Our Homosocial Constitution: Some Sexual and Political Themes in Paintings Admired by the Founding Fathers
 

by Alan Hyde⁽¹⁾

In the paintings admired or owned in reproduction by Jefferson and Madison, the male body characteristically represents the virtuous public life of a republican social order. This partly reflects the transnational visual culture of late eighteenth century democratic revolution. The United States of America was founded during a unique moment in the history of visual culture: a moment when women essentially disappeared as the objects of artistic representation. In a long Western artistic tradition in which the female body normally represents desirability or indeed the state of being looked at itself, the closing two decades of the eighteenth century are a remarkable moment in which it was the male body that represented sociability, community, virtue. Women figured, if at all, only as a way of cementing the more fundamental relations among men.
 

However, the preference of Jefferson and Madison, for paintings of classical heroism and male sociability, is more than a temporal coincidence. In selecting work for their collections or viewing pleasure, they often went back in time, for example to the Renaissance, in search of history paintings of male virtue. In so doing, they ignored more recent work with female subjects or sensual or erotic appeal. Instead, they chose paintings celebrating their very political theories: stoic, Roman, republican virtues such as the suppression of emotion and the devotion to public duty. In fact, those few Founders who admired the art itself tended to admire it precisely for its political message (as opposed to what we may consider its artistic values). By studying the art of their time, we can gain insight into the political thought of the founding generation, not, of course, as a comprehensive picture of their mental life, but rather, and importantly, as a way into precisely the aspects of their thought to which we are least sympathetic and understand least well, here, the sexuality underlying republican political theory. As we shall see, studying art helps emphasize some of what the men of the early American republic shared with British and French republican culture. Studying gender helps to show how they differed.
 

There has been an explosion of interest recently in the idea of a visual culture and its relationship to political and social order.⁽²⁾ The idea that people understand their own place in society by processing images is simultaneously a banal truism; the basis of important industries like advertising and public relations; and a glaring absence in legal self-consciousness. Legal scholarship normally regards law as a verbal and intellectual activity and rarely acknowledges that law is also part of larger cultural discourses, or that law's distinctive contribution to these discourses may lie more in its symbolic or semiotic properties than in its own rather overintellectualized self-understanding.⁽³⁾ For example, I have recently argued that there is no legal or political theory that explains actual juridical decisions turning on the nature and boundaries of the human body, such as the intrusiveness of police searches, the award of damages for injury, or the ownership of organs, fluids, and wastes. Legal analysis typically turns on the invocation of stereotyped discursive bodies, often invoked as the visualized objects of empathy.⁽⁴⁾
 

For better or worse, there isn't a Theory of Images, from the visual culture movement or any place else, that we can take down from the shelf and apply to solve professional problems in law. (The fact that there are such economic theories has contributed much to the spread of the economic analysis of law). I don't think this a bad thing. We need much more attention to the images of law in artistic and popular culture (and to their literary analogues) before plausible theories could be advanced. That is, in plain English, we need to look much closer and learn to see.⁽⁵⁾
 

Still, it's worth pointing out some of the theoretical problems that lie ahead, lurking over even this little study of some political and sexual themes in art admired by America's Founders. The act of seeing has a significant cultural component along with its biological aspects. People live under varying "scopic regimes" that vary not only in the objects in the visual field but also in the practices of seeing.⁽⁶⁾ We see by ourselves, but language must intervene if our visions can ever link up with anyone else's.⁽⁷⁾ On the other hand, the universal pattern by which colors are perceived and named is literally a textbook example of how the complicated interaction of cognitive and social biases in fact produces shared meaning.⁽⁸⁾ We have known since David Hume and Adam Smith that the image is uniquely powerful in firing the imagination that lets us empathize with the other.⁽⁹⁾ Lawyers know this of course. Consider the spectacular displays, the language full of specific images, used to create empathy with the victim of injury, and contrast the cold, non-imagistic language that makes legal subjects disappear.⁽¹⁰⁾ The present study, like most recent work on visual culture, emphasizes just these empathy-creating images of the male body in eighteenth-century art. It will not much explore the oppressive, limiting aspects of thinking in images.⁽¹¹⁾ Nor will it address at all the entire question of resistance to images, about which little systematic is known.⁽¹²⁾
 

In short, the phenomenology by which images are seen, imagination triggered, and political and sexual consequences follow, is not well understood. Behind this particular study however lies one final assumption that I shall not specifically defend here, namely, whatever practices have evolved to interpret images, particularly aesthetic images, are probably the foundation of political allegiance. The critical skills we will use to interpret eighteenth century art can be applied to the Constitution itself.
 

The Constitution itself is a product of eighteenth century culture. It contains much that is foreign to us, irretrievably alien, much we can never really understand and more to which we would never assent-just like a painting by David or Drouais. The difference is supposed to be that the Constitution is law in courts, binding on us-it says so itself⁽¹³⁾-while the paintings are mere aesthetic objects that we are free to pass by, as I suppose most of us do when we get to the acres of history paintings on a visit to any French art museum. We "know" that works of art make no distinct moral claims on us, unless we are momentarily carried away by rhetoric about Western canons or something of the sort.
 

I am happy to appropriate just this aesthetic attitude and commend it as an interpretive tool for the Constitution. We can read the Constitution "against the grain" too, as something we can savor precisely for its strangeness, its alien qualities.⁽¹⁴⁾ This is easy if the Constitution is seen, as I shall show, as a kind of oath or contract that constitutes a homosocial world of male links and male power.⁽¹⁵⁾ The power of images lets us read the political order "against the grain." It forces us to confront our continuing relationship to a political order that induces our assent by suppressing the sexual oppression at its core. Now we see the choice open to us at every minute of our political and legal lives. We can-childishly, I think-read to find ourselves included in a benign and useful past that rightly rules our lives. Or we can develop an aesthetic sensibility that grants legal authority no more importance, though also no less importance, than the work of art. We need only to abandon our childish search to find ourselves included in the Constitution's stony embrace, and accept our existential freedom to make our own lives, shaped, but never exhausted, by the cultural traditions to which we are heir.
 
 
 
 
 

I. Five Homosocial Paintings that Jefferson and Madison Admired
 

A. David, Oath of the Horatii
 

In the summer of 1786, the American painter John Trumbull arrived in Paris at the invitation of his country's minister, Thomas Jefferson. Jefferson had met Trumbull earlier that year in London, where Jefferson had gone to join John Adams in negotiating commercial treaties with representatives of Tripoli and Portugal. Trumbull became Jefferson's artistic advisor, taking him to the studios of his teacher Benjamin West, John Singleton Copley, and Mather Brown. Jefferson invited Trumbull to take up residence in Paris to continue his artistic studies, meaning, at the time, history painting, in preparation for Trumbull's proposal "to take up the History of Our Country, and paint the principle Events particularly of the late War."⁽¹⁶⁾ (The most famous result of this plan is Trumbull's The Declaration of Independence, in the Rotunda of the Capitol). Trumbull rushed almost immediately to the apartment of the painter Jacques-Louis David, to admire the painting Oath of the Horatii, the sensation of the previous year's Salon (Fig. 1), and today in the Louvre (fig. 2). At some point, Trumbull transmitted his enthusiasm for David to his patron, who by the next year was discussing David's The Death of Socrates in a letter to Trumbull in London. ⁽¹⁷⁾ By 1789, Jefferson claimed in a letter: "I do not feel an interest in any pencil but that of David."⁽¹⁸⁾
 

Like other Americans of his time, Jefferson had seen very few original works of art before coming to Europe, but he came prepared to learn and to possess. He had gone out of his way to see paintings brought back to America by collectors and had pored through books of reproductions, ordering some for Monticello. Three days after signing a lease on his official Parisian residence, he had already purchased and recorded in his account books, more or less as household furnishings: "Two pictures of heads, 7 livres; do. half lengths, viz. an ecce homo and another, 18 livres; two small laughing busts, 21 livres; a Hercules in plaister; five paintings (heads)." One painting purchased by Jefferson in October 1784, and perhaps this entire list as well, came from the sale of the collection of the late M. de Billy, premier valet de garderobe du roi.⁽¹⁹⁾ In February 1785, "seemingly with increased discrimination," Jefferson selected five canvases on religious or classical themes from the more than three hundred offered at the sale of another collection formed early in the century.⁽²⁰⁾ In encountering David's painting, Jefferson pushed beyond these tepid Christian and classical themes, to meet objects worthy of his collector's ambition.
 

I want to focus most of the rest of this paper on the scene of Jefferson staring at David's Horatii as a synecdoche for the lawmaker's psychic processing of an image. In Jefferson's case, the image becomes a kind of Lacanian mirror in which Jefferson could find a psychic identification for a nation in bits and pieces.
 

What do we know about how Jefferson looked at paintings? The first thing to note is that, while Jefferson's admiration for David was deep and sincere, it was primarily limited to the messages of the paintings. "[M]edium and method did not seem to have concerned Jefferson. That he preferred David seems to be due neither to David's workmanship nor his composition, but to what the painter said in his composition."⁽²¹⁾ We can accept statements like this and still admit to uncertainty about just what an eighteenth century viewer like Jefferson would have seen when looking at David's Horatii. Jefferson, like other eighteenth-century art lovers, employed a frustratingly limited vocabulary in which favored works were normally praised, even in France, only for their "natural" or "true" qualities (he did admire David's "cold and icy star").⁽²²⁾ Art criticism was in its infancy, in Diderot's pioneering Salons of the earlier decades, reviewing the biannual salons for the benefit of Grimm's mostly German subscribers, and yet Diderot, however brilliant, is still largely concerned, as Norman Bryson has observed, with translating images into text.⁽²³⁾
 

David's Oath of the Horatii is in turn one of the masterpieces of French neoclassical history painting and one of the most-commented-on paintings of the century, so even assuming that Jefferson saw only its "content" or "message" leaves plenty of room for interpretation as to what that "content" was. I think, however, we can be fairly confident that Jefferson saw at least five levels of meaning that I shall discuss in turn, briefly here and in more detail in the sections coming up: the history of the Roman republic; the virtues associated with it; the founding of new republics through contract; the exclusion of women; and the heroic male body as the representation of the founding of republics.
 

First, he saw a literal story of ancient Rome. Second, he saw a complex of virtues frequently depicted in French history painting: "patriotism, frugality, integrity, and courage associated with Roman virtue."⁽²⁴⁾ "David's austere images of ancient virtue profoundly impressed [Jefferson], particularly by contrast with the conspicuous lack of virtue in contemporary Paris."⁽²⁵⁾ David's virtue would have enabled Jefferson to overcome the Shaftesburian association of painting with effeminacy, luxury, and corruption. Third, Jefferson's political experience and interests might well have led him to see political parables not so important to other viewers. The Oath of the Horatii probably represented far more to Jefferson than simply a generalized Roman republican virtue. Specifically, it represents a contractual origin to a new republican social order, rather like the idealized American republic, whose Declaration of Independence Jefferson believed he had drafted.⁽²⁶⁾ In the painting, as in life, putatively equal, sovereign, and very male subjects formed a new social order by willing new authority. The painting, as we shall see, could easily be renamed Declaring (Roman) Independence or perhaps Constituting the Republic.
 

Fourth and fifth, and most controversially, I will suggest, following recent work by the art historians Norman Bryson, Thomas Crow, and Abigail Solomon-Godeau, a specific sexual politics in the art admired by the Founders: that new social order, represented in the social world of the paintings, is deeply and intrinsically male. The fourth aspect of this art is the exclusion of women: women figure, if at all, only as the vehicles for the cementing of the more fundamental bonds between men. As Solomon-Godeau puts it, "[T]hese new alliances between men (the theme of so many Neoclassical paintings of oath-taking) effectively require the exclusion of women."⁽²⁷⁾ One reason for tracking this theme, of the exclusion of women, through the art of the period, is that in art, unlike politics, it was novel and problematic. One might argue that women were excluded from political participation in the eighteenth century democratic republics, just as they had been from all previously-known modes of political organization-so what else is new. This wouldn't be wrong, exactly, but studying contemporaneous art shows how it is incomplete. For when women disappear as artistic subjects, that is news, and illuminates precisely how and why they were eliminated from the political revolutions of their time. Fifth, artistically, the heroic male body replaces the female and represents the third level of meaning, the tale of political origins.
 

David's painting has meant many other things to other people, but I shall be concentrating on these five aspects that we can be fairly certain would have been meaningful to Jefferson.⁽²⁸⁾ It is only for ease of exposition that I shall separate for discussion the literal meaning, moral lesson, political parable, exclusion of women, and male bodies in the Horatii. The five themes reinforce each other. In drawing them out of the painting (and the other paintings that I shall discuss), we will employ various interpretative techniques to construct a coherent moral universe, one we will enter sympathetically but ultimately reject as a guide to our lives today. We will thus construct a prototype for the interpretation of other eighteenth century cultural and aesthetic production.
 

1. The literal story: conflating two Roman legends

The subject matter of David's Horatii is complex. The painting refers simultaneously to two Roman legends, each commemorating a father who chooses civic duty over fatherly love. David said he owed the subject to Corneille's tragedy Horace.⁽²⁹⁾ In all versions of the story, set in the ancient Roman kingdom around 670 B.C., war between Rome and the neighboring Albans is averted when it is decided that the three sons of old Horatius will fight the three Curiatii brothers, representing Alba. "The horrific (and sentimental) twist to the story is that the two families were related by marriage: one of the Horatii was married to a sister of the Curiatii, while their only sister, Camilla, was betrothed to one of their opponents. The two sets of brothers nevertheless fought to the death, and only one of the Roman warriors survived: thus Rome triumphed."⁽³⁰⁾ The surviving Horatii brother, on returning from the battle, is reproached by his sister Camilla for killing her betrothed and for "the whole Roman cult of military valor, which she criticizes as brutalised and inhuman..."⁽³¹⁾ The brother kills the sister. His father is conflicted as to his obligation but eventually turns young Horatius over to the king for justice. The father defends the son for putting zeal for country above all else, and the king acquits him.
 

When the painting was shown in the Salon of 1785, also shown were paintings depicting the younger Horatius killing his sister Camilla, the Académie's prize subject that year, including one by David's eighteen-year-old student Anne-Louis Girodet (Fig. 3).⁽³²⁾ David had originally intended to illustrate the killing, and indeed Girodet's painting is based on an earlier (1781) study by David that he never executed (fig. 4). David also started a drawing of the elder Horatius defending his son, but neither finished the drawing nor painted that theme (Fig. 5).⁽³³⁾
 

David's painting instead illustrated an earlier phase of the story, before the battle, when the father and sons swear victory, an incident unrecorded in accounts of the tale, as contemporary observers noted.⁽³⁴⁾ The source of this oath-taking scene is thus not entirely clear, but the favored explanation is that David borrowed the oath-taking scene from an entirely different Roman legend in which Lucius Junius Brutus swears vengeance against Tarquin over the dishonored body of Lucretia.⁽³⁵⁾ The defeat of Tarquin marked the founding of the Roman Republic, with Brutus as its first consul. The Brutus oath-taking had been represented in earlier paintings by Gavin Hamilton (Fig. 7) and Jacques-Antoine Beaufort (Fig. 8) that David probably knew.⁽³⁶⁾
 

Jefferson would have known both the Horatius and Brutus legends, from Plutarch, Livy, Rollin, and perhaps other sources, though it appears that only the Brutus legend was an eighteenth century favorite, in America as in France. All of Brutus's names were popular pseudonyms, and he was one of many favored classical models in American revolutionary rhetoric.⁽³⁷⁾
 
 
 

2. The Roman virtues of Horatius and Brutus
 

The question of the classical roots of the Founders' political thought has attained the paradoxical state of being simultaneously something that people have heard entirely too much about, while not actually knowing much about it. Those of us who don't know much about the classics, and who glaze over at the bits in the Federalist discussing, say, the Amphictyonic confederacy or the Lacedaemonian commonwealth (these are literally the first two classical allusions that hit my eye as I flipped through my Federalist), can fool ourselves into thinking that, since we can drop a reference to Pocock, we actually understand them.⁽³⁸⁾
 

I want to avoid saying anything controversial or even interesting here. Everyone can agree that educated Americans (like Jefferson and Trumbull) would have associated the ancient Roman republic with certain desirable civic virtues, and the later Empire with their corruption. If this were a comprehensive treatment of the Founders' political thought, I would have to discuss the comparative importance of the classical (as opposed to Puritan, biblical, or English Whig) origins of the colonial concept of virtue;⁽³⁹⁾ the comparative importance of "virtue" as compared with other contemporaneous political concepts;⁽⁴⁰⁾ and the extent to which virtue was still compatible with such other concepts, popular in the Constitutional period, as honor and interest;⁽⁴¹⁾ all with reference to an enormous historical and law review literature of which everyone is aware.
 

For the present study, I take no position on these or related issues. I want only to point out the likelihood that a painting-a French history painting of a scene from ancient Rome, like David's Oath of the Horatii-would probably have suggested the same kinds of virtues, associated with the Roman republic, in an American viewer as a French viewer.⁽⁴²⁾ In other words, it would be ordinary for the American to perceive such a painting as a representation of political theories. I want to make this banal point only because I will momentarily turn to a darker and less obvious set of political theories equally illustrated by the Horatii.
 

What were those virtues? Again, I will address only the uncontroversial. The Horatii pledge their willingness to die for Rome. They put the interests of Rome over their own private interests, ties of family affection, even their lives. They take on the father's power (in the swords he will hand them), with a gesture of loyalty "so emblematically clear" that it was reenacted by youths and old men at the Republican festivities staged by David in 1793 and 1794.⁽⁴³⁾ "In David's four heroes-father and sons-this new proclamation of moral energy pervades mind and body, from the determined gaze of their firm heads to the tautened muscles of their outstretched limbs."⁽⁴⁴⁾
 

An American like Jefferson or Trumbull would instantly have appreciated the sense of civic duty, the toughness and suppression of emotion: this is what Rome before the emperors had always represented in their public rhetoric and private correspondence, and would continue to represent to their successors long after their deaths. And if he picked up the echoes of Brutus's oath of revenge on the tyrant Tarquins, leading to the founding of the Roman republic, the circle would have been complete, for Brutus's bravery and the virtue of the Roman republic were stock themes in eighteenth century American public and private discourse. "The founders believed that the chaste Roman republic had been corrupted in the first century B.C., resulting in the rise of the emperors. Then, in a vicious circle, the practice of living under the thumb of these tyrants had corrupted Rome even further, so that soon even high officials lacked political courage.... In 1821 Jefferson argued: 'There are three epochs in history, signalized by the total extinction of national morality. The first was of the successors of Alexander, not omitting himself: The next, the successors of the first Caesar: The third, our own day.' Nonetheless, as he had explained in 1813, Jefferson preferred to read even about Rome's corrupt periods than to read about his own era.. 'I turn from the contemplation with loathing, and take refuge in the histories of other times, where, if they also furnish their Tarquins, their Catilines, and Caligulas, their stories are handed to us under the brand of a Livy, a Sallust, and a Tacitus, and we are comforted with the reflections that the condemnation of all succeeding generations has confirmed the censures of the historian, and consigned their memories to everlasting infamy, a solace which we cannot have with the Georges and Napoleons but by anticipation."⁽⁴⁵⁾
 
 
 
 
 

3. The Foundation of Republics
 

The oath founds the republic. If we understand the Horatii as a depiction of the Oath of Brutus as well, we see the origins of republican government in the will of its Roman founders: a social contract before Locke; a mutual pledge of lives and sacred honor before Jefferson's Declaration (though painted after each).⁽⁴⁶⁾ Jefferson can hardly have failed to notice this aspect of the story, vindicating his own accomplishments with the beneficent approval of two of his favorite sources of authority, the classical literature of the Roman Republic, and Parisian Republican culture.
 

One small benefit of this excursion into eighteenth century visual culture is this broadened understanding of republican thought as a European cultural phenomenon, broader than the working out of themes just from Whig or Puritan thought.⁽⁴⁷⁾ There is much that remains to be learned about this transnational republican culture. David's The Death of Socrates (1787)(fig. 9), which Jefferson praised to Trumbull,⁽⁴⁸⁾ was painted on commission from Charles-Michel Trudaine de la Sablière, a pivotal figure (with his brother) in transatlantic democratic revolution and soon to translate The Federalist Papers into French.⁽⁴⁹⁾ David himself, of course, held important public positions in the French revolutionary governments and staged the large spectacles that are the unique French republican contribution to visual culture.⁽⁵⁰⁾
 
 
 
 
 

4. The Women Disappear
 

In late eighteenth-century French art as in seventeenth-century American political rhetoric and practice: public authority is understood as resting on a contract among the men, and the women disappear.
 

Mary Beth Norton has recently explained the darker vision of gender underlying American social contracts. She contrasts two political theories present in seventeenth-century colonial America, illustrating each with copious examples from court records. The Puritan New England colonies adhered to a "Filmerian" theory under which legal and political authorities exercised authority modeled on the father's authority over the family. The Chesapeake colonies by late century began to develop a contrasting "Lockean" view, that rejected the family as the model for civil society. Instead, political legitimacy was located in a foundational contract among men.⁽⁵¹⁾ Interestingly, the choice of models affected women, and, perhaps surprisingly, the Filmerian model was in some ways better for women. For widows, particularly of high rank, could pose anomalous and difficult legal problems in the "Filmerian" colonies: they were heads of households and had to be permitted to control and dispose of property and pay the estate's debts; they sometimes signed petitions or other official documents, and in one case briefly governed Maryland as the representative of the Lord Proprietor.⁽⁵²⁾ In the writings of Locke, and the practices of the colonies that anticipated his social contract, there were no such anomalous heads of households, for that status was irrelevant. Political power rested on the agreement of the male property holders and women had no role at all.⁽⁵³⁾
 

The expulsion of women from even limited roles in civil society has its precise parallel in the art of neoclassical republicanism, as explored in recent art historical work by Thomas Crow, Norman Bryson, and Abigail Solomon-Godeau. For a generation after 1774, women disappeared from painting as the objects of desire.⁽⁵⁴⁾ We can take 1774 as a convenient date for the disappearance of women; it marks the appointment of the Comte d'Angiviller as Directeur des Bâtiments (head of national arts administration).⁽⁵⁵⁾ For all their formal and thematic differences, artists such as Boucher (who died in 1770), Fragonard (who debuted in 1765), Greuze (active in Paris after 1755), and Chardin (Paris debut, Salon of 1753) all shared an objectifying male gaze that often placed a woman as the central object of desire. A standard art-history generalization might contrast the luxurious eroticism of the first two with the more sober genre painting of the latter two, but for my purposes their shared depiction of desirable women makes a striking contrast with post-1774 painting. ⁽⁵⁶⁾ Needless to say, neither Jefferson, Madison, or any other American Founder showed any interest, or could conceivably have showed any interest, in the recent paintings of Boucher, Fragonard, Greuze, or Chardin.
 

Under d'Angiviller's predecessor, Marigny (Mme de Pompadour's brother), such paintings of women coexisted with his officially-favored, morally elevating, neo-antique paintings, and early history paintings by Benjamin West and Gavin Hamilton.⁽⁵⁷⁾ But after 1774, the men take over, as in the Horatii and other works by David and the Davidians, discussed in this Article. When women appeared at all, which was rarely, they could (rarely) illustrate classical Roman virtues,⁽⁵⁸⁾ (more commonly) cement ties among the men,⁽⁵⁹⁾ and (occasionally) be murdered by them.⁽⁶⁰⁾
 

David's Horatii well illustrates the marginal role of women in the new republic, as Norman Bryson has observed. "David's paintings everywhere show a strange conflict between the genders: he divides humanity not just into the two sexes, but into two distinct species, where the males are concerned only with political action, heroism, and self-sacrifice, and where the female loyalties invert the male ones-family before state, the rights of children before the rights of the polis, peace before war."⁽⁶¹⁾ "[W]e cannot forget that of these three who make themselves into one, only one will return, and he will kill his sister....The world-order is revealed as perverted: men and women lead lives so specialized and separate that humanity seems broken in two..."⁽⁶²⁾ The men are incomplete; they take on the strength of their father, losing their identities; the women retain their identities, but lack language or agency.⁽⁶³⁾ In the Corneille play from which David took his subject, Camilla, as we saw, is permitted an impressive verbal denunciation of Roman militarism.⁽⁶⁴⁾ By contrast, "David's women are silent and have neither word or image to challenge men"; they are the objects of exchange to cement ties between the men of Rome and Alba; they "do not speak, and they hardly see." "The Oath is an exact image of visuality for the subject living under patriarchy. The females, denied political authority by the patriarchal mandate, are consigned to silence, to the interior, to reproduction; while simultaneously the males are inserted into the equally destructive registers of language and of power convergent in the oath..." In a separate male space, the patriarch transfers his power "sign to sign" in a parody of masculinity. "From [the father] the charge moves to the first of its relays, the swords, to the second, the taut and outstretched arms, and on to invest the bodies of the sons with every mark of virile possession, from the spear, to the stiffly erect crest of their helmets, to the dilated veins of their arms; it energises the oath they swear, re-dedicating the body to the description coming to it from the outside..."⁽⁶⁵⁾
 

As I mentioned above, for Bryson (the source for these brilliant observations), this makes the painting a tragedy, an account of humanity's self-alienation, full of the moral complexity and ambiguity missing from earlier didactic history painting. I am less sure. How would Thomas Jefferson have seen the painting? As a straightforward picture of Roman virtue, with an entirely realistic and unexceptional division of the sexes? Or as Bryson's tragic allegory of alienation? I suspect the former, for at least three groups of reasons. First, Jefferson's own political world was a male one.⁽⁶⁶⁾ If, as I argued, he identified with the band of men who pledge their honor and found a republic-and I don't see how he could have missed this-his identification would in no way be broken by the fact that the image was all-male.
 

Second, Jefferson nowhere seems able to contemplate any political role for women other than as the upholders of domestic virtue. ⁽⁶⁷⁾ Crucially, this is not because Jefferson wasn't exposed to contrary ideas. Jefferson enjoyed the company of the Marquis de Condorcet, who had already given speeches on women's rights later compiled into his publication "On the Admission of Women to the Rights of Citizenship"(1790). Condorcet's work reflected the influence of his wife Sophie de Grouchy, the French translator of Adam Smith's Theory of Moral Sentiments⁽⁶⁸⁾ and of the history of the United States by Jefferson's associate Filippo Mazzei. Jefferson in turn translated Condorcet's attack on slavery-but showed no interest in the work on women's rights.⁽⁶⁹⁾
 

I want to emphasize and generalize this point. England and France at the end of the eighteenth century had produced a number of gender rebels who had no counterpart, and could not possibly have had any counterpart, in the American republic. In the 1780s, there was not, and could not possibly have been, an American Sophie de Grouchy, or other French revolutionary republican women.⁽⁷⁰⁾ There could not have been an American Mary Woolstonecraft; or Johann Winckelmann, or William Beckford.⁽⁷¹⁾ (The reasons for this contrast are not trivial, but would take this study too far afield; they may have something to do with America's passage from Puritanism to republicanism without an intervening Restoration. Part of working out a contemporary relationship to such eighteenth century texts as the Constitution includes a recognition of the limited gender system implicit in that order, and the expansion of that system over the next centuries.)
 

Third, Jefferson admired additional paintings with sexual politics that strike us as mighty weird, as we shall soon see further.
 
 
 
 
 
 
 

5. Male bodies
 

With women literally out of the picture, the male body came, for a generation or so after 1774, to do all the representational work. I shall however, here as elsewhere in this paper, limit myself to representations of the male body that were specifically admired by American founders.⁽⁷²⁾ We have already discussed the male bodies of the Horatii, their perfection, muscularity, will, civic devotion, and suppression of the love of women, whether sister or wife.⁽⁷³⁾ I want to address what we mean when we said, as I did above, that Jefferson likely "identified" with these male bodies. It is certainly possible to say or hear something like this and understand it in a loose sense, indistinguishable from empathy or desire to emulate. I would like, however, to suggest that Jefferson may have "identified" with the bodies of the Horatii in the more precise Lacanian sense that has animated so much interesting recent work in gender and visualization. In an important way, Jefferson acquired and sharpened aspects of his identity in his visualization of the male bodies of David and his students.
 

Most interesting recent work on the psychic consequences of visualization takes place within a Lacanian framework. This is a mixed blessing as it has often restricted circulation of this work to those initiated into that sect. I would not describe myself as a Lacanian and would welcome more attention to the psychological processes of visualization, empathy, and identification by researchers from diverse psychological perspectives. (I read Lacanians pretty much as I read economists: really smart people who think about important questions, within frameworks involving universalizing simplified psychological assumptions, that thus can neither be proven nor questioned within those frameworks).⁽⁷⁴⁾
 

If it seems right to say that Jefferson probably "identified" with the male bodies in the Horatii, what are we saying? In Diana Fuss's formulations, "Identification is the psychical mechanism that produces self-recognition....identification is the detour through the other that defines a self." Some people might want to contrast our "identifications" with our "identities", perhaps seeing the former as more private than the latter. For Fuss, however, "every identity is actually an identification come to light." Fuss shows how the concept of "identification" is closely associated with the Freudian tradition in which: "Identification replaces 'sympathy,' 'imagination,' and 'suggestion' to describe, in more 'scientific' fashion, the phenomenon of how subjects act upon one another." Fuss criticizes the Freudian tradition for attempting to distinguish identification from other, similar psychic processes, such as desire or mimesis, largely on political grounds. For example, Freudians "distinguish identification (the wish to be the other) from sexual object-choice (the wish to have the other)," thus treating homosexual desire as a case of misplaced gender identification.⁽⁷⁵⁾ For another, the Freudian process of identification is colonial or imperialistic in its appropriation of the Other. As Fanon notes, the Black person must experience himself as Black in relation to the white, as an object of white scrutiny, commanded simultaneously to "be like me, don't be like me; be mimetically identical, be totally other."⁽⁷⁶⁾ In the Freudian formulation that Fuss criticizes, Jefferson's formation of identities (man, American, republican, patriot, connoisseur of art) implies a psychic process called identification that includes successive exclusions (woman, nonAmerican, etc.). Fuss leaves us wanting a more inclusive account of the relevant psychic processes-for example, one that doesn't make tendentious distinctions between identification and desire or mimesis-without offering much help in how to make such an account.
 

Kaja Silverman offers just such an account, one emphasizing the ability of the work of art to provide images with which viewers can identify, despite their divergence from social ideals or the viewer's own image. In her Lacanian account, artistic images can recall in the viewer repressed or foregone images and thus induce wider identifications. Viewers must train themselves in what Silverman calls "productive looking," opening up their unconsciousnesses to greater identifications, and Silverman identifies certain films and photographs that she claims do just that.⁽⁷⁷⁾ While one can hardly argue with the goal, Silverman's work for me points out our larger uncertainties (with which this paper began) about the psychic consequences of images; when they might be said to engender identification, idealization, desire, empathy, mimesis, rejection or alienation, indifference, or love; whether and to what extent any of all of these terms should be distinguished from the others. It is thus with some frustration that I must acknowledge my inability to say much of interest about Jefferson's "identifying" with the Horatii except to note the likelihood that art might have assisted that process and to hope to return in later work to closer examination of its dynamics.
 
 
 
 
 
 

B. Drouais, Marius Imprisoned at Minturnae
 

Staying just with Jefferson for the moment, the year after he probably saw the Horatii, he admired Marius Imprisoned at Minturnae by David's favorite student Jean-Germain Drouais, which Jefferson saw in the Drouais family home (Fig. 10).⁽⁷⁸⁾ Jefferson wrote to Mme.de Tott: "Have you been Madam, to see the superb picture now exhibiting in the rue Ste. Nicaise, No. 9, chez Mde. Drouay? It is that of Marius in the moment when the souldier enters to assassinate him. It is made by her son, a student at Rome under the care of David, and is much in David's manner. All Paris is running to see it; and really it appears to me to have extraordinary merit. It fixed me like a statue for a quarter of an hour, or a half an hour, I do not know which, for I lost all ideas of time, even the consciousness of my existence."⁽⁷⁹⁾
 

Drouais' Marius is a rich source of ideas about masculinity and classical virtue, as complex as his own real-life relationship to his teacher David. Its very painting, while Drouais was a student at the Rome Academy, was an act of defiance. The French Academy's rigid rules required that Drouais next prepare a copy of an old master for the king's collection, and Drouais's specific request to substitute an original painting had already been rejected by d'Angiviller.⁽⁸⁰⁾ The painting shows the aged Roman general and consul Caius Marius, banished by his enemies in the Roman Senate and now facing down an assassin ready to do his enemies' bidding. As Plutarch recounts, "to the soldier the eyes of Marius seemed to shoot out a strong flame, and ...a loud voice issued from the shadows saying: 'Man, dost thou dare to slay Caius Marius?' At once, then, the Barbarian fled from the room..."⁽⁸¹⁾
 

Bryson has observed that the painting "looks as though it has been cloned from The Oath of the Horatii."⁽⁸²⁾ It reproduces the same male bodies, same contrast between old and young, same outstretched hands, and same stern Roman morality. ⁽⁸³⁾ We don't need any more than this to explain why Jefferson was so thunderstruck: more of Jefferson's love of Roman virtue, drama, defiance. However, Marius is also profoundly homosocial, as we have been using the term, and one wonders if Jefferson sensed any or all of this. It's a study of male relationships, the younger turned aside from his murderous purpose by the fiery eyes and outstretched hand of the older. By 1788, Drouais was dead of smallpox. David enclosed his letters in an urn and built a shrine to the dead Drouais in the garden of his house in Paris.⁽⁸⁴⁾
 
 
 
 
 
 
 

C. David's The Death of Socrates
 

Before leaving Jefferson in Paris and moving on to other Founders and other artistic traditions, we can examine one other painting that specifically caught his fancy there: David's The Death of Socrates (Fig.9), displayed in the Salon of 1787, where Jefferson thought it "[t]he best thing..., and a superb one it is."⁽⁸⁵⁾ Painted, as we have noted, on commission from Charles-Michel Trudaine de la Sablière, a pivotal figure (with his brother) in transatlantic democratic revolution and soon to translate The Federalist Papers into French, it shares with David's earlier Horatii the five themes we have discussed and that Jefferson could hardly have failed to notice: it commemorates an act of will by a virtuous classical figure that founds an all-male society, marked by intense ties among its members, from which women are excluded.
 

"Socrates was a polemical figure in Enlightenment France because he raised the question of whether a high standard of morality could be achieved outside Christianity. For supporters of the Church, his final stoicism was admirable, but being pagan, of limited worth; for those who opposed the Church his death was exemplary."⁽⁸⁶⁾ If Socrates' classical virtue, courage, rectitude, and resolve are all clear, the political message of the painting is deeply ambiguous and indeed was interpreted in many different ways as the French political scene changed rapidly over the next decade. For its patron, Trudaine, we cannot be sure if his interest lay simply in this representation of pre-Christian (and anticlerical) virtue, or in the subtle criticism at the democratic assembly that condemned Socrates, or a combination of the two. The painting did not seem reactionary when it was reexhibited at the Revolutionary Salon in 1791, where it was read as an anti-clerical work. But by 1794, Trudaine and his brother had both gone to the guillotine. "[A]fter Thermidor an engraving of the painting was circulated and made to serve a quite different political purpose: Socrates is now a martyr to state oppression and folly, like the victims of the Terror."⁽⁸⁷⁾
 

But if we cannot be certain just what political message Jefferson himself would have drawn in 1787, the sexual politics are unambiguous. Far in the background, Socrates' wife Xantippe may faintly be seen departing the scene with an absurdly feeble gesture of farewell. Remaining are a group of male disciples, a disciple with his hand on Socrates' thigh. The executioner with poisoned kylix, an impressively muscled youth, turns away in grief. Socrates' right arm reaches for the poison, but (as Thomas Crow) notes, also for the boy, and if this seems a stretch (for how else could Socrates reach for the poison but by reaching for the boy?), the awkward position of Socrates' right leg, "cementing the link between them," should dispel doubts.⁽⁸⁸⁾
 

Did Jefferson see any of this? The details of Greek love and the specific role of the older teacher in the intellectual and erotic development of young men had largely "been obscured by bowdlerization and euphemism (a blindness Voltaire for one defended in 1770 when he denounced a pamphlet by Pierre-Henri Larcher for referring to Socrates as sanctus pederastes.")⁽⁸⁹⁾ There's no evidence that Jefferson would have seen the homoerotic relations that some see David hinting at (hints that became much bolder over time, as in his frankly homoerotic Leonidas at Thermopylae (fig. 11) of 1814).⁽⁹⁰⁾ But the homosocial relations: intense, serious, constitutive of an authoritative tradition and excluding women-could hardly be missed.
 
 
 
 

D. Seleucus giving his wife Stratonice to his son Antiochus
 

The earliest evidence of Jefferson's ambitions as an art collector are lists he compiled of works that he wanted to acquire for Monticello, at a time when he had seen very little art. Most of the items on the lists have been traced to albums of reproductions that Jefferson must have seen or owned. They are usually interpreted as showing his entry into art through classical and religious themes, and thus contrasted with his later interest, after arriving in Paris, with contemporary French painting. However, it is also possible to trace a continuous and enduring fascination with the artistic representation of homosocial relations, in which the male body represents desirable virtues if not desire itself, and women figure, if at all, to cement the more fundamental relations between men
 

It would be possible to trace these themes through Jefferson's entire wish lists, full of heroic male nudes.⁽⁹¹⁾ Largely for reasons of space, I will limit myself to one of the works that has not been traced to any book of reproductions, one that nobody knows how Jefferson knew about, that he went out of his way, so to speak, to learn about: a painting identified as Seleucus giving his wife Stratonice to his son.
 

All the literary, musical, and artistic representations of the tale have been meticulously traced.⁽⁹²⁾ The paintings tend to follow the account in Valerius Maximus. The earliest known painting is the fresco by Pietro da Cortona in the Pitti Palace in Florence (Fig. 12), and as Jefferson's notebook entry contains the word Florence, it is usually presumed that this is the one that Jefferson had in mind.⁽⁹³⁾ The prince Antiochus is near death from trying to subdue his passion for his stepmother Stratonice. His ailment is diagnosed by a physician who observes the revival of Antiochus' pulse when Stratonice enters his bedchamber. Informed of this diagnosis, King Seleucus cedes his wife to his son in order to save the lad's life. The precise exemplum virtutis is of parental love. However incredible, the story may in fact be true.⁽⁹⁴⁾
 

In Pietro's fresco, the time elements are compressed, so that the physician's diagnosis, informing the king, and the king ceding his wife, all occur with impossible simultaneity. Prince Antiochus, nude and not visibly wasting away, has his pulse taken while he gazes at his stepmother Stratonice. Few of the numerous accounts of the story have ever concerned themselves with Stratonice's feelings, if any, about the whole matter. Pietro's painting gives her an inscrutable expression that became standard in subsequent depiction.
 

What did this painting mean to Jefferson, and why did he want a copy for Monticello? We know that Jefferson cared mostly about art's moral and political message. He also liked work, such as his classical sculptures, that had been certified as top-notch by the artistic authorities of his time, but Pietro's fresco was not the Medici Venus, and as I said has not been traced to any eighteenth century book of reproductions. Jefferson had no distinct interest in Pietro, or the Italian renaissance, or Florence. He had no sons or stepmother. Of course, the appeal of the painting might have been entirely idiosyncratic. However, if it made the same appeal to him that other works did, two thematic similarities leap out. First, Seleucus suppresses his emotions for another's good, lets reason govern the passions: an important theme in eighteenth century morality, less attractive today.⁽⁹⁵⁾ This seems true enough but a little pallid. Second, the painting is another homosocial one. The primary tie is the filial-parental relationship, strengthened by the father's self-denial.⁽⁹⁶⁾ The gift of Stratonice, mute as David's Camilla, binds father and son together.⁽⁹⁷⁾
 
 
 
 
 

E. Jacob Being Shown the Cloak of Joseph
 

We have spent too much time with Jefferson, which is an artifact of my methodological choice to discuss paintings actually admired by American founders. I could have explored sexual and political themes in eighteenth century visual culture generally, or eighteenth century culture linked to republican politics or democratic revolution, but I have tried to focus the study by this somewhat artificial limitation to specific paintings associated with named founders. Most of the founders had no interest in art at all, so they escape my particular methodology, though we can be confident that the sexual and political ideas in the air, which were not hidden or recondite, would have entered their consciousness through other media.⁽⁹⁸⁾
 

Madison, too, collected art. A list of oil paintings at Montpelier, compiled by his widow Dolley after his death, included sixty-two items, including portraits (Cortez, Magellan, Columbus, Vespucci, Raleigh, Washington, Adams, Jefferson, Monroe); genre scenes (a poultry yard, blacksmiths at a forge); religious scenes (descent from the cross; flight into Egypt, Annunciation, Crucifixion); and mythological scenes (Ulysses on Calypso, Proserpine and Pluto). Unfortunately, the collection was dispersed and only a few of the paintings have been identified in modern collections.⁽⁹⁹⁾
 

I think, however, that we can be fairly confident of what the lost painting, identified by Dolley as The bloody garment of Joseph thrown to Jacob, must have looked like. Much of the collection was purchased in Flanders by Dolley's son Payne Todd in 1814 when he accompanied the Peace Commission to Ghent (it was also Todd who dispersed the collection after the Madisons' deaths). This may explain the genre paintings and view of Ghent, for example. Now it happens that there is a fairly standard northern European depiction of the Jacob scene, deriving directly from a Rembrandt etching of 1633 (fig. 14)⁽¹⁰⁰⁾ and continuing with very little change down to the 1816 fresco by Wilhelm Schadow (fig. 15).⁽¹⁰¹⁾ So whatever Payne Todd brought home from Ghent in 1814 probably looked like one or the other.
 

Joseph's brothers, having put Joseph into a pit intending to sell him into slavery, have brought his robe, dipped in goat's blood, back to their father.⁽¹⁰²⁾ Though the original has Jacob comforted (ineffectually) by his sons and daughters, in the Rembrandt tradition the daughters are marginal. The main focus is the grief of Jacob, the cloak normally linking him to the son displaying it. The male grief displays the virtuous father's love.
 

Women would have been nearly as absent from Madison's collection as from the French art discussed earlier. Like Jefferson, Madison did not collect any of the French art from the period immediately before 1774 in which female figures would have represented sociability, eroticism, or desire. Not only the women, but the themes themselves are as absent from Madison's collection as Jefferson's. These may have been the two most artistically sophisticated American statesmen, but for them art was about virtue, and virtue was male. There were a few women on Madison's list of titles that we can imagine (Annunciation; Eve being expelled from paradise with Adam; flight into Egypt) and others that we can't. (I can't find any basis for assumptions about how Ulysses's arrival in Calypso was painted; that might be interesting). But although Madison's collection shared few artists with Jefferson's, its themes were remarkably similar, and confirm the accounts of eighteenth century painting on which we have been relying. It confirmed an almost entirely male world of virtue, figured with male bodies, and excluding women. Madison's is more congenial than Jefferson's in one respect: his men have emotions with which we can identify. Whether we are men or women, we respond to Jacob's grief at the supposed death of his son. This is more congenial than the Horatii, Socrates, Brutus, Marius, and Seleucus, with their superhuman suppression of any sexual or family feelings in favor of a nobility of duty that we can hardly understand.
 
 
 
 
 
 
 
 
 

II. What if we can't accept their feelings? Reading the early Republic against the grain.
 

What if it turned out that the Constitution included just this kind of unacceptable concept of virtue and duty? If it was written by, and intended to be implemented by, self-proclaimed Epicureans who admired unreal fathers: fathers sending sons off to die for country, ordering their sons' deaths for their allegiance with tyranny, giving wives to sons? If it was intended to be implemented in all-male societies marked by intensely emotional (but nonsexual) male bonds that have little or no meaning for us?
 

This are not, obviously, questions that arise when jurisprudes on the right talk easily about following the intent of the Founders. But, significantly, they do not arise in contemporary left jurisprudence either. The rise of identity politics and identity jurisprudence in recent decades has led to a jurisprudence of inclusion, in which outsider groups like women or gay people attempt to situate themselves within a constitutional tradition that offers unexpected valorization of their identity claims, perhaps because their concerns were there all along; perhaps because the constitutional tradition is understood as one of gradual and increasing progress.
 

This Article has proposed a thought experiment of recapturing a philosophic, aesthetic, and Constitutional tradition that is obviously strange, hard to recapture, and unacceptable as a guide for modern living. I don't want to say that this is the real or authentic tradition, but it's part of it. At least, men in the eighteenth century thought and lived in different moral and sexual categories than do we, and will be opaque to us in ways we can never transcend. None of this is news, but it may suggest that we will have to look elsewhere to wrest our identities, rather than situate them in an insipidly purified tradition.
 
 
 
 
 
 
 
 
 
 
 

1. Professor and Sidney Reitman Scholar, Rutgers. The State University of New Jersey, School of Law, Newark. Phone 973-353-5463; fax 973-353-1445; email hyde@andromeda.rutgers.edu . Revised drafts of this paper may be visited at <http://andromeda.rutgers.edu/~hyde/> This is an expanded version of a talk presented at the conference Law, Culture, and Humanities, Wake Forest University, March 14, 1999. Thanks to David C. Miller (Allegheny College) and Halina Rusak, Rutgers University Art Librarian.

2. See generally The Visual Culture Reader (Nicholas Mirzoeff ed. 1998); Visual Culture: Images and Interpretations (Norman Bryson, Michael Ann Holly, & Keith Moxey eds. 1994); American Iconology (David C. Miller ed. 1993).

3. Some scholarship addresses images of law in popular culture such as television, Macauley, others; and there is a little scholarship on artistic representations of justice. Judith Resnik and Dennis Curtis; Paul Gewirtz. We have not had much theoretical work on the level of Martin Jay, Must Justice Be Blind? The Challenges of Images to the Law, 17 Filozofski Vestnik 65 (1996).

4. Alan Hyde, Bodies of Law, esp 192-201 (1997). While I tried not to play favorites among the discursive bodies actually encountered in contemporary American law, I did say (and believe) that the finest such creation in legal theory is the highly visualized body in pain that is therefore an object of empathy (or sympathy, in eighteenth century usage). I also criticized some historic links between this body and a privatized civil society, and called for new ways of imagining human solidarity than identification with the specularized body in pain. The instant Article, unfortunately, does not advance the latter project. It does carry the argument of the book back to an earlier period in legal history, and attempts to trace more closely the relationship between the construction of the body, visualization, empathy and identification, and legal theory. It also marks a new attention to visual, not merely verbal, culture. In later work, I hope to address other aesthetic models for legal interpretation, including music; I also will return to the contemporary problem of alternative visualization and representation of human community. I have been pushing inquiry into law's semiotic properties for a long time. Alan Hyde, A Theory of Labor Legislation, Buff.L.Rev. (1990); Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis.L.Rev. .

5. See, e.g., Barbara Maria Stafford, Good Looking: Essays on the Virtue of Images (1996); Claude Lévi-Strauss, Look, Listen, Read (Brian C.J. Singer trans. 1997).

6. Martin Jay, Downcast Eyes: The Denigration of Vision in Twentieth-Century French Thought (1993).

7. "We can never directly experience the visual field of another human being-this much is certain: the only knowledge of another visual field, which we are able to acquire, is that which comes to us through description....For human beings collectively to orchestrate their visual experience, each must submit the field of vision to appropriation by the sign; vision must be through-penetrated by a symbolic register that will ensure the collective coherence of visuality in the social organism....The dominant command of sociality is that I orchestrate my retinal experience with the discourses of recognition, that I renounce optical experience ..." Norman Bryson, Tradition & Desire: From David to Delacroix 66-69 (1984).

8. Brent Berlin & Paul Kay, Basic Color Terms: Their Universality and Evolution (1969); Terrence W. Deacon, The Symbolic Species: The Co-Evolution of Language and the Brain 116-20 (1997); Cognition and Characterization (Elenor Rosch and B. Lloyds eds. 1978).

9. "Though our brother is on the rack...our senses will never inform of us of what he suffers....By the imagination we place ourselves in his situation, we conceive ourselves enduring all the same torments, we enter as it were into his body, and become in some measure the same person with him." Adam Smith, The Theory of Moral Sentiments 9 (D.D.Raphael and A.L.Mackie eds. 1976)[]. Smith doesn't suggest that the imagination could reach this state unassisted by the senses.

10. Hyde, supra n.3, passim; Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (1985).

11. "My own firm conviction is that pictorial identities are more prone to be oppressive than are narrative identities. Identity pictures, like school uniforms, tend to homogeneity. Moreover, identity pictures tend to inflate personal details into social symbols. This is notoriously evident in racist versions of identity, for instance the Nazi science which equated a harelip with moral degeneracy. My worry, even about Us enlightened ones, is that, in an era dominated by visual media, the picture version seems more concrete and compelling than the complicated, usually incoherent story of shared lives." Richard Sennett, The Egotism of the Spokesman: Zola's "J'accuse" and the personalizing of politics, Times Literary Supplement, December 4, 1998, at 14.

12. Jack Goody, Representations and Contradictions: Ambivalence Towards Images, Theatre, Fiction, Relics and Sexuality 270 (1997)("the canker in the rose, the grit in the oyster: that inherent contradictions of a cognitive kind may give rise to ambivalence in the actor's mind, especially in relation to certain kinds of representation.")

13. U.S. Constitution, Art. VI, par. 2.

14. This essay treats the Constitution as what Walter Benjamin called a "cultural treasure":

[I]f one asks with whom the adherents of historicism actually empathize [t]he answer is inevitable: with the victor. And all rulers are the heirs of those who conquered before them. Hence, empathy with the victor invariably benefits the rulers. Historical materialists know what that means. Whoever has emerged victorious participates to this day in the triumphal procession in which the present rulers step over those who are lying prostrate. According to traditional practice, the spoils are carried along in the procession. They are called cultural treasures, and a historical materialist views them with cautious detachment. For without exception the cultural treasures he surveys have an origin which he cannot contemplate without horror. They owe their existence not only to the efforts of the great minds and talents who have created them, but also to the anonymous toil of their contemporaries. There is no document of civilization which is not at the same time a document of barbarism. And just as such a document is not free of barbarism, barbarism taints also the manner in which it was transmitted from one owner to another. A historical materialist therefore disassociates himself from it as far as possible. He regards it as his task to brush history against the grain.

Walter Benjamin, Theses on the Philosophy of History, in Illuminations 256-57 (Hannah Arendt ed., Harry Zohn trans. 1969). I wouldn't claim to be a historical materialist, but I like the attitude.

15. "Homosocial" relations figure in Eve Kosofsky Sedgwick, Between Men: English Literature and Male Homosocial Desire 1-2 and passim (1985) as a kind of male bonding that may be intensely desired. Homosocial relations rarely involve sexual relations and may "be characterized by intense homophobia, fear and hatred of homosexuality." It is nevertheless an open question how far the affective homosocial "force is properly sexual (what, historically, it means for something to be 'sexual'..." This question of Sedgwick's is, however, more relevant to the characteristic homosocial relation in her book: two men rivals for the same woman-than for the acts of political constitution that are the subject of this Article. These male bonds are not, to my mind, usefully regarded as homoerotic or homosexual, not in the kinds of eighteenth century analogs to those terms and certainly not in their contemporary meaning.

16. John Trumbull, Autobiography of Colonel John Trumbull (Theodore Sizer ed. 1951).

17. William Howard Adams, Introduction, to The Eye of Thomas Jefferson xxxviii (William Howard Adams ed. 1992)[1976]; William Howard Adams, The Paris Years of Thomas Jefferson 90-99 (1997).

18. Jefferson to Mme de Bréhan, March 14, 1789, 14 Papers of Thomas Jefferson 656 quoted in William Howard Adams, supra n.16 [Paris Years], at 98-99.

19. The painting was a Virgin Mary weeping on the Death of Jesus, supposedly by Carlo Maratti. Harold E. Dickson, "Th.J." Art Collector, in Jefferson and the Arts: an Extended View 111 (William Howard Adams ed. 1976).

20. One of the five is now at Monticello, a Herodiade bearing the Head of St. John, called a Simon Vouet when Jefferson bought it but now considered after a Guido Reni in the Galleria Nazionale d'Arte Antica in Rome. The others included copies of a Penitent Magdalene by Joseph de Ribera, Democritus & Heraclitus, called the laughing and weeping philosophers, St. Peter Weeping for his Offence by Reni, and a Prodigal Son by an unidentified painter. Eleanor Davidson Berman, Thomas Jefferson Among the Arts: An Essay in Early American Esthetics 77 (1947); Dickson, supra n. 18; Adams, supra n.16 (Paris Years), at 84. It does not appear to have been definitely established whether Jefferson attended the Salon of 1785, where he would have seen David's Horatii, though it seems like the sort of thing he would have done; he did attend the

salons of 1787 and 1789.

21. Berman, supra n.19, at 259. "Jefferson was concerned with the 'message,' the purpose, the subject matter of the work of art. Problems of form did not exist for him apart from problems of content." Id. 74. Jefferson would have shared these attitudes with just about all his contemporaries who thought about art in English, for they all shared civic humanist theories enunciated by Shaftesbury, holding the purpose of painting to be the promotion of public virtue, and genres of painting ranked by their tendency to promote public virtue. "[I]n the eighteenth and early nineteenth centuries, ... the criticism of painting [in Britain] had no language to employ but a political language, and had no ambition to develop an approach to painting which was not political." John Barrell, The Political Theory of Painting from Reynolds to Hazlitt: "The Body of the Public" vii (1986). In work in progress, David C. Miller traces the awareness of artistic medium over message, in early to mid-nineteenth century New England, from the return from England to Boston in 1818 of history painter Washington Allston. Ultimately this response to medium (specifically, color and texture) over message becomes the basis of an inchoate connoisseurship, often gendered "effeminate," that serves as a badge of privilege among Boston Brahmins. This Article supports the observation that the development from Shaftesburian civic humanism to nineteenth century esthetics was a change in gender as much as a change in the experience of seeing art.

22. The Eye of Thomas Jefferson xxxvii (William Howard Adams ed.)(1992)[1976].

23. Norman Bryson, Word and Image: French Painting of the Ancien Régime 185-87 (1981).

24. Adams, supra n.16 (Paris Years), at 105.

25. Id. 99.

26. Pauline Maier, American Scripture: Making the Declaration of Independence (1997) emphasizes the collaborative nature of the drafting process.

27. Abigail Solomon-Godeau, Male Trouble: A Crisis in Representation 11 (1997)(emphasis original). Her reference is not merely to the oaths and contracts that actually found republics-the theme of both David's painting and Jefferson's self-image, cf. Maier, supra n.25, at 180-89-but to the broader "relations between men of letters, philosophes, artists, dilettanti, and the like" of what Habermas calls "the bourgeois public sphere."

28. Thomas E. Crow, Painters and Public Life in Eighteenth-Century Paris 211-41 (1985) stresses the way in which David and his work had by the 1780s come to appeal to political and artistic radicals for its supposed stylistic novelty, and not the neoclassical or republican themes, which were by then old hat and indulged by many painters not thought to be at all exciting. David's novelty was thought to lie precisely in his "strained, stiff, awkward, obvious" and above all anti-rhetorical style. Jefferson would probably have loved to be thought of as part of whatever was most advanced and novel, so these aspects of David's work might well have appealed to him, but I will not discuss them here. Bryson, supra n.22, at 231-37 [Word and Image], located David's greatness in his moral ambiguity, as opposed to the more simplistically didactic paintings of earlier decades (Bryson's usual example is Greuze). I will refer to some of Bryson's characteristically brilliant interpretations, but see no reason to assume that they would have occurred to many eighteenth- (or twentieth-) century viewers or indeed to David himself, who comes across in the biographies as pretty simplistic and didactic. See, e.g., Anita Brookner, Jacques-Louis David (1980).

29. While it seems to me that David derived all he needed of the Horatii legend from Corneille (as opposed to the oath motif itself, found in no version of the Horatii story, see infra nn.33-34), other origins have been suggested. The story derives ultimately from the Roman histories of Livy, Plutarch, and Dionysius of Halicarnassus. Crow, supra n.27, at 212. Brookner hypothesizes an origin in the translation of Plutarch's Lives by the abbé Bellanger (1778), Brookner, cited supra n.27, at 70. It is also found in the usual source employed by French neoclassical history painters, Charles Rollin, Histoire Romaine, published in sixteen volumes appearing from 1738-48 and subsequently republished in numerous later abridgements, enlargements, or identical versions. Robert Rosenblum, Transformations in Late Eighteenth Century Art 68 n.66 (1967). On Rollin's influence in America, see Jay Fliegelman, Prodigals and Pilgrims: The American Revolution against Patriarchal Authority, 1750-1800 (1982) at 42 ("bestseller"); Carl J. Richard, The Founders and the Classics: Greece, Rome, and the American Enlightenment 54-55 (1994); William Gribbin, Rollin's Histories and American Republicanism, 29 Wm. & Mary.Q. (3d Ser.) 612 (1972).

30. Crow, supra n.27, at 212.

31. Bryson, supra n.22 [Word and Image], at 231. In Corneille's tragedy, Camille directs the following denunciation at her brother, best appreciated in the original (Act IV, Scene 5, lines 1301-1318):

Rome, l'unique objet de mon ressentiment!

Rome, à qui vient ton bras d'immoler mon amant!

Rome, qui t'a vu naître, et que ton coeur adore!

Rome enfin, que je hais parce qu'elle t'honore!...

Que le courroux du Ciel allumé par mes voeux

Fasse pleuvoir sur elle un déluge de feux.

Puissé-je de mes yeux y voir tomber ce foudre,

Voir ses maisons en cendre, et ses lauriers en poudre,

Voir le dernier Romain à son dernier soupir,

Moi seule en être cause, et mourir de plaisir.
 

1 [Pierre] Corneille, Ouevres Complètes 887 (Georges Couton ed. 1980).
 

This kind of grandiloquence doesn't translate well, but a recent attempt comes out:
 

Rome, the one cause of all my bitterness!

Rome, for whose sake you sacrificed my love!

Rome, which you worship, and which saw you born!

Rome which I hate because she honours you....

May heaven's anger, kindled by my prayers,

Send down a rain of liquid fire on Rome!

May I live to see this carnage with my own eyes,

See houses burn and laurels char to ash,

And the last man in Rome die aware that I alone

Brought this about-then may I die, of joy!
 

Pierre Corneille, Horace (Alan Brownjohn trans. 1996).

32. Rosenblum, supra n.28, Plate 68. The Girodet painting is now in the museum at Montargis.

33. Thomas Crow, Emulation: Making Artists for Revolutionary France 90 (1995)(Girodet painting of killing based on David's drawing, now in the Albertina in Vienna). David's original plan was to paint the elder Horatius defending his son. He was dissuaded from this original plan at a literary gathering at the home of M. Trudaine (of whom more later) by his adopted father, the arts administrator Sedaine, who questioned whether "French habits [would] take kindly to the ferocious authority of a father who pushes his stoicism so far as to excuse his son for the murder of his own daughter." Id. 35 (English trans.), 308 n.15 (French original); see also Brookner, supra n.27, at 75. I haven't read a convincing explanation of how the subject of young Horatius killing his sister could be a prize subject at the Académie, while Sedaine and David could simultaneously conclude that the public would never accept a depiction of the subsequent defense. Did David share his concerns with his student Girodet? One would like to know more about the appeal of the grim murder scene to David's talented but very odd student, whose later masterpiece The Sleep of Endymion (1792) simultaneously launched a generation of homoerotic male bodies; marked an Oedipal revolt against David; and, by effacing a goddess from a classical legend in which she had always been present, created a new, all-male world. See generally Solomon-Godeau, supra n.26, at 65-85.

34. For some contemporary observers, the oath-taking was not merely absent from Corneille's play and its Roman sources, but profoundly incompatible with it. Two years after its exhibition, a pseudonymous critic wrote of the painting: "for me there is something degraded and base, unworthy of the Roman character, in the action of swearing an oath to perform one's duty." Crow, after quoting this remark, observes: "In the play it is impossible to imagine that such a ceremony could ever have been proposed by either father or son. To reflect on heroism in any degree before undertaking its duties is the role of the cousin, friend, and eventual victim, Curiatus." Crow, supra n. 32 [Emulation], at 44. I will suggest in this Article that the oath-taking derives from late eighteenth century political theory and not from either seventeenth century drama or classical history.

35. On the depiction of oath-taking generally, see Rosenblum, supra n.28, at 68-71, who identifies the Brutus legend as the source of the oath-taking in David's Horatii. See also Brookner, supra n.27, at 68-80. On the artistic and theatrical depiction, generally and by David, of Lucius Junius Brutus, see Robert L. Herbert, David, Voltaire, Brutus, and the French Revolution: an essay in art and politics (1972). Later in his career Lucius Junius Brutus would order the execution of his own sons for their continuing allegiance to the tyrant Tarquins, an incident later painted by David in Lictors Return to Brutus the Bodies of his Sons (1789)(Fig. 6), so both Brutus and Old Horatius not only swear oaths but see children die for Rome. This Brutus is not the Brutus who killed Julius Caesar, another favorite American revolutionary role-model. Caesar's assassin was said to be a remote descendant of the republican Lucius Junius Brutus.

36. David would have known Gavin Hamilton's Oath of Brutus, also known as The Death of Lucretia (1763-64)(Fig. 7), either from a variant by Jacques-Antoine Beaufort, shown in the Salon of 1771 and on display at the Académie until 1782 (Fig. 8, now in the museum at Nevers), or from a later version by Hamilton that David might have seen when both worked in Rome around 1780. For a discussion of its sexual politics, see Duncan Macmillan, Woman as hero: Gavin Hamilton's radical alternative, in Femininity and Masculinity in Eighteenth-Century Art and Culture (Gill Perry and Michael Rossington eds. 1994). On the Beaufort, see Brookner, supra n.27, at 77-78.

37. See, e.g., Samuel Adams, October 14, 1771 ("Is it possible that millions could be enslaved by a few, which is a notorious fact, if all possessed the independent spirit of Brutus, who, to his immortal honor, expelled the proud Tarquin of Rome, and his 'royal and rebellious race'?"), in Cushing, 2 Writings of Samuel Adams 251, as quoted in Richard, supra n. 28, at 99 . M.N.S. Sellers, American Republicanism: Roman Ideology in the United States Constitution 70-71 (1994), discusses, with considerable repetition, the issue of pseudonyms. Interestingly, neither could find any American use of Lucius Brutus's later execution of his sons for joining the conspiracy to restore Tarquin-a scene also painted by David (Fig. 6) and exhibited in the 1789 Salon, where Jefferson probably saw it-despite its contemporaneous popularity in France, on which see Herbert, supra n.34. I haven't been able to find any eighteenth century American reference to the Horatius story.

38. J.G.A.. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975), as if you didn't know. I took this book on vacation one summer and was shocked to discover that it's mostly about Guicciardini.

39. Compare Bernard Bailyn, The Ideological Origins of the American Revolution (1967); Pocock, supra n.23; Gordon S. Wood, The Creation of the American Republic, 1776-1787 (1969); Richard, supra n.28. As one unlettered in the classics, I learned a great deal from all these books and thought that the last in particular, an outstandingly useful volume, would become extremely popular in law schools as an introduction to those classical allusions that we all tend to pass by. However, I've seen few references to Richard and think that his unfortunate error was to publish after most American law professors had mistakenly concluded that they had heard too much about classical republicanism.

40. Jack P. Greene, The Concept of Virtue in Late British Colonial America, in Imperatives, Behaviors, and Identities: Essays in Early American Cultural History 208-235 (1992).

41. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 185-224 (1985).

42. Well, I've done it. I've said something controversial. There are scholars, far more knowledgeable about the late eighteenth century than I'll ever be, who denigrate the classical allusions in the Founders' rhetoric as "window dressing" that "contributed a vivid vocabulary but not the logic or grammar of thought," which came rather from Puritan and Whig sources. Bailyn, supra n.38, at 24-26. But French republican thought, of which I've mentioned only the paintings and perhaps public writings of the painter David, didn't rest on Puritan or Whig sources, yet has, as we shall see repeatedly, much common ground with American republican thought. In Bailyn's own summary, colonial pamphleteers would have agreed that rulers' "interest was to use and develop power"; that power, though necessary, "may become a scourge, a curse, and severe punishment to a people"; and that "[w]hat made it so, what turned power into a malignant force, was not its own nature so much as the nature of man-his susceptibility to corruption and his lust for self-aggrandizement." Id. 59. With all respect, these are exactly the lessons that American and Continental republicans learned from their understanding of the decline of the Roman republic into empire. See Richard, supra n.28, at 85-122.

43. Rosenblum, supra n.28, at 70, citing David Dowd, Pageant-Master of the Republic: Jacques-Louis David and the French Revolution 123 (1948); Brookner, supra n.27, at 107.

44. Rosenblum, supra n.28, at 70.

45. Richard, supra n.28, at 87-88, quoting, respectively, Jefferson's Autobiography, 1 Writings of Thomas Jefferson 152 (Albert Ellery Bergh & Andrew A. Lipscomb eds. 1903); and Jefferson to William Duane, April 4, 1813, 13 Id. 320.

46. Cf. Jefferson's draft Declaration of Independence: "And for the support of this declaration, we mutually pledge to each other our lives, our fortunes, and our sacred honor." Maier, supra n.25, at 241. The Continental Congress added a reference to "divine providence" to this sentence. Id. 148-49. A contemporary critic praised David's Horatii for its "fierté républicaine." Brookner, supra n. 27, at 79.

47. Continental, particularly French, influences on the political thought of America's Founders have been less salient to recent generations than formerly. Daniel J. Boorstin, The Lost World of Thomas Jefferson (1948).

48. Supra n. 16.

49. Crow, supra n.32[Emulation], at 95, who points out that both Socrates and The Federalist are concerned with the tendency of democratic legislatures to a tyranny of the majority. Trudaine's "busy bookish circle had given [David] so much advice concerning the Oath of the Horatii...", Brookner, supra n.27, at 83; see supra n.32. Michael Fried, noting the Trudaines' intimacy with Diderot, speculates that their circle might have transmitted Diderot's ideas to David. Absorption and Theatricality: Painting and Beholder in the Age of Diderot 232 (1980).

50. Brookner, supra n.27, at 95-122. On the performative aspects of American republicanism, Jay Fliegelman, Declaring Independence: Jefferson, Natural Language, & the Culture of Performance (1993) is suggestive.

51. Mary Beth Norton, Founding Mothers & Fathers: Gendered Power and the Forming of American Society (1996). The labels are deliberately anachronistic; Norton examines a period before either Filmer or Locke wrote his major works, tracing the working out in practice of the ideas that each later synthesized.

52. Id. 138-80; 281-87.

53. '

54. See generally Solomon-Godeau, supra n26. This book got me thinking about the simultaneous disappearance of women and cult of the male body in French painting and American political theory. It is concerned mainly with the representations of masculinity. The chronology, and classification of female representation, in text are my own; Solomon-Godeau's thesis is not so tightly linked to a precise chronology.

55. See generally Crow, supra n. 27[Painters], at 186-89.

56. Good examples might include: any of Boucher's mythological seductions; Fragonard's The Swing, (in each of these cases the male observer is right there in the painting); any of Greuze's adolescent girls, such as The Broken Pitcher or La Colombe Retrouvée; and a Chardin mother-and-daughter genre scene like The Morning Toilette, in Crow, Painters, plate 47 at 99.

57. Bryson, supra n. 22[Word], at 209-13.

58. Two favorite scenes: Cornelia, mother of the Gracchi, asked to display her jewels and displaying her children instead (depicted many times after 1779, and a prototype of what Linda K. Kerber has called the cult of "republican motherhood", Women of the Republic: Intellect and Ideology in Revolutionary America 283-88 (1986), see also Ruth Black, American Feminine Ideals in Transition: The Rise of the Moral Mother, 1785-1815, 4 Feminist Studies 101 (1978)); and Portia wounding herself to show her willingness to kill herself if her husband fails to kill Caesar. See Rosenblum, supra n.28, at 61-62.

59. In addition to the paintings discussed in text infra, two particularly good examples are David's Belisarius, his agrégation piece in the Salon of 1781, in which the aged general, begging for alms and sheltering a boy in his arms, is recognized by a soldier who had served under him; the woman's role is as the alms-giver, cementing these male intergenerational ties; and Girodet's Burial of Atala (1808), in which the corpse of Atala literally links two men, as Solomon-Godeau points out, supra n.26, at 85.

60. Girodet's Horatius Killing his Sister Camilla, discussed supra n.32. An earlier predecessor is Nathaniel Dance, Death of Virginia at the hands of her father Virginius (1761).

61. Bryson, supra n. 22[Word], at 147.

62. Id. 236-37.

63. Id. 237.

64. Supra n. 30.

65. Bryson, supra n. 6[Tradition], at 70-74.

66. The point comes through clearly in [Lewis and Clark book]

67. Jefferson enjoyed intelligent women who enjoyed art and culture, but never showed any interest in a political role for them. See, e.g., his February 1787 letter to Anne Willing Bingham, contrasting the "ennui" of rich Parisian women with life for women in America: "the society of your husband, the fond cares for the children, the arrangements of the house, the improvements of the grounds, fill every moment with a healthy and an useful activity." In Thomas Jefferson: Writings 888 (Library of America ed. 1984).

68. Quoted supra n.8.

69. Adams [Paris], supra n.16, at 211.

70. On French revolutionary women, see Dorinda Outram, The Body and the French Revolution: Sex, Class, and Political Culture (1989).

71. Alex Potts, Flesh and the Ideal: Winckelmann and the Origins of Art History (1994); Timothy Mowl, William Beckford: Composing for Mozart (1998). See also n. 71 infra.

72. For example, Solomon-Godeau, supra n.26 , at 99-175, spends much time discussing the rise of ephebic male youths taking on female roles of desirability, such as Girodet's Endymion and David's Death of Bara. I have not found any American interest in this male body, however, and as a general matter think that it represents a kind of sexuality found already in France and England but simply not part of the early American republic. I should say now that this sexuality is not simply what we mean by homosexual or homoerotic or same-sex sexuality, a term that is simply not helpful in describing the eighteenth century. See generally G.S. Rousseau's essay The Pursuit of Homosexuality (1985), published in several places, including his book Perilous Enlightenment: Pre- and Post-modern Discourses: Sexual, Historical (1991)("Homosexuality is a late nineteenth-century concept denoting a psychological frame of mind that exists independent of action, and a general orientation that may or may not correlate to specific patterns of behaviour. A homosexual, in this sense, primarily describes a mental set rather than a prescribed course of action or predisposing bio-anatomical conditions. But the eighteenth century had no such concept of homosexuality ..." Id. 36). In understanding David's circle, one must understand, as Rousseau argues of eighteenth century England, "a broad spectrum here: not merely those who actually engaged in sexual acts with another person of the same sex, but also those who were homoerotic and who cultivated the homosocial dimensions of friendship." Id. The term homosexual is simultaneously too narrow (if limited either to people engaging in certain sexual acts or with certain "orientations" that nobody in the eighteenth century had), and too broad (since Rousseau ends up identifying six distinct patterns of male homoerotic behavior and questions whether any single term can usefully cover them all). There were American men who had sex with men; there were no American "homosexuals"; and there were patterns of male sexuality and sociability found in Europe but not, as nearly as anyone can determine, in America.

73. See generally Alex Potts' essay on "David's attempts to represent a republican revolutionary ideal by way of the image of a beautiful, sensually charged, male body", supra n.70 at 222.

74. In contemporary American law school culture, the dominant simplifying psychological assumption is the rational actor familiar from economics, game theory, and other positive political theory. There is thus little research into other models of the psychological processes of identification and empathy. Whatever the achievements of rational actor models, achievements that I do not deny and frequently use in my own scholarship, they tell us little about the identities and identifications of legal subjects. Consider a recent graphic example from an area about which I have written, the construction of the healthy body. In their recent Gout: The Patrician Malady (1998), Roy Porter and G.S. Rousseau show how seventeenth-century British physicians, powerless to alleviate gout's symptoms, soothingly reassured the victims that the disease was largely inherited and the sign of aristocratic breeding. Thus, when, in the next century, treatments began to be developed, they were fiercely resisted by patients and doctors with a psychological stake in the maintenance of the inheritability thesis. For most people, this would illustrate the resistance of conceptions of the body to rationality. I am well aware that a rational actor theorist would attempt to save his edifice by positing, in those resistant eighteenth-century gout sufferers, a higher value on aristocratic identification than bodily comfort. For most of us, this concession, rather than saving rational-actor methodology, undermines it completely.

75. Diana Fuss, Identification Papers 2-12 (1995).

76. Fuss, supra n.74, at 141-48, summarizing Frantz Fanon, Black Skin, White Masks (1967)[1952], and other works of Fanon.

77. Kaja Silverman, The Threshold of the Visible World (1996).

78. Crow, supra n.32 [Emulation] at 67-8. The painting is in the Louvre today.

79. Letter to Mme. de Tott, Feb. 28, 1787, 11 Papers of Jefferson 187, in Eye of Thomas Jefferson, supra n.16, at 191. Jefferson's self-described oubli de soi was a stock eighteenth century reaction, derived from Diderot; see Fried, supra n.48, e.g. at 125.

80. Drouais "swears to me that he had never copied in his life and that it was martyrdom for him to copy anything but nature", wrote the director in Rome to the arts superintendent d'Angiviller in Paris. The latter responded: " We cannot observe without distress that the youth of today, more confident than ever, seem to announce that they are better informed about the means of acquiring talent than were the most celebrated men who have come before....If some among them find it too exacting to conform, they can master the art of leaving the Academy. I will find it easy to replace them." Crow, supra n. 32 [Emulation], at 62. Incidents like these (and others, see Id. 24 on the raucous public demonstrations following Drouais's first prize in the Prix de Rome competition in 1784) gave Drouais a sort of popular reputation as an artistic rebel, perhaps comparable to Basquiat in our day, and this may well have appealed to French and American republicans, though in the latter case we have no evidence.

81. Quoted in Crow, supra n.32 [Emulation], at 63-64.

82. Bryson, supra n.6[Tradition] at 100.

83. Crow points out a Freudian contrast: "The power and civic authority of the older male no longer passes to the youth who stands in the position of the younger Horatii; instead, that force paralyzes the younger man and prevents him from performing a legal duty that would have prevented future atrocities and enormous suffering for the city of Rome." Crow, supra n.32 [Emulation], at 64. Crow refers to Marius's return to power in Rome, following the event of the painting, and subsequent regime of indiscriminate executions. Indeed, in the classical allusions of the rhetoric of the early American republic, Gaius (or Caius) Marius stood in for tyranny. See, e.g., Richard, supra n.28, at 87, 114, 214. I can't make anything of this historic fact. The painting seems clearly to celebrate Marius's courage and power, evil though they may have been, as Jefferson must have sensed. Knowledge of Marius's later infamy complicated the political message of the painting for some contemporaries, but it doesn't appear to have bothered Jefferson.

84. Crow, supra n.32 [Emulation], at 83-85. Solomon-Godeau, supra n.26 at 71, notes that "No breath of scandal attached to David...in his undisguised desolation over the death of his young student Drouais, nor in his construction of a private monument to Drouais, containing his letters, in the garden of his house." This is another example of how eighteenth century relations among men simply cannot reduce to twentieth century labels. It is hard to think of contemporary equivalents of this shrine-building kind of "intense relationship with other men or ... manifest investment in the sensual appeal or eroticism of male bodies", Id. 72, that don't involve the kind of sexual relations, of which we have no evidence in David's or Drouais' case.

85. Letter to John Trumbull, Aug. 30, 1787, 12 Papers of Thomas Jefferson 69, quoted in Adams, supra n.16[Paris Years] at 99. The painting is now in the Metropolitan Museum of Art in New York.

86. Bryson, supra n.22 [Word and Image] at 233, citing Brookner, supra n. 27, at 84.

87. Bryson, supra n.22[Word and Image], at 234.

88. Crow, supra n.32[Emulation], at 98.

89. Crow, supra n.32[Emulation], at 98-99, citing the note added to Voltaire's article Amour Socratique in his Dictionnaire Philosophique, 17 Oeuvres Complètes 180 (L.Moland ed. 1878). "The article is a strenuous effort to detach Platonism from male sexual attachments, which only serves to demonstrate the currency of the idea." Id. 316 n.59.

90. This astonishing painting, now in the Louvre, lies outside this study, which is limited to paintings specifically admired, or owned in reproduction, by American founding fathers. I cannot omit mention of it though, because for anyone who resists a homoerotic interpretation of The Death of Socrates or other works of David, Leonidas at Thermopylae should clinch the case. "[T]he painting depicts a romanticized panoply of various male bonds beginning, at the far left, with the blind warrior guided by his attentive slave, moving to the garland-throwing youths with their interlaced arms, to the warrior seated at Leonidas's feet, gazing at his leader with somber intensity, to the kiss exchanged by the ephebe and his older lover." Solomon-Godeau, supra n.26, at 64.

91. The earlier list, in Jefferson's building notebook for Monticello of 1771, listed thirteen mostly famous classical sculptures that Jefferson wanted to acquire in reproduction. Most are definitively identified, and traced to eighteenth century books of reproductions, in Fiske Kimball, Jefferson and the Arts, 87 Proc. Am.Phil.Soc. 141 (1943), and Adams [Eye], supra n.16, at 81-2. They include the Medici Venus, Herculese Farnese, Apollo of Belvedere, Antinous, Dancing Faunus, Messenger Pulling Out a Thorn, Roman Slave whetting his knife, the Gladiator at Montalto, Myrmillo expiring, the Gladiator reposing himself after the engagement, Hercules and Antaeus, Two Wrestlers, and the Rape of the Sabines. At the same time, Jefferson listed six paintings, and added six more when he recopied the list in 1782. The only painters listed in 1771 were for the first two items: Raphael, St. Paul Preaching at Athens; Zocchi, Jephtha meeting his daughter; Murillo (prob.), St. Ignatius at Prayer; The Sacrifice of Iphigenia; Diana Venetrix; and History of Seleucus giving his beloved wife Stratonice to his only son Seleucus who languished for her. The Ignatius was probably a painting in a collection of a former Pennsylvania governor, and Jefferson gave a source for the Diana, an onyx in an Italian collection. The Jephtha, Iphigenia, and Seleucus however have not been traced to any source of reproductions that Jefferson is known to have seen, and thus cannot be conclusively identified. The six additions of 1782, by contrast, have all been traced by Kimball to a single book, the Aedes Walpoliana. They are: Salvatore Rosa, Belisarius; Rosa, The Prodigal Son; Rubens, Susanna & the two Elders; Le Soeur, The Stoning of St. Stephen; Mola, Curtius Leaping into the Gulf; and its companion, Cocles Defending the Bridge.

92. Wolfgang Stechow, "The Love of Antiochus with Faire Stratonica" in Art, 27 Art Bulletin 221 (1945).

93. See, e.g., Adams [Eye], supra n.16 , at 82. Jefferson may have thought himself a provincial in art, but his 1771 interest in this subject, wherever derived, was prescient. Stratonice became a hot subject for art in the ensuing decade, taken up by artists whom Jefferson would come to admire. It was the prescribed subject for a competition by the Académie in 1774, in which first prize was won by Jacques Louis David (Fig. 13, now in the École des Beaux-Arts, Paris). The following year, the American Benjamin West, long resident in London, exhibited his painting on the same subject (now disappeared).

94. "The king, to whom the story refers, is Seleucus I Nicator, the founder of Antioch...Born in Europos, Macedonia, between 358 and 354 B.C., the son of an Antiochus, he became one of Alexander's most successful generals. After the death of his king (323 B.C.), he won Media and Babylonia; and after having decisively defeated Antigonus at Ipsos (301 B.C.) and Lysimachus at Korupedion (281 B.C.), he ruled over practically the entire territory once held by Alexander, but was assasinated by Ptolemaeus Keraunos in 280 B.C. Stratonice, the daughter of Seleucus' subsequent enemy and prisoner, Demetrius Poliorcetes, married Seleucus about the year 300 B.C., and it is positively known that around 294 B.C., the latter divided his reign between himself and his son by his former wife Apana, Antiochus (the later Antiochus I Soter, ca. 325-261 B.C.), a fact often mentioned in connection with the love story. We also know that Antiochus did marry Stratonice and had four children by her." Stechow, supra n.91, at 222.

95. See, eg., Greene, supra n.39, at 257 ("VIRTUE, or the voluntary observance of the recognized standards of right conduct: that is, mastery of self, freedom from internal subjection to one's own passions."); Richard, supra n.28, at 187.

96. On other examples of resistance to sexual desire in eighteenth-century British art criticism, see John Barrell, "The Dangerous Goddess": Masculinity, Prestige, and the Aesthetic in Early Eighteenth-Century Britain, 12 Cultural Critique 101 (1989).

97. Do something with Jefferson's search for fathers?

98. See John Adams' famous letter on how his grandsons, not he, will have to study the fine arts; the precise context of the remark is his inability to take time to tour the Tuileries. See also the anecdote of Jefferson, riding with Gouverneur Morris and pointing out the Pont de Neuilly; Morris confided in his diary that he "had crossed four Times without remarking it and which [Jefferson] says is the handsomest in the World." Adams, supra n.16[Paris], at 78.

99. Conover Hunt-Jones, Dolley and the "great little Madison" 78 (1977).

100. In the Rijksmuseum.

101. Schadow's fresco was originally painted for the Casa Bartholdy in Rome for the Prussian Consul General, Jacob Salomon Bartholdy (uncle of the composer Felix Mendelssohn) but was later removed to the National Gallery in Berlin. Keith Andrews, The Nazarenes: A Brotherhood of German Painters in Rome 34-7 (1964). Schadow continued as an artist and teacher to revere history painting as the highest form of art. In that capacity he taught Emanuel Leutze, German-born Philadelphian who returned to Germany in 1841 to study with Schadow; Leutze eventually painted that most famous American history painting, Washington Crossing the Delaware (1851). Barbara Gaehtgens, Fictions of Nationhood: Leutze's Pursuit of an American History Painting in Düsseldorf, in American Icons: Transatlantic Perspectives on Eighteenth- and Nineteenth-Century American Art 148-52 (Thomas W. Gaehtgens & Heinz Ickstadt eds. 1992).

102. Genesis 37:31-35.