“We have it in our power to begin the world over again.” Tom Paine. Common Sense.
“One of the great utopian movements in American history.” Gordon Wood. The Creation of the American Republic.
Burton Weltman
Preface.
The purposes of this essay are twofold. First, the essay contends that communitarianism was the predominant mindset of Americans before, during, and after the framing of the Constitution and that the Constitution is a communitarian document. With utopian hopes mixed in.
Second, the essay is a critique of the doctrine of Constitutional Originalism that has been pushed in recent years by a right-wing majority of the Supreme Court. The essay argues that the doctrine is nonsense, both historically and pragmatically. It just does not work.
The essay argues that the Living Document theory of construction that has been predominant for some one hundred years, and that Constitutional Originalists seek to supersede, is a much better fit for interpreting and applying the Constitution.
And the essay concludes that communitarianism should be understood as the bedrock of the Constitution and the original originalism of Constitutional construction.
Visions and Visionaries: Are you nuts?
Thirteen tiny countries seek to escape the overlordship of an imperialist superpower, the most powerful in the world. With small populations, barely enough people in some of them to make a go of it, they are up against an overwhelmingly larger imperial population. None of them has an army, only local militias, up against the world’s most powerful army and navy.
The countries have only a fragile and fractious alliance in opposition to the superpower. And there is significant popular opposition to the separatist movement, close to a majority of the people. As a result, the ensuing conflict is both a war for independence and a civil war. Nonetheless, most of the most respected and respectable men, including most of the wealthiest and most powerful, are risking their fortunes and their lives in fighting for independence.
They adopt the Latin phrase E pluribus unuum, out of diversity comes unity, as their revolutionary motto. It points up their admiration for the ancient Romans and the Roman Republic. They consider themselves Republicans, that is, men whose main concern is with res publica, the public thing. A more perfect union was the both the means and the goal of their movement.
What, were these guys nuts? Maybe. Most were practical men who had successfully made places for themselves in a land to which Europeans had only recently moved. However, they were also visionaries, motivated not only by the desire for personal success but by ideals of what the world should be like. And with a willingness to risk their all to make it so.
They were not always good men. Most accepted the enslavement of Africans, the conquest of Native Americans, and the subjugation of women. And they did not have any Pollyannish views of human nature. But, still, they shared a communitarian vision of people living together for the good of the many and not merely the few. It was a mindset or weltanschauung that could at times be described as utopian.
This communitarian, sometimes utopian, mindset is a key to understanding the Founders’ intentions in crafting the Constitution. It is the original originalism. It is the original Americanism. And the failure to recognize this is one of the key flaws in the Constitutional Originalism that has in recent years been promoted by right-wing Justices on the Supreme Court.
The Founders as utopians? What, am I nuts? Maybe. But I think not.
A City on a Hill: The Utopian Origins of European Americans.
The utopian impulse in American history began with some of the first European immigrants to America. John Winthrop, in what can be considered his founding speech for the Puritan colony in Massachusetts in 1630, called upon his comrades to build a cooperative community that would reflect the glory of God and be “A modell of Christian charity” for all the world to follow. He adjured them to “entertain each other in brotherly affection” because “we must be knitt together in this worke as one man.” [i]
Fleeing religious persecution in England, the Puritans sought to establish an ideal community in America. They were not socialists, but they were communitarians, that is, devotees of the common good over individual success. Those, Winthrop said, who were fortunate enough to be rich must share their wealth with the poor and give up their luxuries “for the supply of others’ necessities.” The rich must help the poor in their material need and, in turn, the poor must help the rich in their spiritual need. The Puritans were Calvinists and did not believe in the goodness of humanity. They believed, however, that imperfect humans could build a more perfect society.[ii]
And they built a thriving society in which the utopian aspirations of the original immigrants were an essential ingredient in the success of the community. Their communitarian ideals sustained colonists through hard times and provided them with the cooperative attitude that was essential in building the colony. But there was a downside to that success.
The Puritans’ efforts were economically so successful that outsiders who did not share the community’s spiritual goals were attracted to the colony. When these outsiders became economically successful, they were not satisfied with being relegated to second-class citizenship and they began to claim political power commensurate with their wealth.
In consequence, the utopian enthusiasm of the original immigrants waned even as the economics of the colony waxed. It could ironically be said that the Puritan community failed through its success. But not entirely. The Puritans bequeathed to Americans thereafter a communitarian ethos, punctuated by utopian outbursts, that became an important part of the mindset or weltanschauung of the colonists. And that mindset was passed down to the Founders, passed through them into the Constitution, and through the Constitution to us today.
Res Publica: Communitarianism as Americanism.
Communitarianism was a natural fit as a theory and practice for immigrant colonies and, later, for the new republic because it corresponded with the way most Europeans lived in their old countries and then settled in America. Contrary to the impression that is often created in conventional narratives, the decision to come to America during the seventeenth through nineteenth centuries was not typically made by individuals who wanted to merely better their own social and economic positions. The decision was usually made by groups of people who wanted to build a new and better community for themselves and their posterity.
Most European immigrants came to America during this time as groups of people who often had lived in the same locality in their old country and then settled together in their new country. These people came to America as a community with the intention of perfecting their union and doing so without the interference of their old-world noble masters.[iii]
In a similar fashion, when European-Americans moved westward across the continent, they generally moved in groups, first setting up new towns and community institutions before attempting to attract more people. It took cooperation among a village of people in order for anyone to survive in newly settled lands.
To a large extent, European immigrants duplicated the social structures of the villages and towns of their old countries. They brought a communitarian mindset from their farming villages and urban guilds, and it became the founding mindset of Americanism.
Peasant villages in Europe since the Middle Ages had been organized on a communitarian basis, with neighbors often sharing the use of the best land, planting and harvesting together, and cooperating in village institutions. Elders would generally constitute the day-to-day village government, subject to the overlordship of the local nobles whose land they farmed, to whom they paid rent and for whom they performed services. The common good was the goal of the village society and local governance. And very little could be undertaken by villagers without community approval.
Likewise, crafts and businesses in medieval towns were organized into guilds whose purpose was the common good of their members and community at large. What was produced, how it was produced and at what price it was sold was controlled by guild rules and town regulations. Immigrants to America brought these communitarian practices with them.
As in the European villages, almost everything in colonial American towns and cities was subject to regulation in the public interest. You had to get some sort of license or permission to do almost anything. If you wanted to open a business, the town must have had a need for your product or services. You had to have the wherewithal to do a good job, and you has to maintain a sufficiently high quality of product or service. Almost everything that could affect the public was regulated in the public interest. And this sort of regulation continued at the local and state levels in the United States through most of the nineteenth century.[iv]
Right-wing Originalists have seemingly missed this history. They invariably read into the Constitution some variant of laissez-faire capitalism and small government that did not even exist when the Constitution was written. The Founders assumed big government, and pervasive governmental regulation was the norm for them.
There were disagreements among the Founders about the size of government but not in the way they are conventionally portrayed. Conventional narratives portray the disagreements as between those who wanted a big government versus those who wanted a small government. But this was not the case.
The disagreements were primarily about whether government should be big at the local level, an assumption of the short-lived Articles of Confederation, or at the national level, which is an assumption in the Constitution. In either case, pervasive government regulation in the public interest was assumed by the Founders, and communitarianism was an underlying theme of both the Articles of Confederation and the Constitution.
A Rebirth of Utopianism: The Origins of the American Revolutionaries.
The communitarianism that immigrants brought with them from their homelands was a foundation upon which the country was built. And the pervasiveness of communitarian attitudes and practices in America during the eighteenth and nineteenth centuries points to the mindset of the Founders when they wrote the Constitution. It was communitarian with a utopian underpinning.
A rebirth of utopian hopes was a mainspring of the Revolution. The historian Gordon Wood has called the American Revolution “one of the great utopian movements in American history” and it was seen as such by the Founders themselves. Expressing the sentiments of most revolutionaries, Tom Paine exclaimed in utopian terms that “The birthday of a new world is at hand” and that “We have it in our power to begin the world over again.” [v]
Founders such as Washington, Jefferson, Madison, and Franklin, believed that the Revolution would unleash the virtue of the American people so that they could build a society that would be a model for the world. Resurrecting the Puritans’ City on a Hill, their vision was essentially a secular version of Winthrop’s model of Christian charity. It encompassed a commitment to a shared and sharing community — the res publica or public thing. — that emphasized the individual’s role in serving the community — the virtuous man as a public servant. It proclaimed that all for one and one for all would benefit one and all.[vi]
There were, inevitably, tensions among the Founders just as there had been among the Puritans. The revolutionary and post-revolutionary generations went through a transition similar to that of the Puritans from utopian to pragmatic. But there was an underlying communitarian commitment at every turn.
The Founders were both utopians and self-styled realists who saw themselves as trying to establish the most perfect government they could under the circumstance. Theirs was an open-ended utopia rather than a fixed and rigid plan. This pragmatism is reflected in the flexibility of the Constitution, which allows for endless amendments and continually changing interpretations as society evolves.
The Founders did not expect things to work perfectly and they didn’t. The Revolution spawned utopian visions, but also gave rise to partisan politics and regional conflicts thereafter. But the utopian ideals and the communitarian practices that the Founders founded haven’t ever completely disappeared. They are embedded in ourselves and in our Constitution.
Even as powerful individuals and groups have promoted dystopian theories and practices, nurtured nightmares of selfishness, crassness and cruelty, and pushed for disunion and dictatorship, utopianism remains, ironically, a realistic hope. Even today.[vii]
Happily Ever After: Utopianism in American History.
Utopianism is as American as cherry pie. Robert Sutton, a historian of utopian communities, has similarly noted that “the utopian tradition is an unbroken motif [in American history]…There was never any extended period of time when an important experiment, or experiments, was not underway.” Sutton estimates that there were over seven hundred utopian communes in the United States in the year 2000, and many hundreds of cooperatives of one sort or another.[viii]
From the Puritan settlers through the Founders to the present-day, communitarianism has been part of the mindset or weltanschauung of the country. America has, in turn, been seen by people around the world as a land of unlimited opportunity, not only for individuals seeking a better life for themselves, but for people seeking to build a better society. Utopian thinking and practices have been endemic in the country.[ix]
Small-scale utopian communities were a highly visible part of America during the seventeenth, eighteenth and nineteenth centuries, and were widely considered a viable option for the development of the country. Many of the cooperative communities founded during the colonial period were based on religion. Secular utopian communities proliferated as well. Many were substantial communities that lasted for substantial periods of time, some for eighty to one hundred years.[x]
And utopianism was taken seriously by elite leaders and ordinary people alike. When Robert Owen, the wealthy Welsh industrialist turned philanthropist, visited the United States during 1824 and 1825 to promote his utopian socialist vision and establish the New Harmony community, he was personally well-received by a host of the remaining Founders, including Thomas Jefferson, James Madison, James Monroe, and John Quincy Adams.
And Owen twice delivered speeches to Congress outlining his cooperative plans. He concluded with the hope that his new utopian socialist community would be a model for development in the United States. It wasn’t, but many important people thought it could and should be.[xi]
Horace Greeley, the influential editor of the New York Tribune, the preeminent newspaper in ante-bellum America, was a convert to the utopian socialist ideas of the Frenchman Charles Fourier. Greeley employed Albert Brisbane, Fourier’s most prominent American disciple, to write a regular front page column in the Tribune on Fourierism, and Greeley supported the founding by Brisbane of some thirty communes around the United States.[xii]
Utopian theories and communitarian practices were widespread in the United States during the eighteenth and nineteenth centuries. Some one hundred utopian novels were published during this period, many of which inspired experimental utopian communities.[xiii] Utopianism was a significant part of the social and political atmosphere in which the Constitution was framed.
In the beginning were the words….
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Preamble to United States Constitution.
The United States Constitution has a preamble. Fifty-two words that outline the purposes and intents of the Founders in establishing the Constitution. It is brief, but it sets forth in broad terms the goals the Founders had for the government and the powers they were giving the government to pursue those goals. It is a broad mandate for the government. And it is a communitarian mandate with utopian undertones.
Although the Preamble is not technically part of the Constitution, if people have any questions about the intentions of the Founders in adopting the Constitution, you would think that the Preamble would be the first place to look. But not for the right-wing majority of the present-day Supreme Court.
Essentially eschewing the Preamble as fluff, they claim to apply a literalist reading of the words of the Constitution. And they claim to find in the words a narrow set of original intentions and a narrow set of original provisions that must be strictly followed. In so doing, they reject the Living Document theory of the Constitution that has been predominant for the last century. The Living Document theory supports reinterpreting constitutional provisions in the light of changes to society.
In the Living Document theory, the Constitution is fixed in its basic structure and purposes, but it grows as changes in interpretation keep up with changes in society. The theory has largely been used to expand the powers of the Federal government to regulate the economy in the public interest, provide social services to the needy, and enhance the rights of women, blacks and other historically oppressed groups.
The right-wing Justices reject both the Living Document theory of construction and the progressive purposes for which it has been used. They claim that the Founders intended their words to be strictly construed and interpreted no more broadly than someone could have done in 1787. And these Originalists claim that their method is politically neutral. That it is a way of getting politics out of the Constitution. That they are just honoring the principles of the Founders.
But this isn’t so. Their doctrine is thoroughly political. It provides right-wingers with a rationale for overturning a hundred years of largely progressive interpretations that were based on the Living Document theory of the Constitution. In recent decisions, especially as applied to Presidential powers, gun control and civil rights, the Justices have clearly reached a right-wing political conclusion and then backtracked into it some so-called originalism as their justification.
In so doing, Originalists try to adorn themselves with the mantle of Constitutional conservativism. And they are frequently referred to in the media as conservatives. Originalists claim that they are merely preserving the original intentions of the Founders. Their doctrine is, however, anything but conservative. If their theory is thoroughly applied, it will produce a revolution in American government with enormous consequences for American society.
Originalism is, in fact, a radical theory that seemingly requires the destruction of the American government as it has developed over the last century. And much of the social, economic and political change that has been effected over the last one hundred years could be erased. Which seems to be their goal.
The Justices claim that their Originalism brings more certainty to constitutional interpretation while protecting against political and personal bias. They complain that if the Constitution can be repeatedly reinterpreted whenever a majority of the Court thinks times have changed, then the Constitution no longer provides the stability for which it was designed.
This is, however, an objection that falls on its face. If Constitutional Originalism depends on the clairvoyance of Justices, and their ability to read the minds of the framers, then whatever a majority of the Justices feels the framers intended becomes the law of the land. Where is the stability in that?
In particular, the Court has gutted the checks and balances that the Founders were so keen on embedding in the Constitution and that would keep the President from becoming a king. At the President’s request, the Court has rescinded many of the civil rights and liberties of historically oppressed groups. The Court has also allowed the President to brutalize and incarcerate people without any due process. The Court has permitted the President to use the Department of Justice and the federal courts to prosecute and persecute his political opponents. The Court has allowed the President to restrict people’s rights to free speech and assembly. In sum, the Court has allowed, and even promoted, the assumption by the President of dictatorial powers. All of this in the guise of Constitutional Originalism.
What, are they nuts?
The Constitutional Originalists on the Supreme Court would have us believe that after fighting an almost decade-long war for independence, it was the intention of the Founders to create an imperial chief executive of exactly the sort that they had risked their all to get rid of. That is nonsense.
And they would have us believe that the Founders intended to adopt a laissez-faire economic system which they had never envisioned. And that the Founders intended to establish a federal government that is too restricted and enfeebled to protect, let alone enhance, the rights and liberties of its citizens or to provide for the general welfare as expressed in the Constitution’s Preamble. Again, in sum, the Court is creating the very sort of government that the Founders risked their liberties and their lives to overturn.
The historical truth is to the contrary. The Founders – Washington, Jefferson, Franklin, and even the pragmatic Madison – were communitarian in their practices and utopian in their goals. They wanted a government that could fulfill the promises in the Preamble to the Constitution. A government in which power would be checked and balanced, but that had extensive authority to protect people’s lives, enhance their liberties, and assist their pursuit of collective happiness, all of this in a changing world.
The right-wing Justices would have it that the Founders wanted a constitution that was a mortmain, a dead hand from the past that would grip them in a reactionary stranglehold. Not so. The Founders wanted a living constitution with a flexible framework that would support a dynamic society that was aiming for perfection.
Applying Constitutional Originalism: It can’t be done.
The historian Garry Wills has well summarized the efforts of Constitutional Originalists as “summoning the founders to testify against what they founded.” Which is absurd. Constitutional Originalism is not only historically wrongheaded, it is undoable. Let me count the ways.
In the first place, the theory requires judges to plumb the minds of the various authors of the Constitution, discover their beliefs and, then, interpret those beliefs within the intellectual culture of the Founders’ times. The theory assumes that judges have the skills of intellectual historians and, in so doing, places an impossible burden on them.
As an erstwhile intellectual historian, I can state that intellectual history is a demanding exercise, requiring specialized knowledge and training. It is hard to believe that many judges, who are otherwise well versed in the law, have that knowledge and training.
Second, in justifying their rejection of the Living Document theory, Originalists claim that theory leaves too much leeway for judges to introduce their political biases into their decisions. But this is a “do as I say not as I do” double standard. Originalist interpretations depend on how judges read history, which is a notoriously variable thing and will invariably reflect the judges’ political biases.
We have seen this in the rulings of the right-wing majority of the Supreme Court. Their decisions almost invariably come out on the right-wing side of recent cases. For them, originalism seems to mean going back to the late nineteenth century before the Court began more broadly applying the Fourteenth Amendment and the Bill of Rights. And before the federal government began playing a bigger role in regulating the economy and promoting social justice.
For them, the good old days were the bad old days for workers, women, blacks and other historically oppressed groups. But there is no good reason to think that the Constitution requires this or that the Constitution does not permit us to make things better.
Third, Constitutional Originalism assumes that the Founders were of one mind and that what came out of the Constitutional convention reflected that one mind. The problem with this assumption is that the Constitution was the product of committee deliberations and compromise decisions that make it almost impossible to determine what were the authors’ specific intentions. Anyone who has any experience with committees knows that while the members may come to some agreement on the outcome, they often do so for different reasons and with different expectations.
I have also worked as a government lawyer and in my experience, members of legislative committees frequently approve bills with various members having different ideas of what the bills accomplish. There is no single intention or interpretation. And after they are enacted, laws are variably and pragmatically interpreted and applied.
This sort of diversity of intents and interpretations was certainly the case with the members of the Constitutional Convention. We can see this in their sharp disagreements afterwards about the meaning of the Constitution. As a result, finding a single intent for many of the Constitution’s provisions is a fool’s enterprise. Pragmatism must be the order of the day.
Fourth, the difficulty in finding a single intent for the various Constitutional provisions is compounded by the fact that there is no statement of intent for the Constitution that might help explain what the Founders intended. Framers of a constitutional provision or statute will often include an explanatory statement of intent or a legislative history. The statement expresses the will of the authors. The framers of the Constitution did not do this. There is no such explanatory statement for the Constitution. Only a Preamble. And this seems intentional. The Founders, thereby, deliberately left the document open to changing interpretations.
Fifth, the Constitution is a relatively brief document with, for the most part, relatively broad provisions. The constitutions of other nations are much longer and more specific. The United States Constitution has some very specific provisions, such as age requirements for holding various offices, demonstrating that the Founders were capable of devising narrowly specific provisions when they wanted to do so.
The appearance of occasional specific provisions in the midst of a plethora of broad provisions leads to the inevitable conclusion that where the Constitution’s provisions are broad, and are like an outline of principles that need to be filled in with interpretations and interpolations, the Founders knew what they were doing. They were drafting a communitarian constitution that could be interpreted and reinterpreted in ways that best worked in the public interest.
If it is the Originalists’ goal to follow the Founders’ intentions, then it seems that a Living Constitution interpretation of the document is what the Founders intended.
Utopian Communitarianism as the Best of the American Way of Life.
So, what do we do now? Some statistics may help. It has been the case for close to one hundred years, ever since public opinion polling was invented, that when you ask Americans an abstract political or ideological question, they will generally fall out at two-thirds on the conservative side, one-third on the liberal side. But if you ask them a personalized or empathetic question, they will generally fall out at two-thirds liberal, one-third conservative.[xiv]
When, for example, Americans are asked questions such as “Do you believe in government welfare programs?” or “Do you believe in government control of the economy?” a large majority generally will say “No.” But when Americans are asked concrete, specific questions about public services, such as “Do you believe that hungry or homeless people should get government assistance?” or “Do you believe that the government should keep corporations from selling unsafe or unhealthy products?” a large majority will generally say “Yes.”
Communitarianism underlays the mindset of most Americans. You just have to give it a chance to show itself. And despite the meanness of right-wing Supreme Court Justices and Trump MAGA supporters, I think we have good reason to believe that the empathy of most Americans will eventually prevail. And that is what the Founders intended.
BW 1/26
Sources:
[i] John Winthrop. “A Modell of Christian Charity (1030) American History. ABC-CLIO, 2011.
John Winthrop. “The Wickedness of the Capitalism of Robert Keayne” Journal, 1639.
[ii] Perry Miller. Errand into the Wilderness. New York: Harper & Row, 1956.
[iii] Oscar Handlin. The Uprooted. New York; Grosset & Dunlap, 1951,
[iv] David Hawke. Everyday Life in Early America. New York: Harper & Row, 1988.
An Act for the Relief of the Poor, Pennsylvania, 1705. American History Online. Facts on File. 2011.
[v] Gordon Wood. The Creation of the American Republic, 1776-1787. Chapel Hill: University of North Carolina Press, 1969.
George Dargo. Roots of the Republic: A New Perspective on Early American Constitutionalism. New York: Praeger, 1974.
John Adams. “Thoughts on Government Letter, 1776: American History. ABC-CLIO, 2011.
[vi] William Goetzmann. Beyond the Revolution: A History of American Thought from Paine to Pragmatism. New York: Basic Books, 2009.
Gary Wills. Inventing America: Jefferson’s Declaration of Independence. Boston: Houghton Mifflin, 2002.
[vii] Timothy Miller. The Quest for Utopia in the Twentieth Century. Syracuse, NY: Syracuse University Pres, 1998.
[viii] Robert Sutton. Communal Utopias and the American Experience: Secular Communities, 1824- 2000. Westport, CN: Praeger, 2004.
[ix] Utopian Societies. American History. ABC-CLIO, 2011.
Arthur Bester, Jr. Backwoods Utopias. Philadelphia: University of Pennsylvania Press, 1950.
[x] Robert Sutton. Communal Utopias and the American Experience: Religious Communities, 1732-2000. Westport, CN: Praeger, 2003.
[xi] Robert Owen. Speech to Congress. American History Online. Fact on File, 2011.
[xii] Brett Barney & Lisa Paddock. Fourierism. American History Online: Facts on File, 2011.
Arthur Bester, Jr. Arthur Brisbane – Propagandist for Socialism in the 1840’s. New York History. Vol. XXVIII.
[xiii] Ellene Ransom. Utopus Discovers America or Critical Realism in American Utopian Fiction, 1795-1900. Nashville, TN.: Joint Universities Libraries, 1947.
[xiv] Jerome Bruner. Mandate from the People. New York: Duell, Sloan & Pearce, 1944.
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