certainly taken up by people like Rousseau and others as furnishing a guide, both to living and to politics. But Defoe wasn't only writing Robinson Crusoe. And in fact, he wrote an argument on behalf of the religious dissenters in the Carolinas in the early 18th century that established some of the bases that we think of as part of written constitutionalism, referring to the rights that the dissenters had under the fundamental constitutions of Carolina and the charter and trying to hold the colony accountable to those rights. So both in his literary writings, Robinson Crusoe, and Robinson Crusoe: Part Two, which is less read, and also his writings on the history of the pirates, which talk about piratical constitutions, as well as his political writings Defoe presented a picture of the technology of writing as important for grounding a polity.
And so he really elaborated four of the characteristics of written constitutionalism that we see later, someone like Chief Justice Marshall, advocating in Marbury against Madison and among those are promulgation. Right? So writing was important for disseminating a constitution, disseminating it to all the people who would be part of the polity. For durability, so that writing allowed for people to put down what they wanted to endure and make sure that that could be referred back to in the future when it became an issue. Then also documenting a social contract. So Robinson Crusoe is also taken as a book about kind of founding a polity. Right? So what are the contracts that you have to enter into?
What kind of social contract are you entering into when you're creating a new society? So constitutions also were taken to document the basis for a social contract. And then finally, the idea of limiting legislative power -- that the constitution was a text you could refer back to whether or not you had judicial review in order to limit the power of a further legislature.
So, Defoe kind of in his various writings, outlined all of these aspects of the technology of writing and how they could help to establish a constitution or a proto-constitution and the polity, and I think that those sets of writings were influential for the founding generation.
Jeffrey Rosen: [00:13:04] Thank you so much for that. Such a clear distillation of the principles of Defoe. So interesting to learn that he didn't think that writteness was crucial to constitutionalism -- that others could enforce it, but that also it could help maintain the social contract. Such a great invitation to read the works of Defoe. I was inspired to get the Delphi edition, these really, for a dollar, you can get his complete works and as you say, there's so much. And he has wonderful, futuristic works, which imagine the core virtues being played out in the future as well, which are phenomenal. Catherine Zuckert, in your riveting book: Natural Right and the American Imagination, you set out to examine classic works of literature which involve a withdrawal from civil society and some kind of return -- a kind of reenactment of the philosophy of the Declaration, which imagined a state of nature in which we're all imbued with unalienable rights. Tell us what the basic ideals of the Declaration were, what that natural rights theory was.
And as we've just heard, some of those contractarian notions were in the air and in 18th century, Wig literature, and works of Defoe and others. Tell us what were some of the major works both right before during the founding and immediately after, where the theory of the Declaration was reflected.
Catherine Zuckert: [00:14:27] Actually, I'm not a historian and so I'm not prepared to answer that question specifically. One of the things that I think is notable about American political documents and the tradition is that it's very dependent in some ways on European social contract theory, particularly John Locke but also Rousseau. Literature draws on the example of Robinson Crusoe, but these sources aren't mentioned and so,we have up on the screen, "We The People," well, how is "we the people" defined? That's actually the function of the Declaration of Independence. You know, in the famous beginning it says on of the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another and to assume among the powers of the earth the separate and equal station which is the laws of nature and nature's God entitled them. And then we hold these truths. Who are "we the people"? "We the people" are those who hold these truths to be self-evident, and they are the famous declarations that all men are created equal, that they are endowed by their creator with certain inalienable rights that among these are life, liberty, and the pursuit of happiness, that to secure these rights, governments are instituted among men deriving their just powers, et cetera.
This draft's authored by Thomas Jefferson, but it was a committee and the committee, and it was signed by individual people, but it really is the definition of what it is to be an American based on this political philosophy. And, at least the argument of my book is, beginning with James Fenimore Cooper, who's the next generation, and the classic American author as well, so Hemingway who's been on television recently but Twain before him, what Hawthorne and Melville did was that they went back and reexamined the meaning of these principles which are not in the constitution. But, the constitution says to make a more, "we the people," to make a more perfect union.
So there's the sense that the Declaration is somehow in the middle. But at least what I have found interesting about the novelists' treatments of these principles is that their meaning is in question. And one of the few things the classic authors agree upon is they breathe. These are the principles.
What they also agree about is that Americans at their time, and I would say at our time, don't understand what these principles mean very well. And that's the central problem of our politics.
Jeffrey Rosen: [00:17:23] Very well put. And you so well-described the conflict around the different conceptions of those principles, including between a more Rousseauvian and a Hobbesian conception of human nature and describe how that is reflected in novels throughout American history.
Professor LaCroix, take us from the founding era into the 19th century a bit. And having introduced us to the fact that the founders thought that reading fiction was especially important for civic participation, what were some of the central works that in the early 19th century became a vehicle, as you put it, not only for developing Republican sentiments in individuals, but also a marker of people's achievement?
Alison LaCroix: [00:18:11] Right. Well, I think, as you said, Jeff, that last point is particularly important in the early 19th century because you have this subsequent generation of latter-day founders, or early 19th century people, or inter-bellum people, as I like to think of them, between sort of the war of 1812 and the Civil War.
And it's very much in this adolescent period, very self-consciously. So, because a lot of these statesman, writers, commentators, political participants grew up or were born during the revolution. So chief justice Marshall was still the chief justice for much of this period, but his younger colleague was
Justice Joseph Story. And Joseph's story was born during the Revolution and apparently was raised in Massachusetts hearing these stories about the great things his father and his other family members had done during the Revolution. So setting aside the psychological consequences of what that might do, spending your childhood hearing about your father's efforts and stealing cannons off the common in Boston so the British couldn't get them, there was this real sense of unfinished work. And we see this even in young Lincoln. So Lincoln gave a speech in Springfield, Illinois in 1837 that very much picks up on these ideas, this kind of unfinished work, because of course it reminds us, they didn't know the Civil War was coming.
So they didn't conceive of themselves as living before something they were thinking about living after something. And this anxiety about maintaining the legacy, but also creating the legacy. I mean, they did not think we are implementing, liquidating, putting into practice, a set plan. They thought we have to figure out what this plan is and means and so it was very much a creative project. And literature is quite interesting here as well, because you have Justices like Marshall and Story, reading literature, reading novels, writing letters back and forth where Story gave a series of public speeches at Harvard, the Phi Beta Kappa address, which was very much a kind of public oration in this period of great oratory.
And he talked about building American national culture and he specifically mentioned literature in the arts. He sort of said, we have politics figured out, or at least we have a great plan, but what about culture? And so he talked about novels and particularly singled out a number of novelists and works of literature.
And Marshall wrote to Story and took him to task for mentioning a lot of authors, but not one of Marshall's favorites, and that author was Jane Austen. So Marshall said you named all these other great writers, including Mariah Edgeworth, Francis Bernie. So lots of these novels were being written by women authors and British women. And then Marshall says, you know, what about Austen? And so they have this back and forth about Jane Austen. And the final piece is a kind of figuring out what the founding was about and establishing American nationhood. Was this early 19th century period as a period of writing biographies of the founders, which was this interesting project that was both a big moneymaker, so people did it, john Marshall wrote a biography of George Washington, partly because he had access to good sources, but also because it was a huge source of income to write one of these things that basically became a best seller. So you see these kind of lawyers and judges and people kind of thinking like, well, who can I write a biography of? And how can I stake my claim, help build this legacy, and also make money doing it? So Patrick Henry, much of what we know about Patrick Henry, comes from William Wirt's biography of Patrick. Which Wirt started out as this kind of, I'll establish myself as a claim, as an author, I'll make money. But then he's writing letters all over Virginia to try to get people to tell him what did Henry say in this one debate? And that's while Wirt is being Attorney General of the United States. So it's just this melding of worlds that we would find very surprising today.
Jeffrey Rosen: [00:22:05] Fascinating. So interesting to hear about stories, the Phi Beta Kappa address, and of course you think, naturally of the Emerson Phi Beta Kappa address. And while thosePhi Beta Kappa addresses were significant around that time, that biographies are so powerful -- that multi-volume set that Marshall wrote of Washington.
And the fact that as you say, these statesmen and justices were also literary figures. You have Story writing poetry, you tell us. And of course John Quincy Adams would wake up every morning and before swimming in the Potomac would often write classical poems about virtue, which he collected: an inspiration to us all.
Professor Meyler, you have a very powerful article "Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War," which describes how the central question of whether we the people are united from the declaration, or whether at the time of the declaration, they consisted of the people in the several states, that central question of constitutional theory in the early Republic is reflected in the literature of the period. Tell us about some of the books and novels as well as other works that reflect this central debate about who is sovereign? We the people of the United States or we the people of the individual states.
Bernadette Meyler: [00:23:20] AndYes thanks, Jeff. I would just point out that that piece originated in another national constitution center program, so thank you for that as well.
Jeffrey Rosen: [00:23:27] Oh, wow that's wonderful!
Bernadette Meyler: [00:23:28] Part of what I'm talking about in that piece is how the kind of technologies of writing and here, particularly the autograph, wind up becoming important even after Defoe and after the promulgation of the Constitution and the Declaration. So what happens is that in the early 19th century, autograph collection becomes a very big phenomenon.
And it takes over the thoughts about the history of the Declaration. And so people are trying to collect autographs of those who were the signers of the Declaration, collecting letters and other forms of autographs. But at the same time, there is a kind of contest about how those signatures are going to be represented on printed versions of the declaration. And in particular, whether they're going to be represented as signers from the particular states or signers as en masse. This becomes a flashpoint for the question of whether the Declaration is really the product of individual states or a product of the American people as a whole. And I would say that actually one of the big functions of American literature in the periods after the founding has been to call into question, who are "we the people," right? So who are these, who is this people? And who's included, and who's not included in the people that are the people of the Constitution or the people of the Declaration. And this is true in the late 19th century. There are a lot of interesting works on kind of citizenship and literature in the late 19th century: Brooke Thomas has written about this extensively. But then it carries over into, I think our contemporary literary scene. I would point to work like Cynthia Rankine's Citizen, which explicitly calls us to think about, you know, who is a citizen and deals with questions of race and racial division within America, and sort of brings to the forefront, this issue of who, who is included. And also the poem-Declaration by US Poet Laureate, Tracy K Smith, which is this extremely interesting because it's an erasure poem, which means that you take the words of a text verbatim, but you erase parts of it to make a different poem. And it's an eraser poem of the Declaration of Independence that then turns it into a poem about enslavement and then the contemporary legacies of slavery.
And I think that that issue of what the relation is between membership and then also the literal language, as opposed to say the spirit of the Constitution, is an issue kind of throughout American literature as well. And I would then also go back to Frederick Douglas, who has a very important speech about the constitution, where he says that he's refusing to read that as a pro-slavery document because it never literally mentions the word slavery. And so here he uses kind of the technology of plain reading or the approach of plain reading and literalism as a way to insist on holding the American polity to a higher standard and insist that slavery isn't legitimized by the constitution.
Jeffrey Rosen: [00:26:56] So powerful on so many fronts. Thanks for reminding us about Douglas. And would you like to read a brief passage from Tracy K Smith? That's such a beautiful poem.
Bernadette Meyler: [00:27:07] Sure. I'd be happy to read it. Yeah, definitely. Here we go.
"He has sent hither, swarms of Officers to harass our people. He has plundered our, ravaged our, destroyed the lives of our, taking away our, abolishing our most valuable and altering fundamentally the forms of our, In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. We have reminded them of the circumstances of our emigration and settlement here. Taken captive on the high seas to bear."
Jeffrey Rosen: [00:27:48] So powerful thank you so much for that. Wow. Professor Zuckert, I'd love you to give our friends a sense of the arguments in your wonderful Natural Rights book. And of course you spend a great amount of time discussing Huck Finn, the famous relationship between Huck and Jim. And you talk about how Huck has to return to society to free his friends Jim, and to quote a phrase that my great college teacher Sack van Bercovitch used as an emblem for, for American literature. You know him of course, the great scholar of the American Jeremiah and Puritanism. I would always quote Huck saying, "I reckon I got a light out for the territory ahead of the rest because Aunt Sally she's going to adopt me and civilize me, and I can't stand it. I been there before." What's the significance of that line and, more broadly, what's the significance of Huck Finn in telling us about the contestations over the American idea.
Catherine Zuckert: [00:28:45] Okay. So when I was listening to Alison and Bernadette I thought of going in a different direction, but so the significance of Huck's lighting out to the territory is the American tradition of always beginning anew, and that is connected with the reasons why the original settlers came.
And this is, I think, material that's examined and reexamined from almost the beginning of what would be a distinctively American literature. So I would actually begin with Cooper's The Pioneers, which is about Natty Bumppo who's the man who doesn't want to respect the law. He doesn't want to have regulations as to whether he can have a gun when he can shoot when he can kill, because he wants to live according to laws of nature and nature's God and who has the right to get in his way? Well, it turns out that there asre two different competitors. One is immediately the American government ,or a character named Judge Templeton. Well, he thinks he owns the property and he has a right to the animals that live on the property or the woods et cetera But then the question of, well, and so where did judge Templeton get the property?
Well, he got it when the loyalists left after the American Revolution. Well, did the Americans really have a right to take this land from the original settlers or their descendants? And then, last Mohicans, did these white settlers have the right to take the land from the people who were living there before -- the indigenous peoples? These are fundamental questions and they actually are not very easy to answer. So Cooper thought that he was investigating the meaning of these fundamental American principles. And then to turn to Twain, Twain wrote a criticism of fenimore Cooper is literary sins. It is hilarious to read.
And he destroyed Cooper's reputation because he said, this is totally unrealistic. So then Huck Finn. Yes, huck leaves civilization. Why? It's uncomfortable. His father is a drunk and beats on him. He gets no protection. And he's been taken in by a widow, but you know, she forces him to bathe, forces and go to school. He doesn't want to do that. So he lights off down the river. What happens on the river is that he and then the escaped slave Jim get attacked because they have no protection. Huck has conventional opinions. So when he decides to defend Jim and not to turn him in, that's he's going against his conscience as he understands it.
And he says famously that he'll be damned, but he's going to stay with Jim. In a very controversial end of the novel, how can Jim go back? They meet up with Tom Sawyer. Tom Sawyer knows that Jim has been legally free, but he doesn't tell Jim and they go through all these antics. So the only thing that works to free Jum is the law, but Huck can't live comfortably with the law.
So we got, yes, the law, the will, frees gym. That security is freedom. But Huck who loves Jim doesn't like civilization, and so he lights out for the territory as Mark Twain himself or Samuel Clemens, lights out for the territory as described and roughing it. And actually that's a theme of Ralph Ellison. He writes about going to the territory of Oklahoma. It's the frontier, it's where you're not regulated. And so there is this theme persistently in American literature of how human beings, or particularly Americans ,resist the law and how you justify the kind of restraints, the law places on you.
Jeffrey Rosen: [00:33:05] Wow. That is such a clear expression of enacting the philosophy of the Declaration through the settlement of the West and through literature. If you can't be satisfied with the existing social contract, rather than have a revolution, you'd light out for the territories and begin a new state of nature again. That really distills the essence of that teaching so beautifully. Because I know you, you were going to go in a different direction, do you want to set, I have a question for all of you for the next round, which will be about 20th century literature, but do you want to tee up a question or a thought for Alison before I ask?
Catherine Zuckert: [00:33:41] Oh, wow. Okay. So there's the two things. Thought of talking about beef before was one didacticism and literature.
Alison had emphasized the founders thinking that literature is a way of teaching virtue. That's something that's come back in a movement towards classical education. Now forming moral character. Does literature do it or doesn't it? Cooper thought that was what he was trying to do and that's what Twain makes fun of him for doing. And most of the canonical American novelists after Cooper, don't try to be explicitly didactic. I mean, I happen to be a big fan, so he has a quip, Twain has a quip in which he says, Hubert can not professionally teach or professionally preach, but has to do both if it's going to live together. And that's kind of the challenge for, from the literary side, of how you teach but without showing that you're trying to teach.
And the other was, I think, picking up on, on both of the comments that right after the revolution, beginning with Cooper, but also maybe most dramatically in the works of Nathaniel Hawthorne,. American novelists start trying to come to terms with the relation to their past.
So the relation of Americans to the British, but then also of course not just the British, but the puritanical foundations of the United States. I think there are probably still quite a few high school students who are forced to suffer through the Scarlet Letter, which is a wonderful, wonderful novel as feminine heroine, but I don't actually think it's a big hit very often with any high school students.
Jeffrey Rosen: [00:35:26] Agreed. And those are wonderful thoughts and help me formulate my question for, for all of you for this round. Catherine just said, post-Cooper, American literature is less explicitly didactic, less self-consciously devoted to inculcating virtue as Jefferson suggested, virtue defined as a form of self mastery or self-government, or overcoming our unreasonable emotions and passions with reason, self-reliance. Here's the question: I mentioned Sack van Bercovitch and got some appreciative nods, as we all know and admired his work. Professor Bercovitch wrote this great book called the American Jeremiad, which talks about how much of American literature takes the Jeremiad form of a preacher or central figure denouncing the congregation for having fallen short of American ideals, but in the process of denunciation, reaffirming the ideals and summoning them back to the light to once again, be the shining city on the hill.
So the broad question, Alison, is do you see American literature in 20th century as continuing that essentially didactic function of reaffirming the centrality and truth of the American ideal in the course of denouncing people for falling short of it. Or, in the 20th century, does American literature lose its didactic and moral function in the way that Catherine suggested?
Alison LaCroix: [00:36:48] Yeah. That's a great and really rich question. I mean, one of the things I think about in the kind of late 19th and then early to mid 20th century kind of literature and politics shift is, is this question of what people think literature ought to do? And this especially comes up, I think, when academics and others think about the value of reading literature, and this is, of course, something that's very much at the forefront of public discussion today, the sort of, what is the value of the humanities kind of questions.
You know, I think yes, virtue installation and didacticism were clearly part of the project even in the early period. But I think another part was this idea of building sympathy. And sympathy at an individual level, but also the ability to understand others' situation. And that I think almost necessarily tends toward lots of different stories being told.
And so, I think that that impulse was there early on, you know, so if we think about Adam Smith talking about the impartial spectator, or theorists in the 20th century, like Jürgen Habermas talking about literature and the coffee house. And a lot of that, I think he meant sort of both literally and figuratively as ways that people understand the experience of others.
So as a historian, I would think of that as, as the importance of context. And that to me seems like one of the big overarching themes of 20th century American literature, which is this, I don't think of it as division or fragmentation. I mean, I guess I would think of it as multitudinousness or multiplicity, and sort of understanding that as a value in and of itself. Both, again, if one wants to be instrumental, because to be a good fill-in-the-blank: citizen, lawyer, what have you, it's good to be able to speak to a variety of audiences or understand how to make an emotional appeal. But I think it also gets to something deeper. And this also kind of is when we think about legal interpretation and textual interpretation, which others have mentioned. You know, we're in this period where the Supreme Court is fascinated by text and textualism.
But of course there's also context. And so text in isolation can be very misleading. If we think we know what a phrase means, because we can isolate it, I would say no -- the context part is very important. And so to me, that's part of the, the broader 20th century story and certainly enriching and hearing from more kinds of stories.
Jeffrey Rosen: [00:39:22] So fascinating. The notion of providing context for the text in a common law sense is a wonderful setup for my question to professor Meyler, who right now is examining the history of the English, Common Law ancestry of US Constitutionalism and the reference to a focus on multiplicity in the 20th century, rather than moral didacticism or unity, of course, made me think of Henry Adams who struck the famous antithesis between the unity represented by medieval faith and the multiplicity represented by the dynamo. And Bernadette answer the question as you think best, but you see the themes on the table. Do you think that the move to multiplicity and pluralism was a move against the didacticism or was it a different expression of the American ideal? And in the course of answering, tell us about your research about common law constitutionalism.
Bernadette Meyler: [00:40:17] Thanks so much for that. So I think I would like to actually build on, I think something that Catherine mentioned, which was about the interesting timing of thinking about the past in the early Republic. Americans become interested in how to reconcile this kind of pre-revolutionary past with their present and whether or not the constitution is really this incredible innovation or whether it really hearkens back to these pre-constitutional moments. And we see the same tendency and literature after the Civil War, where there are, there is literature dealing with the antebellum period that sort of is asking how much has changed or, or hasn't. And that's connected with my project on common law originalism because part of what I'm suggesting is that even though we have this technology of the written constitution implemented at the time of the founding, that at the same time, there's this faith that, in fact, a lot of the rights that the formerly British subjects who are now Americans thought that they were carrying forth were rights that were present under the common law and that they would have understood them according to how the various and very gated common laws of the colonies would have expressed them within their own documents within their own legal traditions, as well as according to the work of William Blackstone or others from the British context.
And certainly Allison's work on kind of legal libraries at the time of the founding is really instructive in that regard, too, in terms of the different times of common law that members of the founding generation would have read. They didn't just read Blackstone who was being promulgated very extensively in the late 18th century, but they also read the writings of Sir Edward Cook and Matthew Hale from the 17th century, which had a somewhat different conception of the common law embedded in it.
But in terms of the, this question about didacticism I think that certainly there is didacticism, but the trend in American literature that interests me a bit more is one of the kind of problem narrative. And I think that this may relate to one of the questions I saw in the Q and A, which was well, what, what did the founders think about Shakespeare?
Certainly Shakespeare was a big figure at the time of the founding and, you know, subsequently there were a lot of amateur theatrical companies promoting and playing Shakespeare. We see there was an exhibit at the Folger library a few years ago on Shakespeare and the founding. But one thing that I think is so powerful about Shakespeare is that a lot of the plays don't actually resolve questions, they raise these questions that are then available for public debate, but don't resolve them. And something like Melville's Billy Budd, I think, does something similar. So we have the question of, you know, who's in the right in Billy Budd, but you know, there are a lot of powerful interpretations, but I think that the, the text itself, doesn't it give us a clear answer about who is right and who is wrong and instead it throws that question open for public discussion. And I think some of the most powerful American literature it does exactly that. I think about later works, like Suzan-Lori Parks' The America Play, or other works that really sort of pose problems for us and then throw it back on the American public to resolve those questions and discuss them. And I think that that's one of the most powerful aspects of literature is that it invites those who are readers or those who are audience members to take the conversation out of the novel or out of the Playhouse and continue it themselves over dinner or drinks or in any other context.
Jeffrey Rosen: [00:44:11] Beautifully put absolutely encouraging us to relate the plays of Shakespeare and literature to our own lives and make them relevant. Literature can indeed teach us how to live as another great college teacher, Walter Jackson Bate, talked about using literature to see what can be put to use, and always picking up on the classical idea of literature as having a value of amusement and instruction. So, Catherine, you introduced this fascinating thread about whether, despite the new movement to resurrect that sort of didactic teaching of literature as a way of cultivating virtue, that vision is still relevant today.
Do you think it is or not?
Catherine Zuckert: [00:44:53] I think it's relevant in a complicated way. As Bernadette was just explaining... Well, as Alison just started, one of the ways that literature teaches is by just extending your sense of empathy and introducing the reader in his or her livingroom, study, the bedroom to the feelings and the point of view of a very different kind of person, and that's what a talented author can do. But in a sense, you got empathy with a lot of different people -- that then it's going to raise the question well, which is best, which is just et cetera. And so the raising of problems thanBernadette had just mentioned. I guess I think that in 20th century literature what's happened, and it's not just some literature it's everywhere. Educated people don't believe in the self-evident truths of the declaration of independence as being true, and so that creates a new kind of problem. I mean, what is the basis of our thought that human beings have a dignity? Why? I guess I just read, you can be made into fertilizer. That's not very dignified. Somehow we think that that's wrong or if nature is nature a source of rights or is it not? Is history then tradition a source of rights? Well, it's also the source of a lot of wrongs. So, I think that well at least I would say on how many weigh in all of a sudden, and in Faulkner, who's not very popular now because I think he was too sympathetic to the South, but what happens is the principles of the Declaration are still seen to be somehow the basis of what America should be. We should recognize these rights. People should have a right to life, liberty, and the pursuit of happiness. So instead of thinking that they're true as they become aspirational goals.
And then the question that that's connected to is the ever increasing diversity of the American population. How do you bring all these stories or different cultures or different groups or different faiths together in agreeing on political principles? And I guess in that sense, I think that the literature, in a way the literary author saw before he had exploded into public. So now everybody sees what a problem with divisions we have. And I, I guess I'm struck also by the irony that, the neglected groups who were complained about, they show up in literature from the very beginning and they show up as dramatizing the way in which everybody isn't included the way in which everybody isn't protected. So in challenges, I'm thinking of native Americans, members of the tribes, I'm thinking of women, I'm thinking of Hispanics, immigrants -- they aren't treated as being equal. Why not? And that's, I, I would agree, I think that's one of it has been, and that continues to be one of the most important functions of literature.
Jeffrey Rosen: [00:48:16] Very powerful. I felt a Pang when you said that we no longer agree in the principles of the declaration. And that's a powerful statement that I wonder whether Alison and Bernadette agree that hat Americans no longer embraced the self-evident truth to declaration or are they embrace them but believe that they're being in perfectly achieved, which is, as you say, Catherine was the trope through most of American literature. You know, we have time for one sort of closing intervention from each of you. And I don't want to give your lights as best you think but I am curious about... we have a project here at the constitution that are called the "Guardrails of Democracy."
And when we often ask our speakers to suggest ways of resurrecting some of the speed bumps road blocks and blocks and guarantees of democratic civil dialogue that have been eroded by technology by polarization and by other recent phenomena. So if you, if you're moved to do so, I wonder whether you think that deep reading could be a resurrection of one of those guard rails. What kind of books you would recommend, because our friends in the chatter eager for reading recommendations. And what you think the role of literature is today with restoring American constitutionalism? Or go in a different direction if you prefer, but the first thoughts. Alison to you?
Alison LaCroix: [00:49:38] Yes. Well, I would say picking up just where you left off Jeff. I do think deep reading and I think deep reading of things set before the 20th or even 21st century. I mean, I, as you know, when you come to a lot of these conversations as a historian and a lawyer. One is, I am struck often by the sense that there, there are helpful ways of thinking about these questions. Not lessons and the kind of very pat sense, but the sense of there have been very difficult problems that are, that may be very different, but they are worth kind of thinking about and studying. Again, not necessarily as lessons maybe as, maybe as what not to do, but still just, I think broadening the kind of temporal horizon.
So, I think, you know, reading things or reading about the kind of pre- say, you know, pre-1930s or earlier, whatever people find interesting. But, and there, and the other thing I'll say on that is more and more, I think reading about that period shows us just what a wealth of wonderful things, literature there is from these earlier periods.
I mean, many of the novels that story or Marshall or other people were reading were bestsellers in their time. And so Mariah Edgeworth, Francis Burney as closely contemporary or virtual contemporaries to Jane Austen. But also sort of more obscure books that people just don't read as much anymore.
So, there's this sense sometimes that when does American literature begin? But I think we've, we've mentioned so many, many wonderful things. And again, not because that was the great era and everything since has been declined, but more to take things outside the framework of the history that many people are a little more familiar with.
And the final thing I'll say is just I think that something that has been gained is a questioning of what the idea of universality is. So, not that we need infinite fragmentation, but that the universality of the supposedly quote unquote great American novel of the mid 20th century, I think speaks to a pretty narrow slice. Not that one has to read books to recognize one itself only, but when the claim is made, this is a universal description treatment and everything else is niche, I think we lose something. So I think setting to one side, maybe the quest or raising the level of generality about what is universal.
Well it's questions of democracy, "we the people" participation, what is the union? And that broadening, I think is welcome.
Jeffrey Rosen: [00:52:23] Thank you very much for that. Bernadette, some final thoughts from you.
Bernadette Meyler: [00:52:26] Yes. So I do think deep reading is extremely important and I actually want to go out on a limb and suggest another reading practice that we could kind of bring back from the earlier period in the founding era, which I think actually has been brought back a bit in the pandemic, which is reading aloud.
So there are an increasing number of groups online where people are reading plays out loud with each other. I think that practice of collective reading and collective discussion that really helps to foster a conversation. We have already, sort of, constitution reading groups, but why not have play reading groups going side-by-side with that, and then open up the opportunity for a broader conversation about the issues with them wonderful materials.
Thank you so much for that. And I'm, and I have to share that last week, Akil Amar, my great teacher, broke my heart when he said his own students at Yale law school are not reading deeply today.
And I thought, if that is the case, then what is the hope for the future of those who are less privileged and less advantaged? But you give us superb practice, which is by reading together, by taking the primary sources and reading them out loud, together, grow in wisdom and ensure the focus that many of us have lost the habit of doing with our browsing and so forth. So thank you for that very practical suggestion. Catherine, the last word in this superb discussion is to you.
Catherine Zuckert: [00:53:57] Okay. So I think I'll simply say that this is not my forte, but I think that not just reading, but, reading in the context of a discussion with other people, somehow, if literary works raised question. But I also think that maybe one of the most encouraging developments is that poetry is becoming popular again.
And I was, when I was young, not particularly a fan of Walt Whitman, but it seems to me that his poem is as inclusive as possible. And it's also such a celebration of democracy and it's, his poetry is beautiful. Beautiful when it's read out loud and we probably should be reading more out loud.
Here, here! Well, we will do that here at the Constitution Center. We'll play our part in continuing to convene wonderful discussions like this one, which just shed so much light and truth. And we are also putting online a new founders library of great primary texts from American history, including the classical texts that inspired the founders, documents from the founding era, documents from the second founders, the women's sufferage, the civil rights era. You have all inspired us to include the literature and then we'll reconvene and we will read it aloud!
Dear friends, thank you for joining for taking an hour in the middle of your day to educate yourself and continue this learning. With deep reading and discussion and growing in wisdom and light, Alison LaCroix, Bernadette Meyler, and Katherine Zuckert for having inspired all of us to read. Thank you so much.
Jackie McDermott: [00:55:42] This episode was produced by me, Jackie McDermott, along with Tanaya Tauber and John Guerra. It was engineered by Kevin Kilbourne, please rate, review, and subscribe to Live at the National Constitution Center on apple podcasts. Or follow us on Spotify. If you're enjoying the show, please leave us a rating and review it helps new listeners find out about the show and decide to tune in and as always join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
