Law and the Modern Mind

Susanna L. Blumenthal

• Publisher: Harvard University Press
• Year: 2016
• ISBN:
  9780674495531
• Topic: Law
• Subtopic: Legal History
• Index: Law

In postrevolutionary America, the autonomous individual was both the linchpin of a young nation and a threat to the founders' vision of ordered liberty. Conceiving of self-government as a psychological as well as a political project, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry. Susanna Blumenthal probes the assumptions and consequences of this undertaking, revealing how ideas about consciousness, agency, and accountability have shaped American jurisprudence.Focusing on everyday adjudication, Blumenthal shows that mental soundness was routinely disputed in civil as well as criminal cases. Litigants presented conflicting religious, philosophical, and medical understandings of the self, intensifying fears of a populace maddened by too much liberty. Judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Determining the threshold of competence was especially vexing in litigation among family members that raised profound questions about the interconnections between love and consent. This body of law coalesced into a jurisprudence of insanity, which also illuminates the position of those to whom the insane were compared, particularly children, married women, and slaves. Over time, the liberties of the eccentric expanded as jurists came to recognize the diversity of beliefs held by otherwise reasonable persons.In calling attention to the problematic relationship between consciousness and liability, Law and the Modern Mind casts new light on the meanings of freedom in the formative era of American law.

PART ONE

The Testimony of Consciousness

WITH MOUNTING DESPAIR about the state of the union, Benjamin Rush penned a letter to John Adams in November 1812 about a recent dream of his, which was occasioned by the hapless manner in which his fractious countrymen were prosecuting a second war for independence from England. In the dream, Rush fancied he stood “elevated upon a bench in our Hospital yard surrounded by between 60 and 70 of my lunatic patients” whom he proceeded to lecture on matters of national security. “While I was speaking,” Rush recounted, “one man came up to me and said, ‘I am Solon,’ a second said he was Wm. Penn, a third said he was Numa Popillius, and all of them asked me how I dared to attempt to instruct them upon the means of defending our country.” Without awaiting an answer, the crowd of patients unceremoniously turned on their keeper: “A 4th spat in my face, a 5th hissed me, a 6th called me a fool, a 7th said I was crazy, an 8th took up a stone and threw it at me.” The imminence of this assault jolted Rush back into consciousness, with certitude “that such would have been my treatment in the House of Representatives in Washington, had I addressed them upon the same subject and had they not been restrained by the habits of civilized life.”¹

Though he spoke of dreams as “nothing but incoherent ideas” and attributed them to morbid action in the blood vessels of the brain, Rush nonetheless found meaning in their contents, routinely drawing insights and intimations from them about himself as well as his patients, his fate as well as that of the American republic. Nor was it only while sleeping that he saw inhabitants of this new polity as insane persons. In the fall of 1787, as the delegates to the Philadelphia Convention were finalizing the framework of the new government, he was preparing a medical essay entitled “An Account of the Influence of the Military and Political Events of the American Revolution upon the Human Body,” which documented the novel mental diseases contracted by those who lived through this violent upheaval. Those on the losing side were prone to a type of melancholy Rush termed “Revolutiana,” brought on by the loss of power, status, property, and friends, and the accompanying “neglect, insults, and oppression” they experienced during the course of the military conflict and its aftermath. The contrastingly healthy effects of the war on the friends of the Revolution were exemplified by “hysterical women,” who were cured by devoting themselves to “the successful issue of the contest.” Yet the “uncommon cheerfulness” exhibited by many victors was also a worrying sign, especially as their “passion for liberty” was now redirected into trade and speculation. “It unhinged the judgment, deposed the moral faculty, and filled the imagination, in many people, with airy and impracticable schemes of wealth and grandeur” that “could not be removed by reason or restrained by government,” effectively constituting “a species of insanity which I shall take the liberty of distinguishing by the name of Anarchia.” This medical diagnosis was intended to make a political point that Rush pressed with ever more urgency in the 1780s. “The minds of the citizens of the United States were wholly unprepared for their new situation,” he observed, emphasizing time and again that the Peace of 1783 “did not terminate the American revolution”—that “it remains yet to establish and perfect our new forms of government, and to prepare the principles, morals, and manners of our citizens for those forms of government after they are established and brought to perfection.”²

The apprehensions about mental disorder that this physician-statesman channeled into his life’s work mark him as a transitional figure who vividly illustrates the sorts of challenges faced by revolutionary Americans as they struggled to make sense of the liberty they had wrested from the English crown. Patriots who had fought a war to secure the “right of self-government” betrayed a pronounced uneasiness about its exercise, commonly registering concern that “the people may come to forget that part of self-government which relates to being governed, and only remember that part which consists in governing.” Indeed, the specter of a will out of control and of a people mad with freedom haunted the cultural landscape of the early republic as Americans grappled anew with age-old questions about the moral agency and accountability of humankind. Having declared independence from England in ambiguous language, this severing of ties rendered “necessary” by “the course of human events,” the former colonists soon fell to arguing about the significance of the words they had used to justify their actions. Though the sovereign individual was commonly cast as the source of all legitimate authority and the essence of American identity, this expansive conception of the autonomous self was as problematic as it was pervasive in the discourse of the era. Freedom of the will stood at once as a self-evident truth, a point of theological and philosophical controversy, and an ever-present threat to the visions of ordered liberty projected by the nation’s founders. Self-consciously aware of the novelty of their undertaking, they reached for a new word with which to express the perplexities of their situation and talked about self-government as both a psychological and a political project. That word was responsibility.³

Coming into currency in the aftermath of the Revolution, the abstract noun responsibility made some of its earliest recorded appearances in the debates between Federalists and anti-Federalists over the ratification of the Constitution. It was used in this political context in two main senses, which were given their most prominent expressions in The Federalist by Alexander Hamilton and James Madison. In the course of demonstrating that “an energetic executive” was not only consistent with “the genius of republican government” but necessary to its proper maintenance in Federalist 70, Hamilton contended that this end was best achieved by vesting power in “a single hand” to ensure “a due dependence on the people, and a due responsibility.” A plurality in the executive was likely to yield the opposite result, for it would be all but “impossible, amidst the mutual accusations, to determine on whom the blame or punishment of a pernicious measure . . . ought really to fall,” thus leaving the public “in suspense about the real author.” Aiming to show that the Senate was likewise accountable to the people, Madison’s Federalist 63 defended the somewhat paradoxical proposition that it was the relative infrequency of elections of its members, as compared with the House of Representatives, that “produces this responsibility.” Yet the word took on a different meaning as Madison elaborated his argument: “Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to the operations of that party, of which a ready and proper judgment can be formed by the constituents.” On this rendering, responsibility meant more than simply being answerable to the electorate. It also carried with it the notion of being able to respond, of having the ability to understand and act upon a considered sense of the public good, which Madison thought might well entail protecting the people themselves from “their own temporary errors and delusions.”⁴

This positive sense of what it was to be a responsible agent of the people was widely assailed as a veiled form of aristocracy by anti-Federalist writers, many of whom cast the Constitution’s “scheme of power and office-making” as a mortal threat to republican liberty. In view of what was known about human nature, and the limitations of reason even in the “best” of men, greater restraints had to be imposed upon those given the “reins of authority” in order to contain their “lust of domination” and prevent those they were supposed to represent from being reduced to “a servile and depraved creatures.” The “responsibility” of which the anti-Federalists spoke was almost always that of the elected to their electors, which could only be ensured by keeping the government close to “the common people,” by enabling them to choose as their representatives “men from among themselves” who “think as they think, feel as they feel,” who were “genuinely like themselves.”⁵

The divergent conceptions of responsibility and republicanism articulated in the ratification debates were clearly animated by concerns about bounding and safeguarding liberty in a political sense. But the metaphysics of liberty were hardly cordoned off from consideration as postrevolutionary Americans contended about “the degree of freedom and self-government in which a society may venture to leave its individual members.” To the contrary, politics were inextricably bound up with theology and psychology in the statesmen’s elaborations of what it meant to institute “free and responsible government” upon the principle of “popular sovereignty,” their disputations about constitutional design reflecting varying estimations of human potential once released from the artificial constraints of traditional authorities, belief systems, and social structures. The unifying rhetoric of the patriots all too quickly became a source of conflict and division in the aftermath of the Revolution, with controversy about the very meaning of freedom only intensifying after the ratification of the Constitution. Indeed, this discourse about political liberty became ever more entangled with and complicated by the writings of warring theologians and philosophers who were endeavoring to reconcile the Enlightenment “science of man” with the orthodox Calvinist doctrines of innate depravity and divine determinism. These abstruse and often vituperative exchanges about the metaphysics of moral government conveyed the hopes and fears of a founding generation acutely conscious of its unprecedented situation at the beginning of an entirely new chapter in “the history of man.” The forces of liberal humanism would ultimately prevail in nineteenth-century America, as clerics across denominational lines joined with other learned professions in forging a new consensus about the mind of the moral agent that was grounded in the Common Sense realism of the Scottish Enlightenment. Yet paradoxically, the strongest defenders of free will as a metaphysical matter shaped up to be among the most “anxious controllers” in this democratizing society, remaining as worried as Benjamin Rush about how unprepared American minds were for the challenges of their new situation.⁶

The two chapters that comprise this first part of the book, “The Testimony of Consciousness,” chronicle the efforts on the part of lawyers, moralists, educators, and doctors in the early republic to contain the problem of the “untrammeled self” through various intellectual and institutional means. As they cast about for solutions, Chapter 1 shows, many were drawn to the writings of the Scottish Common Sense philosophers, whose psychological models offered assurances that the capacity for self-government lay within the mind of every individual. Proceeding by way of introspection, the Common Sense philosophers identified three distinct sets of mental faculties: the “rational” powers of intellect, will, and moral sense; the “animal” passions, desires, and appetites; and the “mechanical” habits and instincts. While typically arranging them in hierarchical order so as to suggest that reason ought to rule over the other faculties, the Common Sense philosophers emphasized that this “balanced character” could be attained only through concerted effort; it was imperative that the faculties be properly cultivated in childhood by parents and teachers and further developed by means of “self-culture” over the course of adult life. At once descriptive and prescriptive, the Common Sense model of the mind projected an ideal of “balanced character” that individuals were capable of and therefore accountable for achieving. This mental model was inculcated by various means in antebellum America, ranging from college textbooks to conduct manuals, which collectively promoted an ethic of self-improvement, fostering the fixity of moral character by teaching the individual to become “a law unto himself.” As its leading exponent, the religious liberal William Ellery Channing, famously put it in a widely reprinted 1838 lecture on the subject, “Self-culture is possible, not only because we can enter into and search ourselves. We have a still nobler power, that of acting on, determining, and forming ourselves. This is a fearful as well as a glorious endowment, for it is the ground of human responsibility.”⁷

Although advice writers presented a fairly uniform front, theirs was “a fragile fortress,” for their ways of talking about the powers and potentialities of the individual “rested upon introspection,” as Henry May has observed, “and introspection is difficult to control.” Having explained and justified these changes by reference to the commonplaces of Common Sense, they increasingly found themselves on the defensive, as the vocabularies of the self they put into circulation were infused with new meanings and turned to a variety of ends that were not easily harmonized with one another. To be sure, the advice writers who peddled their wares in this expanding market society continued to promote self-discipline among aspirants to the middling classes, projecting a gendered ideal of propertied independence, a well-ordered society composed of male-headed households, enjoying “a competency” in the economic sense: the material means to make a living “without superfluity” or the need to work for others. This message was reinforced by politicians of both Jacksonian and Whig persuasions, for in the very act of trading the insults of “aristocrat” and “leveler” they converged a common precept of equal opportunity, which entailed a relative but not absolute equality of condition, so that success in life was determined by talent and industry rather than birth or patronage. Yet this egalitarian ethos contained the seeds of its own destruction, as Tocqueville trenchantly observed, for it paradoxically awakened towering ambitions and insatiable desires as it “opened the door to universal competition,” which explained “this strange unrest of so many unhappy men, restless in the midst of abundance,” apparently unable to “enjoy their independence without anxiety and without impatience.” Nor was he first to notice the problem. By the time his travelogue was published, it had become almost proverbial among Americans themselves that “the very freedom of our institutions, by creating universal strife, and increasing the mental activity of all classes, causes much insanity.” In other words, Rush’s nightmare vision of anarchia seemed on the verge of becoming a lived reality in antebellum America, calling into question the moralists’ teachings about individual freedom and responsibility and prompting reconsideration of the jurists’ ways of modeling legal personhood as well as the philosophical premises upon which they were built.⁸

As the attribution of responsibility was made to turn more directly upon the moral ability of humankind, an increasing degree of scrutiny was trained upon those whose powers of reason and self-government appeared deficient. The philosophers’ arsenal of explanations for departures from moral and legal norms, citing failures in mental cultivation and self-discipline, or pointing to corrupting influences in the surrounding environment, seemed insufficient, especially in extreme cases. Alternative explanations were soon supplied by a new band of medical men, specializing in the diagnosis and treatment of “mental alienation.”⁹ As Chapter 2 illustrates, their psychological models supplied reasons for thinking human deviance was often—but certainly not always—the product of mental disease that rendered its victim less than fully responsible for his or her behavior. These medical doctrines were presented and debated in the new literature of medical jurisprudence, through which it is possible to trace the convergence of doctors and lawyers upon a problematic yet surprisingly serviceable way of defining insanity as a matter of law: a radical and unaccountable change in character. While this formulation served to clarify the nature and extent of responsibility, the doctrinal case studies that comprise Part Two of this book demonstrate that these limits remained eminently contestable, owing in no small part to the fact that the law’s definition of insanity essentially begged the question of why an individual ought to be held accountable for his or her character in the first place.

CHAPTER 1

Common Sense and Common Law

The art of ...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Introduction
• Part I. The Testimony of Consciousness
• Part II. The Mind in Issue
• Conclusion
• Notes
• Acknowledgments
• Index