Tocqueville's initial investigations of the American prison, which centered on the Auburn system, will serve as our testing ground for the import of Foucauldian theory on Tocqueville's project; and it provide fertile ground indeed!

Tocqueville and Beaumont spent their first weeks in America in and around New York City, conducting first a tour of various kinds of confinement houses in Manhattan and finally a climactic nine-day visit to Sing Sing penitentiary a few miles up-river. 8

The tour of Manhattan houses of confinement is remarkable primarily for its evidence of the disjunction between prison in the contemporary usage and that thing which Tocqueville and Beaumont understood to be the object of their study. The places which they visited in Manhattan were not limited to spaces in which criminals were kept, though the House of Refuge for delinquent minors, which stood on what is now Madison Square, interested them greatly (86). After visiting the House of Refuge the two were escorted uptown to Bloomingdale, "hospital for the insane" (86). 9 The hospital was home to the delusionally religious and to a great number of alcoholics. After Bloomingdale the pair toured the Fifth Avenue Deaf and Dumb asylum and finally Bellevue Almshouse and Penitentiary at the East Side site where it still stands today (Pierson, 87).

The enormous scope of the duo's investigation may evidence either the thoroughness with which they approached their task or their lack of focus as the beginning of their travels. We may, however, understand it as such without Foucault's help. From a Foucauldian perspective what emerges from this initial confrontation with American confinement is the fluidity various moral and non-moral designations of abnormality. Distinctions between confinement in the face of legal infraction (the House of Refuge) and confinement in the face of physical or mental handicap are seen as immaterial - nowhere in their accounts (at least as those accounts are reproduced in Pierson) do Tocqueville and Beaumont call attention to the distinction between the two. This is not to say that the two investigators (or the culture they investigated) failed actually to understand that there was a difference, as without such a recognition there would be no need for differentiated spaces of confinement. Rather, it demonstrates that regardless of the reason for the confinement, the confinement houses served one basic function for community at large; they designated a space of abnormality (be it insanity, disability or transgression) against which the greater community could understand itself as normal (a normality which it thus constructed as sanity, ability and obedience). It is the confined's status as other, and not the specificity of that otherness, with which the two were concerned.

In Pierson's narrative,

Sing Sing... represented the climax of a long development in the handling of criminals... [and] of a certain group of idealistic American theories that had finally been evolved after more than a century and a half of adjustment and experiment (94).
The climax as here presented is duplicitous - it is also the climax of Tocqueville and Beaumont's first tour of prisons. The Auburn system rested on a foundation of collective labor conducted in absolute silence, but in the case of Sing Sing the system had achieved a kind of sublime perfection. The French travelers were both awestruck and strangely terrified by what they saw there. In a letter to his mother, Beaumont wrote
Sing Sing is very remarkable... [It] contains 900 inmates, condemned for terms of varying lengths. They are made to work, either in the prison court which isn't shut, or in the in the quarries a short distance away. They are at complete liberty, carrying irons neither on hands nor feet, and yet they labor assiduously at the hardest tasks. Nothing is rarer than an evasion. That appears so unbelievable that one sees the fact for a long time without being able to explain it. (100-101)
Tocqueville came close to a Foucauldian rhetoric when the following year he reflected on his visit to Sing Sing
Although the discipline is perfect, one feels it rests on fragile foundations: it is due to a tour de force which is reborn unceasingly and which has to be reproduced each day, under penalty of compromising the whole system of discipline (102).
The emphasis on the tour de force or display of power - one with a performative force which the performer must reenact over and over again - finds its echo in much of what we today call post-structuralism, 10 and particularly in Foucault's later work, where power becomes explicitly his main concern.

While Tocqueville's language here closely resembles that of Foucault, Foucauldian theory is perhaps most illuminating in its engagement with that which Tocqueville and Beaumont fail to mention (at least in those portions of their papers reproduced in Pierson). Neither of the men understand the prohibition on speech as as instrumental in the penitentiary's terrible. It is Pierson, and not Tocqueville or Beaumont, who calls attention to the fact that "the place was bathed in heat and an unnatural silence, and there was an unmistakable undercurrent of terror in the silence" (102).

Certainly one faction of Foucauldians would understand the enforced silence at the penitentiary (and the two men's silence about that silence) as the most central fact of Sing Sing and their visit. A privileging of "Madness and Civilization [for example] leads to a reading of texts for silences and exclusions; [while] The Order of Things suggests a search for epistemes - unconscious, regulating structures that limit what can be written" (Groden and Kreiswirth, 278). In this sense we may understand the speech prohibition as the "fragile foundation" on which the power-structure at Sing Sing rested. In depriving the prisoners of language, the power structure deprived them of the capacity to perform; it made them a captive audience for the performance of power - the invisible wall which kept them at work. It insured their status as objects and deprived them agency, subjectivity and even humanity.

One important complication of this reading comes from Tocqueville's transcription of an interview he conducted with Elam Lynds (who had conceived of and overseen the building of Sing Sing and had invented the Auburn system on which it was based) weeks after the two initially visited Sing Sing (the transcription may be found in Pierson 206-213). In a pivotal point of the interview, Lynds remarks on the relation between ethnic identity and participation in the Auburn labor system:

At Sing Sing a quarter of the inmates are foreigners. I bent them all to the discipline as I did with the Americans. Those who gave me the most trouble were the Spaniards of South America, a race of men who have more of the wild beast in them than of the civilized man (Pierson, 207, emphasis mine).
In the statement Lynds identifies humanity (and, indeed civilized humanity) not with permission to speak or participation in a linguistic structure, but rather with participation in the appropriate power structure. While all are deprived of language, it is only those who refuse participation in that prohibition who Lynds deems sub-human.

Foucault himself further complicates this reading of silence-as-dehumanizing in The History of Sexuality Volume I. In a now quite famous passage11 Foucault asserts that

[t]here is no binary division to be made between what one says and what one does not say; we must try to determine the different ways of not saying such things, how those who cannot speak of them are distributed, which type of discourse is authorized, or which form of discretion is required in either case. There is not one but many silences, and they are an integral part of the strategies that underlie and permeate discourses (27).
Here Foucault makes one of his most important incites and while it does represent a departure from earlier work (or at least a disparity between History of Sexuality and how many people understand Foucault's earlier work) it provides a very different reading of the speech prohibition at Sing Sing. The penitentiary may prohibit speech, but it cannot prohibit discourse or meaning. While ordinary speech operates as a system of possible utterances which are defined against one another, there are also systems of not-sayings - structures in which silence can be as effective a tool of signification as utterance. Thus silence carries with it always the potentiality of resistance and critique. The very fact of silence can serve to subvert - or partially subvert - the dominance of the exclusionary discourse in which the speech prohibition inheres. The "fragility" of Sing Sing's disciplinary foundation came not from the absence of irons, but rather from it's faith in speech prohibition as an adequate tool by which to make oppositional discourse impossible.