Edward M. Bassett: Zoning: The Laws, Administration, and Court Decisions During the First Twenty Years. New York: Russell Sage Foundation, 1936.

Edward M. Bassett: The Master Plan: With a Discussion of the Theory of Community Land Planning Legislation. New York: Russell Sage Foundation, 1938.

Edward M. Bassett: Autobiography of Edward M. Bassett. New York: The Harbor Press, 1939.

 

‘Urban planning’ dates back at least as far as the Sumerian city of Urdu in the fourth century B.C. Among the Greeks, Hippodamus of Miletus was called “the father of city planning,” having given Pericles a design for reorganizing the Athenian port, Piraeus, and later redesigning the city of Rhodes. In Politics II.8 Aristotle criticized him not for his planning efforts but for proposing that citizens be rewarded for proposing innovations to the laws that were then adopted—this, on the grounds that, unlike arts, laws require stability in order for citizens to habituate themselves to follow them. It is easier to learn to navigate a new set of streets than it is to learn to obey a new set of laws, and while innovation may earn respect for an artist, novelty does not earn respect for laws, or for the rule of laws. In Aristotle’s estimation, in treating lawgiving as if it were an art, Hippodamus carried his enthusiasm for reform too far, too fast.

As one might anticipate, Germany led the way toward the professionalization of municipal planning in the modern state in the 1870s. American reformers, closely followed by American Progressives, took up the cause a generation later. Nineteenth-century American cities had seen residential and commercial buildings with multiple stories, darkening the streets and interfering with the circulation of air, along with factories situated next to residences, polluting the already stagnant air. The fundamental idea of zoning was land use separation, intended to keep people at a relatively safe distance from the smoke and noise of industry; residential ‘zones’ were distanced from industrial ‘zones.’ To this was added concerns about high-rise office and apartment buildings, which blocked air and light, a matter of public health. 

Although Los Angeles was the first major city to enact zoning laws in some of its neighborhoods, in 1904, New York City saw the first city-wide system of zoning. Wealthier residents were fleeing the city for the suburbs, diminishing the tax base. The zoning law’s co-author, attorney Edward M. Bassett, eventually called “the father of American zoning,” chaired the city’s “Heights of Buildings Commission.” His solution to the problems caused by unregulated ‘development’ was not to limit the heights of buildings but to impose setbacks, so that the towering buildings could not occupy more than a certain percentage of the property upon which they were situated, thus enabling air to circulate and sunlight to reach the streets and sidewalks. 

To enact a law is one thing; to administer it, another. Cities established planning commissions to oversee the implementation of the new laws. To guide commission actions, the notion of a ‘master plan’ for the city quickly gained favor, and Bassett again moved to the forefront. The “burning issue,” he writes, is a matter of definition, of establishing limits, of determining “what should go in and what should stay out” of a master plan. 

He begins with an account of the genesis of political life, the American way: “Imagine a thousand families pioneering in a new country where they must do for themselves or else perish.” Hunting, fishing, agriculture, the construction of “tents or shacks,” followed eventually by “houses, stores, and factories” are all “things individuals can do,” in collaboration with their neighbors. But at the moment they need to adapt land areas “to common purposes”—for streets, parks, public buildings, public utilities, pierheads and bulkheads— they need the efforts of (and in a republican regime, the consent of) the community. This calls for public planning and laws to enforce the plan agreed upon, “since the only way that a community can act is through its laws.” The governing institution that plans, the “planning commission,” typically consists of persons appointed by the elected representatives of the municipality’s residents. The residents are thus the ultimate source of the laws governing the commission, as per the regime of republican or representative government. The purpose of the planning commission is not only to defend the public interest but “to protect private owners of land” by making “a thorough study of the needs of a community, the trends of growth, the different kinds of business and industry, the topography of coordination of the zoning ordinance with streets, parks, and other elements of the plan.” Indeed, “zoning is so intimate a regulation of private property that the greatest care should be taken to see that it does not transcend the limits of fairness” by, for example, effectively “taking” land instead of regulating it. 

First and foremost, to plan in the relevant sense here means to locate. Bassett identifies seven “elements of planning,” things to be located, all of which occupy “land areas,” locations. Bassett distinguishes the elements, the kinds of things to be located, from the appearance of those things—from their architecture, their upkeep—and from their structural integrity—their engineering, the building codes governing their construction, or other matters involving the police power of the community. The elements of the master plan proper are:

1. Streets. These include bridges, tunnels, alleys, and sidewalks, but not the roads called “parkways.” The “first act of planning” is to establish the boundary lines of streets, and in this sense “planning…precedes acquisition and construction”; “locating is the act of planning.” Planners locate streets but do not concern themselves with private houses located along the streets, which are not shown on the master plan.
2. Parks, that is, “parcel[s] of public land devoted to recreation.” This is where “parkways” come in, along with what are ordinarily called parks, since many parks have roads in them. A parkway is a park with a major road running through it. In New York City, “Central Park is also a parkway because vehicles use it the same as they use Bronx River Parkway”; they are “identical in their legal characteristics.” What distinguishes a parkway from a public street is that no stores or residences “can front on it as a matter of right.” (This evidently doesn’t include a mobile business, such as a food truck, common enough in Central Park.) “A street is a strip of public land devoted to movement over which abutting owners have an easement of light, air, and access, whereas a park is a strip or parcel of public land devoted to recreation over which they have no such easement.” Since Bassett’s day, parkways have come to feature “rest areas,” typically including a restaurant, but the restaurant owner has no legal right to purchase the property, only the right to gain permission to use the property. Some parkways may feature playgrounds and similar recreational amenities, but many do not, inasmuch as “one of the principal uses of a park is to promote quiet and peacefulness of outlook.”
3. Sites for public buildings, “parcel[s] of land set aside by sanction of law for community use,” obvious examples including town halls, public schools, fire stations. Master plans coordinate these public sites with the other elements of the plan, again considering the site more than whatever building is to be placed on it. Municipalities are not bound to retain these properties in perpetuity but can sell and transfer the title to them, just as “a private individual” can do with his own property.
4. Public reservations. These are vacant spaces designated for a particular purpose, such as an airport, fair ground, or forest reserve. Bassett notes that many of these spaces are acquired by legal condemnation of the land in question, although that is not always the case.
5. Zoning districts. These are not usually publicly owned spaces but rather spaces defined and regulated with respect to the concentration (the “density”) of the structures built upon them and of the population living and working within them. The public interest here is not its ownership of the space but the health and safety of the municipality’s residents and of non-residents who may work in or near the space. The main health and safety concerns are light and air. For example, “a community will find that health and safety are promoted by separating business from residential districts,” given the dangers of fire, disease transmission, and crowding. “Better children can be reared in residential districts that are open and sunny than in those that are crowded with stores” and occupied by factories, which themselves should be separated from stores, as well, as industrial noise and smoke don’t conduce to shopping. Whereas a building code “are the same for the same kind of building throughout the municipality,” a zoning ordinance differentiates one space, one district, from another with respect to the “height, area and use of buildings, the use of land and the density of population.” “Zoning districts are land areas, the legal quality of which is impressed on the land by acts of law or the sanction of law,” which is why “zoning maps never show buildings, only land,” allowing “certain kinds of buildings and prevent[ing] others” within each district. Himself a distinguished attorney, Bassett is quick to observe that “the basic features of modern zoning” have “largely procured the approval of courts,” which have “declared that if the regulations were reasonable, were based on community health and safety and were not discriminatory” with regard to matters having nothing to do with health and safety,” they are consistent with state and federal constitutional law. To “prevent arbitrariness in carrying out the regulations upon a given plot of land a board of appeals, presumably composed of experts,” should be established by the municipality to hear appeals from aggrieved property owners and, acting as “a quasi-judicial body,” empowered to reverse a building department’s decisions “when it makes mistakes” and to grant variances in cases “where the strict letter of the law will result in practical difficulty or unnecessary hardship and where the spirit of the law can be otherwise carried out at the same time that public welfare is maintained.” “Unreasonable or discriminatory” zoning “is null and void as to the lot in question,” although “no property owner can obtain damages from a municipality because of the manner of its zoning.” 
6. Routes for public utilities. Public utilities move things or energy around, whether these are water, sewage, methane gas, or electricity. “Movement of some kind is characteristic of every public utility”; movement requires infrastructure, and infrastructure must be located. Hence the relevance of municipal planning to public utilities. “A public utility is a natural monopoly,” the monopoly granted because it “promotes economy and in the long run…gives better service at smaller cost to the consumer.” Bassett admits that this is “disputatious ground,” especially since such a monopoly may be granted to a private franchisee, who will want to maximize profits. This is why “the impulsive granting of perpetual or indeterminate franchises, without checks and safeguards, is much to be deplored.”
7. Pierhead and bulkhead lines. Navigable rivers and other navigable bodies of water not surrounded by private property are legally controlled by either the federal, state, or municipal government, with states and cities controlling harbor lines insofar as they do not “interfere with those controlled by the federal government.” “These harbor lines must be coordinated with” the other elements of the municipal master plan.

Thus, “the elements of a community plan cannot be destroyed by fire or an act of God.” “Each of the elements of the plan set forth in this book relates to land areas; has been stamped on land areas by the community for community use; can be shown on a map”; “if a subject does not conform to these three requirements it does not come under the head of community land planning.” However, the structures built on the locations identified on the plan must correlate with the purposes allowed on the relevant location or zone. This speaks to the matter of land use. The boundary lines of zones must be set preliminary to building, unless there are pre-existing buildings which may need to be ‘grandfathered in’ to a given zone. “If, therefore, a planning law is to secure a firm basis, it must provide a method by which the community may determine its own boundary lines”—this, on the principle that the people rule their own town, within state and federal constitutional constraints, all in conformity with the constitutional requirement of due process of law. “That is because fixing boundaries by a community affects private rights and it is an arbitrary and usually unlawful proceeding if the private owners of surrounding land may not be heard.” 

Given his esteem for expertise, Bassett contends that a master plan should be adopted by a planning commission, not subject to the approval of “the legislative body.” This is because the master plan itself is not a law, only a document for guidance and the planning commission itself is an advisory body, not an arm of law enforcement. He criticizes one state legislature, which declared “that if the zoning of cities, villages, and towns did not agree with the master plan of the county” in which they were located, “the suggestions in the master plan should be substituted for the deliberately adopted zoning regulations in the municipality,” a declaration that “went a long way toward substituting the county planning commission for the county legislative body.” So “to overwork its limited function will result in planning’s running wild.” And the drafting of a master plan itself should be an act of self-discipline, as the famers are often “tempted to insert requirements on all sorts of non-community subjects, which they conceive will make up a well-arranged place in which to live—trees, private houses, private golf courses, stores, factories, and even private parking places for automobiles.” “If a fertile and ingenious legislator puts everything that he knows about and likes in a plan, the latter becomes a scrapbook and is an embarrassment instead of a help.” 

Avoiding such “diffuse” efforts, a sound master plan also should be adaptable to changing circumstances, as for example the need for reforestation and control of soil erosion and flooding. It is this need for prudential adaptation—for plasticity, as Bassett terms it—that he addresses in his accounts of the history of planning commissions and master plans in established in several municipalities around the country. This, too, points to the planning commission as “the advisor of a legislative body and the various [executive] departments,” not their ruler, or the ruler of the people.

Bassett devotes the second half of his book to a history of municipal planning in the United States, with understandable emphasis on the New York City plan he co-authored.  He begins with the year 1921, when Secretary of Commerce Herbert Hoover appointed an Advisory Committee to prepare a standard city planning enabling act “to be used by state legislatures desiring to permit their municipalities to establish better methods of planning.” The Committee completed its work the following year and the act itself was issued as a pamphlet in 1924; by the second printing, two years later, nineteen of the forty-eight states had adopted it. The act contained all seven of Bassett’s “elements of planning,” describing the purpose of municipal planning as “accomplishing a coordinated, adjusted, and harmonious development of the municipality and its environs which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities and other public requirements.” 

Cincinnati “has the distinction of having been first to appoint a planning commission with power to establish a master plan” in 1925. The law was written by local attorneys Alfred Bettman and Ladislas Segoe, implementing a plan written the Technical Advisory Corporation of New York, the first private planning consultant firm in the country [1]. It stipulated that “any proposed improvement” in the city be reviewed by the planning commission, its decisions to be overturned by the city council only if a two-thirds majority voted against it. This contrasts with the Massachusetts law, where planning boards “have no power whatsoever,” on the grounds that “if the city planning board cannot convince the public and the city officials that its ideas are the best, there must be something wrong with the ideas,” and that “no city council,” at least in Massachusetts, “would consent even to sharing the control of the city plan with another body.” Against this, Ohioans claimed “that city planning is a highly specialized and a highly technical matter…requir[ing] the concentrated effort of a selected group of exceptionally intelligent and experienced citizens, aided by the best technical advice,” who can take responsibility for work that will otherwise lead to “inevitable charges of favoritism” if lodged with elected officials. Bassett sides with Ohio: “The general impression of those who are watching the effect of the Cincinnati method is that it is proving highly successful and is a distinct improvement on the strictly advisory powers of most other planning commission.” 

A year later, New York State became the first to use the term “master plan” in a set of laws governing the establishment of planning commissions, while stopping short of requiring those bodies to write such plans “because of the fear that if one was established by a majority vote of the planning commission or adopted by the municipality, it would become ossified and cease to be a plastic instrument for the use of the commission itself in making its reports.” Pennsylvania legislators were bolder, requiring that master plans would have “all the force of law”; municipal councils can overrule commission’s decisions, but commissions can then overrule the overruling. Bassett calls this legislation a “mistake” that “shows the wisdom of the New York legislature,” because law by its nature is difficult to amend the master plan, not (it should be noted) because it takes control of planning from elected officials and places it into the hands of administrators.

California’s 1929 Planning Act of 1929 exhibited another error, as legislators succumbed to “the temptation to use the newly discovered ‘master plan’ for all sorts of extraordinary purposes, whether within or outside the powers of the community.” The master plans envisioned by Californians include not only Bassett’s seven elements of planning but “sites for private group buildings and plans for their architectural treatment,” even though the state’s courts “have not recognized any such powers in municipalities.” Such comprehensive scope, coupled with Pennsylvania-like powers granted to the planning commissions, will “tend to congeal the plan so that after it has been in existence five or ten years it will be an obstacle instead of an assistance.” A subsequent amendment, enacted in 1937, not only fails to “simplify the procedure but makes it far more intricate.”

In 1929, New York City Mayor James J. “Jimmy” Walker—Tammany Hallsman and connoisseur of chorus girls—proposed an amendment to the city charter to provide for a planning commission and a master plan. This plan was indeed sufficiently “plastic”; “the excellent thing about this master plan,” which was included in the new city charter of 1936, “is that it will remain in the control of the commission and can be quickly changed by the commission,” since “no official body outside the commission needs to adopt it.” In the words of the charter, “It would be impractical to establish a planning board that would be a sort of super-government.” By then, Walker was out of office, his life and administration dogged by scandal, but the progressivist Mayor Fiorella LaGuardia, Tammany’s enemy, equally supported the idea of city planning. 

Who, then, was Edward M. Bassett, who not only helped to establish municipal planning in the United States but earned the informal title of “the father of zoning” for his earlier work in writing the first comprehensive zoning law in the country? In his autobiography, he tells us.

Bassett was born in Brooklyn, New York, in July 1863, that is, in the days immediately following the Battle of Gettysburg. City life toughened boys up, and so did the schools. When the boy ventured to shout his support for the Grant-Colfax ticket during the 1868 presidential election campaign, “the Irish got me down and punched me till I shouted Seymour and Blair.” He joined a gang “and had fights with stones with boys who lived further east and who would periodically attack us.”; “we would drive each other around a block,” and “I did not look on it as play but as a very serious and necessary pursuit.” In school, “whipping with a rattan or ruler was one of the main activities” of teachers. “If a boy missed a word in spelling he was whipped, with the only restriction being that mothers disapproved of raps on the knuckles, which caused little hands to swell, as distinguished from hits on the meat of the hands, which merely stung and induced whimpering.” In those days, boys “seemed to consider that whipping was part of one’s education,” and “no complain was made.” Reading consisted of Bible stories, Pilgrim’s Progress, Gulliver’s Travels, and, by high school, Shakespeare. He thrived on Latin and Greek and studied geography with a passion. Hamilton College was no less rigorous, as fights broke out between freshmen and sophomores immediately after chapel service. “No faculty member lived in the buildings or on the campus. The authority was upper-classmen. Their word was law.” He later transferred to Amherst, from which he graduated in the Class of 1884, then went on to Columbia Law School, graduating in 1886. 

Household economy in Cleveland’s childhood exhibited habits of frugality. At his grandparents’ house, “No newspapers were thrown away, but were carefully cut up for toilet paper. I mention some of these things because nothing shows better the economy of old people of that time. They were not rich, but they never thought of such a thing a taking money from anybody outside the family. They were just as proud of their independence as Rockefeller is today…. I sometimes think of these conditions of American life when there was almost no wealth but at the same time there was no poverty and almost no dependence.”

Those Irish lads evidently beat the Democracy into him because by the time he moved to Buffalo, where the city’s popular mayor, Grover Cleveland, had just been elected governor, he soon became secretary of the New York Cleveland Democracy. He and his brother, a civil engineer, formed a successful water works company, but at the beginning of the 1890s he moved to New York City, “want[ing] to learn whether I could succeed in practicing my profession.” He could, after a couple of years of struggle, and he gained election to the Democratic General Committee of the City of Brooklyn, then to the local Board of Education. At this time, Brooklyn had yet to be incorporated into New York City; the Tammany Hall Democrats ran New York—that is, Manhattan—and the “Brooklyn Ring” Democrats ran Brooklyn under the leadership of Boss Hugh McLaughlin, who used his position as a master mechanic in the Brooklyn Navy Yard to distribute patronage. Cleveland was a Reform Democrat, aiming (successfully, as it happened) “to defeat any regular candidate for mayor nominated by Boss McLaughlin.” Bassett himself was elected to the U. S. House of Representatives in 1902, taking the Cleveland position on low tariffs and working for a canal route through Nicaragua in opposition to President Roosevelt’s preferred route through Panama. He chose not to run again, considering his renomination doubtful and his law business more lucrative. Looking back from the vantage point of 1939, he writes that “we know now that the high tariff of those days was the beginning of economic unevenness’s that have culminated in the present bad governmental situation under Franklin Roosevelt.”

This was when Bassett’s childhood fascination with geography began to bear dividends. Serving on many street and park opening commissions in the city, he collaborated with two other attorneys appointed by Mayor George B. McLellan, a former four-term Congressman and son of the Civil War general, in revising the City Charter to provide for the use of the power of eminent domain to establish public parks. Although he regarded eminent domain as a legitimate instrument for addressing “esthetic matters,” he consistently rejected it as an instrument of planning and zoning, which he regarded as properly part of the police powers. “No effective zoning plan could be accomplished by the exercise of eminent domain” because “if there were some diminution of the full use of property, the city would need to pay the loss to the private owner,” a cumbersome, property-by-property procedure that would entangle the city in excessive costs and endless litigation.

By 1905, he turned to the problem of traffic congestion caused by the existence of only one way to cross the East River between Brooklyn and Manhattan—the Brooklyn Bridge, which stands today as the outstanding accomplishment of the Boss McLaughlin regime. This wasn’t simply a matter of building more bridges. In his visits to Europe, Bassett saw that London, Paris, and Berlin were “round cities,” where the city centers were located at the shortest distance from their borders, as distinguished from rectangular Manhattan, a shape that made the north-south distances farther away from the center. “My thesis was that if the west end of Long Island”—including Brooklyn—could “be brought into a five-cent fare relationship to Manhattan the city would a assume a rounded form,” capable of “growing north, east, and south without great congestion.” The area of the city would increase but transportation from one section to another would be improved, thanks to what was called “the pendulum movement” of trains, which means that trains beginning in the suburbs would travel through the business center and then on to another suburb, distributing the peak load of traffic at many stations and encouraging two-way traffic instead of one-way traffic. “Now the pendulum movement is so well established in this city that most people have forgotten the crowded stub-end terminals that existed at South Ferry, Brooklyn Bridge Terminal, Atlantic and Flatbush Avenues and other places,” and since 1907 Brooklyn has been “an integral part of the round city.”

As an attorney working in the field of public utility corporation law, Bassett eventually became restless, “want[ing] to be connected with new laws that improved living conditions, especially the better distribution of residences, business, and industry,” which he saw as a subject “almost unexplored in this country [which] offered a vast field of progressive legislation.” To this end, he joined a newly-formed Heights of Building Commission founded by George McAneny, who chaired the Transit Committee of the City Board of Estimate. At the time, a few cities had some regulations governing skyscrapers, which occupied such large swaths of city blocks that the blocked sunlight and interfered with the circulation of air. By 1916, New York had the first comprehensive municipal zoning law in the country. “My zoning work has been the best contribution of my life,” paralleling his attempt “to systematize the entire subject of community land planning.” The two men worked “to spread zoning throughout the country” since, as Bassett explains in Zoning, “if this rather new invocation of the police power was employed in only one city courts would frown on it because of its limited use”; “judicial approval of extension of the police power depends somewhat on a widespread opinion that such extensions are needed, and also upon their actual employment by governing bodies.” “The future of zoning was at that time precarious.” Their campaign succeeded, and by the late 1930s Detroit was the only major city in the country without a comprehensive zoning ordinance.

“Municipalities must obtain their power to zone from the state,” since “the state legislature is the repository of the police power” and courts looked for state constitutional or statutory backing in answering challenges from litigants who argued that zoning regulations were “an unlawful invasion of property rights.” In the event, “courts have recognized the lawfulness of zoning regulations about as rapidly as organized communities have found them necessary” for “the public health, safety, morals, and general welfare,” which form the natural-rights basis for the exercise of police powers. [2] In New York the state enabling legislation was in place by 1914. At the time, tall office buildings “not only covered their entire lots and had the same floor space in their top stories and their first stories, but cornices projected into the street from eight to fourteen feet,” making southern Manhattan a place of “dark canyons and narrow streets.” Hence the need for not only height limits but especially for setbacks. Subsequent buildings (the iconic one being the Empire State Building) were constructed with “pyramid” shape and their ‘footprints’ were kept back from the sidewalks. In fairly short order, not only light and air but traffic congestion was added to the list of matters properly related to public health and safety. Bassett emphasizes that “all owners hold their land subject to the police power regulations of the community, whether for health fire protection, or structural safety,” and so the exercise of that power does not violate property rights rightly understood.

New York’s zoning law established neighborhoods based upon use, not esthetics. That is, there were districts set aside primarily for offices or factories (some with heavy industry, others with light industry), apartment houses or one-family, detached homes. That is, the standard of use followed from the principle of health and safety, which in turn legitimized the exercise of the police power. “The novel feature of zoning as distinguished from building code regulations, tenement house laws, and factory laws was that suitable regulations for different districts were established. We have become so accustomed to zoning regulations that it is difficult to understand how fixed the popular notion was that all land should be regulated in the same way throughout a municipality.” In this matter, Bassett does not suppose that use-base zoning requires exclusion of some mixed use within each district; “some industry, especially light industry, must be permitted in every business district,” as for example, clothing and shoe stores will have repair departments. Regulation should only exclude uses that are entirely incompatible with the use designated for the district—such as placing heavy industry next to residences. This remains a matter of police power, not esthetics. “It has been said that beautiful architecture is…conducive to health, or at least to comfort and well-being. If all people were alike in taste, this might be true.” Such matters as “light, air, quiet, and the effect of vegetation on the atmosphere are subjects wherein expert evidence can assist,” since such evidence is subject to scientific corroboration in a way that esthetics are not; “even architectural experts differ as to what they consider examples of good taste.” Roadside advertising may therefore be regulated by zoning, but only if it can be shown to distract drivers to the point that it causes a hazard. 

If a zoning law goes into effect which bans a use in a given district to which a given building is dedicated, that building will continue to operate without penalty. “Zoning seeks to stabilize and protect and not to destroy,” “safeguard[ing] the future, in the expectation that time will repair the mistakes of the past.” That is, if a nonconforming building is destroyed by fire “or other act of God,” or if such a building is abandoned, any building that replaces it should not be allowed to continue the nonconforming use. Nor should any addition to a nonconforming building be permitted. While it is true that “if the police power can be invoked to prevent a new nonconforming building because of its relation to the community health, safety, morals, convenience, and general welfare, it follows that the police power can be invoked to oust existing nonconforming use,” and this might be done on a massive scale, but this is in theory, only. “The courts would rightly and sensibly find a method of preventing such a catastrophe.”

In most instances, “the use of a building can be shown by its form.” We know a factory, a store, a house when we see one. Bassett’s use of the term “form” hints at the crucial shift in zoning law that he intended to effect. Such laws as did exist, prior to his efforts, centered on the form of buildings. Typically, a store might be located in a predominantly residential neighborhood, so long as it conformed to whatever architectural standards the municipality set down. That is, all neighborhoods were what now are called ‘mixed use’ neighborhoods. This meant that a skyscraper that conformed to the given architectural form could fill a city block, or that a factory could be placed next to a school. By refocusing zoning law on use rather than form, Bassett prevented this. This also tended to erode architectural standards, since Bassett explicitly denied a place for esthetics in zoning law. To elevate ‘use’ to the ruling determinant of zoning practice is indeed a ‘utilitarian’ move, and that is why he deploys the term “form” as an indication of “use” in the sentence quoted. Property owners lose the right to ‘build out’ on their land, to fill it with a building, but they gain the freedom to reduce costs incurred by strict esthetic standards.

Given the character of law—specifically, the necessary incapacity of lawgivers to meet every possible circumstance that may arise—judges live up to their name; they exercise judgment, equity. Zoning laws typically include a board of appeals, “to apply the discretion of experts to exceptional instances where permits are desired not strictly conforming to the regulations”—variances, as they are called. This is why zoning and planning boards are said to exercise a ‘quasi-judicial’ function. The criterion for granting a variance, an exception to strict conformity to the zoning law, is “hardship.” In the words of Harris H. Murdock, then Chairman of the Board of Standards and Appeals of New York City, he definition of hardship rests on the principle that “an owner is entitled to a reasonable use of his land,” and “since “what may or may not be reasonable cannot be stated in any general rule,” equitable variances will be needed. This “does not mean that one owner is entitled to a special privilege by a variation that is denied others similarly situated or that will cause hardship to other owners,” nor does it mean that an overall downturn in the local or regional economic circumstances constitutes a proper hardship with respect to a zoning variance, nor that a property owner can claim a hardship because he could make a tidier profit if he were granted the variance he wants. Rather, a hardship exists when a property “cannot be put to a conforming use that will provide a reasonable return under normal conditions” (emphasis added). Further, the board must also judge that if the variance is granted, “others will not be unduly injured and that public health, safe and general welfare will be secured and substantial justice done.”

So, for example, if a district now zoned ‘residential’ has two stores, now nonconforming, with a vacant lot between them, “it might be unreasonable to insist that the owner could building nothing but a private residence under the existing restrictions,” but “if he is granted a variance permitting a residence with a smaller front yard, or a two-family residence, or a modified business building, he can usually erect an economical structure that will not substantially injure the neighborhood.” Bassett is careful to stipulate that hardship inheres in the land to be built upon; “the needs of the surrounding lands or houses do not constitute a basis for the variance.” Boards of appeals should not grant a variance to someone who wants to build a store in a residential district because it would be convenient for the residents to have one on that lot. “Each variance must stand on its own feet,” and feet stand on land.

If a property owner comes before the board of appeals seeking a variance, the board is entitled to attach conditions to the variance, and these conditions are not limited to “the scope of the police power.” Here is where esthetics may be brought back in. The board might require the owner to landscape the property in a certain way, or use a certain type of construction materials in exchange for granting the variance. While “zoning regulations must be based on the health, safety, and general welfare of the community,” conditions “imposed on variance permits are not regulations” and “may therefore have an esthetic quality.” Your reviewer is familiar with a municipality whose business district was upgraded substantially because the Planning Board did exactly that. The process took some twenty years to complete, but the transformation was remarkable.

Bassett’s work on zoning and planning began during the height of the influence of the Progressive movement in American politics. The Progressives transformed American politics, beginning with its first principles, which it no longer located in natural rights but in the movement of ‘History,’ now defined as the course of events, which supposedly was ‘progressing’ towards an ever-better, brighter future. Zoning and planning were entirely consistent with Progressivism, but was Bassett himself a Progressive? Are zoning and planning inherently ‘progressive’ instruments?

It is clear that Bassett was no admirer of the later New Deal version of Progressivism. “Since the advent of the New Deal the word ‘planning’ has been applied to almost everything,” he complains. “Planning has become confused with architecture, landscape architecture, municipal engineering and all kinds of rehabilitation work whether connected with the land or not,” but “my effort have been to separate city planning” from those matters. “It has seemed to me that the present tendency is to broaden it so that city planning becomes meaningless and vast sums of tax money are spent in collecting data that will never be useful.” The proper elements of a master plan are “streets, parks, sites for public buildings, public reservations, zoning districts, routes of public utilities and harbor lines,” but “now and then some stray subject appeals to the legislators and is thrown in along with the true elements,” strays that are now “getting very common and show that the mind of the legislature has no groove to travel in.” In “the last few years,” legislators “have been quite willing to ignore simple and stubborn facts in all fields of economics and in community planning as well.” Bassett wanted simply to prevent “congestion”—buildings that block sunlight and the circulation of air. “The progress of this country toward sunlit houses and the lessening of the human burden on the land continued until the federal government began erecting more than a billion dollars’ worth of so-called slum clearance houses four stories and over in height and in all cases increasing the human burden on the land.”

This doesn’t mean that Bassett was not a Progressive, however. Many Progressives of the first generation refused to board the New Deal bandwagon—Senator Burton K. Wheeler, for example. But although Bassett does deploy the term ‘progress’ favorably, he justifies zoning and planning in terms of natural rights to health and safety, not in terms of the alleged march of history. He is closer to the urban reformers who predated the Progressives—an opponent of political bossism and its attendant corruption and the adaptation of natural rights-based law to the circumstances that enabled builders to construct taller buildings and enabled manufacturers to build vehicles that increased air pollution. 

 

Note

1. Segoe, then a recent immigrant from Hungary, went on to write The Local Planning Administration (1941), which has been described as the most influential book on the subject of the twentieth century. The Technical Advisory Corporation of New York had been founded in 1913 by Earnest P. Goodrich, an eminent civil engineer who had earlier served as the football coach for what is now Eastern Michigan University.
2. Indeed, in 1902 Mayor McAneny had closed New York movie theaters because they tended to corrupt public morals and because celluloid film presented a fire hazard. Bassett observes that New York’s law was far from the first zoning law in the country, as many municipalities already had fire districts, but rather that New York’s was the first such law that comprehended all the major health and safety matters.

 

Alexis de Tocqueville: Democracy in America. Volume I, Part I, Chapter 8, subchapter 22: “On the Advantages of the Federal System Generally, and Its Special Utility for America.” 

 

In order to construct modern, centralized states on the model advocated by Machiavelli, European monarchs weakened the aristocratic class, which had ruled feudal states characterized by weak monarchs and powerful landlords. Weak aristocracies meant increasingly egalitarian civil societies within the modern states, whether their regimes were monarchic or republican. For Alexis de Tocqueville, ‘democracy’ is not itself a regime, and equality is neither a natural or legal right; democracy is a social condition, one that must be understood clearly if it is not to descend into despotism. As the most thoroughly democratized society in the world in the 1830s (this, despite slavery), America fascinated the young French aristocrat, living in the aftermath of the debacle of French republicanism in the 1790s and of French monarchy in the 1780s and again in the Napoleonic Wars.

Differing from feudal states in their degree of centralization, modern states also differed from ancient city-states in size, being far larger in both territory and population. In small states, Tocqueville remarks, “the eyes of society penetrate everywhere” (as the popular song advises, “Don’t try that in a small town”), and ambitions are modest (no Napoleon has arisen from Slovenia). In small states, “internal well-being” takes precedence over “the vain smoke of glory.” Manners and morals are “simple and peaceful,” inequality of wealth less pronounced. Political freedom is the “natural condition” of small states; in all times, antiquity (Athens) and modernity (Switzerland), “small nations have been cradles of political freedom.”

They lose that freedom on those rare occasions when they eventually muster the power to expand. “The history of the world does not furnish an example of a great nation that has long remained a republic,” whether the nation was ancient Rome or modern France. That is because “all the passions fatal to republics grow with the extent of territory, whereas the virtues that serve as their support do not increase in the same measure.” The gulf between rich and poor widens; great cities arise, with their “depravity of morals”; individuals become less patriotic because their country seems less immediately real to them; accordingly, individuals become less patriotic, more selfish. This is worse for republican regimes than for monarchies, as republics depend upon citizen virtue while monarchy “makes use of the people and does not depend on them.” In sum, “nothing is so contrary to the well-being and freedom of men as great empires.”

This notwithstanding, “great states” enjoy some substantial advantages. While morally injurious, their cities are “like vast intellectual centers,” where “ideas circulate more freely” than in the more censorious atmosphere of small communities. The people are safer from invasion, since the borders are remote from much of the population. Above all, great states wield greater force than small states, and the security force obtains “is one of the first conditions of happiness and even existence for nations.” Tocqueville “does not know of a condition more deplorable than that of a people that cannot defend itself or be self-sufficient.”

What, then, shall republican lawgivers do? The American Founders took the recommendation of Montesquieu: federalism, which (as Publius argues in the tenth Federalist), permits Americans to live in an “extended” republic, one that can preserve the virtues needed for republicanism while enjoying the advantages of a large modern state. [1] While the Congress “regulates the principal actions of social existence,” it leaves administrative details to the “provincial legislatures.” [2] In a democratic republic, the people are sovereign; in the United States, the people have divided their sovereignty between the federal government and the “provinces” or states. The federal government attends to the general welfare of the nation, but can act only through specific, enumerated powers set down in the Constitution. It can reach into the states and rule their citizens directly, but not in all, and indeed not in most, things.

This is what allows democracy or civil-social equality to ‘work’ in the United States. Because the federal government conducts American foreign policy, the states need not take on the expense and effort to defend themselves and so can concentrate their energies on internal improvements, just as small political communities incline to do. This spirit of economic enterprise is enhanced by the Constitutional prohibition of tariffs among the states, which makes American into a vast free-trade zone. The spirit of economic enterprise itself redirects ambitions toward peaceful commerce and away from military glory, the passion of aristocrats. With no arms to purchase and no wars to undertake and sustain, among state politicians “ambition for power makes way for love of well-being, a more vulgar but less dangerous passion.” “Vulgar” means not-noble, not aristocratic but democratic. Federalism thus reinforces the democratic republican regime, unlike in the South American republics of the time, where republicanism extended over large territories but under centralized governments, control of which fired ambitious souls, bringing political turmoil. In the federal republic of the United States, however, “the public spirit of the Union itself is in a way only a summation of provincial patriotism.”

Thanks to the Framers of the United States Constitution, “the Union is a great republic in extent; but one could in a way liken it to a small republic because the objects with which its government is occupied are few.” The federal government exercises substantial power but in a manner “not dangerous to freedom” because, unlike a fully centralized government, it does not “excite those immoderate desires for power and attention that are so fatal to great republics,” whether in ancient Rome, modern France, or modern Brazil. Such desires that do arise “break against the individual interests and passions of the states,” jealous defenders of their own share of popular sovereignty.

In the civil society of American democracy within a federal system, “the Union is free and happy like a small nation, glorious and strong like a great one.”

American federalism did in fact guarantee civil liberty with civil equality, even as the extended republic extended itself from the Atlantic to the Pacific in a vast imperial project. Tocqueville worried that Americans were going too fast, that their liberties were in danger, but by 1890, when the American frontier was judged to have been ‘closed,’ the original republic stood, and without the scourge of slavery that had compromised republicanism in the South. The foreign threats that became more acute with the invention of steam-powered battleships, threatening the country’s ocean trade routes, was settled by establishing not an overseas empire, as some advocated, but a network of naval bases from Cuba to the Philippines, countries whose governance Americans gladly handed back to the peoples in them, in the decades following their acquisition from Spain. The real danger arose not from foreign policy but from domestic policy, a danger Tocqueville also warned against. Ambitious men in the twentieth century first ‘theorized’ and then implemented a substantial federal bureaucracy, ‘professionalizing’ government and thereby weakening the civic spirit of Americans, whose local, county, and state governments now depended upon decisions implemented by the national ‘administrative state.’ This effected a regime change, whereby the democratic republic of the Founders became what Aristotle would call a ‘mixed’ regime consisting of elected officials, some of them a bit Caesar-like, and a tenured set of experts, whom no one elects, and no one can remove except by abolishing the agencies which serve as their platform for rule. 

 

Notes

1. See Montesquieu: The Spirit of the Laws, Part II, Book 9: “On the laws in their relation to defensive force.” 
2. Tocqueville uses the term “provincial” rather than “state” because his European readers associated statehood with sovereignty, which American states wield only in part, and only as representatives of the true sovereigns, the citizens.

Leslie G. Rubin: America, Aristotle, and the Politics of a Middle Class. Waco: Baylor University Press, 2018.

 

Although it is more usual to associate the moral foundations of the American republic with the political philosophy of John Locke, attempts to link them to Aristotle are not unknown. [1] Here, Leslie G. Rubin illuminates one substantial connection between Americanism and Aristotelianism: a shared esteem for a ‘middling’ class of citizens who can serve as moderating ballast for a regime of the people, who might otherwise list catastrophically, to the left or to the right—or even worse, to shiver between both sides in a factional conflict that splits the ship and sends it to the bottom of the sea.

The American Founders’ “new science of politics” (as Publius called it) addressed the “inconvenience” of faction by proposing a large, “extended” republic in which no faction could likely dominate the others; in America’s capacious civil society, factions would survive, even thrive, but their very contentiousness would cause them to frustrate each other’s plans. As Publius also remarks, American civil society is and will remain middle-class or, as its enemies like to say, bourgeois; America is a commercial republic, and many of its factional conflicts have centered on what sort of commerce should prevail—agrarian, agrarian-slaveowning, financial, industrial, and now ‘post-industrial’.  And in the government, faction would be thwarted by the separation of powers, which makes it much less likely that any faction could seize control of the executive, legislative, and judicial branches at once. 

Aristotle too commends that republican lawgivers base their regime “upon the middling element,” and to arrange the ruling offices in such a way that the several governing powers “interact in order to discourage a regime’s tendency toward tyranny.” The middling element is the one most amenable to political life, strictly speaking, which is a life of ruling and being ruled in turn, a life that eschews the one-way rule of both patriarchy (or matriarchy) and mastery or tyranny. Thus, “the insights of the science of politics are not as new as Publius might suggest,” although they had “never [been] put together into a working regime until the American experiment.” [2] “The founders rediscovered some long-ignored truths about human nature, and they had the resources, the political will, and the political culture required to put them into effect, while Aristotle did not.”

Both the Aristotelian and the American sciences of politics contradict the political science and indeed the ‘social science’ generally prevalent in the United States today. “Modern Americans speak of office politics and sexual politics and governmental politics as if they were all subcategories of an essentially similar assertion of power.” But this reduces human rule to the dominance games animals play, a reduction which overlooks a distinctive human trait: “Humans do not use their voices like other animals.” “The political animal uses logos, speech that implies reason,” in discovering the advantageous and the harmful, the just and the unjust.” Unlike herds, human association, and especially the political association, “is based on common moral perceptions—not [or not distinctly] on place, leadership, or ethnic bonds, but on a common understanding of the good and the just.” “If the fundamental moral consensus does not hold, there is no political whole.” Elk and gorillas have no such concerns. They do not deliberate together about the common good. Human beings, however, must deliberate together not only in order to survive but in order to thrive—for “the good life, that is, the practice of the excellence appropriate to being human.” The regime—the way political communities are ordered in terms of who rules, the ruling structures or offices within which their rulers rule, way of life those rulers and structures conduce to, and the purposes they aim at all require such deliberation.

The word translated as ‘regime,’ politeia, is also the word Aristotle uses for the best practicable regime, usually translated as ‘polity’ or ‘republic.’ Rubin prefers ‘republic,’ deriving as it does from the Latin res publica, the ‘public thing,’ a ‘mixed’ regime is ruled by all the people, rich and poor alike. To avoid factitious rule by the rich of the poor or by the poor over the rich, such a regime needs the moderating, balancing influence of a middle class. That need needs to be seen as needed: “If most citizens—wealthy, middling, and poor alike—are not raised to appreciate the middling virtues (including the political/moral/social value of the middle class itself), to take a turn in some office beneficial to the community, to cultivate friendly relations across the economic spectrum, and to aspire to personal and community-wide excellence, the republic will suffer a decline.” This is likely to occur especially if the middle class fails to appreciate its own virtues, first among them being moderation. 

To be the best practicable regime does not mean that the republic is readily founded and readily sustained. Politics is difficult work. Rubin sets herself “to illuminat[ing] both the brilliance and the weaknesses of the Philosopher’s and the founders’ expectations.” Aristotle himself is well aware of the difficulties; “if politics and the city are natural to human beings,” he needs to explain “why it is so hard to find a stable and self-sufficient city,” in practice and even in theory.

In terms of theory, Aristotle’s most distinguished political-philosophic predecessor made two main proposals, one in the Republic, the other in the Laws. The regime of the Republic is not republican in Aristotle’s sense of a mixed regime but the rule of philosopher-kings. In subordinating the other parts of the city, the warriors and the craftsmen, this regime cannot endure for long; those excluded from rule rebel, their own rule inducing future rebellions in an endless cycle. Plato’s Socrates’ (quite possibly ironic) attempt to reduce “a theme to a single beat,” as Aristotle puts it, fails because it is insufficiently political, lacking in reciprocal ruling and being-ruled. The regime’s “communal arrangement of property,” which “aimed to create an artificial friendship among the guardians and between the guardians and the working classes,” is not sustainable because it is not consensual. The regime of the Laws attempts to address this problem. Neither a democracy nor an oligarchy, it aims at a midway point between the two, a polity founded on an arms-bearing middle class. Aristotle rejects this more practicable regime, as well, because it valorizes military virtues to the extent of ignoring “other productive services for the city,” such as agriculture and manufacturing. Supporting “five thousand warriors (and their wives and attendants) in idleness is not economically feasible.” And the more the city’s economic belt is tightened to accommodate such a regime, the more moderation becomes stinginess, the less liberality or generosity can flourish. But liberality is a foundation of friendship, and political friendship is indispensable to political cohesion, to the prevention of severe factionalism. Both of the Platonic regimes overlook this.

Aristotle shows how such theoretical misconceptions work out in practice, even in regimes whose citizens don’t do much theorizing. Sparta’s founders failed to “understand the delicate relationship between education for citizenship and the institutional arrangements for the restraint of the citizens from vice.” Spartan women are as undisciplined as their warrior husbands are overdisciplined, since the regime’s “excessive emphasis on soldiering…leaves these self-indulgent persons essentially in charge of the city much of the time.” (In the middle-class American republic, the separation of home and workplace has caused a less acute version of the same disadvantage.) Oftentimes the only men left at home are the underclass, the helots, who restlessly eye not only ruling-class women and property but the regime itself. “Sparta’s experience serves as a warning to all founders and legislators.” The polis at Crete suffers similar defects, despite its somewhat more democratic structure. Food is distributed on an equal basis and population is controlled “by the encouragement of homosexuality and the segregation of the women” from the men. But the actual governing body is less democratic than that of Sparta; “the people’s opportunities to defend themselves or to influence political decisions are limited to a virtually powerless assembly,” leading to instability. 

Carthage is superior to Sparta and Crete. “Internally peaceful” and with none of its citizens enslaved, the regime enjoys the consent of the governed. This is due to its “more balanced mixture of the elements” of democracy and oligarchy, along with a requisite degree of attention to virtue, to ‘aristocratic’ rule in Aristotle’s sense of the word. The regime prevents oligarchy, the rule of the few who are rich, by enabling those of middling or low riches to become rich through service in the empire—a point the modern Britons would take. But as in modernity so in antiquity; if the empire falls, crisis will ensue. “In Carthage, as in Sparta and Crete, the majority of Aristotle’s criticisms center on the problem of keeping the many satisfied and preventing a revolt.” As a more commercial republic than either Sparta or Crete, Carthage does a better job of this, but at the cost of a fragile imperialism. 

Rubin summarizes the importance of both political theory and practice, citing Aristotle’s insistence that theory provides standards that are ‘ideal,’ but that such standards are not directly applicable to practice, to the “activity of politics and the arrangements proper to political life.” We might well pray for the ideal but we had better attend to the real. He therefore “introduces a standard for a stable and decent regime,” the republic, applying that standard to the actual regimes in of the Spartans, Cretans, and Carthaginians. If political science, the result of philosophizing about politics, points beyond politics to the higher and more comprehensive good of philosophizing, of science concerning nature as a whole, then the political art is the needed corrective, ensuring that the best not become the enemy of the good, the decent, the ‘middling’ way. And so, although “Sparta, Crete, and Carthage aimed at becoming aristocracies,” regimes aimed at achieving the good simply, “Aristotle praises them for the aspects that would make them republics.” Would-be aristocracies overreach because genuine virtue is rare. Not only can no regime, even one that “respects the freedom and the equal claims of all its citizens,” can “control all the chance events or the human choices that would need to be controlled in order to predict the long-range effects of their policies.” And even if it could, “a regime that controls education and the actions of citizens to such an extent that it can guarantee full virtue is not actually producing virtue, which is a matter of reasoned choice.” “The best political regime is not the best that can be imagined, but the best that can be accomplished among free and equal people, people practicing politics.”

In considering the several types of regimes, Aristotle accordingly judges them against standards whereby “the goodness of both the regime and the citizen body are judged” by “the requirements of political life, as distinct from other human activities.” If “the purpose of city life is mutual assistance for life and the good life,” regimes should be classified with respect to “whether they aim at such mutual assistance—the common good—or at the benefit of the ruler(s) alone.” Although “no good political life is possible without attention to the good of all involved,” “actual cities are full of people of a despotic bent, who believe that they are ‘sick’ unless they are ruling.” This is an important point the more materialist/’economistic’ observers of politics miss: as Aristotle puts it, no one becomes a tyrant in order to get out of the cold. Tyrants want to rule, defining ruling itself, preferably with no backtalk, as the good life. In this, they recognize that political life aims at more than mere life, mere survival; “a central flaw in most cities is the failure to recognize just this distinguishing characteristic of politics,” the characteristic not satisfied, or not satisfied in some, by farming, hunting, making, fighting. 

Although the Spartan and Cretan regimes take the militarization of the citizen body too far, citizens in every well-ordered regime will need to be capable of bearing arms and practicing military virtue. Aristotle therefor must “explain why it is good political practice to reward with exclusive political power those who provide only one, albeit a necessary, material benefit to the city, the wherewithal for its defense.” But such a regime is not a military oligarchy but the rule of the middle class; “however unextraordinary, the self-supporting citizen-warrior displays some virtues, while a poor freeman or a very wealthy oligarch need not display any virtues to maintain his status. To define a citizen body in terms of military capacity, then, is to give some attention to political virtue.” A large middle class of citizen-warriors stands ready to sacrifice not only comfort but individual self-preservation for the sake of the city, for the way of life of the city. “Political virtue or noble action is what distinguishes the full practice of true politics from the practice of subordinate parts of politics,” such as household management and commercial production, “which may call forth some virtues, but not all and not the finer ones.” Oligarchs and democrats tend to use political life to serve the interests of themselves; the middle class, somewhat less so, and without insisting on excluding others from a share in rule.

Oligarchs want to squeeze the poor in order further to enrich themselves. The poor want to squeeze the rich, confiscate their property. Both ambitions ruin regimes, including the regimes that undertake to enact such ambitions. However one defines justice, one must admit that “justice does not destroy the city,” the association justice is intended to perfect. At the same time, given the recalcitrance of reality in the face of ‘idealism,’ seen in consideration of Platonic regime theory, “justice, including the justice of a particular person’s claim to rule, cannot be considered in abstraction from the political need to preserve the locus of justice, the city itself and its regime.” Reasoned consent of the governed is required for the establishment of justice, but reasoned consent is often not forthcoming from impassioned human beings. In recognition of this, some take the shortcut of defining justice as “the will of the stronger,” with strength derived from “numerical superiority, wealth, or physical or military power.” And in recognition of that, many (including Plato) incline to uphold the rule of law in an attempt to avoid rule by sheer coercion. This strengthens the tendency to define justice as the rule of law because law seems to hover above the various factions in the city, moderating all of them.  “Aristotle rejects both definitions of justice.” The inconvenience of defining justice as the rule of the strongest readily occurs to everyone who finds himself on the receiving end of such rule. The inconvenience of the rule of law is that law doesn’t really rule; human beings do, framing and wielding laws. Laws are subordinate to regimes; though needed, they cannot make the regime problem disappear.

To achieve the common good of the city as a whole, its survival and its material and ethical prosperity, “all regimes” should “consider the claims of the excluded,” as “even those who do not measure up to a regime’s standards may have at least a partial claim to consideration.” The ‘mixed’ or republican regime is the only one “that deprives no one of honor arbitrarily or by force,” or even by legalistic sleight-of-hand. Republics and democracies, the two regimes ruled by ‘the many,’ resemble one another ‘quantitatively’ but not ‘qualitatively’ precisely because democracy, the rule of the many who are poor to the exclusion of the rich and the middle class, invite the overthrow of their own regime on the grounds of its own injustice. Indeed, while “the many must be given some prerogatives in order to retain them as friends of the regime,” the ruling offices “with the greatest discretionary power require a greater-than-average capacity for just and prudent decision-making.” Those prerogatives include serving on juries, with evidence and arguments are laid in front of them, and judging the performance of public officials by the results they achieve—no trivial tasks, as both Socrates and Pericles would acknowledge. The practice of statecraft is another matter. “Because the best political actor requires prudence above all in order to contribute to the good of the regime, and prudence is a virtue and a knowledge that eludes precise definition and is impossible to display fully outside of ruling office, there are great disagreements, among regimes and sometimes among citizens of the same regime, about who, among those who are not holding office at the moment, has the potential to fulfill the requirements of a good political ruler.” That arduous challenge is not necessarily beyond the capacity of a popular regime.

To meet that challenge, the city’s inhabitants need to be “educated in the principles revered by the regime.” Such “education in the regime” will “teach the full citizens both to rule well and to be good human beings.” Teaching requires teachable persons, however. “If the citizens are incapable of the highly trained virtues, the legislator must decide which element among his less gifted citizens to honor and to put in office in order to benefit the whole city.” Education must supplement the rule of law, both understood as emanations of the regime. Rule of a “political multitude” that includes a substantial middle class will feature virtues sufficient to sit still for civic education and to exercise rule by just laws, justly, consisting as it does of “all kinds of people capable of some self-mastery” and excluding those who are incapable. [3]

The founder of a republic should therefore “not confuse this task with that of the founder of the simply best regime, and [Professor Rubin adds, astutely] the citizens probably should not be reminded of a standard of educated virtue that they will never attain collectively.” Such a political science differs from Socratic political philosophy, to say nothing of efforts of professional rhetoricians and sophists. Aristotelian political science remains mindful of the best regime discovered by political philosophy, as this provides a standard of justice uncompromised by circumstances, but it concentrates its attention on finding “the best regime under given circumstances,” taking note of regimes (and they have multiplied in modern times) “governed by a partisan principle of justice that may assume it is the best simply or the best possible, but is neither,” and, finally, considering “the regime most fitting for all cities.” Aristotle offers a typology of regimes. One set of identifying criteria are material, consisting socioeconomic classes; “the preeminence of one economic class will create, in general, an oligarchy, a democracy or a republic.” These ‘quantitative’ regime identifiers must be supplemented by ‘qualitative’ ones, regimes that are better or worse, ethically. This category is very far from abstract, however. “Because of the superiority of the good life to mere life and of the soul to the body, despite the fact that the mouth and the digestive system are crucial to existence, the parts that contribute to knowledge and that allow the whole are superior.” In a good regime, politicians and warriors outrank farmers and artisans. But “the key to the characters of the regimes in the second list is not so much the type of work the citizens perform…as the quantity of leisure time available to them,” time they can use to deliberate about city policies. For Aristotle, political freedom or liberty consists not simply in freedom from unjust government coercion but in the political participation that enables citizens to guard themselves and their fellow citizens against such coercion.

Although “other forms of government may produce as superior way of life for some of the inhabitants, it is their exclusion of large numbers of free persons from participation in ruling that marks them as inferior,” as “they are not political in the strict sense, characterized by ruling and being ruled among free and roughly equal persons.”  This is the merit of the republic. Whereas aristocracy, rule of the few who are virtuous (and “usually wealthy”) aims higher than most political communities can reach, the republic is “the good regime for those of some wealth and freedom who are not extraordinarily virtuous”—the sort of population a founder/lawgiver is much more likely to encounter. “The excellence of a republic lies not so much in the virtue of its citizens individually as in its balance” among the several classes of people within it. Political stability, a very great good but one detested by many ambitieux, “is not to be purchased at the cost of tyrannical measures, but to be earned by satisfying all the major parts of the city.” In this regime, the middle class serves the indispensable function of enabling the governing body to avoid both deadlock and class warfare between the few who are rich and the many who are poor. In so doing, the middle class arbitrates between the rich and the poor. “The middle class satisfies uniquely the requirement that the republic take account of riches and poverty without outstanding virtue, by mixing riches and poverty in the same persons, so to speak, in a combination that produces a certain moderate virtue” within the city. A middle-class republic gives voice to practical if not to theoretical reason, to citizens if not to philosopher-kings. In it, citizens will exhibit “a willingness to rule untyrannically and to be ruled unslavishly.” This regime gives citizens fewer reasons who “desire the regime to change.” 

This can be so, because “moderate property holders are temperate by the nature of their social and economic position, not so much by an education that tries to create a ‘second nature'” in them. The passions of middle-class persons “more ruled by reason” than those of the rich or the poor; their ambitions are also more moderate; relatively easygoing, they readily make friends among themselves; and they neither envy the rich nor fear the poor. And they are ready, willing, and able to defend themselves and their city in war. And not only in war: “Both the justice and the stability attained by a republic should be able to withstand chance, the hard times or crises that are brought on by domestic strife, warfare, and economic decline.” The middle class will “muddle through,” waiting for the first opportunity to restore more favorable circumstances. While aristocracies require “extensive education” to discipline and refine the young, the middle-class republics “are educational in the way they operate,” institutionalizing “the tendency toward moderation that the middling citizens ordinarily displays” and, by institutionalizing that tendency, reinforcing it. “The citizen virtue of a middling republic does not create grand individuals worthy of great honor but rather good citizens who, when considered as a whole, sustain a regime worthy of emulation.” A principal danger to that regime is the failure of brilliant and ambitious souls to appreciate such virtue and the regime animated by it. Unlike America’s Franklin, a man scarcely lacking in brilliance and ambition, they cannot bring themselves to laud “happy Mediocrity.”

What would Aristotle think of the United States? “Two prime factors make the modern liberal state praiseworthy in Aristotelian terms: political stability and an understanding of justice as fairness to all parts of the society.” He would also see a weakness: “Modern Americans, like Aristotle’s middling element, know they should participate in elections and they should serve on the jury, but when the moment arrives, any think of something they would rather be doing.” Unlike the middle class of an ancient polis, where the connection between citizen participation and liberty was obvious, the middle class of the large, centralized modern state inclines to abominate ‘the politicians’ while refusing to engage in politics.

Prominent American Founders esteemed the middle class. John Adams “seriously studied Aristotle” and praised the rule of law, equally, over “all men.” With Aristotle, Adams praised the middle class as “compliant to reason,” as “willing to submit to command or law” while “knowing how to rule over freemen,” as neither covetous nor thieving but intolerant of being stolen from, as likely neither to scheme against others nor to tolerate others who scheme against them, and as the class “least liable to seditions and insurrections.” Middle-class “self-restraint and public spirit” will “keep factional conflict at bay both inside and outside the government,” so long as the state and federal constitutions reinforce those virtues by separating and balancing the three powers of government, including a division of the legislative power into two institutional branches, one representative of the rich, the other of ‘the commons.’ In America’s case, however, the existence of a middle class more numerous than the poor will require not the middle class itself but the executive branch to serve as the arbiter between the two legislative chambers.  And although the founding generation would soon divide into partisan ‘Republicans’ and ‘Federalists,’ Adams’s Republican rivals concurred with him on the value of the middle class; as Republican James Madison wrote, “mediocrity of fortune is a leading feature in our national character” in a population with “few dangerously rich” and “few miserably poor.” Republicans inclined rather to worry that the middle class might in time be too complacent, “too moderate in their ambition to combat the avaricious forces” of rich and poor.

Federalists, the early anti-Federalists and later Democratic Republicans accordingly saw the need to inculcate citizen virtue in successive generations, “simple manners” among a “laborious and saving” population. Federalists “left the control of education and the administration of people and things to the states and their localities,” practicing a “laissez-faire attitude over what recent commentators call family values or personal moral choices.” But in those states, counties, and municipalities, Federalists and their opponents alike worked to cultivate what Delaware delegate to the 1787 Constitutional Convention John Dickinson called “the seeds of liberty.” “Dickinson argues that the only way that the new government will become a despotism is ‘after a general corruption of manners,’ at which time will be a matter of course.”

To stave that off, Noah Webster of Massachusetts became America’s most prominent advocate of a public civic education entailing “knowledge of the rights of men and the principles of government” and encouraging a “keen sense of liberty and a watchful jealousy” in guarding those rights and principles. In a democratic republic, the great dangers are the demagogue who beguiles the people by “pretending to patriotism,” wins their votes, then rules “like a giant” and a “powerful lawmaking body favoring the propertyless over the moderate property holder and not restrained by moral integrity.” Foreseeing “a day when economic circumstances will move the society away from rough equality and self-reliance,” when “the family farm will decline and manufacturing arise” and the consequent increased dependence of the middle-class and the poor upon the rich, Webster calls not only for civic education but for better educators, paying “extended attention to finding good teachers for the common schools as well as academies.” Such men (and the teachers in the early decades of the United States were men, for the most part) must be “prudent, accomplished, agreeable, and respectable,” inasmuch as students learn as much from example as from books. Students who respect their teachers (because the teachers themselves are respectable) are more likely to become good citizens as adults. “Parents who abide ill-mannered, clownish, or profligate teachers must not be paying sufficient attention” to hiring, or perhaps refuse to pay for better ones. Even as the students, in Webster’s words, “lisp the praise of liberty and of those illustrious heroes and statesmen who have wrought a revolution in her favor,” they will have before them decent if not heroic men who exhibit the steady habits of the middle class.

“Self-government, at both the individual and the community levels, requires sustained effort, and in the modern world, where the acknowledgment of human rationality has released humanity from blind obedience, that sustained effort must be rationally defensible and appealing.” Can “each new generation” in the middle-class republic resist “the temptation to climb into a more luxurious social position”? Can “the chosen leaders of the political institutions resist the lure of becoming an oligarchy”? Alexander Hamilton came to doubt it. “As riches increase and accumulate in few hands; as luxury prevails in society; virtue will be in a greater degree considered as only a graceful appendage of wealth, and the tendency of things will be to depart from the republican standard. This is the real disposition of human nature…. It is a common misfortune, that awaits our state constitution, as well as all others.” Webster, Delaware Anti-Federalist newspaper editor Robert Coram, along with Benjamin Franklin and Samuel Adams, all in effect turned toward the Aristotelian remedy for such decline, citizen education, if not precisely toward Aristotelian ethics as the substance of that education. Coram advocated a national education curriculum “intended to produce good citizens of the new republic through job training, inasmuch as a “truly free government, suited to the nature of man, requires teaching all the citizens how to make a living.” Public schools that teach literacy, mathematics, and the sciences, along with “mechanics and husbandry,” followed by apprenticeship programs, will accomplish that. Franklin thought in similar terms, while emphasizing the study of political and commercial history as a means of smartening up students about the menace posed by tyrants and titled aristocrats while instilling a good regard for such virtues as temperance, order, frugality, industry, and perseverance. Both men commended religious instruction insofar as it fostered sound morals. Franklin especially “combines the traditional lures of liberal learning with the commercial inducements of a modern society.”

Pennsylvania’s Benjamin Rush, a signer of the Declaration of Independence along with Franklin, emphasized the importance of religious instruction for republican citizenship. Public education in the primary grades should “be founded upon the study of the Bible, both for learning to read and write and for inculcating at the most retentive age the Christian virtues of ‘humility, self-denial, and brotherly kindness’ and the Golden Rule, all of which are ‘useful to the republic’ and ‘wholly inoffensive.'” Indeed, as he wrote, “the only foundation for a useful education in a republic is to be laid in Religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.” Rubin cautions that Rush’s claims “should not be simply labeled either prejudice or proselytizing zeal,” but rather as the basis of a serious matter public policy should address: the need for young people “to choose the religion that will form the moral center of their adult lives.” As a stalwart of the American branch of the Enlightenment, Rush himself did not assume that Christian revelation was true, but rather that Christian “doctrines and precepts are calculated to promote the happiness of society and the safety and well-being of civil government.” Some other religion might serve that purpose, but Christianity is the one we have. To prevent bitter disputes over sectarian doctrine, Rush recommended that children of the same religious sect be educated together in “a variety of schools [that] might enhance the citizens’ toleration of other religions.” Such religious instruction will reduce crime (“confessions of criminals show that vices are the fatal consequences of the want of proper early education,” Rush maintained) and thereby reduce the tax revenues needed to support jails. As Rubin summarizes it, “A free citizen will vote wisely, work hard, obey the law and stay out of trouble, and make efforts to improve his community and his state without taxing and spending too much.” And he will do so as a citizen, that is, as a person who shares a core of moral convictions and habits with other citizens in the regime. And not only “he”: girls will be educated in much the same way; as the first teachers of children and exercisers of influence over men, they too must understand the principles of liberty and government. They will also prove important supporters of education and the rule of law. The right kind of education, Rush hoped, would “preserve our morals, manners, and government from the infection of European vices.”

Rubin completes her survey of Founding-era American educational writings with Nicholas Collin, a pre-Independence Swedish immigrant who became the pastor of the New Jersey Branch of the Lutheran Church of Sweden and eventually a minister at Gloria Dei Church in Philadelphia. Instead of proposing a variety of public schools serving the many Christian sects, Collin devised a syncretic approach, writing “a how-to book incorporating all the wisdom of the world’s religions that teach about an afterlife without offending any of them,” a book he intended for inclusion in public school curricula. A doctrine concerning the afterlife supports morality. Since “a truly republican government cannot impose its laws by force,” since laws “cannot enforce themselves,” and since “the theoretical foundation of republican government is the justice of each human being’s ruling himself,” the majority of its citizens “must be so satisfied with the laws that they obey them as if they and made them themselves.” In Collin’s words, “As the people cannot be led as children, or drove as mules, the only method is, to make them rational beings.” That won’t be easy, as civil society will always have its “refractory elements”—those of “weaker wills” and “slower intellect,” who might still be brought to trust those who have “better knowledge” of politics and government. Religious education can accomplish this. “While Aristotle associated the middling virtues with middling economic status, Collin implies that the larger the ruling class, the more effort has to be put into their intellectual moral development.” Without the pressure from powerful rich and poor classes to keep the middle class on the straight and narrow, that class will lapse into complacent self-indulgence. “The ‘overdriven spirit of trade,’ put together with America’s ‘overdriven principle of equality,’ creates the sense that all can have and should have whatever they desire.” This would lead the American middle class into the characteristic mistake of Aristotle’s democrats: defining liberty not as self-government but as doing as one likes. Add to this the absence of fixed classes in America, with the resulting tendency of everyone to “both envy and emulate the rich,” and the need for a serious religious upbringing at home and in school becomes clear.

“Politics—the experience of debating and horse-trading, drafting and redrafting, articulating principles and compromising on specifics—led the Americans to produce a republic similar in crucial ways to Aristotle’s best political regime,” a regime characterized by “rule of law rather than…human whim,” crucially inflected by a reasonable and reasoning middle class. While much of recent political science scholarship foregrounds the Founders’ constitutionalism, their application of the rule of law, Rubin sees that the Founders “also took up Aristotle’s parallel concern with the moral qualities, the ‘manners,’ as they term them, of the citizens who both rule and are ruled, whose way of life characterized the republic,” gives it its distinctive ethos. As the Founders foresaw, as Tocqueville and Lincoln would soon warn, “if the majority of citizens no longer knows how the system works or why it was instituted, no longer cherishes citizen virtues and votes for respectable officials, and no longer sustains itself independently, the majority will be hard pressed to make a sensible judgment about needed reforms and trustworthy reformers.” They will then become prey for demagogues and for “unsympathetic elites.” Those elites are likely themselves to fall prey to “philosophic demands,” that is, demands by philosophers (to say nothing of rhetoricians and sophists) that their ideas be realized, persons who may be ‘political’ in the sense of addressing political life, but are not ‘politic,’ lacking a prudential sense of what most human beings can achieve and sustain. The libertarianism of Thoreau, the utilitarianism of Mill, the socialism of Marx, the progressivism of Croly all exemplify philosophizing that had calcified into ideology. “A large but partially obscured challenge of the founding era, as for Aristotle, is to make mediocrity admirable.”  “This is mediocrity, which is but called moderation!” Nietzsche exclaims, beckoning subsequent generations to deplore along with him. The results of such efforts have been less than impressive. What happens when Thomas Jefferson’s natural aristocracy of virtue and talent separates virtue from talent, proposing instead a social science that studies ‘values’ and ‘facts’? “Barely a single one of the Aristotelian middling virtues or the Founders’ republican manners is openly revered today.” Are Americans the better for that, the happier for it? What has “a culture that prizes self-definition (license) over old-fashioned liberty and notions of equality that are beyond the capacity of a free society to achieve” achieved?

 

 

Notes

1. See Robert H. Horwitz, ed.: The Moral Foundations of the American Republic (Charlottesville: Uni9vrsity Press of Virginia, 2001). On American Aristotelianism, see Paul Eidelberg: A Discourse on Statesmanship: The Design and Transformation of the America Polity (Urbana: University of Illinois Press, 1974).
2. The Roman Republic and the modern British republic of the Founders’ time might be put forth as conspicuous exceptions, although of course the Founders regarded British rule of its colonies as nothing better than tyrannical.
3. Self-government has been a neglected theme of American political thought; studies more usually address equality and liberty. For two attempts to redress the balance, see Will Morrisey: Self-Government, The American Theme: Presidents of the Founding and Civil War (Lanham: Rowman and Littlefield, 20004) and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government (Lanham: Rowman and Littlefield, 2009).