[Marxism] Fwd: H-Net Review [H-Law]: Rosenblum on Nelson, 'The Royalist Revolution: Monarchy and the American Founding'

Andrew Stewart hasc.warrior.stew at gmail.com
Wed Oct 12 17:29:58 MDT 2016


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From: H-Net Staff <revhelp at mail.h-net.msu.edu>
Date: Tue, Oct 11, 2016 at 3:39 PM
Subject: H-Net Review [H-Law]: Rosenblum on Nelson, 'The Royalist
Revolution: Monarchy and the American Founding'
To: H-REVIEW at h-net.msu.edu


Eric Nelson.  The Royalist Revolution: Monarchy and the American
Founding.  Cambridge  Harvard University Press, 2014.  400 pp.
$29.95 (cloth), ISBN 978-0-674-73534-7.

Reviewed by Noah A. Rosenblum (Yale University)
Published on H-Law (October, 2016)
Commissioned by Charles L. Zelden

Of Kingship and Counselors: The Royalist Revolution in Legal History

Eric Nelson has written a book that has made a lot of people mad.[1]
Some, in frustration, have claimed it has nothing new in it. Others
that it is all novel, because nearly fictional. A few allege that he
has misconstrued his evidence. At least one accuses him of hubris.

The brouhaha has yet to come to law schools, but when it does, it
will be bigger.[2] Nelson's revisionist account takes aim at the
central intellectual story of the American Revolution, the
"Republican Synthesis." So doing, it strikes at the foundation of
much original work in law and history of the past thirty years. The
story it sets up in its place gives a historical grounding to
conservative legal positions many liberal law professors oppose.
Nelson's book thus raises some distinctive questions for the legal
academy and the historians based there. How, exactly, should this
book be received?

_The Royalist Revolution_ is so unsettling because its claim is so
bold. Most of us are taught that the American Republic was born in a
revolt against monarchism. Nelson believes this is wrong. Far from
being antimonarchist, Nelson claims, key revolutionary figures were
arch-Stuart reactionaries.

Nelson does not reject the received story completely. He agrees with
the standard account that, before the late 1760s, North Atlantic
colonists tended to adopt a "Country whig" understanding of the
British Empire's history (p. 21). Accordingly, they believed that the
British king had corrupted the ancient constitution by arrogating to
himself Parliament's powers. The traditional narrative correctly
claims that the colonists were, initially at least, on guard against
further centralization of government authority or expansions of royal
prerogative.

The standard account goes astray, Nelson believes, when it gets to
the imperial crisis. As every student of American history knows, the
British imposition of taxes on the North American colonies in the
second half of the eighteenth century did not go over smoothly.
Initially, in line with whig celebrations of Parliament, North
Atlantic colonists recognized Westminster's right to tax colonial
possessions. Objections to duties like the Stamp Act sounded less in
general incapacity than particular overreach: of course Parliament
could impose taxes on the colonies, just not these particular taxes
(p. 32). In the late 1760s the British parliament tweaked its acts to
meet colonial objections. The colonists, however, were no more
receptive to the taxes than they had been. Instead, they changed
their arguments. Where before they had recognized, at least in
principle, Parliament's right to impose some kinds of taxes on the
colonies, they now rejected Parliament's power to tax them outright.
Taxing the colonies, they asserted, was just never a power that
Parliament had had.

They bolstered their argument by turning to history. In the early
seventeenth century, James I and his parliament had locked horns over
the economic regulation of the North Atlantic territories. The king
had claimed a royal prerogative to govern them free from
parliamentary interference. "Virginia is not annex't to the Crowne of
England," his secretary of state had declaimed, "And therefore not
subject to the Lawes of this [parliamentary] Howse" (p. 9). In 1769,
an obscure pamphleteer named Edward Bancroft refitted this old line
of argument to the colonial cause. The North Atlantic colonies, he
maintained, were the product of contracts between the Crown and
individual subjects; they had never become part of the realm proper.
Parliament, then, should not enter into their government. Bancroft's
pamphlet was widely read--it would become "the most influential
patriot text of the early 1770s"--and his argument soon became
canonical among a certain set of colonial patriots (p. 43).

This, Nelson maintains, is the story that the standard account leaves
out. These patriots did not remain whigs, but, at decisive moments,
embraced royal rule. After all, Bancroft's argument did not place the
colonies completely outside of British power. It simply moved them
beyond the reach of Parliament by ensconcing them firmly under the
authority of the king. Colonists who followed Bancroft--influential
revolutionary leaders as varied as James Iredell of North Carolina,
Alexander Hamilton of New York, and Moses Mather of
Connecticut--similarly maintained that, as James I had argued, the
colonies were connected to the empire not through Parliament, but
through the person of the king alone. To accept this line, Nelson
observes, was to subscribe to a (by then) outdated, reactionary
understanding of the power and place of the British monarch in the
empire--one so outré that the colonists' British counterparts were
truly amazed to hear them make it.

In adopting this "patriot Royalist" approach, colonial leaders gave
up on most of their earlier whig commitments about what constituted
legitimate government. For whigs­, Parliament was the true
representative of the nation, since it reproduced within itself the
people as a whole. As long as the parliament was a good "'image' or
'likeness'" of the people, it could be representative of the whole
people "virtually," and so lay claim to their legitimacy (pp. 72-73).
Any expansion of royal authority at Parliament's expense was
illegitimate on its face. This was part of the argument Parliament's
supporters had used against the Stuart kings over a century before.

The Royalists, Nelson reminds us, had not lacked a rejoinder, which
the colonists now made their own. The parliamentary theory of
representation had its problems: there was no promise that Parliament
would be a good likeness of the people and, even if it were, the
parliamentary theory could not guarantee that Parliament would act in
a way that aligned with the interests of the people it was supposed
to represent. Parliament, Stuart supporters charged, was only ever a
partial likeness anyway, and "likeness" was not a solid foundation to
ensure that government did not act tyrannically. Much safer to trust
in the king. The monarch, unlike Parliament, spoke for the nation
entire. He alone was peculiarly invested in the kingdom as a whole.
And, unlike Parliament, whose legitimacy depended on its being
genuinely representative, the king derived his legitimacy directly
from the constitution of the empire. He was, quite simply, authorized
to rule. Patriot Royalists exchanged their whig theory of
representation for what Nelson calls this Royalist theory of
"authorization," and so made their peace with monarchy.

According to Nelson, this patriot Royalist argument did not
predominate throughout the whole revolutionary period, but its most
influential supporters never abandoned it, and it did achieve
dominance at two critical moments: in the first phase of the imperial
crisis, from the time of the Townshend Duties to just before
independence, and then again in the 1780s, at the time of the
Constitutional Convention. In the later chapters of his book, Nelson
traces this rise and fall and rise again. The Stuart "spirit of 1775"
died out when, in 1776, the colonists reached out to George III for
protection, and he refused to endorse their reactionary views (pp.
63-64). Ironically, it was Thomas Paine who, in _Common Sense_, would
prepare the ground for Royalism's return, by turning colonial
antimonarchism into mere opposition to the title of "king" (p. 129).
In Paine's aftermath, Nelson argues, Americans could be reconciled to
kingly office as long as it was called by another name. When,
beginning with the new Massachusetts Constitution of 1780, popular
sentiment turned against the radical whig state constitutions of the
immediate post-independency, the Royalists were ready. They
introduced kingly prerogatives into state governorships and, at the
Constitutional Convention, into the presidency of the new federal
republic. The resultant framework of the American state, according to
Nelson, owes more to this Royalist intervention than whiggish
republicanism. The new United States would be "a 'Republican _form_
of government founded on the principles of monarchy'" (p. 183,
quoting Mercy Otis Warren).

Nelson's provocative argument sits at the intersection of two
historiographical streams. Thematically, it fits into a rich
literature on the intellectual history of the American Revolution.
Since at least Bernard Bailyn's pioneering study of North Atlantic
pamphlet literature, scholars have wrestled with the political
thought of the late colonial period under the sign of
"republicanism"--a political theory built around representative
assemblies, civic virtue, and fear of political corruption. It has
been a very productive paradigm. Intellectual historians have debated
just how republican the founders were, who else at the time might
have been republican, whether republicanism endured, what replaced
it, and so on. Nelson's book returns to Bailyn's original approach
but takes the story in a different direction. From his reading of the
pamphlets, Nelson concludes, it is not republicanism we should have
been talking about, but Royalism.

This takes us to Nelson's method. Like Bailyn, Nelson builds his
argument through the careful analysis of texts, mostly pamphlets and
other published writings. His book, however, betrays an unusual
discipline. _The Royalist Revolution_ is a textbook execution of a
style of analysis that has come to be known as the Cambridge school
of intellectual history. Like other Cambridge school practitioners,
Nelson analyzes his sources as parts of broader arguments, and
understands those sources' meanings primarily by reference to the
localized debates into which they fit. His book masterfully
reconstructs those debates' evolutions, tracing arguments as they get
picked up and mutate across actors, times, and places.[3]

Nelson's method is the foundation for much of his book's strength.
Even his critics have had to recognize the complexity and richness of
the tradition he has uncovered.[4] Historians had long known that,
for a few years before independence, revolutionaries "flew to the
king." But scholarsdid not generally know how to think about this.
Nelson's account makes sense of it. He reveals just how sophisticated
these patriot Royalist arguments were, and suggests their structuring
logic. He shows how they began before and endured after independence
itself. And he discovers that they spread far more widely--and were
more widely shared--than ever thought. His careful analysis
reconstructs a misunderstood discourse, and shows that it had heft.

But that very method is also at the root of many scholars'
criticisms.[5] Much of the disagreement over _The Royalist
Revolution_ has centered on how seriously to take the tradition
Nelson reconstructs. There were, after all, an awful lot of pamphlets
out there. Some critics have been uncertain that the particular
arguments of patriot Royalists can bear the explanatory weight Nelson
puts on them.[6] Nelson, in response, has pointed to the dominance of
patriot Royalist arguments in the pamphlet literature at key moments,
and rightly noted that these arguments were adopted by influential
others. But some critics have remained unconvinced. Royalist
arguments may well have predominated, they concede, and even been
espoused by important figures. But the arguments were never in good
faith, and it would be wrong to take them seriously.[7] Nelson has
his reasons for disagreeing--many patriot Royalists continued to make
their arguments even when, after 1776, those arguments were out of
favor, suggesting that they genuinely believed them--but he is
handicapped by his method. It is simply a premise of his approach to
read the patriot Royalists as if their texts meant what they said.[8]
It is difficult, working from that assumption and on the basis of
textual analysis, to refute the claim that they were mostly
forensic.[9]

This points to a more profound methodological problem--call it the
mythology of logics. Nelson's analysis takes place largely at the
level of texts, but seeks, in the end, to explain events. Texts, as
Dominick LaCapra reminds us, can be events. But the logic of an event
and the logic of a text are not the same. When texts function as
political ideas, motivating actors, it is not clear what logic we can
or should expect of them. This becomes a problem, for Nelson, when he
advances his own argument by appealing to the necessary logic of
certain patriot Royalist propositions. He claims that the constraints
of logic limited how patriot Royalists could respond to
parliamentarian theories, that arguments were shaped by the need to
avoid incoherent positions. Of course, sometimes, some people strive
for coherence and allow themselves to be reigned in by logic. But is
this always true in the realm of political ideas? The contemporary
reader can wonder.

Intellectual historians of the law, I suspect, have more experience
with this problem than others. In reading any legal opinion
historically, there is always some question of how seriously to take
its stated rationale and the level of logical coherence or rational
reconstruction we should expect it to bear. In hindsight, we are all
realists. Nelson, without clear justification, treats his sources
with remarkable formalism.

For the legal historian, there is one additional difficulty. Nelson's
own intellectual anxiety is about anachronism. He wants to assuage
the ontological fear that a thing might not be real if it was not
named or identified distinctly at the time (p. 240n32). This is not a
problem for legal historians. Legal history works with anachronisms
all the time. Indeed, the operationalization of history, implicitly
or explicitly, is one of the conditions of doing legal history. That
operationalization often requires reframing the past, naming and
grouping in ways past actors may not have done themselves. The legal
historical challenge is not to avoid such anachronism, but to figure
out how to do it well. How can past history be operationalized in a
way that is fair and just--to the sources and to us?

>From this angle, Nelson's problem is not ontological, but chemical.
His analysis makes his history too pure.[10] His story is full of
clear concepts and bright-line oppositions: the parliamentary theory
vs. the Royalist theory, election authorization vs. consent
authorization, exclusivist republicanism vs. neo-Roman republicanism
.... In a complicated story, these carefully drawn categories help us
keep things straight, letting us follow arguments as they are broken
into their component parts, revised, and remixed. The historian might
wonder if those categories are real. But the legal historian may be
more bothered by how easily--and dangerously--these categories can be
put to new uses.

Nelson's history opens itself to two misapplications in particular.
First, it risks suggesting that things were clearer in the past than
they actually were. A reader could walk away from Nelson's book
believing that the presidency was simply a substitute for the British
king and should therefore be understood today as a monarch, with a
monarch's power and prerogatives. This is closely connected to a
second misreading the book may perpetuate, a version of the genetic
fallacy. A reader could be forgiven for believing, after reading
Nelson's book, that as the presidency was shaped by patriot Royalist
arguments, it is what the patriot Royalists wanted and intended.

Nelson is guilty of neither mistake himself. While he draws clear
lines, he never suggests that the polyvalent was singular. From the
opening pages of his book, he reminds readers that _The Royalist
Revolution_ focuses only on one tradition among many, a certain set
of actors among all the revolutionaries, a limited number of themes
amid the many that could be picked out. It does not presume to be a
"general history" of the Revolution (p. 9). Nelson repeatedly shows
how the thought of particular patriot Royalists departed from the
general tenets of patriot Royalism. And if he sometimes glosses these
individuals' deviations as eccentricities, this is a small price to
pay for the lucidity of his analysis. At the same time, Nelson's deep
historicism militates against simplistic presentism.

But it is not Nelson we have to worry about. We can fear that his
intellectual safeguards may not survive as his work is assimilated
into law. And what is left will cause debate. Lawyers will want to
know why, for example, Hamilton's putative Royalism does not settle
the question of the reach of the modern presidency; why Adams's
embrace of a strong governor in Massachusetts does not mean that the
legislature has a diminished role in checking a contemporary
executive; or why some patriots' embrace of an authorization model of
self-government does not vitiate a democratic commitment to
representation as "fair likeness." Nelson has answers to give. And it
is hardly his fault that he has written a book that will be easy for
others to abuse. But the book will be abused, and his answers are
unlikely to carry through law school halls. It will fall to legal
historians to do the explaining.

Be on notice, then, historians of law. And be thankful for the book,
even as you prepare for the coming storm. _The Royalist Revolution
_will be vulgarized and weaponized and deployed around, before too
long.[11] But in its detailed history and careful analysis, it
provides resources to respond. Like a good lawyer, Nelson will turn
up on both sides of the argument. For that we can be upset, but also
grateful.

Notes

[1]. I discuss some of the more significant reviews below. The most
incendiary review is probably Gordon S. Wood, "Revolutionary
Royalism: A New Paradigm?," _American Political Thought_ 5, no. 1
(Winter 2016): 132-146. Nelson's lucid reply, "Flipping his Whigs: A
Response to Gordon S. Wood" is available at his website,
http://scholar.harvard.edu/files/ericnelson/files/nelson_
response_to_gordon_s_wood_.pdf.
Not all the critical reviews are angry. One of the best and most
recent is written with composure and appreciation. Eliga H. Gould,
"Royal Touch: What Charles I Can Teach Historians of the American
Revolution," _Reviews in American History_ 44, no. 2 (June 2016):
235-240.

[2]. As of this time, nearly two years since the publication of _The
Royalist Revolution_, it has been reviewed only sparsely in the legal
literature--in the _Harvard Law Review_, the _Tulsa Law Review_, and
as part of a joint review in _Constitutional Commentary_. Its
influence is spreading, though. It has appeared in three law review
articles since the spring and was cited in the historians' brief in
_Arizona State Legislature v. Arizona Independent Redistricting
Commission_ from the October 2014 term.

[3]. _The Royalist Revolution_ is a kind of homage to Quentin
Skinner, one of the Cambridge school's most influential founders and
Nelson's mentor. Nelson dedicates his book to Skinner, praises
Skinner in his footnotes, and ends his book in an echo and reply to
the conclusion of Skinner's _Liberty before Liberalism _(Cambridge:
Cambridge University Press, 2012).

[4]. See, in particular, Jack N. Rakove, "Let George Do It: A Royal
Road to American Independence?," _The Weekly Standard_ (November 3,
2014).

[5]. Michael Hatten is illustrative. See his review for _The Junto_,
https://earlyamericanists.com/2015/01/12/reading-the-field-
from-a-book-some-thoughts-on-eric-nelsons-the-royalist-revolution/.

[6]. See, for example, John W. Compton, "Eric Nelson: _The Royalist
Revolution_," _American Political Thought_ 4, no. 2 (Spring 2015):
322-25, 323; Tara Helfman, "Crown and Constitution," _Harvard Law
Review_ 128, no. 8 (June 2015): 2234-2254, 2252. Nelson has responded
to Helfman in print. Eric Nelson, "A Response to Professor Helfman,"
_Harvard Law Review Forum_ 128, no. 8 (June 2015): 354-358.

[7]. For sophisticated criticisms along these lines, see John Brewer,
"Were Top American Leaders ... Royalists?," _New York Review of
Books_ (October 22, 2015); Robert W. T. Martin, review of _The
Royalist Revolution_, _Journal of the Early Republic_ 35, no. 4
(Winter 2015): 651-654, 653.

[8]. See also Nelson's tellingly entitled reply to his critics in a
symposium on an early version of the book's argument, "Taking Them
Seriously: Patriots, Prerogative, and the English Seventeenth
Century," _William and Mary Quarterly_ 68, no. 4 (October 2011):
588-596.

[9]. But not, of course, impossible. Nelson shows as much, in his
reading of _The Federalist_, where he brilliantly and convincingly
demonstrates that Hamilton's arguments are in bad faith, relying on a
mix of textual and historical analysis (p. 218).

[10]. This is a problem for John Brewer too. _Supra_ note 7.

[11]. Daniel N. Hoffman expects the same. See his "Constitutional
Faith, or Constitutional Stealth? The Puzzling Resurgence of American
Monarchism," _Constitutional Commentary_ 30, no. 3 (Fall 2015):
611-37, 618-619.

Citation: Noah A. Rosenblum. Review of Nelson, Eric, _The Royalist
Revolution: Monarchy and the American Founding_. H-Law, H-Net
Reviews. October, 2016.
URL: https://www.h-net.org/reviews/showrev.php?id=42926

This work is licensed under a Creative Commons
Attribution-Noncommercial-No Derivative Works 3.0 United States
License.

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Best regards,

Andrew Stewart



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