Historical Cycling and Recycling.  Back to the Future in the Age of Trump.  Social Democracy v. Social Darwinism.  The Golden Rule v. The Rule of Gold.  A Fascist Resurgence? A Socialist Revival?

Historical Cycling and Recycling.

Back to the Future in the Age of Trump.

Social Democracy v. Social Darwinism.

The Golden Rule v. The Rule of Gold.

A Fascist Resurgence? A Socialist Revival?

Burton Weltman

“The past isn’t dead.  It isn’t even past.”

William Faulkner.

Gilded Age Redux: Déjà vu all over again.  The Golden Rule v. the Rule of Gold.

I am writing this missive in early February, 2025.  We are currently rushing past the first quarter of the twenty-first century while significant efforts are being made to hurl us back to the last quarter of the nineteenth century by right-wing reactionaries who want to Make America Great Again (MAGA) by destroying all of the progress that was made during the twentieth century.

The late nineteenth century was a Gilded Age of plutocracy and political cronyism, blatant demagoguery and government corruption, rampant racial bigotry and religious prejudice, widespread poverty and homelessness, plagues of virulent diseases, and a host of other societal ills.  Many of these ills have been ameliorated by progressive reforms during the twentieth century.  Social Security.  Medicaid.  Medicare.  Civil Rights Laws. Civil Liberties Rulings. The list goes on.  The fabric of American society has become more humane thereby.      

The repeal of these reforms and a return to the state of things that prevailed during the Gilded Age seems to be the goals of self-styled MAGA populists who have very little in common with the original populists of the late nineteenth century.  The original populists were reformers who promoted the progressive social changes that the MAGA movement is against.  MAGA supporters seem to think that America was greatest when it was most nasty, corrupt, and brutish.  It is a fascistic, might-makes-right conception of greatness.  Currently led and misled by Donald Trump, MAGA has momentum and we are in the midst of a MAGA moment in history.

It is a difficult moment for progressives.  We are experiencing a historical cycling and recycling that we could do without, the return of an atavism that we thought was being overcome and gradually done away with.  It is discouraging but it does not have to be disheartening.  There may be a silver lining or sliver of hope in the fact that the Gilded Age was followed by the Progressive Era and then the New Deal, which initiated most of the liberal social changes that the MAGA mob hate. 

The evils of the Gilded Age provoked a historic social reform movement which was, in turn, largely inspired by socialist ideas.  Socialism was a mainstream ideology during the Progressive and New Deal eras of the first half of the twentieth century, competing with liberal and conservative ideologies in the political arena.  While socialists hoped to gradually replace the capitalist system, liberals adopted many socialist ideas in the hope of reinforcing the existing system.  Working in cooperation with liberals, socialists and the Socialist Party of the early twentieth century were the source of many of the progressive reforms that eventuated during the century.  Almost all of the Socialist Party platform for the 1912 election was, for example, subsequently enacted into law. 

Channeling socialist ideals, liberal and socialist progressives adopted a mantra of “The Golden Rule instead of the Rule of Gold.”  Likewise, the socialist ideal of working cooperatively with others, instead of the capitalist idea of working competitively against them, was a main progressive idea.  Socialist ideas permeated the progressive reform movements.  Socialists also held many important positions in local and state governments and the federal government during the first half of the twentieth century.  That changed after World War II.  Socialism became a taboo word during the Cold War when conservatives successfully equated democratic socialism with totalitarian Communism in the media and the public mind.    

But that, too, seems now to be changing.  Despite the present-day reign of Donald Trump and his minions, or maybe because of it, the idea and ideals of socialism have been revived in recent years.  This revival has included the emergence of the Democratic Socialists of America (DSA), an organization that largely functions as a left-wing of the Democratic Party, and the election of DSA members and other social democrats to Congress and to local government offices.

Since socialism seems to be back on the political agenda, it may be useful to try to define and discuss what socialism actually is.  And that is the purpose of this essay.       

Democratic Socialism Redux: It’s back on the agenda.  Individuality v. Individualism. 

The word socialism was first used as a political term around 1830.  From its inception, the term has denoted more of a moral message than a political or economic system.  Socialism is an ideology which holds that “the self-development of each is the basis for the self-development of all” (Karl Marx), that one should act according to the maxim of “all for one, and one for all” (The Three Musketeers), and that one should “love thy neighbor as thyself” (Jesus Christ).  It is an ideology that promotes individuality through mutualism and cooperation.

Socialism is a pro-social philosophy.  When you add “ism” to a word, you identify an ideology or a cause that promotes what the word represents.  Socialism asserts that individual freedom is a result of social interaction.  Individuality means freely cultivating your talents within a social context, and finding a place in which you can make your unique contribution to society.  Individuality is not merely freedom from the oppression of others, but also freedom to participate equally with others.  It is the idea that my freedom depends on yours, and we are nothing without each other.  That’s the ideal of socialism.

Socialism arose in opposition to capitalism and individualism.  Capitalism can be defined as an economic system that is based on the presumption that businesses will be privately owned and operated without government interference, unless that presumption is overcome by conclusive evidence that government involvement is necessary to preserve the capitalist system.  In a capitalist system, the goal of businesses is to make profits, based on the assumption that maximizing profits will result in maximum benefits to the public.  Capitalism as an economic system is supported by individualism as a social theory.

Individualism is an ideology that promotes a cult of the individual, and that describes the individual as in constant opposition to society.  Individualism asserts “me” and “mine” over “we” and “ours.”  It promotes the individual over society, for fear that society will suppress the individual.  And it promotes competition among people rather than cooperation.  This premise is based on two key premises.  First, the idea that competition makes people stronger and more productive.  And second, that competition keeps people isolated from each other so that they cannot form social coalitions that might suppress individuals.  Society is to be mistrusted.   

Individualism is, therefore, an ideology of liberation, but also of insecurity.  It encourages people to be themselves, free from the constraints of others, and be all that they can individually be.  But it bases that self-fulfillment on competing for supremacy against others.  In an individualist world, people can never be sure whether their positions are strong enough to withstand the whims of lady luck or the winds of change. 

A down-side of individualism is that it can function as an ideological rationalization for the selfish and self-centered bully, who climbs over others in a vain attempt to be king of the hill, vain because there is inevitably someone stronger or smarter coming up that hill.  Individualism reinforces the free enterprise capitalist economic system that has predominated in the United States since the early nineteenth century.  Individualism gradually became the dominant ideology in the country during the nineteenth century and, despite inroads from socialist ideas, has largely reigned as such since. 

Unlike individualism, socialism asserts the compatibility and indivisibility of the individual and society.  Socialism claims that individuals and individuality stem from interacting with other people and with society.  For socialists, “One for all and all for one” is a fact, not merely an aspiration.  You are nothing without others, and you are what you do with others. 

Likewise, “Love thy neighbor as thyself” is, for socialists, a fact and not merely an aspiration.  If you think well of yourself, you will likely treat others well.  If you treat others poorly, competing to defeat and dominate them, you will likely think poorly of yourself.  Socialism opposes individualism, but not individuality, as self-defeating.  Individualism comes from working against others, ultimately a losing proposition, individuality from working with them.

Individualism promotes the Social Darwinian zero-sum idea that if you get more, I will get less, and that the only way for me to get and keep mine is to keep you from getting yours.  It is an ideology that promotes distrust and fear of others. 

Although few right-wingers today acknowledge Social Darwinism as a source of their ideology, Social Darwinism is the principle that underscores most of the thinking of Donald Trump and the political right-wing in the United States today.  Unlike conservatives who oppose dramatic social change and big government, but are generally willing to accept small reforms and government programs when necessary to avoid disaster, right-wingers are radicals who want to dramatically change society and virtually eliminate government and the public sector.  It is a view that hinges on mobocracy instead of democracy. 

Unlike right wing ideology, socialism is not a radical idea.  By definition, radicals want to get to the roots of what they see as a wicked society, tear up those roots, and plant something entirely new.  Socialism does not reject the foundations of American society.  The idea of socialism builds on the social ideals that most Americans already hold, and on social instincts that most Americans already display.  Socialists do not have to start from scratch.  They can build on the democratic institutions and ideas that already exist in capitalist America, and thereby move gradually toward a socialist political, economic and social system.  

A socialist political democracy could be described as a system of majority rule with minority rights, the most important of which is the right of the minority to possibly become the majority someday.  That last clause is the most important in the definition.  Implicit in the definition are freedoms of speech, assembly, and political organization; the rule of law along with due process and equal protection under the law; and all of the other political rights guaranteed by the Constitution.  But the definition also requires social equality and economic equity so that individuals and minority groups can effectively exercise their political rights.  That is where the socialism comes in.  Political democracy is effective only to the extent that social equality and economic equity prevail.   

In economics, the idea of socialism is economic democracy.  The economic goal of most socialists could be summarized as a system based on the presumption of public ownership or control of businesses, unless it is in the public interest for businesses to be privately owned and/or controlled, and with an assumption that small businesses would be privately owned and operated.  A mixed economy of public and private business is the idea of socialism, with government involvement to ensure economic equity.

Implicit in that definition are such things as a public health system along with health and safety regulations, a public insurance system along with a social safety net, minimum and maximum wage regulations along with a progressive income tax, and other provisions to make for a cooperative, stable, and relatively egalitarian economy.  Socialism promotes the public interest in economics, and opposes a capitalism in which everyone and everything is valued in monetary rather than human terms.  It builds on American ideals of fairness and practices of generosity.

In social relations, the idea of socialism is social democracy.  Socialism promotes the dignity of all people, and opposes discrimination against people based on invidious prejudices.  A socialist conception of personal relations could be summarized as support for everyone who respects others, and opposition to anyone to the extent the person disrespects others.  Implicit in that idea is opposition to racism, misogyny, ethnocentrism, homophobia, and bigotry in all its forms, and support for diversity coupled with cooperation.  That is the American ideal of E pluribus unum.       

Back to the Future: Democratic Socialism v. Social Darwinism.  The choice is ours to make.

The idea of socialism held by most socialists is very different than that held by opponents of socialism.  As part of their political liturgy, conservatives and right-wingers have tried to make socialism a dirty word, and to represent socialism as the enemy of individuality and freedom.  The idea of socialism is often mischaracterized by opponents, and even by some self-styled socialists, mostly those who identify as Communists, as promoting government ownership or control over all businesses and, maybe, even over everything else.  The idea of socialism is also misidentified with oppressive Communist regimes that have existed in some countries.  But, neither of these is consistent with the idea of socialism nor what most socialists believe. 

This misconception is based on a claim that socialists worship society over-and-above the individual, and to which the individual can be sacrificed.  This is a core idea of totalitarianism.  It is anathema to individualists and is the basis of their seeing society as the enemy of the individual.  But reifying and idolizing society is also contrary to the idea of socialism.  Most socialists see society as an association of individuals which can and should be a vehicle for individuality, and oppose the totalitarianism implied in seeing society as a hegemonic entity.

Socialists are often portrayed as violent revolutionaries, but the overwhelming majority of socialists from the early nineteenth century to the present day have favored peaceful evolution toward socialism.  Socialists have generally tried to establish islands of socialism within the existing capitalist society that would island-by-island gradually move society toward the socialist goal. 

They have, for example, established communes, like those of the nineteenth century utopian socialists and the twentieth century hippies, some of which have been successful.  Socialists have also encouraged the establishment of cooperatives, which have been more successful.  Farming co-ops, housing co-ops, shopping co-ops, and co-ops of all sorts have flourished over the last one hundred years.  The hope is that the cooperative idea will catch on with ever more people, so that communes and co-ops will gradually become the norm. 

At the same time, socialists have developed ideas for social reforms and social programs that have been adopted over the years.  Most of the social programs proposed in the 1912 platform of the Socialist Party have, in fact, become law in the United States.  The hope is that by adopting regulations that promote the health and safety of the public, promote economic equity and efficiency, protect the environment, and care for those who need help, the country will gradually become more socialized. 

Most people would describe these reforms positively in humanistic terms, and see them as a means of stabilizing the existing capitalist society.  Right-wingers, however, decry them as “creeping socialism.”  Socialists hope they are right.

                                                                                                                                    BW  2/25 

Brief Bibliography.

Eric Foner. “Why is there no socialism in the United States?” In Who Owns History? New York: Hill and Wang, 2002. Pp. 110-145.

Micheal Harrington. Socialism. Past & Future. New York: Arcade Publishing. 1989.

George Lichtheim. The Origins of Socialism. New York: Frederick A. Praeger. 1969.

The Consequences: Individualism Triumphant.  Or not. The Utopian Impulse in American History. The Golden Age of Utopianism, 1820’s to 1850’s. In Pursuit of a More Perfect Union. Part III. Postscript Post Election 2024: What do we do now?

The Consequences: Individualism Triumphant.  Or not.

The Utopian Impulse in American History.

The Golden Age of Utopianism, 1820’s to 1850’s.

In Pursuit of a More Perfect Union. Part III.

Postscript Post Election 2024: What do we do now?

Burton Weltman

“You cannot buy the Revolution.  You cannot make the Revolution. 

You can only be the Revolution.  It is in your spirit, or it is nowhere.”

Ursula K. Le Guin.

Postscript Post Election 2024.  Ahab is taking over the ship.

I wrote this essay during October, 2024 in the midst of a bitter presidential campaign between a right-wing demagogue Donald Trump and a moderate liberal Kamala Harris.  The election occurred just as I finished the essay and the demagogue won.  I think that his victory exemplifies the moral of the story in this essay, which is the need for liberals to develop utopian thinking to counteract the dystopian theory and practice of demagogues like Trump.

As I discuss in the essay, when a political campaign is run on ideological grounds in this country, the right-wing usually wins.  When a campaign is based on competing programs, the liberal usually wins.  Liberals have programs that most people like.  But they don’t have an ideology or a vision that people can inhabit.  The right-wing has a vision.  It is based on an individualist ideology that has been inculcated into most Americans so that they respond in knee-jerk fashion to its evocation.  It’s a dystopian vision based on myths and lies, but it has power.

In the recent election, Trump and his allies promoted a false dystopian vision of America society, and then spewed endless lies and misinformation in support of their vision so that it was impossible for Harris or the media to keep up with correcting the falsehoods.  And even when the lies were exposed, the demagogue kept on repeating them.  In this way, he sold his vision. 

Harris ran a campaign based on a reasonable picture of American society while proposing specific programs to deal with social problems.  But she offered no ideal of what the United States should be.  No utopia.  Although most people agreed with her specific proposals, her programs did not cohere in a vision in which people could imaginatively see themselves.  Her proposals got lost in the persiflage of her demagogic adversary.  And, so she lost.  You can point to many reasons why Harris lost and, as I type this, the finger pointing is just getting under way.  But I think the absence of an overall vision was one of the reasons, and it is a problem that has dogged liberals for many years.    

Trump is at this point in control of the federal government for the next several years, and those of us who are politically interested will likely have to focus on local issues.  But that should not stop us from thinking in broader terms and developing a vision to go with our programs.  Thinking globally, acting locally, as the saying goes.  Although utopian thinking is frequently disparaged as a silly and even harmful exercise in futility, I think it is a necessity which is the point of this essay.                    

BW  11/24

A Fish Story and More. 

A couple of merchants outfit a ship, hire a crew to man it and a captain to manage it.  All of them – merchants, sailors and captain – have goals for the ship’s voyage.  The merchants hope to make a profit from the voyage, some of which they will share with the captain and the crew, and the rest they will invest in outfitting the ship for another in a hoped-for succession of voyages.  

The crewmen, as their goal, hope to survive what is expected to be a dangerous voyage, working together as a community to make it succeed, then collecting their shares of the profits and spending them before signing up for another voyage.  The goals of the merchants and the sailors are, thus, somewhat different in scope but congruent in content.  They all want a safe and profitable voyage. 

The captain, however, has a private goal for the voyage that does not fit with the goals of the merchants and the sailors, a personal goal that he never shares with the merchants and does not disclose to the crew until they are well on their way.  The captain’s pursuit of his personal goal results in the sinking of the ship and the deaths of himself and all but one member of the crew.      

It is a tragic story of a selfish person wreaking havoc on all those around him because he insists on having his own way come hell or high water, or both hell and high water in this case.  Self-centered people wrecking things for others is an all-too-common common theme in literature and history, which are full of such people right up to the present day.  I am, for example, writing this essay in late October, 2024.  We are currently coming to the end of a bitter presidential campaign in the United States in which one of the candidates is a selfish, self-centered, megalomaniacal demagogue who is threatening to wreck everything for everyone if he wins, or if he doesn’t.

The tragedy described above is an outline of Herman Melville’s classic novel Moby Dick.  First published in 1851, Moby Dick is often considered the greatest American novel.  It is a tale of deadly doings on the whaling ship Pequod.  On a voyage whose purpose is supposed to be the killing of whales, the tables are turned when the whale Moby Dick destroys the ship, killing all but one member of the crew.  It is a disaster precipitated by Captain Ahab’s megalomaniacal pursuit of vengeance against Moby Dick and his ability to mesmerize the crew into joining him in his mad pursuit.  In so doing, the crew abandon their duty to the ship’s owners to hunt whales and their duty to themselves to stay safe.

What to make of this story?  On one level, Moby Dick is a big fish story, a tale of daring-do like others Melville had previously written.  But, unlike the others, this one is intermixed with philosophical and scientific speculations, much deeper than a mere fish yarn.  It can be likened to a combination of Richard Henry Dana’s sea tales and Ralph Waldo Emerson’s philosophy, an adventure story joined with metaphysical musings.  And this is the way the novel is usually read.

But I think there is more to the story.  I think it also deals with ideological issues of importance in Melville’s day and in ours too.  Told in a first-person narrative by Ishmael, the survivor of the Pequod’s destruction, the book functions as a voyage of ethical and intellectual discovery for the narrator, and maybe for the author Melville as well, whose opinions of whalers and whales dramatically change in the course of the telling of his tale.

Ethical issues permeate the story and it can be seen as a moral allegory.  Questions of who and what is good and bad underlie the book’s various episodes and link what can be seen as the two main plotlines in the book.  One plotline focuses on the crew of the Pequod, the whalers.  The other focuses on the whales that they are hunting.  The two plotlines track the moral trajectories of the whalers and the whales, describing a moral ascent of the whales during the course of the book and a moral descent of the whalers.  

Beginning as a warm celebration of hearty sailors and adventurous whaling, the book’s characterization of the whalers becomes increasingly harsh and even bestial as they first slaughter whales and then assent to Ahab’s barbaric obsession with killing Moby Dick.   The whales, in turn, are at first rendered in coldly taxonomic and economic terms.  In what are often criticized as the boring whale chapters of the book, the whales are initially described as dumb fish-like creatures who make a fit crop for human harvesting.  Most of the opening whale sections are boring, maybe even intentionally so, but they play an important role in the story. 

Because as the story proceeds, the whales are depicted in increasingly sympathetic and humanized terms, while the whalers are at the same time being portrayed in increasingly unsympathetic and inhumane terms.  Instead of dumb beasts, the whale are portrayed as intelligent beings who peacefully cooperate with each other in organized communities, with parents even sacrificing themselves to protect their young from the whalers’ onslaught.  Almost like a utopian cooperative community. 

The two trajectories, whale and whaler, crisscross in the middle of the book, with the whales ethically ascending, the whalers morally descending.  The whales become sympathetic beings, more empathetic than the humans chasing and killing them.  And in the face of Ahab’s single-minded fury and the crew’s intoxication with his malevolence, readers may even come to root for the whales and have mixed feelings about the demise of the Pequod.  Mixed feelings that seem to be shared by Ishmael and the author Melville as Ishmael finally finishes his tale. 

What seemingly began as merely a big fish adventure story has become a moral allegory about the dangers of demagogues and the susceptibility of people en masse to demagoguery.  It is a demagoguery that tends to the inhumanity of humanity and the decivilizing of civilization.  Melville has challenged us with a moral allegory, and more.

The story is also a social allegory.  And it is a reflection of the debate in the first half of the nineteenth century between proponents of mercantilism, socialism and individualism.  Melville’s whaling ship is a miniature society, and the story of that society revolves around what can be characterized as the conflicting views of mercantilists, socialists and individualists.  The mercantilist view is represented by the ship’s owners.  They personify a propertied but paternalistic elite whose goal is for sailors and owners alike to make a profit on the voyage, and then keep their joint enterprise going in future voyages.

The second view is represented by the cooperative community of sailors on the Pequod whose goals are to work together, and keep the whaling ship afloat to the end of its voyage so that they can collect and spend their wages.  The third is the view of the individualistic Captain Ahab who thinks and acts as though he is a world unto himself and places the satisfaction of his personal desires above his duties to the ship’s owners and the community of sailors on the ship. 

The novel ends with the destruction of the society represented by the ship, a disaster that is brought about by the selfish, self-centered actions of the individualistic captain.  The story can be seen as a warning from Melville as to what he saw happening in the society around him.

Mercantilism, Socialism, Individualism: The Debate.

Nineteenth century social, economic and political debate in the United States revolved largely around three utopian ideals that evolved into political ideologies.  Mercantilism, socialism and individualism began as intellectual ideals, morphed into political arguments, succeeded and failed in part as social realities, and left us with a legacy with which we are still trying to cope.  

Mercantilism was the predominant form of government during the colonial period up through the 1820’s.  Mercantilist republicans promoted a paternalistic government that was controlled by a meritocratic elite whose ascendance was accepted by the general public.  It promised good government by qualified leaders who were well-educated and invariably from the upper classes, and who worked in the public interest. 

Mercantilism promoted government regulation of the economy toward creating a commonwealth, that is, a society in which wealth was generated for the common good.  The assumption of the mercantilist Founders of the United States was that if only the interference of the British government in American society could be ended, and especially the hamstringing of the American elite, virtue would be unleashed on all sides, the American people would willingly and happily follow their natural leaders, and all would be well in the land.  This was a utopian assumption that partly played out in practice, but only partly.

Utopian socialists promoted a cooperative society in which people would work together doing things for the community.  Division of labor would be based on people’s qualifications for specific tasks and leadership would democratically fall to those who were most knowledgeable and skillful in regard to a given issue.  What we might today call a participatory democracy. The assumption of utopian socialists was that the small communities in which Americans settled were inevitably cooperative, as no one could survive without help from others, and that it was just a small step from a community of cooperative citizens to a cooperative community.  This was a utopian assumption that partly played out in practice, but only partly.    

Laissez-faire individualists promoted a small-government society in which freedom was the operative term.  The assumption was that if everyone did what they wanted, the “hidden hand” of the law of supply and demand would ensure that everybody and everything would work out OK.  It would be a society in which the free market would control everything and government’s role was merely to keep the market free.  This was a utopian assumption that partly worked in economics but not in society more generally.

The debate between proponents of mercantilism socialism and individualism was vigorous.  Laissez-faire individualists won the debate and laissez-faire individualism became the predominant view of society and law in the United States over the course of the nineteenth century.  As the story is usually told in conventional histories, this was an inevitable development and the only logical way for the country to go. 

Most history books treat laissez-faire capitalism and individualism as the American Way and the way the country was destined to go from the start.  And, looking backward at the history of the nineteenth century, we can see a chain of seeming causation with one thing leading to another, so that we can easily conclude that since everything is connected, what happened had to happen.  But that just isn’t so.  Like much conventional history, it is an example of the post hoc ergo propter hoc fallacy that because event X followed event Y, event X must have caused event Y,     

History is not just a chain of causation.  It is a function of choice and chance as well as causation.  If you were to put yourself in the place of people in the nineteenth century, looking at what was most prominently happening around you, and surveying the options that you and others had, I think you would come to the conclusion that there was nothing inevitable about the development of laissez-faire capitalist individualism.  People’s choices, some wise and good, others stupid and wicked, combined with chance circumstances, some fortuitous, others unfortunate, played at least as much of a role in the rise of individualist as causation.        

The Decline of Mercantilism and Utopian Socialism.

Mercantilist theories had been fairly successfully practiced in most of colonial British America since the early 1600’s.  Following independence from Britain, mercantilism continued as the premise of most local, state and federal governments in the United States until the mid-1820’s.  So long as there was a supply of Revolutionary War leaders to fill the office of the Presidency and other important governmental positions, mercantilism was the basic theory and practice of American government.  And in presidential elections from that of George Washington in 1788 to that of John Quincy Adams in 1824, presidents were routinely chosen from among the elite. 

But by the 1820’s, the revolutionary generation of men who embodied the meritocratic ideal was passing.  And the next generation of elite leaders, such as Henry Clay and Daniel Webster, did not have the same charisma or clout.  The demise of mercantilism was presaged by the passing of the Revolutionary leaders who had largely ruled the country for a half-century and who were recognized as republican royalty.[1]

At the same time, the electorate was also changing.  At the time of the Revolution, the right to vote had generally been restricted to people with substantial amounts of property.  These were people who seemed willing to support the mercantilist policies and the elite ruling class being promoted by most of the Founders.  But by the 1820’s, the United States had become the first country in the world in which the franchise was held by all white men, propertied or not. 

This was an increasingly democratic electorate that was increasingly hostile to self-styled ruling elites.  Many people, mainly less educated and from less prosperous areas of the country, felt that they were being left out and left behind by an urban, educated elite.  They rallied around an anti-urban, anti-intellectual populism that was promoted as being more democratic.  It was a development that paved the way for demagogues like Andrew Jackson.

Conventional histories generally hail the Age of Jackson, which began upon Jackson’s election as President in 1828, as a major democratic turn in American history.  But I don’t agree.  Populist, yes.  Democratic, no.  Not if you define democracy, as I do, as majority rule with minority rights, the most important of which is the right of a minority to become the majority.  It is individual liberties and republican institutions, the Separation of Powers in the Constitution plus the Bill of Rights. 

Alex de Tocqueville, when he visited America during the Jacksonian era, worried that with little or no respect for established republican institutions, demagogues could transform a democracy into a mobocracy, a majority rule government and society with little room for differences and little regard for the rights of individuals.  That is what he feared Jackson represented. 

Jacksonianism in the 1820’s, much like Trumpism today, was more demagogic than democratic, filled with hostility to immigrants and suspicion of people’s differences.  It was a contradictory call for individualism without individuality.  And during the Jacksonian era, the triumph of individualism as a theory became an exercise of conformity in social practice.  It is a contradiction that we see today in the hypocrisy of Donald Trump and his MAGA movement. 

Andrew Jackson did not respect republican institutions.  He repeatedly disobeyed orders when he was in the army, killing at least one man for personal reasons, insisting against orders on the execution of at least two others, and unilaterally against orders invading and attacking supposed enemies.  As President he unconstitutionally refused to implement a Supreme Court ruling in favor of Native Americans, saying that “(Chief Justice) John Marshall has made his decision, now let him enforce it.”  Trump, who cites Jackson as his favorite former President, has done the same when he was President and promises more of the same if he is elected again.

Populism in the 1820’s was similar to the situation in America today in which many people, especially older white men, and especially white people from small towns and economically declining areas, resent the equality being asserted by women and people of color and feel that the country has been ruled and ruined by a self-styled highly-educated liberal elite.  This resentment opens the door to the sort of racist, sexist, nativist, anti-intellectual demagoguery being promoted by Donald Trump and his MAGA movement to remake America as manly and white.  Ostensibly democratic, actually demagogic.  Ostensibly utopian, actually dystopian.   

Utopian socialism went through a similar rise and decline as mercantilism.  Although mercantilism had been the ruling ideology in America since the 1600’s, cooperative communes also had a significant history.  Dozens of communes, both religious and secular, had gone into and out of existence, and peaked during the first half of the nineteenth century.  While not as successful in practice as mercantilism, the socialist ideal inspired many small experimental communities, such as Robert Owen’s New Harmony in Indiana during the 1820’s.  The communal ideal also had many influential supporters, such as the newspaper magnate Horace Greeley.  Socialist theory – the word socialism was coined by Robert Owen – was widely popular and quite successful, albeit as a moral force more than as a practical plan for society. 

Despite the popularity of socialism in theory and the success of mercantilism in practice, laissez-faire individualism became the controlling ideology in politics and law in the United States.  It was not, however, an intellectual victory in which better arguments prevailed over weaker ones.  It was an ideological victory that was facilitated by the rise of large-scale corporate businesses and large cities.  Mercantilism and utopian socialism were not compatible with big cities and big businesses, and that left the field to laissez-faire individualism.  Although conventional histories generally portray these developments as inevitable, they were not.  They were a function of choice and chance as well as causation.  Things could have been different.  And, very soon they were.  Because, ironically, the same developments that helped make laissez-faire individualism dominant in theory made it effectively impossible to implement in practice.

The Corporate Revolution: A Frankenstein’s Monster.

The nineteenth century was an age of unprecedented growth of gargantuan businesses and civic enterprises.  It produced large-scale farms, factories, and cities that dwarfed any previously in existence.  Conventional histories generally treat this development as inevitable, a law of nature that smallness quite naturally grows into largeness.  But that was not so.  Most of this development was a result of legal changes and, particularly, the enactment of what were called General Incorporation Laws.  There was nothing natural or inevitable about these laws.  And the resulting growth in the size of businesses and cities was widely regarded at the time as unnatural and even unwelcome.   

General Incorporation Laws were arbitrary changes in the law and a sharp break from the ways that business had traditionally been conducted since ancient times.  A corporation is an artificial being that in various ways is treated as a person, like a human being.  There is nothing natural about that.  The key point is that incorporation gives the owners of a business the benefit of limited liability for the debts of the business.  Limited liability means that the investors are not liable for the debts of the business beyond what they have invested in it.  If the corporation goes bankrupt, the investors are liable to lose only the amount of money they put into the business. 

In contrast, the owners of an unincorporated business can be completely liable for the debts of the business.  If the business goes bust, all of the owners’ other investments and their personal property can be confiscated to pay the debts of the business.  This was the risk that almost all businessmen faced from ancient times to the mid nineteenth century.  And it made people cautious about investing in risky businesses.  Limited liability dramatically changed that risk factor and it became an enormous advantage to entrepreneurs who wanted to convince people to invest in their businesses.    

Previously, going back to the Middle Ages, incorporation had been available only for public works and other projects in the public interest that could not otherwise attract investors.  Bridges, roads, canals, and other public works were the primary examples.  An owner who wanted to incorporate a business had to get a special charter from the legislature and had to demonstrate that the business served some public interest which was not otherwise being served.    

This limited liability afforded corporations was intended as an incentive for rich people to invest in businesses that served the public welfare.  Up until the mid-nineteenth century, these public welfare requirements were part of the mercantilist ideal of government control of the economy to serve the public interest.  With General Incorporation Laws, government approval and a public purpose were no longer required in order to incorporate and get the benefit of limited liability.  Incorporation went from being a very limited exception to being the general rule for businesses. And the General Incorporation Laws were a tremendous blow to the mercantilist regime. 

Since almost anyone could incorporate almost anything and get the benefit of limited liability, the laws were politically promoted as an example of economic democracy.  They were cited as an instance of laissez-faire individualism that was more democratic than mercantilist methods which ostensibly favored the rich and well-born.  An ordinary individual could incorporate his little business without having to get permission from a government bureaucrat who primarily served a well-to-do elite.  It was supposed to be a boon to small businessmen.  

But this change in the law had the opposite effect.  Its primary effect was to enable capitalists to attract rich investors who would put their money into big businesses that could then swamp their small competitors.  It was not the case that the big businesses were more efficient than the small businesses.  It was their money power that made them formidable.  The new incorporation laws, rather than being an encouragement to small businesses and individual enterprises, made possible the rise of corporate behemoths that squelched small enterprises.

The tables were also turned on the relationship between government and business.  Mercantilism had been a system of government regulation of business in the public interest, and this had been the purpose of the prior corporation laws.  With the rise of big corporations, government became dependent on business rather than vice versa.  In turn, with the influence that money can buy in politics, the General Incorporation Laws had the effect of undermining the democratic power of ordinary people.

General Incorporation Laws initiated a corporate revolution that was like Dr. Frankenstein’s monster.  They were enacted with utopian idealist expectations.  Everyman’s business would be a corporation, everyman would be a corporate owner.  But they generated dystopian results.  Everyman’s businesses were swallowed up by corporate monsters.  A revolution gone wrong.    

The Debate Derailed.

General Incorporation Laws were revolutionary in their effect on the debate between mercantilists, socialists, and individualists.  They took the ground from under the proposals of utopian socialists and mercantilists who assumed that businesses would be of a moderate size that could readily be converted into socialist communities or regulated by government.  The decline of mercantilist and socialist ideas was not primarily a result of their inefficacy in theory or in practice.  Their decline was largely an unforeseen consequence of the rise of corporations. 

Utopian socialism had been premised on the small farming and manufacturing communities which had been ubiquitous among European settlers in early America and in which neighborly cooperation had been necessary and natural.  Socialists had repeatedly said that it was a small step from a community of cooperative citizens to a cooperative community. Mercantilism had been similarly premised on small to medium scale enterprises that governments could control.    

The rise of corporations led to the development of large farms and large factories which, in turn, meant large cities.  Small cooperative participatory democratic communities were increasingly impracticable.  Likewise, mercantilist control over behemoth corporations seemed implausible. Mercantilists such as Henry Clay struggled to come up with programs that would deal with the new economic situation, especially in the face of the money power that the new corporations were able to wield. 

This turn of events was not inevitable.  It was not even logical.  Nor even economical.  It was politics and not economics that gave rise to big corporations and precipitated the decline of the mercantilist and utopian socialist movements.  It was political choices for political purposes, coupled with unforeseen and unintended consequences, that undercut mercantilism and utopian socialism.  Ironically, the same circumstances ultimately undermined laissez-faire individualism.  

The Golden Age of Free Enterprise Capitalist Individualism that Never Was.

Free enterprise individualism coupled with small government capitalism was a utopian ideal that never matched reality and that triumphed as an ideology in this country just at the moment when the conditions that made it plausible were passing away.

From the early 1600’s through the mid nineteenth century, European settlement in America was mainly on small farms and in small towns.  Most European Americans had their own farms and businesses.  The pervasiveness of small farms and towns made an ideal of small government free enterprise individualism seem plausible.  And there grew up a myth of America as a free enterprise Eden that took hold in the nineteenth century and persists in conventional histories and among political conservatives to the present day.  But although it was superficially plausible in theory, small government capitalist individualism was never actually the practice in America. 

The myth of a Golden Age of self-sufficient small farms was belied from the start by the pervasive cooperation among farmers and townspeople and by pervasive government actions in support of farmers and small towns.  The fact is that American farmers had never been self-sufficient individuals and had always been dependent on each other and on government.  Economic development in America had invariably been fostered by government interventions.  Farmers and small businessmen would not have survived without the licensing laws, tariffs, monetary subsidies, Homestead Land Acts and other direct supports provided by colonial, state and federal governments. 

In addition to these direct supports, state and federal governments built the infrastructure that connected farmers and businessmen to the national and international markets in which they sold their produce and from which they bought manufactured goods.  The extensive network of roads, canals, railroads, and ports that were built during the second and third quarters of the nineteenth century, and that tied farmers to their markets and enabled them to spread out across the interior of the continent, were all built with government money and other government support. 

In any case, by the late nineteenth century, small farms began to give way to giant corporate farms that were for the most part owned by absentee investors and that have dominated agriculture from that time to the present day.  Small manufacturing firms and commercial enterprises suffered a similar fate.  In general, the economic conditions that had made laissez-faire individualism plausible as an ideal in the early to mid-nineteenth century quickly disappeared in the late nineteenth century with the rise of large-scale corporations that came to dominate the economy and, increasingly, politics.[2] 

As a consequence of these developments, the United States turned a corner in the mid nineteenth century and moved toward a corporate capitalism in which individuals increasingly became cogs in a giant corporate system.  Although small businesses remained a large part of the economy, and still employ about fifty percent of American workers today, the utopian ideal of a society made up solely or even predominantly of self-employed, self-styled individualists became strictly speaking utopian in the sense of being implausible and even impossible. 

The Anti-Government Capitalism that Never Was.

The ideal of free enterprise individualism targeted government as a problem and something to be limited and eliminated as much as possible.  In a shameless act of irony, however, big business proponents of laissez-faire small-government capitalism routinely relied on government to boost the profits of their businesses through executive actions that repressed labor unions and farmer alliances, court rulings that overturned legislation that might assists workers and family farmers, and military intervention that was routinely undertaken against striking workers and farmers.  Corporate capitalists claimed that labor unions, farmers cooperatives and other organizations of farmers and workers undermined what they saw as their Constitutional right to do whatever they wanted with their property, which included their workers and tenants.  

The federal government and most state governments during the late nineteenth century agreed.  These governments essentially required laissez-faire competition for individual workers and small farmers while allowing corporations to grow into anti-competitive monopolies.[3]  And the ideology of laissez-faire individualism, which was initially developed as a means of combating entrenched mercantilist regulations and established business interests on behalf of striving entrepreneurs, was instead used in the late nineteenth century to promote the entrenched interests of large corporations against striving small farmers, small businessmen and workers. 

Led by the influential Justice Stephen Field, the United States Supreme Court made the Fourteenth Amendment of the Constitution into a vehicle for protecting the rich and powerful against what Field decried as the grasping designs of the weak and the envious, thereby reversing the intent of the Amendment’s authors to provide Constitutional protection for the powerless against the powerful.  Field and his colleagues read laissez-faire individualism into the Constitution, although not to promote the utopia of small-scale entrepreneurs promised by the original proponents of that ideology, but to protect the privileges of corporate wealth and power that those original individualists had opposed.[4]

Based on this laissez-faire reading of the Constitution, and particularly the Fourteenth Amendment, federal courts in the late nineteenth and early twentieth century increasingly struck down any government regulation of the economy that might restrict the freedom of corporations to operate at will including, for example, laws that helped small farmers by forbidding railroads from discriminating in favor of some farmers and against others. 

Federal courts also regularly struck down laws that provided minimum wages, maximum hours, health and safety standards, and other pro-labor regulations laws on the grounds that they infringed on the Constitutionally protected freedom of individual workers and farmers to compete against each other, compete freely against the giant corporations, and bargain individually for their own wages, hours, and health and safety protections.  In the same vein, courts routine ruled against labor unions as restricting workers’ individual rights, and prohibited labor union activities, such as strikes and boycotts, that might interfere with business interests.    

As a final ironic twist in the law and the ideology of individualism, conservative Supreme Court justices began in the 1870’s to refer to corporations as “individuals” which are entitled to the rights of “persons” under the Fifth and Fourteenth Amendments of the Constitution.  Although corporations are artificial creations of state governments, legal fictions that exist only with the support of state governments, the courts began giving corporations the rights of real people which they can use against real people and even against the governments that created them, rights that which they retain to the present day. 

The rights of corporate persons include freedom of speech, which has in recent years been interpreted to mean the right to contribute unlimited amounts of money to election campaigns, and freedom from many of the regulations imposed on corporations by the governments that created them.  The result has been that huge corporations — collectivist organizations ruled by unelected elites of owners and managers — are today arguably among the last remaining individualists in America.

In sum, the anti-government, laissez-faire ideology that had begun as an assertion of freedom for small farmers and small businessmen early in the nineteenth century became by the late nineteenth century a rationalization for the unbridled wealth and unconstrained power of big businessmen and giant corporations, and as a defense against any government restraints on their plundering of the country’s resources, fleecing of consumers and exploitation of workers.[5] 

The Persistence of Utopian Mercantilism.

Americans are almost alone in the world today in adhering to a laissez-faire individualist ideology, and the myth of a laissez-faire Eden has become part of the conventional historical narrative about the nineteenth century.  The persistence of this ideology is in sharp contrast with the history of other countries.  In England during the early nineteenth century, a group of self-styled liberals championed laissez-faire capitalism as an antidote to the mercantilism that they claimed was stifling social and economic progress. 

But laissez-faire ideas never became popular among the general public in England and willingness to acknowledge that the rise of big business and big cities had given the lie to the ideology led most of its advocates to abandon it.  John Stuart Mill, for example, one of the ideology’s most influential proponents in the early part of the century, came to reject it and he even became a socialist. 

Laissez-faire ideology also never took deep root among English conservatives.  They promoted a top-down big government paternalism, a variation of mercantilism, to compete with the liberals’ bottom-up big government social democracy, a remnant of utopian socialism.[6]  Other European capitalist countries went through patterns of political development similar to that of England.[7]  In these countries, mercantilist ideas have persisted as ideology and as well as practice as opposed to the United States where individualism has become the dominant theory even as mercantilism remains a dominant practice. 

Unlike Europe, laissez-faire individualism took root in the United States both among the general public as a bottom-up ideal of freedom for the common man and among wealthy conservatives as a top-down ideology of freedom for big businessmen.  This contradictory appeal of laissez-faire ideology has roiled American politics for a century and a half. 

For most Americans, there is an emotional charge to the individualist ideal — the idea of the self-made person and the independent individual — that resonates with an almost religious tone.  Many Americans even equate the hidden hand of laissez-faire economic theories, the mechanism whereby the law of supply and demand makes everything come out just right, with God or Providence.

What has come to be called liberalism in the United States is largely an uneasy combination of top-down mercantilist paternalism and bottom-up social democracy.  The former relies on the central government to make up for deficiencies of the hidden hand and to make capitalism work.  The latter relies on labor unions, local governments and other popular organizations to make up for the deficiencies of the central government and to make democracy work. 

The major reform movements of the twentieth and twenty-first centuries – the Progressive Movement of the early 1900’s, the New Deal of the 1930’s, the Great Society of the 1960’s, and the reforms of President Obama’s administration in the early 2000’s – have relied on bottom-up socialistic sentiment to power them but have in practice reflected a top-down mercantilist ethos.  It is a contradiction that generates conflicts among reformers and hampers the reform effort.

And the persistence of the laissez-faire individualist ideology has also been a drag on social and economic reforms.  Largely because of the persistence of antigovernment ideas, the United States has the least developed system of public social services, government economic regulations and communitarian institutions of any industrial democracy, and has the largest wealth gap and income gap between the rich and the rest of the population of any capitalist country. 

Remarkably, antigovernment sentiment in America is often strongest among people who have the greatest need for community assistance and who receive the most government aid.  People in small town and rural regions of the Midwest and South who are the most dependent on federal government services and funds, and who get back more in services and funds than they pay in taxes to the federal government, are generally the most fervently antigovernment, anti-taxation and the most fervent believers in the idea of self-sufficient individualism.  It is a contradiction that seems lost on most of them.

The Ambivalence in Americans’ Ideologies.

By the late nineteenth century, individualism was American’s predominant ideology but not completely.  Most Americans remained then, and remain now, ambivalent about the idea.  And both the mercantilist and utopian socialist impulses were still evident.  A mercantilist desire for top-down sympathy and assistance, regulation and security.  A bottom-up desire for empathy and mutual aid, cooperation and unity.  As a result, there developed a contradiction between the predominant theory of individualism and a predominant practice that includes mutualism. 

De Tocqueville noted this contradiction in his book Democracy in America on his visit to the United States during the 1830’s. That while Americans espoused an ideology that he called individualism – he coined the term – this ideology was largely contradicted by the communalism of their day-to-day lives and their underlying character. 

Even as Americans trumpeted an ideology of self-centered individualism and justified selfish business practices with a laissez-faire economic theory, they participated incessantly in mutual aid societies, political parties, churches, local governments, labor unions and all sorts of other communal organizations.  Much like Americans today. 

But de Tocqueville worried that Americans’ individualistic ideology hid from them the communalism they desired and practiced in their daily lives, and undermined their support for government and other communal institutions needed to foster the common good.[8]  Much like today.

It is a contradiction that can be seen in the differences between most Americans’ reactions to ideological questions and their responses to pragmatic questions.  When, for example, Americans are asked broad ideological questions about government by public opinion pollsters, such as “Do you believe in government welfare programs?” or “Do you believe in government control of the economy?”, large majorities of respondents say “No.” 

But when Americans are asked concrete, specific questions about public services, such as “Do you believe that hungry people should get government assistance?” or “Do you believe that the government should keep corporations from selling unsafe and unhealthy products?”, large majorities generally say “Yes.”  And these results have been quite consistent since polling of this sort began in the early part of the twentieth century.[9] 

Similarly, when national political campaigns are conducted on broad ideological themes, laissez-faire conservatives generally have the advantage but when they are conducted on pragmatic issues, pro-government liberals generally win.  An ambivalence is seemingly built into most Americans’ psyches.  Selfish self-centered individualism struggles with cooperative communalism.  It is an ambivalence that is even taught in American public schools where children are required to share and cooperate in the lower grades before they are encouraged in the higher grades to compete against each other for class ranking and college entrance.

Despite Americans’ knee-jerk individualist reactions to ideological questions, there is a persistence of mercantilist action coupled with socialist sentiment, what has been called “socialism of the heart,” that keeps the utopian impulse alive even in the midst of periods of depressing dystopian actuality.  

The Persistence of Utopian Socialism. 

Utopian socialism as a form of community experiment and experience has persisted through thick and thin to the present day.  It is a movement that generally flies below the radar of mass media attention.  Waves of utopian socialist cooperatives and communities have, however, peaked about every fifty years since the early nineteenth century, first and foremost during the 1830’s-1840’s, but then again during the 1870’s-1880’s, the 1920’s-1930’s, and the 1960’s-1970’s.  Each wave was a reaction against an era of dystopian despondency like that today.[10] 

Utopianism seems as American as apple pie.[11]  Robert Sutton, a historian of utopian communities, has 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.”[12]  That includes recent history.

Sutton estimates that there were over 700 utopian socialist communes in the United States in the year 2000, and many hundreds of cooperatives of one sort or another.[13]  This is a larger number of communes and cooperatives than during the nineteenth century.[14]  Utopian socialist ideals permeated the labor movement.  In taking refuge during the nineteenth century in labor unions and farmers’ alliances, workers and farmers were essentially building on remnants of the utopian socialist movement that had been promoted by Robert Owen and others. Owen, the founder of the New Harmony community in Indiana, was also influential in America as a founder of the labor union movement in England.  Nineteenth century labor unions and farmers cooperatives did not serve merely as bargaining agents for their members but also as communities of members and their families, providing social, economic and emotional support for them. 

Although one of the key premises of utopian socialism has been experimentation in small-scale communities, many utopians have attempted since the late nineteenth century to keep pace with changing social and economic realities by proposing urban industrial utopias.  The most famous of these proposals was Edward Bellamy’s novel Looking Backward, that was second only to the Bible as the best-selling book of the late nineteenth and early twentieth century

Published in 1888, Bellamy’s novel outlined an urban industrial socialist utopia and was one of the most influential books of the time.  Within two years of its publication, some one hundred and sixty-five “Bellamy Clubs” had been organized all over the country to promote its socialistic aims.[15]  Although these clubs lasted only a few years and never had any significant political influence, the book remained an inspiration to reformers for half a century. 

And Bellamy’s book was just one among a host of popular utopian socialist novels written at the turn of the twentieth century by prominent English and American authors.  These include novels by H.G. Wells, William Morris, and William Dean Howells.  Utopian socialism was a realistic topic of conversation and consideration in that era. 

In a more recent example, Ursula Le Guin’s novel The Dispossessed portrays a utopian socialist community in a modern, urban, technological society on the moon.  First published in 1974, it won multiple awards, was an inspiration to a generation of political thinkers.  As is Kim Stanley Robinson’s Mars Trilogy portraying the efforts to build a utopian society on Mars.  Published in 1994-1998, it has won multiple awards and has stirred ongoing interest in planning for utopia.      

The persistence of utopian thinking has seemingly been part of a reaction against the pervasiveness of laissez-faire individualism, both of which are unique.  This persistence of utopian socialism may also reflect the absence of a significant socialist political movement in the United States, which is an important difference in the political situation in the United States as compared to other industrial democracies in Europe and Asia. 

Socialist political parties are part of the mainstream of politics in most countries around the world, often the ruling party.  Socialists have never gained this sort of position in the United States, and the persistence of utopian socialism may reflect the weakness of practical socialism which, in turn, may reflect the continuing appeal of laissez-faire individualism. 

There has been a pattern in American history of utopian thinking alternating with dystopian thinking.  Depressing times breed depressed thinking.  But depressed thinking has heretofore been followed by optimistic thinking.  Utopian ideas have, in turn, generated progressive reforms, so that despite the ups and downs of American history, the overall trend has been up.  Three steps forward, one or two steps back but, overall, an upward movement.  It is important, therefore, that in the midst today of what most people seem to be experiencing as a dystopian era that we generate utopian ideas as a counterpoint.  We have done it before. 

                                                                                                                        BW 10/24 


[1]  Edward Pessen. Jacksonian America: Society, Personality, Politics. (Homewood, IL: Dorsey Press, 1969), 215.

[2]  Thomas Schlereth. Victorian America: Transformations in Everyday Life. (New York: Harper & Row, 1991), 35, 43-44.

[3]  James Willard Hurst. Law and the Conditions of Freedom in the Nineteenth-Century United States. (Madison: University of Wisconsin Press, 1956), 7-8.

[4] Robert McCloskey. American Conservatism in the Age of Enterprise, 1865-1910. (New York: Harper & Row, 1951), 77, 81-82, 84.

[5]  James Willard Hurst. Law and the Conditions of Freedom in the Nineteenth-Century United States. (Madison: University of Wisconsin Press, 1956), 32.

[6]  Richard Reeves. John Stuart Mill: Victorian Firebrand. (London: Atlantic Books, 2007), 221, 293.

[7]  Guido de Ruggiero. The History of European Liberalism. (Boston: Beacon Press, 1964), 136, 148-149.

[8]  “Democracy in America (excerpt)” American History Online. Facts on File, Inc., 2011.  Garrett Ward Sheldon. “Tocqueville, Alexis.” Encyclopedia of Political Thought. American History Online. Facts on File, Inc., 2011.  Hugh Brogan. Alexis de Tocqueville, A Life. (New Haven, CN: Yale University Press, 2007), 355-356.

[9]  Jerome Bruner. Mandate from the People. (New York: Duell, Sloan & Pearce, 1944), 80, 125, 163, 226.

[10]  Timothy Miller. The Quest for Utopia in the Twentieth Century, Vol. I, 1900-1960. (Syracuse, NY: Syracuse University Press, 1998), xi, 198.

[11]  William Goetzmann. Beyond the Revolution: A History of American Thought from Paine to Pragmatism. (New York: Basic Books, 2009),xi, xiv.

[12]   Robert Sutton. Communal Utopias and the American Experience: Religious Communities, 1732-2000. (Westport, CN: Praeger, 2003), ix.

[13]  Robert Sutton. Communal Utopias and the American Experience: Secular Communities, 1824-2000. (Westport, CN: Praeger, 2004), 132.

[14]  Robert Sutton. Communal Utopias and the American Experience: Secular Communities, 1824-2000. (Westport, CN: Praeger, 2004), 132.

[15]  Edward Bellamy. Looking Backward. (New York: Signet Classic, 1960).  See the Forward by Erich Fromm. Also see Bellamy’s dramatic description of capitalist society on pages 25 to 28.  Also, Ursula Le Guin. The Dispossessed. (New York: Harper & Row, 1974).  Kim Stanley Robinson. The Mars Trilogy. (New York: Random House, 1992, 1994, 1996).    

In the Beginning: The Choices and the Choice. The Utopian Impulse in American History. The Golden Age of Utopianism, 1820’s to 1850’s: In Pursuit of a More Perfect Union. Part II.

In the Beginning: The Choices and the Choice.

The Utopian Impulse in American History.

The Golden Age of Utopianism, 1820’s to 1850’s:

In Pursuit of a More Perfect Union. Part II.

Burton Weltman

“We have it in our power to begin the world over again.”

Tom Paine

The Utopian Origins of European Americans.

The utopian impulse in American history began with some of the first European immigrants to America.[1]  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 said that “we must be knitt together in this worke as one man” and “must entertain each other in brotherly affection.” 

Fleeing, the Puritans developed utopian proposals and sought to establish an ideal community in America. The Puritans 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.[2] 

Although Winthrop’s vision promoted the communitarian idea of one for all and all for one, there were inherent tensions within his ideal between the individual and the community that eventually undermined his goal.  In Puritan ideology, the goal of saving oneself in the eyes of the Lord was supposed to be consistent with the obligation of serving the Lord’s community, and the economic success of an individual was supposed to support the spiritual success of the community.  Theoretically and theologically, economic success would come to those individuals who were best serving the community and, in turn, an individual’s success would be a sign that the person was doing the Lord’s work. 

But things did not always work out that way.  The Puritan commonwealth was economically so successful that it attracted outsiders who did not share the community’s spiritual or collectivist goals.  When many of these outsiders became economically successful individuals, which was supposedly a sign they were doing the Lord’s work, the Puritans’ spiritual and communitarian ideals were undermined. 

Although the utopian goals with which the colony was founded were an essential ingredient in the success of the community — their ideals sustained colonists through hard times and provided them with the cooperative attitude that was essential in building the colony — the utopian spirit waned during the course of the seventeenth century.  In a sense, the community failed through success.[3]

The Utopian Origins of the American Revolutionaries.

The American revolutionaries who founded the United States during the late eighteenth and early nineteenth centuries had utopian aspirations similar to those of the Puritans.  The historian Gordon Wood has called the American Revolution “one of the great utopian movements in American history”[4] and it was seen as such by the Founders themselves.  Expressing the sentiments of most revolutionaries following the Declaration of Independence, 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.”[5] 

According to Washington, Jefferson, Madison, Franklin and other Founders, the Revolution would unleash the virtue of the American people so that they could build a republican society that would be a model for the world.  Their republican vision of politics and government was to a large extent a secular version of Winthrop’s model of Christian charity.  It encompassed both a commitment to shared and sharing community institutions — the res publica or public thing — and an emphasis on the individual’s role in serving the community — the virtuous man as a public servant.  All for one and one for all would benefit one and all. 

But there were tensions within the Founders’ republicanism as there had been within the Puritans’ ideals, tensions exemplified by the motto that the Founders chose for their new country: E Pluribus Unum — out of many comes one and out of one comes many.  In the Founders’ view, communalism was supposed to foster individualism and individualism was supposed to foster communalism.  That, however, is easier to say than to do and almost from the founding of the republic, there developed an intense debate between those who would emphasize individualism over the community and those who would emphasize cooperation over individualism.         

The Founders were both utopians and self-styled realists who saw themselves as trying to establish the most perfect government they could imagine for what they believed was inevitably an imperfect society made up of imperfect people, including themselves.  Theirs was an open-ended utopia rather than a fixed and rigid plan for society.  This pragmatic utopianism is reflected in the Constitution, which allows for endless amendments and continually changing interpretations as society evolves.

Perfection was for the Founders not something that could ever be achieved in substance but could be approximated in the processes they had established in the Constitution.  Perfection was for them the subject of an endless quest, the eternal “pursuit of happiness” promised in the Declaration of Independence.  And it required a social theory and a social structure that “would forever remain free and open,” flexible and ecumenical.[6] 

Things did not turn out exactly as the Founders expected in the wake of winning the Revolution and establishing the Constitution.  Instead of cooperation and unity among citizens, there developed partisan politics and regional conflicts.  But the country expanded enormously in the late eighteenth and early nineteenth centuries, and this expansion encouraged and enabled the emergence of new utopian visions of America. 

American history during the second quarter of the nineteenth century can, in fact, be described as a battle between the proponents of three different utopian visions, that of a mercantilist commonwealth, a communal socialism, and a free enterprise capitalism.  It was the highpoint of utopian theory and practice in the United States, and the struggle among these visions left a permanent imprint on the country.  And the struggle between these three visions is the focus of this second part of “The Utopian Impulse in American History.”

Utopian Visions: Mercantilism, Socialism, Individualism.

Each of the three utopian visions – mercantilist, socialist and individualist – shared aspects of the Founders’ ideals but took them in different directions.

Mercantilist Republicanism.  The vision of a mercantilist commonwealth was based on the Founders’ traditional republican ideals, especially their pursuit of virtue.  This was a vision of a centrally controlled society with a government-controlled economy, governed by a natural aristocracy of the best and the brightest, and aiming toward the general welfare of one and all.  This was the view of both Hamiltonian and Jeffersonian republicans.  Their republican descendants, such as John Quincy Adams, emphasized the Founders’ belief that virtue was its own reward, and that a virtuous elite could and would rule in the interests of the common good.   

The key to this vision, and what made it utopian, was its dependence on the emergence of an elite leadership of the best and brightest Americans who would rule the country based on a consensus among themselves as to what was best for the country and a consensus of support from the populace.  This republican view of top-down social control and evolutionary social change derived in large part from the Whig tradition in England.  Like English Whigs, American Whigs such as John Quincy Adams and Henry Clay promoted a centrally controlled capitalist economy similar to the mercantilism that England had practiced during the eighteenth century.  Clay’s “American System” of national improvements and support for a national bank exemplified this program. 

Clay’s stated goal was “to secure the independence of the country, to augment its wealth, and to diffuse the comforts of civilization throughout the society” and to do this “by blending and connecting together all its parts in creating an interest with each in the prosperity of the whole.”[7]  Clay and other traditional republicans emphasized the responsibility of the central government to promote the public welfare and of the natural elite to care for the general populace.

Communal Socialism.  The vision of a communal socialism had as its foundation the fact that most Americans lived in small communities in which cooperation among citizens was essential for their survival.  This was a vision of a decentralized society of small cooperative communities in which members would share the work and the produce, and would engage in exchange with other similar communities to the mutual advantage of all.  Utopian socialists, such as Albert Brisbane, emphasized the Founders’ republican commitment to e pluribus unum and one for all, all for one.

Utopian socialism is a model of social change that seeks to combine an immediate revolution in the lives of people who join a cooperative community with a gradual evolution in the structure of society as more and more people voluntarily join such communities and these communities proliferate.  Utopian socialists generally hope to combine a cooperative economic system within each community with a market relationship between different communities.

Utopian socialism is ostensibly a means of peaceful revolution in the lives of community members and peaceful evolution of society.  Unlike militant revolutionaries, utopian socialists reject violence.  Unlike social reformers whose incremental changes only gradually improve people’s lives, utopian socialists immediately live the intended good life in their cooperative communities.  Whereas for revolutionaries the end justifies the means, and for reformers the means are everything and there is no end, for utopians the end is in the means.  The thrust of utopian socialism is to build model communities that others will emulate when they see how well these communities can work.[8]

The key to this vision and what makes it utopian is its dependence on people reigning in their egos and genuinely cooperating with each other.  And like the Puritan colony, most utopian communes in America have historically been plagued with conflicts between individualism and communalism, dictatorship and democracy, creativity and conformity, which have led to the demise of most of them.[9]  

Utopian socialist communities were, however, a highly visible part of colonial America and were considered a viable option in colonial society.  Most of the socialist communities founded during the colonial period were based on religion.  Prominent among them were the Bohemian Manor in Maryland that lasted from 1683 to 1727, the Ephrata Cloister in Pennsylvania that lasted from 1732 to 1814, and the various Shaker communities in the Northeast and Midwest that began in the 1770’s and lasted into the early 1900’s.  These were substantial communities that lasted for substantial periods of time. 

Religious communes continued to proliferate after the Revolution and throughout the nineteenth century — the Mormons, for example, began as a socialist community.[10]  Secular socialist communities proliferated as well, especially in the period from the 1820’s through the 1850’s.  The English industrialist Robert Owen and the French thinkers Joseph Fourier and Etienne Cabet were the most popular utopian theorists of that time.  The most famous of the secular socialist utopias were New Harmony established by Owen in Indiana, Brook Farm established by George Ripley in Massachusetts based on Fourier’s ideas, and Icaria established by Cabet in Texas.[11]   

Utopian socialism was not considered an outlandish or unrealistic option during the early nineteenth century, and it was taken seriously by elite leaders and ordinary people alike.  When Robert Owen visited the United States during 1824 and 1825 to promote his utopian socialist vision and establish the New Harmony community, he was well received personally by Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and John Calhoun, and he twice delivered speeches outlining his plans to the House of Representatives. 

In a speech to Congress on February 25, 1825, Owen argued that “Man, through ignorance, has been, hitherto, the tormenter of man,” even in the relatively enlightened United States.  The cause of this evil, he claimed, was what he called “the trading system” of individualist competition in which everyone tries to get the better of everyone else.  Economic competition, Owen complained, breeds anger, hate, irrationality, ignorance and war.  And it brings “a surplus of wealth and power to the few, and poverty and subjection to the many.”  Cooperation, he claimed, brings greater liberty, equality, efficiency, harmony and happiness to all.  Owen concluded with the hope that his new community would be a model for the United States.[12] 

Utopian socialism had wide popular appeal and attracted considerable popular attention during this time.  The influence of utopian socialist thinking in America is exemplified by the more than one hundred utopian novels published in the United States during the nineteenth century, many of them best sellers.  Most of these novels portrayed societies that were not impossible to establish and some were the basis of utopian experiments.[13]  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 Fourier.  Greeley employed Albert Brisbane, Fourier’s most prominent American disciple, to write a regular front page column on Fourierism in the Tribune, and Greeley supported the founding by Brisbane of some thirty socialist communes around the United States.[14]

Fourierist communities, which made up the biggest number of secular utopian communes during the second quarter of the nineteenth century, were based on the general principle of from each according to his/her abilities, to each according to his/her needs.[15]  This principle meant that everyone would be treated with equal consideration but not exactly the same.  People with different abilities and skills would be given different tasks and different levels of responsibility.  Every person would play a dignified role in society of his/her own choice that fit with his/her interests and abilities and that contributed to the common good, but with some people having more decision-making power than others. 

In this respect, Fourier’s ideas were similar to the Founding Fathers’ ideal of a natural aristocracy or what we today might call a meritocracy.  For this reason, Brisbane claimed, Fourier’s ideas epitomized the American way of life and were “the culmination and expression of all those social ideals that had built the American Republic.”[16]  Properly implemented, according to Brisbane, Fourier’s plan would resolve the conflict between the individual and the community that had plagued the Puritans and American social reformers ever since.  But proper implementation required a large number of people with a variety of skills, more people and resources than the fledgling Fourierist communities could ever muster.          

 Brook Farm was a Fourierist community of intellectuals founded by George Ripley during the 1840’s “to ensure a more natural union between intellectual and manual labor than now exists; to combine the thinker and the worker as far as possible in the same individual.”  Ripley and his colleagues hoped that their experiment would be a model of how to do away with social class distinctions, “opening the benefits of education and the profits of labor to all,” so as  to “permit a more wholesome and simple life than can be led amidst the pressures of our competitive institutions.”[17] 

In The Blithedale Romance, Nathaniel Hawthorne reflected in fictional form on his experience as a member of Brook Farm, and complained that “The peril of our new way of life was not lest we should fail in becoming practical agriculturalists, but that we should probably cease to be anything else.”  Hawthorne claimed that mixing manual labor with mental labor worked to the detriment of intellectual life, and he concluded that farmers and intellectuals “are two distinct individuals, and can never be melted or welded into one substance.”[18] 

His was a common conclusion among intellectuals at the time, but it is called into question by the fact that the most successful projects at Brook Farm and at Owen’s New Harmony were their schools.  These utopian schools were models of progressive education for their time and provided creative alternatives to the common schooling model that was becoming the norm in American education during the middle of the nineteenth century.  With schools that stressed thinking and creating over drilling and memorizing, intellectual life was fostered in these and other communities.[19]

Some one hundred utopian socialist communes were established in all parts of the United States during the second quarter of the nineteenth century.  Many of these communities lasted for decades.  Some were economically so successful that, like the Puritans’ Massachusetts Bay colony, they lost their utopian purpose along the way.  The Amana Society, for example, was founded as a religious commune during the mid-1840’s and became very successful as a cooperative commercial enterprise. 

This commercial success eventually led to conflicts between old-time members and newly recruited members over whether all should share equally in the wealth of the community or whether old-timers should get extra financial credit for the efforts they had initially put into making the community a success.  Members of Amana were eventually given shares in the community proportionate to their input into the business, and the commune was thereby transformed into a manufacturing corporation that has been producing high quality appliances from the nineteenth century to the present day.[20]  In a similar vein, the Mormons started as a radical, abolitionist, communitarian sect but eventually became a conservative, pro-capitalist community.

Utopian socialism flourished during the eighteenth and nineteenth centuries in large part because it fitted in well with the way most Europeans settled in America.  Contrary to the impression that is usually created in conventional narratives, the decision to come to America during the seventeenth, eighteenth and nineteenth centuries was not typically made by an individual who wanted merely to better his or her own social and economic position, but by a group of people who wanted to build a new and better community for themselves and for posterity. 

From the Pilgrims and Puritans on through the early twentieth century, most immigrants came from Europe to America as groups of people who had lived in the same locality in their old country and then settled together in the new country.  They came as a community with the intention of maintaining their community.  Likewise, 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. 

So, the community came first, individual people came after.  Communalism and cooperation formed the primary pattern of immigration to the United States and migration within the country through the nineteenth century, and this provided plausibility and opportunity for the development of utopian socialist communities. 

 Capitalist Individualism.  The vision of an entrepreneurial capitalism was based on the prevalence and success of small farmers and manufacturers in America.  Entrepreneurial individualists, such as Andrew Jackson, envisioned a society of small farms and businesses that would compete with each other in a market place free of government interference.  The actions of entrepreneurs would be governed by the “hidden hand” of the free market to produce the best possible results for each individual and for the society as a whole. 

This vision picked up on the Founders’ republican ideal of the heroic individual but largely dismissed the Founders’ concerns for the community.  Laissez-faire individualism was a new development in early nineteenth century America.  While traditional histories, in an ex post facto line of reasoning, try to portray laissez-faire capitalist individualism as stemming from settlers in the seventeenth and eighteenth centuries, it wasn’t so.

Capitalist individualism developed in large part out of opposition by Jacksonian Democrats to the mercantilist economic policies being promoted by President John Quincy Adams, Senator Henry Clay, and Nicholas Biddle, who was the director of the Bank of the United States (BUS).  Jackson and his followers demonized the BUS as a “monster” and claimed that Biddle was using his influence over the country’s banking system to strangle small farmers and businessmen in favor of the rich.[21]  Its goal was what the historian James Willard Hurst has called “a release of energy,” that is, to unleash the latent entrepreneurial energies of ordinary Americans.[22]  

Utopian individualism is an anti-communitarian prescription for social development in which each person is responsible for making a revolution in his own life.  In its extreme form, it even denies the existence of society as a collective entity — what we call society is just a collection of individuals.  It is the ideal of the self-made man.  In this vision, society exists in a state of perpetual upheaval as individuals compete with each other and defeat one another, with the better man winning and thereby contributing to social progress. 

Utopian individualism is supported by a simplistic form of egalitarian theory which swept the country during the early nineteenth century, and which maintained that anyone could become anything he wanted — and this was a “he” ideology.  This moral theory was derived in large part from the philosophy of John Locke.  Locke taught that humans found happiness through exercising their talents in collecting property.  He claimed that society existed to further the “life, liberty and property” of individuals, goals which could be best obtained through a limited government that protected private property and encouraged competition among people.[23]

Utopian individualism is also bolstered by a simplistic laissez-faire economic theory which became popular during the mid nineteenth century.  This theory maintains that anyone should be able to do anything he wants and that it is every man for himself to succeed or fail on his own.  Utopian individualism promises that with everyone doing anything and everything he wants, a productive competition among people will ensue and this competition will be guided by an “invisible hand” (often equated with God) toward an ideal outcome.  A key to this vision was, and is, its dependence on the magic of the marketplace and the deus ex machina of competition. 

Economic individualism has historically been supported by a misreading of Adam Smith’s The Wealth of Nations that has interpreted Smith as favoring a weak government and a laissez-faire economy.  While Smith objected to mercantilism as a system that was inherently corrupt and that stifled both creativity and cooperation, he, in fact, supported a strong government and a cooperative community, something that many of his self-styled followers have missed in using his name to support their laissez-faire individualistic ideas.[24]  As the ideology of individualism developed during the nineteenth century, American individualists cited Smith in rejecting both the mercantilism and the communalism that had largely prevailed in America during the colonial period.  And what began as opposition to government controls that were considered oppressive to ordinary people developed into opposition to almost any government intervention in the economy.

The rise of laissez-faire individualism in the United States was aided by social, economic and demographic developments.  Enormous opportunities for individual advancement were made possible by the territorial expansion of the country during the first half of the nineteenth century (the Louisiana Purchase and the conquest and purchase of Florida during the first quarter, then the annexation of Texas and the conquest of Mexican territories during the second quarter), and by the economic expansion of the country that resulted from the beginnings of the industrial revolution.  Despite the institution of slavery and slave plantations in the South, the United States was overwhelmingly a country of small-scale farmers and businessmen who operated in large part on their own initiatives, and whose activities made an individualistic ideology plausible.[25]

Utopian individualism was also bolstered by the transformation of the typical American farm during the mid nineteenth century from a neighborly endeavor to an isolated enterprise.  During the colonial period, most farmers lived with other farmers in a close-knit village.  In the nineteenth century, as farmers spread into the vast spaces of the Midwest, many came to live on solitary farms at a considerable distance from their neighbors.[26]  This isolation gave support to the myth of the self-made, self-sufficient man that became a predominant ideal for Americans during the later nineteenth century, and continues as such with many people to the present day.[27] 

Utopian individualism became the political ideology of the Jacksonian Democrats who dominated American government for most of the second quarter of the nineteenth century and who used the ideal of the self-sufficient, freedom-loving individual to beat down their Whiggish opponents.[28]  President Martin Van Buren summarized this view when he defined the goal of Jacksonian Democrats as “a system founded on private interest, enterprise, and competition, without the aid of legislative grants or regulation by law.”[29] 

Utopian individualism was a self-contradictory vision that confuses freedom – a free-for-all in which everyone does whatever they want – with liberty – in which people make choices within limits that are set by the community and that are in the best interests of individuals and the community.  Liberty is the promise of the Declaration of Independence and the Constitution, not freedom which is a self-contradiction.  It is a contradiction that we are still struggling with today. 

This is the second of three parts to this essay on utopianism.  “Part I: Historical Cycles” was posted in 9/24.  “Part III: Individualism Triumphant” is intended to be posted in 11/24.                                                                                                                                              BW  10/24


[1] The gist of the essay is taken from a chapter of a book that I published some years ago called Was the American Revolution a Mistake, Reaching Students and Reinforcing Patriotism through Teaching History as Choice (2013).  The book looks at historical turning points in which people had to consider their feasible options, make what they decided were their best choices, and then evaluate the consequences of their actions.  

[2]  Primary Source: John Winthrop. “John Winthrop: “A Modell of Christian Charity (1630)” American History. ABC-CLIO, 2011.

[3]  Secondary Source: Perry Miller. Errand into the Wilderness. (New York: Harper & Row, 1956), 1-15.

[4]  Gordon Wood. The Creation of the American Republic, 1776-1787. (Chapel Hill: University of North Carolina Press, 1969), 54.

[5]  Quoted in William Goetzmann. Beyond the Revolution: A History of American Thought from Paine to Pragmatism. (New York: Basic Books, 2009), 3.

[6]  William Goetzmann.  Beyond the Revolution: A History of American Thought from Paine to Pragmatism. (New York: Basic Books, 2009), xi.

[7]  Quoted in William Appleman Williams. The Contours of American History. (Chicago: Quadrangle Books, 1966), 264.

[8]  Arthur Bestor, Jr. Backwoods Utopias. (Philadelphia: University of Pennsylvania Press, 1950), 4, 10-16.

[9]  Robert Sutton. Communal Utopias and the American Experience: Religious Communities, 1732-2000. (Westport, CN: Praeger, 2003), x, 1-11, 17-31. 

[10]  Thomas O’Dea. The Mormons. (Chicago: University of Chicago Press, 1957), 18, 186-197.

[11]  Robert Sutton. Communal Utopias and the American Experience: Secular Communities, 1824-2000. (Westport, CN: Praeger, 2004), 7-16, 37-44, 53-70.

[12]  Primary Document: Robert Owen. “Speech to Congress.” American History Online. Facts on File, Inc., 2011.

[13]  Ellene Ransom. Utopus Discovers America or Critical Realism in American Utopian Fiction, 1798-1900. (Nashville, TN: Joint Universities Libraries, 1947), 3-4.

[14]  Robert Sutton. Communal Utopias and the American Experience: Secular Communities, 1824-2000. (Westport, CN: Praeger, 2004), 5-6, 23-25.  William Goetzmann. Beyond the Revolution: A History of American Thought from Paine to Pragmatism. (New York: Basic Books, 2009), 365.

[15]  Brett Barney & Lisa Paddock. “Fourierism.” American History Online. Facts on File, Inc., 2011.

[16]  Arthur Bestor, Jr. “Albert Brisbane – Propagandist for Socialism in the 1840’s .” New York History, Vol. XXVIII. (April, 1947), 146.

[17]  Quoted in Alice Felt Tyler. Freedom’s Ferment. (New York: Harper & Row, 1944), 177.

[18]  Fiction: Nathaniel Hawthorne. The Blithedale Romance. (Garden City, NY: Doubleday & Co., 1961), 7. 81-82.

[19]  Arthur Bestor, Jr. Education and Reform at New Harmony. (Indianapolis, IN: Indiana Historical Society, 1948), 399.  Arthur Bestor, Jr. “American Phalanxes: A Study of Fourierist Socialism in the United States.” Doctoral Dissertation, Yale University. (University Microfilms No. 70-23, 045, 1938), 230.

[20]  Alice Felt Tyler. Freedom’s Ferment. (New York: Harper & Row, 1944), 131.

[21]  Secondary Source: Edward Pessen. Jacksonian America: Society, Personality, Politics. (Homewood, IL: Dorsey Press, 1969), 146-148.

[22]  James Willard Hurst. Law and the Conditions of Freedom in the Nineteenth-Century United States. (Madison: University of Wisconsin Press, 1956), 32.

[23]  John Locke. The Second Treatise of Government. (New York: Liberal Arts Press, 1952), 48, 70-71.  C.B. MacPherson. The Political Theory of Possessive Individualism. (Oxford: Oxford University Press, 1964), 194-262.

[24]  James Buchan. The Authentic Adam Smith: His Life and Ideas. (New York: W.W. Norton & Co., 2006).  Garry Wills. Inventing America: Jefferson’s Declaration of Independence. (Boston: Houghton Mifflin, 2002), 232, 254.

[25]  James Willard Hurst. Law and the Conditions of Freedom in the Nineteenth-Century United States. (Madison: University of Wisconsin Press, 1956), 8.

[26]  David Hawke. Everyday Life in Early America. (New York: Harper & Row, 1988), 153.

[27]  James Willard Hurst. Law and the Conditions of Freedom in the Nineteenth-Century United States. (Madison: University of Wisconsin Press, 1956), 7.

[28]  Edward Pessen. Jacksonian America: Society, Personality, Politics. (Homewood, IL: Dorsey Press, 1969), 227, 296.

[29]  Quoted in William Appleman Williams. The Contours of American History. (Chicago: Quadrangle Books, 1966), 246.

Utopianism in a Dystopian World: Whither America? The Utopian Impulse in American History.  The Golden Age of Utopianism, 1820’s to 1850’s. In Pursuit of a More Perfect Union: Part I.

Utopianism in a Dystopian World: Whither America?

The Utopian Impulse in American History.

The Golden Age of Utopianism, 1820’s to 1850’s.

In Pursuit of a More Perfect Union: Part I.

Burton Weltman

“Keep hope alive!”

Jesse Jackson

Historical Cycles: Utopian//Dystopian.

There has been a pattern in American history of utopianism alternating with dystopianism as a dominant motif in American thinking.  Depressing times breeds depressed thinking.  But depressed thinking has heretofore been followed by optimistic thinking.  Utopian ideas have, in turn, generated progressive reforms, so that despite the ups and downs of American history, the overall trend has been up.  Three steps forward, one or two steps back but, overall, an upward movement.  It is important, therefore, that in the midst today of what most people seem to be experiencing as a dystopian period that we generate utopian ideas as a counterpoint.  We have done it before.  We should do it again.

Utopianism in a Dystopian World: Whither America?

Setting the scene: Cultural and political divisions among states, bordering on civil war.  Lingering bitterness by the losing candidate in the last presidential election, claiming that his loss was corruptly engineered and that he had really won the election.  Becoming a candidate for the next election, he has been demagogically cultivating racism, sexism, and sectional hostilities and promoting authoritarianism.  Intense differences among people over the role of the federal government in the economy and especially in regulating the supply of money and interest rates.  Widespread vicious antagonism toward poverty-stricken immigrants.  Economic hardship among small farmers and businesses, the middle classes being squeezed by inflation.  All in all, a dystopian scene with seemingly no hope on the horizon.

Sound familiar?  Sound like the 2020’s?  With Donald Trump as the desperate, disgruntled, demagogic presidential candidate?  With the Federal Reserve, abortion, Latin American immigrants, gay rights, public versus private schools, and other antagonistic elements filling out the scene?  Yes.  But it is also the 1820’s.  With Andrew Jackson in the role of Donald Trump.  And with demagogic ranting against the National Bank, anti-slavery activists, Native Americans, divorce, Irish immigrants, schools, and other controversial issues.  A dystopian scene very much like ours looks today. 

Yet, in the midst of the mess of the 1820’s, hope sprang eternal in the form of utopianism.  The second quarter of the nineteenth century was, in fact, a high point of the utopian visions that had energized reform in the country since its beginnings and that have continued ever since to inform Americans’ feeling and thinking about society, even if we don’t always realize it.  The purpose of this essay is to assay utopian thinking in American history with a focus on the 1820’s as a prime example for us today.  In the period of the early nineteenth century, Americans had to make a choice between competing visions of utopia.  They did so.  Perhaps not wisely.  But maybe we can learn from them.  For we face similar choices today.  If only we can recognize the options and wisely choose.      

Making Room for Utopia: Choosing to look at History as Chance, Causation or Choice.

It is a commonplace that how you look at the past largely determines how you look at the present and anticipate the future.  There are three main ways that most people look at history, seeing it as either a matter of chance, causation or choice.  It makes a difference which way you choose.

To do or not to do, that is the main question that your view of history answers.  Given that the present isn’t what you would like it to be and the future looks bleak, what, if anything, can and should you do.  If you look at history as a matter of chance, then there is nothing you could have done to make a difference in the past or present, and likely little that you could do to change the future. You are almost forced to take a passive and cynical attitude toward any attempts to make things better.  What will be, will be, and that’s that.  Likewise, if you look at history as a matter of causation, of one thing leading inevitably to the next, then a passive and pessimistic view of the world is almost inevitable.  Again, what will be, will be, and that is that.

Conventional histories almost invariably portray history as causation.  They describe one event after another in a post-facto stream of events that in retrospect can look inevitable.  And since most social and economic realities are better today than they were in the past, history becomes a celebration of the past, no matter how bad things were then.  The conventional narrative about America in the 1820’s takes this form.  The disgruntled demagogue, Andrew Jackson, who lost the election of 1824 to the distinguished diplomat John Quincy Adams, the son of one of the most important Founders and a Founder himself, beat Adams in 1828.  Conventional histories have almost invariably portrayed this as a victory for democracy. 

But that is a conclusion that does not take into consideration the options people had and the consequences of Jackson’s election.  Jackson’s bid for the Presidency had previously been dismissed by Thomas Jefferson and most of the remaining Founders.  “He is one of the most unfit men I know for such a place,” Jefferson claimed, “he has very little respect for the law… his passions are terrible… he is a dangerous man.”  Sound familiar today? 

In Jackson’s case, the consequences of his election included renewed support for slavery, renewed brutality toward Native Americans, the development of the spoils system of government jobs (to the victors go the spoils), and the destruction of the national banking system which resulted in the worst economic depression of that era.  The consequences of Trump’s election would likely be even worse, reaching truly dystopian proportions.  We can only hope that history does not repeat itself in the forthcoming election.  And there always is hope.

The past may be prologue, but it can also be the beginning of many different things.  If you look at history as a matter of people making choices – confronting options, evaluating possibilities, and then making choices – you can view the present and the future as realms of opportunity to make your lives better and your world a better place.  Given that America is a self-proclaimed land of opportunity, that should be the American way of looking at history: optimism to the point of utopianism.

Varieties of Utopianism: What’s in a word?

Webster’s Dictionary defines the word utopianism as the attempt to create a perfect society in which everyone would live happily together in peace and harmony.[1]  The word “utopia” is from an ancient Greek word meaning nowhere.  First used in 1516 by Thomas More as the name of the ideal society described in his book Utopia, it has become for most people in recent years a synonym for silliness.  It is a word that is widely used to disparage something as fanciful, unrealistic and unserious.  But that is not what More intended.  As has happened with many words, the meaning of “utopia” intended by its originators has been warped by opponents of the idea represented by the word, so that it has come to mean almost the opposite of what was originally intended.

More intended his utopia to function as both a criticism of the injustices and inefficiencies of the existing society in England and as an example of the sort of changes that could make it better.  More was a devout Roman Catholic who later died rather than violate the tenets of his religion.  Exemplifying the fact that people’s ideals invariably reflect the limits of their existing society, More described an ideal society that resembled a monastery, the ideal way of life for a Catholic.  It was not an unrealistic ideal for his time and place, albeit not for everyone.  He did not expect all of England to become a monastery, but rather hoped the English would accept aspects of his utopia as ways of perfecting English society, albeit perfection was never likely to be achieved.

Utopian proposals can take different forms, depending on the society from which they emanate and whether they are intended as outlines, blue prints, experiments, examples, or otherwise.  As an outline, a utopian proposal can be merely a list of perfections that could be considered.  As a blueprint, it can be a nuts-and-bolts complete construction manual for making an ideal society.  As an experiment, it can be an actual community that tries out ideas of perfection to see if they will work.  As an example, it can be a full-blown community that is intended as the first among an expected proliferation and combination of ideal communities. 

 To most utopians, the word utopia is taken to mean nowhere yet.  To some, the idea has been to actually construct a perfect society.  To others, it has been to construct an example of a perfect society as a working model for others to emulate.  To still others, constituting the majority of those who could be called utopians, the goal has been to develop an intellectual and ideological model of a perfect society and to promote the model as a goal and a benchmark of progress toward that goal.  American history has been full of utopian proposals of all sorts.  While many of these proposals have been eminently unrealistic, many have been quite pragmatic.  In fact, the United States was founded on utopian proposals, a fact which is not generally acknowledged. 

Conventional Narratives of Utopianism in American History. 

Very few conventional treatments of American history do justice to the long history of utopian ideas and ideologies in America, and almost all ignore utopianism as an ongoing theme in American history.  There may be some mention of Robert Owen’s New Harmony, a socialist community founded in Indiana in 1825, and Brook Farm, a cooperative commune in Massachusetts during the 1840’s, and both are usually portrayed as failed examples of a foolish utopianism.[2] 

Conventional narratives give no indication that a country of cooperative communities seemed a realistic option that was seriously considered by Americans during much of our history.  Or that the other options that Americans have had during our history – including mercantilism, free enterprise capitalism, and socialism – were also utopian in their origins, outlook and expectations, including those that became reality.

It is a historical fact that free enterprise capitalism developed during the nineteenth century as the predominant social and economic system in America.  It is not generally acknowledged, however, that free enterprise capitalism, which is generally portrayed as a down-to-earth economic ideology and just the opposite of the wishful thinking of utopians, began as a utopian proposal.  Generally equated by historians with Americanism as the best of all possible systems, free enterprise capitalism is portrayed as inevitable, as though there were no other plausible alternatives.  But that is neither the way it looked to most people in the past, nor the way it really was.[3]

This conventional treatment of utopianism is an example of the way conventional narratives often overlook alternatives that may look unconventional to us today but that were seriously considered and were in the mainstream of discussion in the past.  It also exemplifies the way in which conventional narratives generally portray the winning argument in a historical debate as the obvious choice and the only practical option among impractical alternatives. This portrayal ignores the arguments of the opponents of the winning option, the flaws and impracticalities that they found in it, and the possibility that an alternative option might have been better, both for people of that time and for us today. 

That an historical option looked utopian does not necessarily make it a mistake.  It is often the case that yesterday’s so-called foolish utopianism becomes today’s conventional wisdom.  For many Americans, utopias of one sort or another have seemed realistic options.[4]  In dismissing, for example, mercantilist republicanism and socialist communitarianism as unrealistic options for nineteenth century America, and missing the ways in which free enterprise capitalism was itself a utopian proposal, conventional narratives miss an important point about American society both then and now.[5]

Cycles of Utopian and Dystopian Thinking.

American history can, in fact, be seen as a cycle of utopian and dystopian movements, spiraling upward and down, albeit with an overall upward spiral of social betterment.  Three steps forward, one or two steps back.  Never reaching perfection, but with clearly demonstrative progress over the years.  These cycles include the Puritans of the 1600’s, the American revolutionaries of the late 1700’s, the democrats of the 1820’s to 1850’s, the Populists and Progressives in the late 1800’s and early 1900’s, and the Great Society and countercultural movements of the 1960’s and 1970’s.  Each of these movements came out of a dystopian period of social distress that seemed never ending.   

The Puritans came out of the religious, economic, demographic and political crises in England during the early 1600’s.  The American revolutionaries were driven by a combination of imperial conflict with England and civil conflict within the colonies.  Class and sectional conflicts motivated the democrats of the mid-1800’s. Gilded Age corruption, poverty and violence spurred a host of utopian ideas and movements in the late 1800’s, which in turn spurred the Populist and Progressive reform movements of the early twentieth century, and which essentially mark the beginnings of modern American society.

The dystopian mid-twentieth century, including the Great Depression, World War II, the Cold War and the anti-Communist hysteria, produced a strong utopian reaction of hippies and flower children, with communes everywhere.  But it also spurred major legislative, social and cultural reforms toward ending racial discrimination, poverty, sexism and other social ills. 

Each of the utopian movements in American history was motivated by hopes and dreams of a perfect society.  Each failed in that aim but succeeded, nonetheless, in pushing progressive reform forward.  But in each case, another dystopian period descended upon the country and things went from bad to worse until the next burst of utopian fervor. 

I am writing this in late September, 2024.  We have lived in recent years through a great plague, a great increase in global warming, a great economic recession, a great inflation, a great immigration of displaced persons, a great increase in gun violence, and a great increase of international war, among other disasters.  Most people seem to see and feel this as a dystopian period of history.  And we are facing an election like that in 1828 in which a disruptive and dystopian candidate is denouncing the pragmatic optimism of his opponent.  We can only hope that this is a turning point and that the politics of hope, the utopianism that has underlain our history, will reemerge and result in our being rescued from our current predicament. 

                                                                                                                        BW 9/24


[1]  Webster’s Seventh New Collegiate Dictionary. (Chicago: G.&C. Merriam & Co., 1971), 978.

[2]  Joyce Appleby et al. The American Republic to 1877. (New York: McGraw Hill, 2007), 377-378, 412-413.

[3]  Joyce Appleby et al. The American Republic to 1877. (New York: McGraw Hill, 2007), 308.

[4]  William Goetzmann. Beyond the Revolution: A History of American Thought from Paine to Pragmatism. (New York: Basic Books, 2009), xiv.

[5]  See “utopian societies.” American History. ABC-CLIO, 2011.

Utopianism in a Dystopian World: Whither America?

The Utopian Impulse in American History.

The Golden Age of Utopianism, 1820’s to 1850’s.

In Pursuit of a More Perfect Union: Part I.

Burton Weltman

“Keep hope alive!”

Jesse Jackson

Historical Cycles: Utopian//Dystopian.

There has been a pattern in American history of utopianism alternating with dystopianism as a dominant motif in American thinking.  Depressing times breeds depressed thinking.  But depressed thinking has heretofore been followed by optimistic thinking.  Utopian ideas have, in turn, generated progressive reforms, so that despite the ups and downs of American history, the overall trend has been up.  Three steps forward, one or two steps back but, overall, an upward movement.  It is important, therefore, that in the midst today of what most people seem to be experiencing as a dystopian period that we generate utopian ideas as a counterpoint.  We have done it before.  We should do it again.

Utopianism in a Dystopian World: Whither America?

Setting the scene: Cultural and political divisions among states, bordering on civil war.  Lingering bitterness by the losing candidate in the last presidential election, claiming that his loss was corruptly engineered and that he had really won the election.  Becoming a candidate for the next election, he has been demagogically cultivating racism, sexism, and sectional hostilities and promoting authoritarianism.  Intense differences among people over the role of the federal government in the economy and especially in regulating the supply of money and interest rates.  Widespread vicious antagonism toward poverty-stricken immigrants.  Economic hardship among small farmers and businesses, the middle classes being squeezed by inflation.  All in all, a dystopian scene with seemingly no hope on the horizon.

Sound familiar?  Sound like the 2020’s?  With Donald Trump as the desperate, disgruntled, demagogic presidential candidate?  With the Federal Reserve, abortion, Latin American immigrants, gay rights, public versus private schools, and other antagonistic elements filling out the scene?  Yes.  But it is also the 1820’s.  With Andrew Jackson in the role of Donald Trump.  And with demagogic ranting against the National Bank, anti-slavery activists, Native Americans, divorce, Irish immigrants, schools, and other controversial issues.  A dystopian scene very much like ours looks today. 

Yet, in the midst of the mess of the 1820’s, hope sprang eternal in the form of utopianism.  The second quarter of the nineteenth century was, in fact, a high point of the utopian visions that had energized reform in the country since its beginnings and that have continued ever since to inform Americans’ feeling and thinking about society, even if we don’t always realize it.  The purpose of this essay is to assay utopian thinking in American history with a focus on the 1820’s as a prime example for us today.  In the period of the early nineteenth century, Americans had to make a choice between competing visions of utopia.  They did so.  Perhaps not wisely.  But maybe we can learn from them.  For we face similar choices today.  If only we can recognize the options and wisely choose.      

Making Room for Utopia: Choosing to look at History as Chance, Causation or Choice.

It is a commonplace that how you look at the past largely determines how you look at the present and anticipate the future.  There are three main ways that most people look at history, seeing it as either a matter of chance, causation or choice.  It makes a difference which way you choose.

To do or not to do, that is the main question that your view of history answers.  Given that the present isn’t what you would like it to be and the future looks bleak, what, if anything, can and should you do.  If you look at history as a matter of chance, then there is nothing you could have done to make a difference in the past or present, and likely little that you could do to change the future. You are almost forced to take a passive and cynical attitude toward any attempts to make things better.  What will be, will be, and that’s that.  Likewise, if you look at history as a matter of causation, of one thing leading inevitably to the next, then a passive and pessimistic view of the world is almost inevitable.  Again, what will be, will be, and that is that.

Conventional histories almost invariably portray history as causation.  They describe one event after another in a post-facto stream of events that in retrospect can look inevitable.  And since most social and economic realities are better today than they were in the past, history becomes a celebration of the past, no matter how bad things were then.  The conventional narrative about America in the 1820’s takes this form.  The disgruntled demagogue, Andrew Jackson, who lost the election of 1824 to the distinguished diplomat John Quincy Adams, the son of one of the most important Founders and a Founder himself, beat Adams in 1828.  Conventional histories have almost invariably portrayed this as a victory for democracy. 

But that is a conclusion that does not take into consideration the options people had and the consequences of Jackson’s election.  Jackson’s bid for the Presidency had previously been dismissed by Thomas Jefferson and most of the remaining Founders.  “He is one of the most unfit men I know for such a place,” Jefferson claimed, “he has very little respect for the law… his passions are terrible… he is a dangerous man.”  Sound familiar today? 

In Jackson’s case, the consequences of his election included renewed support for slavery, renewed brutality toward Native Americans, the development of the spoils system of government jobs (to the victors go the spoils), and the destruction of the national banking system which resulted in the worst economic depression of that era.  The consequences of Trump’s election would likely be even worse, reaching truly dystopian proportions.  We can only hope that history does not repeat itself in the forthcoming election.  And there always is hope.

The past may be prologue, but it can also be the beginning of many different things.  If you look at history as a matter of people making choices – confronting options, evaluating possibilities, and then making choices – you can view the present and the future as realms of opportunity to make your lives better and your world a better place.  Given that America is a self-proclaimed land of opportunity, that should be the American way of looking at history: optimism to the point of utopianism.

Varieties of Utopianism: What’s in a word?

Webster’s Dictionary defines the word utopianism as the attempt to create a perfect society in which everyone would live happily together in peace and harmony.[1]  The word “utopia” is from an ancient Greek word meaning nowhere.  First used in 1516 by Thomas More as the name of the ideal society described in his book Utopia, it has become for most people in recent years a synonym for silliness.  It is a word that is widely used to disparage something as fanciful, unrealistic and unserious.  But that is not what More intended.  As has happened with many words, the meaning of “utopia” intended by its originators has been warped by opponents of the idea represented by the word, so that it has come to mean almost the opposite of what was originally intended.

More intended his utopia to function as both a criticism of the injustices and inefficiencies of the existing society in England and as an example of the sort of changes that could make it better.  More was a devout Roman Catholic who later died rather than violate the tenets of his religion.  Exemplifying the fact that people’s ideals invariably reflect the limits of their existing society, More described an ideal society that resembled a monastery, the ideal way of life for a Catholic.  It was not an unrealistic ideal for his time and place, albeit not for everyone.  He did not expect all of England to become a monastery, but rather hoped the English would accept aspects of his utopia as ways of perfecting English society, albeit perfection was never likely to be achieved.

Utopian proposals can take different forms, depending on the society from which they emanate and whether they are intended as outlines, blue prints, experiments, examples, or otherwise.  As an outline, a utopian proposal can be merely a list of perfections that could be considered.  As a blueprint, it can be a nuts-and-bolts complete construction manual for making an ideal society.  As an experiment, it can be an actual community that tries out ideas of perfection to see if they will work.  As an example, it can be a full-blown community that is intended as the first among an expected proliferation and combination of ideal communities. 

 To most utopians, the word utopia is taken to mean nowhere yet.  To some, the idea has been to actually construct a perfect society.  To others, it has been to construct an example of a perfect society as a working model for others to emulate.  To still others, constituting the majority of those who could be called utopians, the goal has been to develop an intellectual and ideological model of a perfect society and to promote the model as a goal and a benchmark of progress toward that goal.  American history has been full of utopian proposals of all sorts.  While many of these proposals have been eminently unrealistic, many have been quite pragmatic.  In fact, the United States was founded on utopian proposals, a fact which is not generally acknowledged. 

Conventional Narratives of Utopianism in American History. 

Very few conventional treatments of American history do justice to the long history of utopian ideas and ideologies in America, and almost all ignore utopianism as an ongoing theme in American history.  There may be some mention of Robert Owen’s New Harmony, a socialist community founded in Indiana in 1825, and Brook Farm, a cooperative commune in Massachusetts during the 1840’s, and both are usually portrayed as failed examples of a foolish utopianism.[2] 

Conventional narratives give no indication that a country of cooperative communities seemed a realistic option that was seriously considered by Americans during much of our history.  Or that the other options that Americans have had during our history – including mercantilism, free enterprise capitalism, and socialism – were also utopian in their origins, outlook and expectations, including those that became reality.

It is a historical fact that free enterprise capitalism developed during the nineteenth century as the predominant social and economic system in America.  It is not generally acknowledged, however, that free enterprise capitalism, which is generally portrayed as a down-to-earth economic ideology and just the opposite of the wishful thinking of utopians, began as a utopian proposal.  Generally equated by historians with Americanism as the best of all possible systems, free enterprise capitalism is portrayed as inevitable, as though there were no other plausible alternatives.  But that is neither the way it looked to most people in the past, nor the way it really was.[3]

This conventional treatment of utopianism is an example of the way conventional narratives often overlook alternatives that may look unconventional to us today but that were seriously considered and were in the mainstream of discussion in the past.  It also exemplifies the way in which conventional narratives generally portray the winning argument in a historical debate as the obvious choice and the only practical option among impractical alternatives. This portrayal ignores the arguments of the opponents of the winning option, the flaws and impracticalities that they found in it, and the possibility that an alternative option might have been better, both for people of that time and for us today. 

That an historical option looked utopian does not necessarily make it a mistake.  It is often the case that yesterday’s so-called foolish utopianism becomes today’s conventional wisdom.  For many Americans, utopias of one sort or another have seemed realistic options.[4]  In dismissing, for example, mercantilist republicanism and socialist communitarianism as unrealistic options for nineteenth century America, and missing the ways in which free enterprise capitalism was itself a utopian proposal, conventional narratives miss an important point about American society both then and now.[5]

Cycles of Utopian and Dystopian Thinking.

American history can, in fact, be seen as a cycle of utopian and dystopian movements, spiraling upward and down, albeit with an overall upward spiral of social betterment.  Three steps forward, one or two steps back.  Never reaching perfection, but with clearly demonstrative progress over the years.  These cycles include the Puritans of the 1600’s, the American revolutionaries of the late 1700’s, the democrats of the 1820’s to 1850’s, the Populists and Progressives in the late 1800’s and early 1900’s, and the Great Society and countercultural movements of the 1960’s and 1970’s.  Each of these movements came out of a dystopian period of social distress that seemed never ending.   

The Puritans came out of the religious, economic, demographic and political crises in England during the early 1600’s.  The American revolutionaries were driven by a combination of imperial conflict with England and civil conflict within the colonies.  Class and sectional conflicts motivated the democrats of the mid-1800’s. Gilded Age corruption, poverty and violence spurred a host of utopian ideas and movements in the late 1800’s, which in turn spurred the Populist and Progressive reform movements of the early twentieth century, and which essentially mark the beginnings of modern American society.

The dystopian mid-twentieth century, including the Great Depression, World War II, the Cold War and the anti-Communist hysteria, produced a strong utopian reaction of hippies and flower children, with communes everywhere.  But it also spurred major legislative, social and cultural reforms toward ending racial discrimination, poverty, sexism and other social ills. 

Each of the utopian movements in American history was motivated by hopes and dreams of a perfect society.  Each failed in that aim but succeeded, nonetheless, in pushing progressive reform forward.  But in each case, another dystopian period descended upon the country and things went from bad to worse until the next burst of utopian fervor. 

I am writing this in late September, 2024.  We have lived in recent years through a great plague, a great increase in global warming, a great economic recession, a great inflation, a great immigration of displaced persons, a great increase in gun violence, and a great increase of international war, among other disasters.  Most people seem to see and feel this as a dystopian period of history.  And we are facing an election like that in 1828 in which a disruptive and dystopian candidate is denouncing the pragmatic optimism of his opponent.  We can only hope that this is a turning point and that the politics of hope, the utopianism that has underlain our history, will reemerge and result in our being rescued from our current predicament. 

                                                                                                                        BW 9/24


[1]  Webster’s Seventh New Collegiate Dictionary. (Chicago: G.&C. Merriam & Co., 1971), 978.

[2]  Joyce Appleby et al. The American Republic to 1877. (New York: McGraw Hill, 2007), 377-378, 412-413.

[3]  Joyce Appleby et al. The American Republic to 1877. (New York: McGraw Hill, 2007), 308.

[4]  William Goetzmann. Beyond the Revolution: A History of American Thought from Paine to Pragmatism. (New York: Basic Books, 2009), xiv.

[5]  See “utopian societies.” American History. ABC-CLIO, 2011.

James Fenimore Cooper’s The Pioneers. MAGA Myths Versus the Reality of Early America. Natty Bumppo Makes a Mockery of the MAGA View of History.

       James Fenimore Cooper’s The Pioneers.

MAGA Myths Versus the Reality of Early America.

Natty Bumppo Makes a Mockery of the MAGA View of History.

Burton Weltman

The Pioneers: The Point.

I am writing this essay in early January, 2024.  We are living through terrible times in much of the world.  Environmental disasters and global climate change.  Wars, terrorist threats and massacres.  Rampant gun violence.  Racial, religious and ethnic bigotry.  Famine and homelessness.  Fascist movements and authoritarian rulers.  Just to name a few of the horrors.

Among the rightwing movements besetting the world and begetting many of its horrors is the Make America Great Again (MAGA) movement in the United States.  The underlying theme of the MAGA movement is a claim that things were better in the past when white Anglo-Saxon Protestant men ruled the roost in America.  The Good Old Boys in the Good Old Days. 

MAGA supporters look in particular to the 1780’s and 1790’s, when the United States Constitution was adopted, as the high point in American history from which we have mostly been falling away ever since.  Central to the MAGA complaint is that the old WASP male hierarchy has been undermined and that inferior groups which were previously subordinate have risen in the ranks.  As a consequence, they claim, the country has declined and continues to fall.

The MAGA movement is, thus, founded on an interpretation of American history.  Getting back to an Edenic American past that has been frittered away is the purpose of the movement.  The purpose of this essay is to demonstrate how ridiculous is the MAGA view of American history.  So ridiculous that it is largely discredited by James Fenimore Cooper’s novel The Pioneers, a two-hundred-year-old story that is read mainly by young people.  A kid’s book whose main character is a backwoodsman named Natty Bumppo who makes a mockery of MAGA. 

Written in 1823, The Pioneers is set in 1793 on what was then the frontier in New York State. +

In MAGA imagery this was an ideal time and place in which men were men, women were womanly, and the lower orders stayed in their places.  The significance of The Pioneers is that its description of America in 1793 does not fit with MAGA imagery and that it gives the lie to many of the rightwing myths that feed the MAGA movement.

Among these MAGA myths are historically baseless claims that governments in early America were strictly minimalist, that laissez-faire economics prevailed, that gun ownership was widespread, that Christianity, Anglo-Saxon ethnicity and individualistic ethics were universal, and that blacks were contented slaves while women were happy helpmeets to their patriarchal husbands.  The Pioneers contradicts all of these myths.  None of them is true.  And Cooper was there, so he should know.  Cooper grew up and lived as a young man in the time and place in which the story takes place.  His book merely tells it like it was.  Cooper was, in addition, a self-styled conservative, so he can be trusted with the seemingly liberal conclusions of his book. 

The thesis of this essay is that if the rationale for your movement can be discredited by a two-hundred-year-old contemporaneous novel directed at young people, your movement must be pretty pathetic. Dangerous, but pathetic.[1]  

The Pioneers: The Plot.

The Pioneers is a combination mystery story, romance, and clash of ideologies.  It is set in in a region of New York State that in 1793 had recently been settled by a colony of white people. The settlement was led by the owner of the land, Marmaduke Temple, who is also a judge in administrative charge of the area. 

The mystery centers on two questions.  First, who and what is Oliver Edwards, a young man of genteel manners incongruously living in a rustic shack in the forest with a backwoodsman, Natty Bumppo, and Natty’s indigenous friend Chingachgook?  Second, what is Natty hiding in his cabin that he won’t let anyone other than Oliver and Chingachgook see?  The romance centers on whether Oliver Edwards and Elizabeth Temple, the Judge’s daughter, will recognize and realize their budding mutual love? 

Embedded in the mysteries and the romance is a clash of ideologies which is the main point of the novel.  This clash pits the communitarian conservationism of Judge Temple against the laissez-faire exploitationism of Sheriff Richard Jones and both of them against the isolationist preservationism of the hunter Natty Bumppo. 

 Judge Temple is a disciple of the Quaker William Penn.  His portrait is based largely on Cooper’s father who was a judge, a Quaker and a large landowner after whom Cooperstown is named.  Judge Temple wants his settlement to develop peacefully and productively in harmony with the Indians and the natural environment.  He insists, for example, on cutting down only so many trees as are needed for use.  And he believes in sharing the work and the fruits of the common labor.   He is a stickler for the law, especially conservation laws as to hunting and land use.  His goal is a well and fully regulated community.

Sheriff Jones is a Hobbesian predator who believes Indians are to be ruthlessly conquered and nature destructively exploited.  As an example, he clear-cuts all of the trees in a forest, for the sake of convenience, even though most of the wood isn’t needed, and he uses explosives to catch huge quantities of fish even though most of them will rot and be wasted.  His goal is to exercise power and accumulate personal wealth. 

Natty Bumppo is what we today might call a survivalist.  He wants to leave nature alone, and most of his fellow humans as well.  He wants to coexist with the forest animals and plants, killing and harvesting only what he needs at the moment, living like the proverbial lilies of the field.  He is a hermit who will help others in a crisis but is otherwise mostly a loner.

The story in The Pioneers is slow to develop and is full of lengthy descriptions of conditions on the frontier during the 1790’s.  Cooper’s descriptions of flora and fauna, hunting and fishing, panthers and deer, mountains and lakes, as well as social classes, governmental practices, ethics and ethnicities, make for more of a guidebook than a storybook.  He clearly wanted his audience in the nineteenth century to know what things were like in the late eighteenth century.  And the country he describes was not the place imagined and demanded today by MAGA supporters. 

The plot is convoluted but after many trials, tribulations, and misidentifications, the two mysteries are solved and the romance is resolved.  It turns out that both mysteries revolve around one man, an exiled Tory grandee named Edward Effingham.  Effingham had been one of the original co-owners of the land currently held by Judge Temple.  Unlike Temple, who stood with the Patriots in the American Revolution, Effingham had been a pro-British Loyalist.  At the end of the war, he had fled from the United States as a traitor, and his interest in the land had been confiscated and turned over to his Patriot partner, Judge Temple. 

As the story unfolds, it is revealed that Oliver Edwards is the grandson of Effingham and he has secretly accompanied his mortally ill grandfather back to New York so that Effingham can die on his homeland.  Natty Bumppo, who it turns out was a former retainer of Effingham, has been hiding the dying man in his cabin.  As these mysteries are unraveled, Oliver Edwards and Elizabeth Temple duly realize their affection for each other. 

Mysteries solved and romance resolved, Effingham is welcomed back into the community.  The Judge generously gives a half interest in his estate to his long-lost partner, which Oliver will seemingly soon inherit.  That will make Oliver a rich man and a suitable suitor for Elizabeth’s hand in marriage.  A happy ending so far.  But not everything ends happily. 

Natty’s colleague Chingachgook, who is the last member of his decimated Mohican tribe, dies as the result of a gunpowder explosion.  It is a symbolic but significant loss to the diversity of the human species in America.  It is also an example of the unfortunate but inevitable consequences of introducing guns to America, a weapon that is dangerous to friend as well as foe.  Meanwhile, Natty recognizes that he is a misfit in the community as it is developing.  Much to the chagrin of all the characters in the story except for Sheriff Jones, Natty rejects an offer of land and income from the Judge and leaves for western lands that are for the time being still uninhabited and unravaged by white pioneers. 

As the book ends, the ideological battle remains unresolved and, writing this story in 1823, Cooper seemed to fear that the Richard Joneses were winning.  The middle ground of controlled, cooperative and conservationist development, that was represented in the story by Judge Temple and in real life by Cooper’s father, was being lost to selfish laissez-faire individualists and chauvinists. The exploiters and destroyers, the MAGA movement of that day, were winning.

Making American Great Again for Natty Bumppo.

MAGA is a movement that aspires to Make America Great Again by having the United States return to the way MAGA supporters conceive the country originally was.  The movement’s aims are articulated mainly in terms of what its supporters oppose and whom they hate – mainly liberals, feminists, immigrants, and ethnic minorities of all sorts.  What and whom MAGA supporters are against is clear, what they are in favor of is not. 

MAGA is essentially an emotional movement.  It is based largely on its supporters’ feelings of grievance, their gut reactions that they are getting a raw deal out of the social and economic changes of the past century or so.  They claim to be fed up and are not going to take it anymore.  So, they want to restore what they claim were the original social, economic and political relationships established by the Founders.    

In MAGA historiography, the country was founded as a haven for he-men WASPs.  It was a sanctum of small government and a sanctuary for self-made individualists.  It was a hierarchy in which the best people, generally defined by MAGA supporters as white, Anglo-Saxon male Protestants, had a hold on the top positions.  In their view, the country has progressively fallen away from that ideal, especially in recent years, as upstart groups and government regulations have decimated the original hierarchy and supposedly destroyed people’s freedoms.

Natty Bumppo, the hero of The Pioneers, would seem to be an ideal candidate for a MAGA hero, only he won’t cooperate.  Natty is a rugged individualist who has no use for government or for the rules that constrain a self-made man like himself.  He is a gun-toting, sharp-shooting hunter who could wrestle a bear, and is the sort of he-man that MAGA supporters like to idealize and imagine themselves being.  Making America safe again for the Natty Bumppos among us is their vision of remaking America great.  Natty, however, would not agree.  He sees himself as an obsolescent oddity, and he accepts that he must make way for the advance of civilization. 

The irony of Natty Bumppo is that he can’t help being used for purposes he rejects.  He is a self-styled backwoodsman who scorns society and wants to stay away from human communities, and especially the destructive communities spawned by the likes of Sheriff Jones.  But he unwittingly functions as a frontiersman, that is, as someone who opens up the backwoods and pushes outward the boundaries of the frontier.  As such, he paves the way for pioneers who will set up the very sort of society that he is perpetually trying to escape, but which is continually catching up to him.

Natty struggles to remain an outsider, a social outcaste.  He does not want to be seen as a model citizen and realizes that a society full of Natty Bumppos could not function.  In the person of Natty Bumppo, Cooper has, in effect, portrayed a model MAGA hero as someone who rejects MAGA goals.  That is not good for the MAGA theory of American history.

The Pioneers is a test case for MAGA historiography.  The story presents a realistic picture of early America painted by someone who was there.  Although the plots are romanticized, the situation and circumstances are faithful to reality.  And the moral of this essay is that MAGA historiography fails the test represented by The Pioneers. In fact, it is essentially a fraud, and a vicious trick being played on MAGA supporters as well as their opponents.  

MAGA Myths of American History.

MAGA ideology is rooted in a theory of American history, a venomous theory that has liberal reformers as the enemy of all that is decent and true. The theory is founded on a claim that things were better in the bygone days before liberal reformers got going.  The theory provides a way of denouncing present-day liberals and the supposedly degenerate state of present-day society by comparing America today with an idealized version of early America.  And it provides a rationale for insisting that the way things ostensibly were is the way they should still be and shall be again.

In MAGA imaginary, when the United States was founded during the Revolutionary and Constitutional eras of the late eighteenth century, the country enjoyed the blessings of a small unobtrusive government, a laissez-faire free enterprise economic system, almost universal evangelical Christianity, a modest immigration of hard-working European settlers, a patriarchy of strong men with their happy female helpmeets and happy-go-lucky African slaves, and a widespread gun culture.  In MAGA historiography, all of these things began to fall apart in the late nineteenth century and continue to do so to the present day.  And it is the goal of MAGA supporters and other right-wingers to restore these things to their original form. 

This story of a fall from Eden, with liberals playing the role of serpent, is a very attractive view of history for right-wingers battling liberals today. The problem with this view is that it is false, almost universally rejected by historians, and even given the lie by a two-hundred-year-old kids’ book, The Pioneers.  None of the things that MAGA supporters say existed at the time of the Revolution and the Constitution existed at that time. In fact, the MAGA view of history has things exactly backward. 

At the time of the Revolution and the framing of the Constitution, local governments were almost ubiquitous in the lives and doings of Americans.  Economic regulations were the norm and there was very little free about enterprise.  Communalism was the predominant ethos.  Slavery was widely considered by the Founders to be an unfortunately necessary evil in the settlement of the country that was expected to die out soon.   Women’s role in the family and status in society was greater than it would be again until the twentieth century.  Few people owned guns and guns were considered useful only to hunters and soldiers.  Religion played at most a perfunctory role in most people’s lives and in society, it being the least religious generation in American history.  Despite MAGA mythmaking to the contrary, these things have been well-documented by historians.  And we can see them in The Pioneers.   

The things that right-wingers claim existed in the late eighteenth century did not, in fact, come to the fore until well into the nineteenth century, and they came as deviations from the theories and practices of the Founders.  It wasn’t until the mid-nineteenth century that right-wingers of that time began to successfully promote ideas of small government, laissez-faire economics, evangelical religion, strictly domesticated women, happy slaves, and a gun culture.  These were all developments that most of the remaining Founders opposed, and for good reason.

Most people in the course of history have been poor.  Most lived below what could be considered the poverty level for their place and time.  This was not the case in the United States in the late eighteenth and early nineteenth centuries when most white Americans lived at a comfortable level.  But it became so during the course of the nineteenth century when the things the MAGA supporters mistakenly ascribe to the generation of the Founders actually came to pass and made things worse for most Americans.  MAGA supporters are actually clamoring to make America worse again.  And most of this is evident in The Pioneers.

 It was, in turn, largely the actions of right-wingers that prompted liberals to try to thwart movements toward minimalist government, laissez-faire economics, guns galore, biologically-based racism, domestication of women, and other oppressive developments.  Liberals were significantly successful during the twentieth century in growing government to solve social problems; enacting economic regulations in the public interest; promoting ethnic, religious, racial and gender diversity and equality; trying to reign in gun violence; and, welcoming the immigrants who have largely built the economy. All of these developments have moved the country closer to the society originally envisioned by the Founders than the things promoted by MAGA.  And it is the success of these liberal developments that so enrages MAGA supporters.   

MAGA Misconceptions of Early American Government and Economics.

Right-wingers regularly claim and complain that big government is the product of liberal Presidents and Congresses who have run rough-shod over the Constitution during the twentieth century, first by President Wilson’s “New Freedom,” then most significantly by President Roosevelt’s “New Deal,” and then even further by the “Great Society” of President Johnson and other Democrat liberals since.  The result, right-wingers complain, has been a government-dominated society very different from that created by the Founders.  But that isn’t so.

 Invasive government was an assumption of the Founders of the country.  And laissez-faire economics was a novel idea but not on their agenda.  People in most areas of the country during the eighteenth and early nineteenth centuries expected government to regulate almost everything, especially on the frontier where Europeans were first settling. The question that divided people was whether big government should be local or national.  This was a key difference between those colonists who supported the Revolution and those who supported England.  It was also key to the battle between Jefferson and Hamilton during the 1790’s.  Jefferson promoted the sort of local government arrangements that big planters had established in the South.  Hamilton wanted a strong national government that could promote commercial and industrial development.  But neither wanted the sort of small and weak governments that right-wingers have been promoting since the early nineteenth century and that MAGA supporters clamor for today.   

During the eighteenth and early nineteenth centuries in the United States, you had to get local government permission and some sort of license or permit to do almost anything.  MAGA supporters fantasize that in early America a man could just go out onto the frontier, claim a piece of land for himself, and then do whatever he wanted.  This was not the case.  There were indigenous settlements on much of the land and white owners of the rest.  You generally had to become part of a community and submit to its regulations before you could settle on its land. And settlements were generally made by groups of people who came to the frontier together, and who often knew each other and came from the same places.  This is the case in the The Pioneers where the Judge initially owned all of the land and recruited a community of settlers.     

The first thing new settlers invariably did was to set up a town government that had the authority to regulate an orderly settlement of the area.  Town governments often had the power to equitably divide up the adjacent farmland so that every settler had a decent quantity and quality of land.  Sometimes land allotments were rotated from year to year to make it even more fair.  There was an egalitarian theme in most new settlements even if it wasn’t always practiced.

Eighteenth and early nineteenth century pioneers were not free to do whatever they wanted.  Most social and economic activities were regulated by local government, often including the prices of goods and services, the wages of workers, and the quality of goods and services offered for sale.  If you wanted to start a new business you had to get local government permission that defined what you could do.  And you might be denied a permit if there were already enough businesses of your kind in the locality, so that another one of the same kind was not necessary for the public good and might work unfair injury on the businesses already operating. 

All in all, there was a strong communal element in eighteenth century America., especially on the frontier that MAGA supporters fantasize was a time and place for unbridled individualism.  Among the European settlers there was generally a sentiment of everyone being in this venture together.  People regularly helped each other with the planting and harvesting of crops and the raising of farm animals.  We can see this in The Pioneers where people routinely help each other with farming, fishing and tree cutting, and share the produce. The communal emphasis was also evident in sumptuary laws that prohibited the rich from flaunting their wealth in conspicuous consumption that would exacerbate class differences and generate envy among ordinary people.

Contrary to the claims of MAGA supporters, cooperation not competition, government regulation not laissez-faire free enterprise, and communalism not individualism, were prevailing themes of early American history.  And we see this demonstrated in The Pioneers.

MAGA Misconceptions of the Civil War and Slavery.

As I am writing this essay in early January, 2024, three would-be MAGA candidates for the Republican nomination for President have offered comments about the Civil War and slavery that have ignited furious backlash in the press as being out of line with what historians consider to be the consensus view of the Civil War and slavery. 

First, the former governor of South Carolina claimed that the Civil War was about states’ rights and not about slavery.  Then the current governor of Florida opined that slavery wasn’t all bad and had helped to civilize African slaves.  Finally, the former President of the United States and current MAGA-in-Chief claimed that the Civil War should have been avoided through negotiation and that President Lincoln screwed up in the way he conducted the matter.  As a result of the backlash, the two governors have both half-heartedly and half-bakedly revised their statements but have not as of this writing completely rejected them.  The former President has not retracted anything to this point. 

The political dog-whistling behind these statements is appalling.  The racism is blatant.  But what is more appalling is that these statements represent the actual beliefs today of many Americans and perhaps most white southerners.  And it is no accident that this is the case because these statements reflect the view that was contained in almost every history textbook from the early 1900’s until the 1960’s.  It was the historical consensus of those times, albeit a racist and reactionary consensus, and it was the view that I was taught in school in Chicago.

It is a truism that the winners get to write the history of a war.  But it did not happen in the case of the Civil War.  It was southerners who, starting in the early 1900’s, dominated the writing of the history of slavery and the Civil War.  And their “Gone with the Wind” story, based largely on evidence and testimonies from slaveowners, made it into the textbooks and stuck there until the 1960’s.  At that point the story changed, based in large part on newly discovered evidence gleaned from enslaved people and from ante bellum northern and European travelers to the South. This new view, that slavery was an unadulterated evil and the Civil War was about slavery, became the new consensus among historians.       

But “Lost Cause” holdouts among southerners and, more recently, MAGA supporters have not accepted this view.  Their benevolent view of slavery and heroic view of southern resistance to federal oppression fit well with the imaginary MAGA Eden of the late eighteenth century.  After all, if slavery was good enough for the Founders, then it could not have been all bad.  And if slavery wasn’t all bad, then the Civil War couldn’t have been about slavery and should have been avoided.  But that isn’t the way it was.   

The fact of the matter is that most of the Founders – including Washington, Adams, Jefferson, Hamilton, Madison and Franklin – were either opposed to slavery or at least uncomfortable with it and hoped to see it ended in the near future.  The general opinion of the time was that slavery was an evil expedient that had been necessary for the initial settlement of the country, but no longer.  Slaves had been particularly useful in tobacco production that had been a major colonial export, but growing tobacco had ruined the soil in the border states where it had thrived. 

Since there was little use at that time for slaves in other fields, it was opined that slavery would soon die out.  And consistent with this opinion, the Founders prohibited slavery in the Northwest Territories in 1787.  Unfortunately, Eli Whitney, ironically an anti-slavery Quaker, invented the cotton gin in 1793 which made possible and profitable the use of slave labor to produce cotton in the deep South, and his invention gave a whole new lease on life to slavery. 

Thereafter, in the early to mid-nineteenth century, white southerners developed the ideology that is reflected in the MAGA supporters’ recent statements about slavery and the Civil War.  They claimed that Africans were biologically as well as culturally inferior, and that slavery was a good thing because it Christianized and civilized savage blacks and made productive use of their labor.  In this view, which is still the MAGA view, slavery saved the souls of black folks.  In turn, the Civil War was a defense of states’ rights against an oppressive federal government.  It is this slaveholders’ ideology that was adapted and adopted in early to mid-twentieth century textbooks. 

The consensus view of slavery changed dramatically starting in the 1950’s and accelerating during the 1960’s.  Based on a wealth of new evidence that previous historians had neglected or refused to use, historians reached a new consensus that slavery was not civilizing and that the Civil War was not about states’ rights.  Africans were not uncivilized and the Civil War was about keeping them enslaved.

The reality is that most enslaved Africans were skilled agriculturalists, more so than most European settlers, which was one reason they were sought after.  Most also came from complex and sophisticated cultures.  Slaveowners, rather than civilizing their slaves, worked to strip them of their cultures.  And slaves did not see their situation as beneficial.  The myth of the happy plantation is given the lie by the facts that so many slaves were escaping and that most white southerners lived in fear of slave uprisings. To deal with runaway slaves and potential slave uprisings, white southerners organized militias, which were ubiquitous in much of the South.  This was the meaning of the Second Amendment.  Southern whites wanted assurance that in the case of slave uprisings they could rely on their own militias and not have to rely on the federal army to put them down.

That slavery was not a happy institution for enslaved people can be seen in The Pioneers.  Slavery was still legal in New York State in 1793, the year in which the story takes place.  Sheriff Jones owns a slave, Aggy, and treats him with disrespect.  The Judge, raised as Quaker, is clearly opposed to slavery and uses his influence to protect Aggy from Jones’ anger.  Aggy is an intelligent character who is working toward his freedom.  He respects the Judge and secretly makes fun of and occasionally sabotages the Sheriff.  All were not happy in the slave system.  It was obvious enough in 1823 when The Pioneers was written, but the fact was historically buried for some one hundred fifty years until a new and more accurate consensus on slavery developed.

The consensus view of the Civil War also changed during the 1960’s.  Southern secession was absolutely not about states’ rights and freedom from federal government oppression.  To the contrary.  In the secession statement issued by South Carolina, the first state to leave the union, the first and foremost reason given for seceding was the failure of the federal government to enforce the federal Fugitive Slave Act against northern states.  That is, South Carolina’s secession was not for states’ rights but against states’ rights, against the right of northern states to refuse to cooperate with federal authorities in capturing escaped slaves. 

The Fugitive Slave Act was an attempt by southern slaveholders to get anti-slavery northerners to participate in the slave system.  Most northern states refused to cooperate and southern states were furious that the federal government seemed unwilling to consistently force the issue.  Other secessionist states followed South Carolina in this rationale.  The Civil War was not fought in favor of southern states’ rights but against northern states’ rights, and in favor of more federal government interference in those states.

MAGA supporters frequently idealize and romanticize the South of the 1850’s, when slavery was legal and black people, both free and enslaved, were not entitled to civil rights.  Based on the myth that Africans were savages and that slavery had a civilizing effect on them, slavery is often claimed to have been a beneficial institution for masters and slaves alike.  In their nostalgia for the lost Confederate cause and their insistence on celebrating Confederate war heroes – who after all were treasonous traitors – many MAGA supporters seem to believe that the Civil War was won by the wrong side. 

Secession was, however, a foolish, self-defeating move on the part of the slave states because it is likely that slavery would not have been abolished but for their secession.  Slavery was abolished during the Civil War by the Thirteenth Amendment to the Constitution.  It takes the approval of three-quarters of the states in the union to adopt a Constitutional amendment.  It was only because of the secession of the slave states from the union that abolitionists were able to get enough of the remaining states to make up a three-quarters total of the states still in the union so that the Thirteenth Amendment could be adopted. 

That leaves as a key question what might have happened with slavery if most of the slave states hadn’t seceded from the union in 1860-1861?  The answer, I think, is that we would likely still have racial slavery today.  

Slave states constituted more than a quarter of the states in 1860, enough to stymie the Thirteenth Amendment if they had not left the union.  And their descendant states still make up more than a quarter of the states.  If the slave states had not seceded in 1860-1861, the Thirteenth Amendment could not have been adopted during the 1860’s.  And given the hostile attitude toward black people that has continued from that time to the present, especially among MAGA supporters and white southerners, if slavery had not been abolished in the 1860’s, it would have continued to be the law of the land, probably to the present day and beyond.  Because there would likely still not be enough states to enact the Thirteenth Amendment.  When MAGA supporters celebrate the Lost Cause of the Confederacy and the glory that was the Ante-Bellum South, the implication is that they would not mind that at all.

The past is not past for too many southern white people.  And the continuing sense of grievance that has been so pervasive among them since losing the Civil War is in sharp contrast to the reaction of most Tories in this country after they lost the American Revolution.  While many thousands of Tories fled, mainly to Canada, the overwhelming majority of them stayed in the United States and many who had fled eventually returned.  While there was some animosity and retribution against Tories, they were for the most part accepted as Americans.  We can see this in The Pioneers.  Effingham, the Tory, fled after the war but then returned and was welcomed home.

Most significantly, in contrast to the continuing resentment of white southerners who still cannot accept that the South lost the Civil War, most Tories accepted their defeat and moved on as Americans.  Unlike white southerners who still want to reverse the outcome of the Civil War, you don’t hear much today about aggrieved descendants of Tories trying to reverse the Revolution.  The Civil War was a blow to white supremacy that many white southerners and even white northerners still can’t get over.  The MAGA movement tries to keep that sense of grievance alive with myths and lies.

MAGA Gun Myths.

The MAGA movement is based on fear – fear of blacks, immigrants and the government.  To protect themselves against these enemies, MAGA supporters promote gun ownership.  No matter that crime has overall trended down over the last one hundred years and in recent years since the pandemic.  Nor that the likelihood of a person’s gun being used to thwart a criminal are almost nil and that the most likely people to be shot with a person’s gun are the gunowner and the gunowner’s family.  Facts can’t trump fear.

MAGA supporters attribute their right to gun ownership to the Founders.  It is a claim without facts.  If you listen to MAGA supporters and to the right-wing majority on the Supreme Court, you would think that gun ownership was widespread in the late eighteenth century.  And, completely bypassing the clear intention of the Second Amendment to apply to militias and not individual people, it is on this basis they contend that the Constitution guarantees the right of a person to protect himself by carrying a gun.  Since the Founders carried guns, the Second Amendment must protect the right to carry guns.  But it wasn’t so. 

Few of the Founders carried guns.  And people in eighteenth century America did not carry guns for self-protection.  Guns at that time were a particularly poor choice as a means of self-protection.  They were cumbersome, inaccurate, and dangerous to their owners.  A spear, hatchet, knife or club was a much better choice.  It was mainly hunters who owned their own guns as a tool of their trade.  Soldiers and militia men had access to guns as needed to perform their duties but generally did not own them. 

Most guns at that time were muskets.  Muskets were heavy and clumsy to carry and to shoot.  They often misfired and were notoriously unreliable.  They also required the bearer to carry a heavy bag of shot and gunpowder.  These were not things a person would want to carry around on a regular basis.  Especially the gunpowder which was not only heavy but volatile.  It could explode with a change of the barometer.  Not something you would want in your pocket or in your own home.  Something you would, instead, want to store in a militia armory.

Guns of that day were cumbersome to use.  They shot only one bullet and then had to be reloaded.  They were front-loading, meaning that you had to pour gun powder down the barrel and then force a bullet down the barrel each time you shot it.  This was a time-consuming process that made guns impractical for personal protection.  If you missed your attacker with your first shot, you could be rushed by your enemy.  That is a reason why a spear or an axe was more practical and was generally preferred for self-protection. 

Most guns were muskets that were woefully inaccurate.  They had smooth barrels.  When fired, a bullet would wobble down the barrel, flying out in unpredictable directions.  Muskets could not be successfully aimed at anything smaller than the broad side of a barn.  That is why soldiers generally stood shoulder to shoulder in a broad line and shot all at once, unleashing a wall of lead that might hit some of their enemies.  Muskets were not a good weapon if you wanted to shoot at something and actually hit it. 

Some people owned long rifles that had grooved barrels and were cumbersome to use but could be shot accurately.  They were, however, very expensive.  All guns were hand-made and long rifles took a particularly large amount of labor to make.  Pretty much only professional hunters, like Natty Bumppo in The Pioneers, would go to the expense of buying a long rifle.  For hunters, a gun was a tool of the trade.  Muskets were much less expensive and were, as a result, the weapon of choice in arming a militia. 

Militias were common all over the country and were especially important in the southern slave states where they were used to keep the enslaved people enslaved.  Arming a town’s militia was the main reason for guns.  A town’s guns would, in turn, ordinarily be stored in a militia armory.  That is why the British were keen to get to Lexington and Concord in April, 1775 at the beginning of the Revolution when Paul Revere made his famous ride.  They were aiming to seize the guns and gun powder stored in the militia armories in those towns.  

In sum, it is at best a myth and more likely a lie that guns were common among people in eighteenth century America.  We can see in The Pioneers that even on the frontier few people other than hunters had guns.  It was not until the late nineteenth century when accurate, multi-shot, mass-produced, light-weight, inexpensive guns were available that guns began to be owned by ordinary people.  And it was at that time that gun manufacturers began spreading stories about guns being commonly owned by the Founders, guns being widely used in the Wild West, and the need to own a gun for self-protection, advertising fables that are taken as fact by right-wingers and MAGA supporters

MAGA Religious Myths.

Despite the clear language of the First Amendment and repeated statements from many of the Founders, MAGA enthusiasts claim that the United States was founded in evangelical Christianity.  And there are already right-wing Supreme Court Justices who claim that the First Amendment does not require the separation of Church and State.  These Justices, along with the current Speaker of the House of Representatives, who is second in line to the Presidency, seem to believe that there is no Constitutional obstacle to declaring the United States to be a Christian nation.  And they base this on the supposed religious principles and practices of the Founders.  This is nonsense.

Any inquiry into the factual history of the Revolutionary and Constitutional times contradicts these MAGA myths.    Many historians consider the Revolutionary War generation to be the least religious in American history.  And most of the Founders studiously kept religion out of their deliberations and decisions.  In the wake of the mid-century turmoil of the Great Awakening, most people were tired of religious controversy and were engrossed, instead, in secular issues. 

The great men of the era – Washington, Adams, Jefferson, Madison, Hamilton, Franklin – were neither church goers nor conventional Christians or even Christians at all.  At most, they were deists and agnostics.  Most important, there is no mention of Christianity in the Constitution.  And, of course, there is the First Amendment.  The evangelical Christian movement to which the MAGA supporters owe their religious origins did not begin until the early to mid-nineteenth century and was itself a falling away from the theories and practices of the Founders, not a furtherance of them.

You can see the general indifference to religion of the members of the founding generation and their ecumenical approach to religious differences in The Pioneers.  A minister is among the main characters but he is portrayed as a weak character, a kindly but narrow-minded person.  He has made converting Chingachgook from the Indian’s indigenous animistic beliefs to Christianity as one of his main projects.  Chingachgook, himself a kindly and obliging soul, goes along with learning the Bible and occasionally attending church services. 

But in the end, as Chingachgook is dying, he reverts to reciting the rituals of his indigenous people, much to the horror and disappointment of the minister but with the understanding and support of the other characters.  Other than the minister’s daughter who follows her father, the main characters profess a variety of beliefs and seem mainly indifferent to religion.  The Judge, who is the community leader, was raised as a Quaker, which Cooper describes as “a mild religion,” and he is seemingly agnostic at heart.  No Christian Nation here.         

MAGA as a Social Movement.

Social movements are by their nature mixed bags of motives and motivations.  Some are pulled forward mainly by hope, others are pushed back by hate.  Some are motivated by benevolence, reason and constructive plans, others by fear and fury, resentment and grievance, gall and vengeance. The MAGA movement is an example of the latter.

Disproportionately supported by white Evangelical Christians, the MAGA deity is the wrathful God of the Old Testament who punishes severely any perceived disrespect to His eminence.  In homage to their God, MAGA is a wrathful movement, the core of which is angry white men, furious at being displaced from their dominant position in American society, and replaced in many cases by women and members of minority racial and ethnic groups.  Their goal of making America great again essentially translates into restoring white Christian men to the top of the social and political hierarchy.

The sentiments that underlie the MAGA movement are not new and they run deep in American history.  In their current form, they largely owe their renaissance to Donald Trump which, if you take seriously the Christian moralism proclaimed by the movement, seems to be a contradiction.  MAGA is a movement of self-professed moralists being led by a man who is a self-confessed immoralist.  But this seeming contradiction is resolved by the fact that Trump hates the people his supporters hate – liberals, blacks, and immigrants – and whom they fear are replacing them at the top of the heap.  Trump feeds this fear while proclaiming himself as the solution and the salvation. 

MAGA supporters generally call themselves conservatives, as does the mass media.  But this is wrongheaded.  MAGA is best described as “radical right-wing” rather than “conservative.”   The reason is simple.  MAGA adherents are not in favor of conserving anything except themselves.  Conservatives, like James Fenimore Cooper, have historically been primarily concerned with the unintended consequences of social change.  They are afraid that the good intended by a social change will be overwhelmed by evils that were unforeseen and unintended.  So, they are in favor of either no social change or go-slow change. 

MAGA supporters, in contrast, are all for radical and extensive social change.  Rather than conservative, they are, in fact, revolutionaries, albeit reactionary revolutionaries who want to overthrow most of present-day American society and return to some imagined past when the social and economic hierarchy better fit with their racist, sexist, ethnocentric and classist views.  This is radicalism and not conservatism.

MAGA is sometimes called populist, a movement of and for ordinary people, but this is also wrongheaded.  Although proponents of MAGA claim to represent the interests and ideas of ordinary people, they are, in fact, elitists who represent the ideas and interests of past ruling classes which they propose to project into the present.  And most MAGA supporters are essentially fooled by a delusionary view of history.  Oblivious to the fact that in the old days most people like themselves were likely to be members of the lower classes, degraded by the ruling elites and living in poverty, they delusively believe that if only history could be reversed, the old-time social hierarchy could rightfully be restored with themselves at the top.  Theirs is a radical and radically harmful delusion.

Natty Bumppo knew better and acted accordingly.  He knew that society could not exist without government and regulations, cooperation and mutuality, and that if he did not want to live in that way, he should clear out rather than try to wreck the place so that it might fit his individualistic ways.  If only MAGA supporters could learn from Natty Bumppo. 

Nonetheless, with an accurate picture of the Founders as a benchmark, we must hope that we can get safely through the present-day morass and genuinely resurrect the ideas and ideals of the Founders so that we can continue to move toward the goal of a more perfect democratic union.

Brief Bibliography.

The Pioneers.  James Fenimore Cooper. 

The American Democrat.  James Fenimore Cooper. 

Everyday Life in Early America, David Freeman Hawke.

Beyond the Revolution. Wiliam H. Goetzmann.

What Hath God Wrought: The Transformation of America, 1815-1848.  Daniel Walker Howe.

Arming America: The Origin of a National Gun Culture. Michael A/ Bellestiles.

The Peculiar Institution: Slavery in the Ante-Bellum South.  Kenneth M. Stampp.

                                                                                                                        BW 1/24


[1] I have not footnoted this essay.  There is, however, a brief bibliography at the end that cites books which cover the historical facts and conclusions that are discussed herein.  There is very little in the way of historical facts and historical conclusions discussed herein that is controversial among historians.  It is only MAGA fabulists who are likely to take issue with them.

What goes around comes around and around… The Fetish, Farce and Fraud of Constitutional Originalism.

What goes around comes around and around…

The Fetish, Farce and Fraud of Constitutional Originalism.

Burton Weltman

Braggart Big-Game Hunter: “I once shot an elephant in my shorts.”

Groucho Marx: “What was an elephant doing in your shorts?”

Apology:  There is no shortage of essays on the theory of Constitutional Originalism.  It is a silly theory that is being seriously espoused these days by several justices on the United States Supreme Court and that threatens to overthrow some two hundred years of pragmatic Constitutional interpretation.  The response by reasonable jurists and lawyers has been prolific.  My justification for adding to this plethora of responses is that I have personal experience which might be useful in making the case against the theory.  In that vein, I hope this essay might help to clarify some of the issues and amplify some of the reasons for rejecting the ideas of self-styled Constitutional Originalists, particularly their hypocritical approach to the Second Amendment.    

The Supreme Court Not-So-Merry-Go-Round.

People of my baby boom generation grew up in the midst of what was perhaps the most liberal Supreme Court in American history, the Warren Court of the 1950’s and 1960’s.  From the early 1950’s to the early 1970’s, the Supreme Court issued a host of decisions expanding the rights of minorities, women and criminal defendants, including the seminal Brown v Board of Education decision in 1954 that promoted civil rights for African Americans.  The Court also recognized a constitutional right of privacy and prepared the way for the historic 1973 Roe v. Wade abortion decision in favor of women’s rights.

As a result, people of my generation generally regarded the Supreme Court as a liberal-leaning institution.  It was an orientation that was rued by conservatives who attacked the Court for its supposed left-wing political bias, even to the point of accusing Justices of being Communists.  It was an orientation that was applauded by liberals who claimed the Court was merely helping to democratize American society.  And liberals happily expected the Court to continue to be a guarantor of social reforms and civil rights for historically oppressed groups.  As, much to their chagrin, did conservatives.  Both sides were wrong.    

The Supreme Court has not historically been a liberal-leaning institution.  Historically, the Court has swung back and forth between conservative and liberal tendencies but has been conservative, and even extremely conservative, most of the time.  Protecting the perquisites of private property and capitalist businesses, and limiting the powers of government, have generally been the priorities of conservatives who have generally controlled the Court.  Theirs has been a narrow interpretation of the reach of the Constitution and the government to aid and protect people.[1] 

Liberal Courts have generally focused on government’s responsibilities toward ordinary citizens, and, toward that end, have recognized an expansive and expanding role for federal and state governments.  Theirs has been called a “Living Constitution” approach to the law, the idea being that the principles outlined in the Constitution should be broadly interpreted in consonant with the changing circumstances of the country. 

Spurts of liberalism by the Court have been preceded and followed by longer periods of conservatism.  The Court has generally lagged behind popular opinion and public officials in permitting progressive government action.   As a result, the arc of justice at the Supreme Court has most often bent toward conservatism, but not always and not always in the same ways.  Despite claiming to reflect a straight and narrow interpretation of the Constitution, judicial conservatism has taken different forms depending on the circumstances of the time. 

During the first half of the nineteenth century, for example, as the federal and state governments in the newly formed United States were developing their respective jurisdictions, the Supreme Court was concerned with adjusting the respective roles of the state and federal governments and developing appropriate protections for private property.  The Court headed by Chief Justice John Marshall during the early years allowed for a wider federal authority as against what were the more liberal state governments of the time.  The following Court headed by Chief Justice Roger Taney allowed conservative state governments wider authority as against the more liberal federal government.  Both allowed only limited governmental incursion on private property rights. 

Justice Taney spoke for most Justices of the Supreme Court during his era when he said in the case of Charles River Bridge v. Warren Bridge (1837) that “the rights of private property are sacred,” albeit they are not without limits.  In a conflict of priorities between private interests and public interests, Taney seemed to believe that the presumption should be in favor of the private interest unless it can be shown that the public interest clearly took precedence.  A liberal Justice might reverse that equation, insisting that the public interest should prevail unless it can be clearly shown that the private interest should take precedence.  

These efforts of the Supreme Court to protect private property and limit governmental authority culminated with the dreadful decision in the Dred Scott case. In this case, Justice Taney, speaking for the Court, held that since slaves were property and the interstate travel clause of the Constitution allowed people to take their property from one state to another, no state could prohibit slaves or slavery within its borders.  A case of the tail wagging the dog, this decision effectively put an end to the freedom in so-called free states where slavery was prohibited, and essentially forced the whole country to accept slavery because southern states considered enslaved people to be property.    

The Taney Court’s regime of favoring property rights over human rights, and of narrowly limiting the power of the federal government, came to a crashing end with President Lincoln’s Emancipation Proclamation during the Civil War.  Using the President’s Constitutional war powers as his justification, Lincoln freed millions of slaves in one stroke even before the Thirteenth Amendment abolished slavery.  It was the longest reach of the federal government and the largest confiscation of private property in history.  Thereafter, the federal government became increasingly active in managing land and defining property rights in the country.[2]

Another turn toward judicial conservativism came during the late nineteenth and early twentieth centuries when the Supreme Court, strongly influenced by the Malthusian views of Justice Stephen Field, essentially read free enterprise and laissez-faire capitalism into the Constitution.  In the name of protecting what Justices saw as the right of every individual to sell his or her labor as they wished, the Court came down on labor unions and against government regulation of wages and hours of work as infringements on the freedom of workers and business owners.  In this same vein, the Court protected the rights of capitalists by invalidating state and federal government efforts at social and economic reforms and regulations.[3]

In the case of Lochner v. New York (1905), for example, the Supreme Court struck down a New York law that limited the number of hours a person could be made to work in a bakery.  The Court held that the law was a violation of workers’ rights under the Fourteenth Amendment to sell their labor for as many hours as they wished.  In his dissent in this case, Justice Oliver Wendell Holmes famously complained that“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”  Spencer was a social theorist who coined the phrase “survival of the fittest” and whose book Social Statics was an argument for laissez-faire capitalism that was influential among late nineteenth-century conservatives, including Supreme Court Justices.

From the late nineteenth century to the mid-1930’s, a conservative majority on the Supreme Court struck down a host of state and federal statutes and regulations that attempted to moderate the ups and downs of the capitalist business cycle, make the economic system fairer to workers and small businesses, and otherwise reform and humanize the economic system.  This trend continued into the Great Depression during the early 1930’s, when the Court struck down President Roosevelt’s first attempt at a New Deal.  

But then, seemingly under the pressure of economic disaster, the Court turned around in the mid-1930’s and upheld Roosevelt’s second New Deal, which was by far the most ambitious effort to regulate the economy in American history.  Constitutional restrictions by the Court on the federal government’s regulation of the economy have been minimal ever since.  Until now.    

Originalism and the Constitution: A Farce.

In recent years, conservative jurists and lawyers have developed a Constitutional theory they call Originalism.  In their view, the Constitution should be applied as it was originally intended and understood by the authors of it.  If the Founders did not specifically intend something, or even could not have intended it given the times in which they lived, the Constitution cannot be applied to that thing.  Originalists see the Constitution as a rigid set of rules cast in stone, or what liberals would complain is a Procrustean bed that squeezes the life out of the document. 

Liberals, in contrast, generally support a Living Constitution theory that insists the Constitution mainly consists of a broad outline of principles that can be applied in different ways as American society changes.  It is a document, liberals claim, that invites revision through amendments but also through reinterpretation and interpolation as circumstances change.  It is a charter for reform and reformers.  Originalists demur. 

Originalist theory is important because several Justices on the United States Supreme Court, possibly a majority, claim to be Originalists and have predicated their decisions about important issues upon this theory.  The spread of this doctrine could have a major effect on Constitutional interpretation.  In so doing, proponents of the theory generally call themselves conservatives, as does the mass media.  But I believe that this is a significant mischaracterization and that they and their theory are best described as “radical right-wing” rather than “conservative.”   The reason is simple.  Originalists are not in favor of conserving anything. 

Conservatives have historically been primarily concerned with the unintended consequences of social change.  They are afraid that the good intended by a social change will be overwhelmed by evils that were unforeseen and unintended.  So, they are in favor of either no social change or go-slow change.  They want to make sure that we conserve the good in the present society and don’t ruin it in the process of trying to make it better.  And this has generally been the gist of Supreme Court conservatism in the past.  Conservative justices have generally aimed to preserve the status quo and put a stop to new laws and new programs that aimed to revise and reform society 

Originalists, in contrast, are all for radical and extensive social change.  Rather than being conservative, they are, in fact, revolutionaries, albeit reactionary revolutionaries who want to overthrow most of present-day American society and return to some imagined past.  The present Supreme Court has already overturned Roe v. Wade which had been considered legally settled law for fifty years.  This reversal of Roe was essentially predicatedon Originalist grounds in which the supposed intentions of the Founders override any questions of precedents, stare decisis, past practice or judicial decorum. 

Nor do Originalists seem to consider or care about the social and political upheaval that might follow an Originalist reversal of what had been considered settled law.  And several right-wing Justices have threatened more to come.  Some have hinted that the whole regime of social and economic reforms from the New Deal onward could be ripe for reversal.  They insist that what is unconstitutional is unconstitutional, no matter how long it has been accepted law.  This is, of course, radicalism and not conservatism.

It is also nonsense and it is, frankly, hard to believe that presumably intelligent jurists and lawyers could seriously advance this theory.  The Originalist interpretation of the Constitution is a farce on its face and on the facts.  Let me count the ways.

First, Originalism places an impossible burden on judges.  The theory requires judges to plumb the minds of the various authors of the Constitution’s various provisions to discover their specific intentions.  This includes the eighteenth-century Founders of the Constitution and framers of the Bill of Rights, the nineteenth-century authors of the Fourteenth Amendment, and the authors of the many other Constitutional Amendments.  It requires judges to be capable of discovering the beliefs of the various authors of the Constitution and its Amendments, and to interpret those beliefs within the intellectual culture of the authors’ times.  It thereby requires judges to possess the knowledge and skills of intellectual historians, an expertise that very few judges have.    

I am an intellectual historian.  I spent three years in graduate school training to be an intellectual historian and then taught history for several decades.  I have also written extensively on intellectual history.  While I make no claims for the quality of my work, I can attest that working at intellectual history requires specialized knowledge and training.  Very few judges, who may have extensive knowledge and experience in law, have that knowledge and training in history. 

In justifying their rejection of the Living Constitution theory, Originalists claim that the theory is too loose and leaves too much room for judges to introduce 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.  In addition, while the Living Constitution theory requires judges to back their decisions with detailed evidence and reasoning about the circumstances that justify their conclusions, Originalists don’t have to justify theirs other than by claiming that they are following the Founders’ intentions.  That’s a pretty loose method.

Second, the Constitution and most of the Amendments thereafter were the products of committee deliberations and compromise decisions which make it almost impossible to determine what were the authors’ specific intentions.  The Constitutional Convention was itself a big committee and the Convention was broken down into smaller committees to deal with various subjects.  The members of the Convention and the various committees had many different ideas about what should be in the Constitution.  The product was the outcome of vigorous debate and compromise.  Anyone who has any experience with committees knows that while the members may come to some agreement on the outcome, their reasons and reasonings will often be quite different. 

I have personal experience along these lines.  In addition to being a historian, I am also a lawyer and served for a time as counsel to the Judiciary, Law, Public Safety and Defense Committee of the New Jersey State Assembly.  I can personally attest to the fact that the members of the Committee frequently approved bills with various members having different ideas of what the bills did.  There was no single intention or interpretation.  And this 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 what the Constitution meant.  As a result, finding a single intent for many of the Constitution’s provisions is a fool’s enterprise.

Third, there is no statement of intent for the Constitution that might explain what the Founders intended.  As a way of directing the interpretation of a constitutional provision or a statute, the framers will often include an explanatory statement of intent or a legislative history.  The statement expresses the will of the authors.  I drafted many such documents in working for the New Jersey Legislature.  The framers of the Constitution did not do this.  There is no such explanatory statement for the Constitution.  And this seems intentional.  The Founders deliberately left the document open to later interpretation and interpolation. 

Fourth, the Constitution is a relatively brief document with, for the most part, relatively broad provisions.  The constitutions of other nations are much longer and much more specific.  The United States Constitution does have some very specific provisions, such as age requirements for holding various offices.  So, it is clear that where they desired and could reach agreement, the Founders were capable of devising narrowly specific provisions.  Which 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.  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.

The historian Garry Wills has well summarized the efforts of Originalists as “summoning the founders to testify against what they founded.”[4]   Which is absurd.

Originalism and the Second Amendment: A Fraud.

Interpretations of the Constitution by self-proclaimed Originalists are often nothing of the kind.  They may be original in the sense of being novel, but they have little or nothing to do with the original intentions of the Founders.  They are merely right-wing political decisions using the pretense of Originalism as a fig leaf covering.  The misinterpretation in recent years of the Second Amendment with respect to gun ownership by right-wing Justices is a clear example. 

The Second Amendment has been the law of the land since 1791 but it was not until 2008, in the case of District of Columbia v. Heller, that a right-wing majority of the Supreme Court overruled previous decisions, historical evidence and common sense to proclaim that the Amendment guarantees a person’s right to carry a gun.  In the fifteen years since the Heller decision, the Court has overturned almost every kind of federal and state gun control law as violating the Second Amendment. 

Right-wing Justices have claimed that the Amendment gives individuals an almost absolute right to carry almost any kind of firearm almost anywhere they want.  And has done so on ostensibly Originalist grounds as being the intentions of the Founders.  But that conclusion just doesn’t fly.  As self-styled Originalists, the Justices ought to be sensitive to the language of the Amendment and attentive to the circumstances in which the Amendment was adopted.  They are neither.  Their Originalism is a fraud.

As to the language of the Amendment.  In order to reach their conclusion that the intent of the Framers was to guarantee the right of individuals to keep guns in their homes and carry them around in public, the Justices have to completely disregard the Amendment’s clear reference to a militia.  This is one of the places where the Founders were clear and specific.  Guns were for militias.  But the so-called Originalists on the Supreme Court just trample over the Founders’ clear intention in order to reach their politically motivated right-wing conclusion.

As to the circumstances in which the Amendment was drafted.  The right-wing Justices completely disregard the nature and extent of gun ownership in the eighteenth century.  The idea that ordinary Americans in the late eighteenth century were concerned about the right to have guns in their homes and on their persons for self-protection is just plain wrong on the facts.  Guns at that time were a particularly poor choice as a means of self-protection.  They were cumbersome, inaccurate, and dangerous to their owners.[5]

Most guns at that time were muskets that were heavy and clumsy to carry and to shoot.  They also required the bearer to carry a bag of heavy shot and gunpowder.  This was not something a person would want to carry around on a regular basis.  Muskets often misfired and were notoriously unreliable.  Because of their smooth barrels, which resulted in bullets wobbling and flying out in unpredictable directions, they could not be successfully aimed at anything smaller than the broad side of a barn.  That is why soldiers generally stood shoulder to shoulder in a broad line and shot all at once, unleashing a wall of lead that might hit some of their enemies.  Muskets were not a good weapon if you wanted to shoot at something and actually hit it. 

Professional hunters were almost the only people who could afford to own a long rifle with a grooved barrel that could be successfully aimed at a target.  Guns were hand-made individually and long rifles, with their grooved barrels, were expensive.  For hunters, a gun was a tool of the trade.  Muskets were much less expensive and were, as a result, the weapon of choice in arming a militia.  And for most ordinary citizens, a musket was merely an adjunct for militia duty.  This is something that any school kid, at least of my generation, could see in movies and TV shows about the Revolutionary era.  I remember getting that point when I was around ten years old. 

In addition, guns of that day, both long rifles and muskets, shot only one bullet and then had to be reloaded with gunpowder and another bullet.  Guns at that time were front-loading, meaning that you had to pour gun powder down the barrel and then force a bullet down the barrel each time you shot it.  This was a time-consuming process that made guns of that era impractical for personal protection.  If you missed your attacker with your first shot, you could be rushed by your enemy.  A spear or an axe was a more practical weapon and was generally preferred for self-protection.  Again, this is something any school kid could see in movies and TV shows about the Revolutionary era. 

Carrying a gun or keeping one in your home was also a dangerous thing to do because you had to store gun powder with it.  Gun powder at that time was very volatile.  A bag of gunpower could explode with a change in the barometer.  It was not something that you would ordinarily want to carry around or keep in your home.  A bag of gunpowder in your pocket could have unfortunate results.  And it could blow your home to smithereens.    

As a result, other than hunters, for whom a gun was a working tool and who were specially skilled in shooting, very few people had guns.  Despite the lies of the National Rifle Association and the hypocrisy of the so-called Originalists on the Supreme Court, there was no gun culture in early America, something any kid could see in the movies and on TV.  In turn, there was no need for a Constitutional Amendment to protect a person’s right to carry a gun that no one wanted to carry.  A militia — now, that was another thing.

Towns and states had militias.  Militias were common all over the new country but they were especially important in the southern slave states where they were used to keep the enslaved people enslaved.  One of the reasons the southern colonies supported the Revolution was that slaveowners were concerned about the English antislavery movement that had recently succeeded in getting slavery abolished in England and was aiming to get it abolished in the colonies.  Having seceded from the English empire and avoided the threat posed by English abolitionists, southern slaveowners now feared the growing anti-slavery movement in the United States that had recently succeeded in prohibiting slavery in the Northwest Territories.  The Second Amendment effectively protected the militias that protected the southern slaveowners from their slaves.

Arming a militia was the main reason for guns.  Very few individuals had guns, so towns frequently provided guns or required that citizens provide the town with a gun.  The town’s guns would, in turn, ordinarily be stored in a militia armory.  That is why the British were keen to get to Lexington and Concord in April, 1775 at the beginning of the Revolution when Paul Revere made his famous ride.  They were aiming to seize the guns and gun powder stored in the militia armories in those towns.  It’s a story that any school kid, at least in my generation, could tell you, and it gives the lie to rightwing misinterpretations of the Second Amendment.

It is also the case that, contrary to the contention of the rightwing Justices on the Supreme Court, gun control was common during most of American History, starting with the early colonists and continuing to the present day[6].  Any kid, at least of my generation, could tell you from movies and TV shows about Wyatt Earp, the famous sheriff of several Western towns in the late nineteenth century, and about the famous shootout at the OK Corral in Tombstone, AZ between the Earps (the good guys) and the Clantons (the bad guys). 

Most significantly, what the shootout was about was that the Clantons refused to leave their guns at a checkpoint at the border of the town.  It was common for towns in the supposed Wild West to prohibit people from entering the town carrying guns.  The rationale and justification for those regulations was made clear by the behavior of the Clantons, who began shooting up the town before they were stopped by the Earps, who were merely enforcing the town’s gun control laws.  So-called Originalists are just plain wrong when they claim that gun control violates the theory and practice of the Founders and their descendants. 

Both on its face and on the facts, the right-wing interpretation of the Second Amendment is a fraud.  I mean, if your Constitutional theory can be given the lie by adolescents watching popular movies and TV shows, how viable is your theory?

Originalism and the First Amendment: A Travesty in the Making?

If rightwing Justices can wreak havoc on the Second Amendment, what’s to stop them from doing the same to other Constitutional provision?  Despite the clear language of the First Amendment and repeated statements from many of the Founders, there are already right-wing Justices who claim that the Amendment does not require the separation of Church and State.  These Justices, along with the current Speaker of the House of Representatives, who is second in line to the Presidency, seem to believe that there is no constitutional obstacle to declaring the United States to be a Christian nation. 

As with the Second Amendment, you would think that self-styled Originalists would be sensitive to the language and the circumstances of the First Amendment.  As to the language, the First Amendment clearly states that “Congress shall make no law respecting an establishment of religion.”  This seems to be another instance in which the Founders were quite clear in their language.  There is no ambiguity here, and for over two hundred years the Amendment has been interpreted in a way that would foreclose declaring the United States to be a Christian Nation.  Nonetheless, there are a growing number of self-styled Originalists who seem willing to trample over the words of the Founders to achieve their rightwing political objectives.

As to the circumstances surrounding the First Amendment, right-wing Originalists are on similarly weak ground.  Many historians consider the Revolutionary War generation to be the least religious in American history.  In the wake of the mid-century turmoil of the Great Awakening, most people were tired of religious controversy and were engrossed in secular issues.  The great men of the era – Washington, Adams, Jefferson, Madison, Hamilton, Franklin – were neither church goers nor conventional Christians. At most, they were deists and agnostics.  Most important, there is no mention of Christianity in the Constitution.  And, of course, there is the First Amendment.   

Despite the language of the First Amendment and the attendant circumstances, rightwing Christian Originalists continue to insist that the country was founded in Christianity by traditionalist Christians and should be declared a Christian nation.  This is blatant hypocrisy on the part of self-styled Originalists.   It is also a dangerous fraud and a potential disaster in the making.

Where do we go from here?  A Free Fall or a Roller Coaster Ride?

So, where does the Supreme Court go from here.  Will this reactionary Originalist con continue to wreak havoc on the United States.  Some Justices have talked about reversing Brown v. Board just as they did Roe v. Wade, and they have even talked about overturning the New Deal and almost all of the social and economic legislation since the 1930’s.  The late Justice Scalia, one the original Originalists, was apparently once asked if he thought the New Deal should be overturned on Originalist grounds.  His response was that he was an Originalist but he wasn’t crazy.  Somc of Scalia’s successors on the Court seem to be crazy.  And there is a meanness in their philosophy which seems all too common among right-wingers today. 

The bad news is that a majority of the present-day Supreme Court seems to be wallowing in revanchism, trying to claw back the liberal reforms of the past.  The good news is that it would only take two of the right-wingers to be replaced by two liberal Justices, or at least two sane Justices, and then the balance of the Court would likely shift back to sanity and maybe even to a Living Constitution approach.  The history of the Court has been something like a roller coaster ride.  When conservatives take control, the downward slide comes fast.  When liberals take control, the upward climb comes more slowly and laboriously.  But maybe we have hit bottom and are on the verge of a liberal climb.  And hopefully in the not-too-distant future, we will be able to say to the Originalists “What was an elephant doing in your shorts?”

BW 12/23


[1] James Willard Hurst. Law and the Conditions of Freedom. Madison: University of Wisconsin Press, 1956.

[2] “William Goetzmann.  Beyond the Revolution. New York: Basic Books, 2009.

[3] Arnold Paul. Conservative Crisis and the Rule of Law. New York: Harper & Row, 1969.

[4] Garry Wills. A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster, 1999. P.16.

[5] Michael Bellesiles.  Arming America: The Origins of a National Gun Culture. New York: Alfred A. Knopf, 2000.

[6] David Freeman Hawke. Everyday Life in Early America, New York: Harper & Row, 1988.

The Second Amendment cannot mean what the NRA and right-wing Justices on the Supreme Court have said it does. Would you want to keep a musket in your house? Checking your guns at the Tombstone city limits.

The Second Amendment cannot mean what the NRA

and right-wing Justices on the  Supreme Court have said it does.

Would you want to keep a musket in your house? 

Checking your guns at the Tombstone city limits.

Burton Weltman

Note:  I am writing this introduction on May 25, 2022 and I am reposting an essay that I first wrote some eight years ago.  Yesterday, yet another mass school shooting took place in the United States.  So far, nineteen elementary school students and two teachers have died as a result of this latest massacre.  There have been some 212 mass shootings in the United States so far this year in some 144 days.  It is estimated that some 45,000 people will be killed this year with guns in this country.  This is a rate of death by guns that is quantum leaps higher than any other industrialized country.  The situation is crazy and it is crazy to think that the Second Amendment of the United States Constitution requires us to put up with this.

Whatever your approach to construing the Constitution, and especially if you are a proponent of strictly construing it and/or of finding the original intention of the Founders, as the right-wing majority of the Supreme Court claim to be, it is literally impossible for you to find in good faith that the Second Amendment was intended or can be extended to cover the gun laws, or rather lack of gun laws, in this country.

In construing the Constitution, it is one thing, for example, to extend the free speech protections of the First Amendment to radios, televisions and internet communications when the Founders had only newspapers and the town square in which to say their piece.  Modern methods of communication are just more of the same sort of thing as newspapers and public spaces.  But the Second Amendment’s guarantee of the right to carry a gun as part of a government militia is a whole different thing than the right to keep a gun in your own home and carry it around in public.  Let alone own and carry an assault weapon.

As I try to explain in this essay, it was literally impossible for the Founders to have intended this sort of behavior, or for the Second Amendment to be extended to cover it, both because of the explicit language of the Amendment and because of the factual situation that pertained at the time the Amendment was written.  And the Second Amendment was never construed to guarantee an individual’s right to own and carry a gun, or to overturn gun control regulations, until fairly recently in the twenty-first century.

Remember the oft dramatized battle of the Earps against the Clantons at the OK Corral in Tombstone, Arizona?  The fight was precipitated by the refusal of the Clantons to check their guns at the city limits before entering Tombstone.  Tombstone had strict gun control regulations, as did many towns during the eighteenth and nineteenth centuries, including such famous western cowboy towns as Dodge City, Abilene and Deadwood.  Law enforcement officials were the only ones allowed to carry guns in town.  And no one thought these regulations were somehow in violation of the Second Amendment.  A right-wing majority of Justices on the Supreme Court – they cannot be considered conservatives as they are often called and like to call themselves – has undertaken in recent years a radical rejection of some two hundred years of Second Amendment practice in this country.

It has often been said that the Constitution should not be construed as a suicide pact.  It is either mass murderous lunacy or murderous political cynicism to keep on as we have been doing in this country.  In the vain hope that arguments in this essay might contribute to the discussion of gun controls, I am reposting it today.

BW  5/25/22

Construing the Constitution.

The Second Amendment to the United States Constitution cannot plausibly mean what a majority of Supreme Court justices has been saying it means in recent years.  In the case of District of Columbia v. Heller (2008) and in subsequent cases, the Court’s right-wing majority has ruled that the Founders intended the Amendment as a guarantee of the right of individual citizens to defend themselves by keeping guns in their homes.  This conclusion is not plausible, and any ten year old kid watching movies about the American Revolution could see its implausibility as I did when I was ten years old.

While the Court’s misinterpretation of the Second Amendment seems to be partly a result of the right-wing justices’ letting their partisan political opinions trump what should be their nonpartisan judicial wisdom, their misinterpretation can also be seen as a result of their failing to understand the Amendment as a product of historical options and choices.

The Constitution was drafted by a committee of gentlemen who attended the Constitutional Convention as representatives of diverse political views.  Anyone who has been a member of a committee knows that in producing a statement of the committee’s views, members will almost invariably have to compromise. They will also generally have to articulate many of the committee’s conclusions in vague terms that can encapsulate a multitude of positions and that can, therefore, be interpreted in a variety of ways, some of them plausible, others not.  And so it was with the Second Amendment and the Constitution as a whole.

It has long been a general principle of Constitutional construction that when a provision is clear and specific, such as the requirement that Presidents be at least thirty-five years old, the provision must be strictly construed and applied.  And there has been little controversy and no change in the way this age requirement for Presidents has been applied.  But when a provision is vague and merely directive such as, for example, the Interstate Commerce Clause, the provision is supposed to be interpreted in the general direction intended by the Founders but can be plausibly interpreted differently at different times depending on the interpreters’ points of view and the situation in the country.  Consistent with this principle, the Interstate Commerce Clause has been interpreted by the Supreme Court in different ways over the years based on the changing composition of the Court and changing circumstances in the country.

Construing the Second Amendment.

The Second Amendment is specific in part and vague in part.  It states that “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  According to the general rules of construction, the specific part should be strictly applied by the Supreme Court and the vague part should be interpreted in the direction that the Founders seem to have intended.  In its recent rulings, the right-wing majority on the Court has done neither.

The first part of the Second Amendment is clear and specific.  It states that the purpose of the Amendment is to ensure that each of the states in the United States should be able to maintain a militia for its protection.  This means that no matter how the rest of the Amendment is interpreted, the interpretation must relate to the purpose of maintaining a state militia.  Self defense in eighteenth century America was considered as primarily a communal and collective effort rather than an individual responsibility.  The Second Amendment reflects this fact.  The Second Amendment also reflects the specific concern of southern slave-owners that they be able to maintain vigilante militias to keep their slaves in check.  In recent decisions of the Supreme Court, the right-wing justices, including the self-styled strict constructionists among them, have completely disregarded both the specific language of this first part of the Amendment and the circumstances in which the Amendment was enacted.

The second part of the Amendment is vague and general.  Its interpretation depends on how one defines “the people,” what one means by keeping and bearing arms, and what one considers to be an infringement on keeping and bearing arms.  This part of the Amendment is open to various plausible interpretations but not to the interpretation that it has been given by the right-wing majority on the Supreme Court.  That is, even if you go along with the majority in disregarding the clear intent of the first part of the Amendment with respect to militias, you still cannot plausibly arrive at the conclusion that the Amendment guarantees the right of individuals to keep guns in their homes.

Would you want a musket in your house?

This is where it takes merely the mental acuity of a ten year old watching movies about the Revolution — you can glean it from even a glitzy Hollywood production — or an approach that looks at history as people making choices to see the light.  The key facts are that the most widely available gun at the time of the writing of the Second Amendment was a musket and that almost no one would have wanted to keep a musket or other gun for personal protection in their home.

A musket had a smoothbore barrel and was muzzle-loaded.  You loaded a musket by stuffing some paper and pouring some gunpowder down the muzzle, then you shoved a round bullet down the barrel.  The concoction was ignited and the bullet fired from the gun.

Muskets were very inaccurate.  Since the barrel was smooth and the bullet was round, the bullet wobbled as it traveled down the muzzle and continued to wobble as it went into the air.  As a result, you could not aim a musket at a target more than a few feet away with any expectation of hitting it.  That is why standard military practice at this time was to stand soldiers in a line and have them all fire at the same time.  No one of them would hit what he was aiming at, but the group would unleash what was in effect a wall of lead that would eventually hit something.

Loading a musket was time-consuming.  The same was true of rifle-barreled long guns, or rifles, that were more accurate but much more expensive than muskets and not widely available.  It could take an ordinary person some two to three minutes to load a musket or rifle.  Thus these guns could not be repeatedly fired with any rapidity.  That is why standard military practice at this time was to have at least two rows of soldiers with one row firing while the other row was reloading.  Even so, it was standard practice to make a bayonet charge on your enemies after they had fired their guns and before they could reload.  The expectation was that the bayonet charge would be the decisive maneuver, not the gunfire.

These two facts about muskets, by themselves, would have made it unlikely that anyone would want to keep one in their home for defensive purposes.  A weapon that could not be accurately aimed and that took several minutes to reload was not a very reliable defensive weapon against an intruder.  A pike or ax would be much more reliable and, in fact, these were seemingly the defensive weapons of choice of most colonists.

A third fact about muskets and other guns made this choice almost inevitable.  Keeping a gun at home meant keeping a bag of gunpowder in your home.  The gunpowder in use at that time was highly volatile and liable to explode in the vicinity of the slightest spark or change in barometric pressure.  Keeping a bag of gunpowder in a house that was heated by wood burning fireplaces or stoves was a very dangerous undertaking and not one that many people would choose.

The final fact about muskets and other guns is that they were almost always stored in some sort of armory that was kept for the local militia rather than kept in people’s homes.  That is why the British were on their way to Lexington and Concord when Paul Revere made his famous ride.  The British wanted to confiscate the arms that were stored for the militia in the  armories of those rebel towns.  The Americans repelled the British and defended the right to have an armed militia.  And that, in turn, is what the Second Amendment was all about: securing the viability of the militia under the new Constitution.

In sum, given the state of arms at the time the Second Amendment was written and the fact that very few Americans had or wanted to have guns in their homes, it is not plausible that the Founders could have intended the Amendment to guarantee the right of individual citizens to keep guns for self-defense in their homes.  As a ten year old kid watching old movies, I could see that it would be impracticable to have a musket and undesirable to have a bag of gunpowder in one’s house.  Why couldn’t a majority of the Supreme Court justices see that as well?

Bibliographical note: There are no reliable statistics on gun ownership during the eighteenth and early nineteenth centuries in America.  All we have is anecdotal evidence.  An attempt was made by Michael Bellesiles to produce statistical evidence in his book Arming America: The Origins of a National Gun Culture (2000) demonstrating that few Americans owned guns during that time.  Bellesiles, however, committed gross scholarly errors in some of the assumptions he made about his data and in some of the extrapolations he made from his data.  He was accused of inventing data and of committing academic fraud.  Under sustained attack by the National Rifle Association and other so-called gun rights advocates, who claim that gun ownership was a founding principle of American society, the book has been widely discredited and generally disregarded.  Bellesiles’ dubious statistics are, however, only a small part of the evidence he presented in support of his contention that few Americans owned guns during this period.  The book also contains a large amount of undisputed anecdotal evidence that is worthwhile reading and, I believe, ultimately convincing.

A Note on Voter Suppression: Voting as a Privilege vs. Voting as a Right and a Duty. Republicans vs. Democrats; Conservatives vs. Liberals; Top-Down vs. Bottom-Up Views of Society, Culture, and Economics.

A Note on Voter Suppression:

Voting as a Privilege vs. Voting as a Right and a Duty.

Republicans vs. Democrats; Conservatives vs. Liberals;

Top-Down vs. Bottom-Up Views of Society, Culture, and Economics.

 

Burton Weltman

 

The title of this little essay pretty much says it all about the ideological differences that divide the United States today.  At least, that is my contention.  I am writing this on Tuesday, October 30, 2018, a week before a very important mid-term election in this country.  Democrats are busy trying to get out the vote.  Republicans are busy trying to keep down the vote.  What is that about?

(1) Voter Suppression as a Civic Duty: Who are the People?

How can it be that voter suppression is to many Republicans a civic duty, while encouraging all and sundry to vote is a goal of most Democrats?  The difference largely stems from their differing answers to the questions of who gets to be considered part of “the people” – as in “We the People” who constitute the country – and, in turn, what role do “the people” get to play in the affairs of the country.

Alexander Hamilton enunciated what has essentially been the conservative answer to these questions to the present day when he claimed that those who owned the country should get to run it.  “All communities,” he said, “divide themselves into the few and the many. The first are the rich and the well-born.  The other, the mass of people… The people are turbulent and changing.  They seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government.”  The role of the people is to defer to the wisest and richest among them.

In this view, the country is essentially like a joint-stock company in which the rich who own most of the stock should get the major say in running things, the middling classes who own some small shares of the stock should get some minor say, and the lower classes who own no stock at all should get no say at all.  By dint of their wealth, the richest have shown they are the wisest.  By dint of their poverty, the masses have demonstrated their incompetence.

This conservative view of the people applies to politics, economics, customs and culture.  In politics, conservatives generally consider voting to be a privilege that needs to be earned, whereas liberals consider voting as the right and duty of every adult citizen.  When the country was founded, property qualifications to vote were widespread.  Consistent with Hamilton’s view of things, people literally had to earn the privilege of voting by accumulating wealth.  This practice did not last long, however.  By the first quarter of the nineteenth century, public pressure by the lower classes, who had the greater numbers albeit not the greater wealth, forced the elimination of these restrictions and made voting a democratic right, at least for white men.

So, conservatives turned to other methods of limiting the political power of the general public and increasing the influence of wealth.  In this effort, they have repeatedly battled liberals who favored greater democracy and championed the interests of people over those of property.  The tide in these matters has ebbed and flowed ever since.

In recent years, property has been winning.  Conservatives have scored notable successes in rulings by the conservative majority on the Supreme Court that money spent on political campaigns is speech protected by the First Amendment to the Constitution, and that corporations are “persons” with the rights of citizens under the Fourteenth Amendment.  These ruling are legal nonsense but they are consistent with the view that the rich should have the major say-so in American politics.

Conservative ideology justifies the suppression of lower class and minority voters on the grounds that they don’t have sufficient stake in the country to vote responsibly, and that they will only use their votes to gain governmental benefits for themselves, such as welfare, medical care and so forth.  To conservatives, the lower classes are parasites on the body politic and the economy, and conservatives generally condemn subsidies to the poor favored by liberals as corrupt efforts by liberals to buy the votes of the poor.

Of course, conservatives, at the same time, laud tariffs and subsidies given to rich corporations that give big campaign contributions to conservative politicians as public-spirited efforts to bolster the country’s economy.  In the same vein, conservatives promote the organization of capital into big corporations but, at the same time, oppose the organization of workers into labor unions.  It’s one thing, and not a good thing, for workers to conglomerate for better wages; it’s another for the wealthy to conglomerate for better profits.

The underlying economic difference between conservatives and liberals is largely over the question of whether the country’s prosperity is primarily the result of increasing supply or increasing demand.  That is, should economic policy primarily favor the accumulation of wealth by the rich who will ostensibly invest it in new enterprises that will create jobs and goods for everyone?  Or should policy favor increasing the demand for goods by ordinary people which will stimulate investment and the creation of jobs in order to meet that demand?  In present-day political terms, should there be tax cuts for the rich or for the middle class?

In cultural terms, this conservative view idealizes what supposedly were the values and customs of the white, European Christians who ostensibly founded the country and made it great.  This view, in turn, denigrates the cultures of other peoples who live in the United States and even demonizes those people as undermining the American Way.  Immigrants have repeatedly been attacked in this way throughout American history, albeit with different groups bearing the brunt at different times.

Historically, the role of alien destroyer of the American Way was assigned to German immigrants in the eighteenth century, Irish immigrants during the nineteenth century, Eastern European immigrants at the turn of the twentieth century.  Each of these ethnic groups was subsequently incorporated into the category of white, European Christians that defines the genuine American for most conservatives. Meanwhile, Blacks, Hispanics, Asians and Jews have for the most part been categorized as “Other” and have been more or less denigrated and scapegoated, a practice which continues to the present day.

(2) The Irony of Demagoguery: You can make fools of a lot of the people a lot of the time.

Ever since property qualifications for voting were abolished, conservatives have struggled with the necessity of gaining enough people to back their policies so that they can control the government.  Since their policies are geared to favor a small number of the wealthiest people, they have largely practiced a demagogic politics of fear-mongering against ethnic and religious minorities, immigrants, and other groups that can be safely scapegoated, safely scapegoated because they are, in fact, not a threat.

Southern plantation owners cultivated a fear of blacks and a feeling of superiority toward the slaves among the small white farmers who were being undermined by the slave system.  Northern capitalists imported Eastern and Southern European immigrants to undercut the wages of American-born workers, then denigrated the immigrants for political purposes as dangerous to American ways.  The method is to cultivate a sense of superiority among white, European Christians and a fear of Others who are different, even as conservatives enact policies that hurt their very supporters.

We see that method at work today as the Trumps, Mellons, Mercers, Kochs, and other right-wing billionaires stir up fears of immigrants and minorities, while encouraging a sense of superiority among white, European Christians toward these peoples.  The goal is to energize right-wing supporters to vote for conservative politicians while denigrating and denying the vote to people who do not support conservative policies.  The irony is that the Trumps, Mellons, Mercers et al. feel the same contempt toward their right-wing followers as their followers feel toward their designated enemies.  And the right-wing policies of the conservatives hurt their supporters as much or even more than their opponents.

Malleable, manipulatable and mainly middle-aged or older, most of the supporters of Trump and right-wing policies are only making fools of themselves while making the world worse for us all.  I suppose we can take some solace in Abraham Lincoln’s conclusion that you can fool all of the people some of the time, some of the people all of the time, but not all of the people all of the time.  Let’s hope this is that last time.

B.W.    10/30/18

 

Three Simple Reasons Why The “Constitutional Originalism” of Brett Kavanaugh is a Judicial Fraud and a Pseudo-Legal Cover for Radical Right-Wing Politics

Three Simple Reasons Why  the “Constitutional Originalism”

of Brett Kavanaugh is a Judicial Fraud and

a Pseudo-Legal Cover for Radical Right-Wing Politics

Burton Weltman

Prologue: I am writing this essay on September 25, 2018. Donald Trump and Congressional Republicans are currently in the midst of a furious effort to push through the appointment of Brett Kavanaugh to the United States Supreme Court.  Kavanaugh is a self-proclaimed “Constitutional Originalist” which, in his case, means that he thinks the United States Constitution should be interpreted according to the meaning of the words in the Constitution as they were understood at the time of its drafting and ratification.  Kavanaugh is currently a federal judge, having been appointed by George W. Bush, but he also has a long history before that as a radical right-wing Republican Party operative.  He claims to be an Originalist but he brings a radical right-wing ideology to his judicial work.

The theory of Constitutional Originalism is a recent development in American history, dating only from the 1970’s.  Its development coincided with the emergence during that same period of the present-day radical right-wing of American politics, the people who brought us the Tea Party and more recently Donald Trump.  Radical right-wingers generally entertain a Social Darwinian approach to society, a libertarian approach to government, and a laissez-faire approach to the economy.  They believe in a dog-eat-dog world in which the rich should rule and the role of the government is to protect the successful rich from the envious poor.  They think of themselves as protectors of freedom against communistic liberals, proponents of excellence against the mediocrity of the masses, and saviors of Western Civilization against the immigrant hordes.

Although right-wingers are often lumped together with conservatives and both are electorally represented by the Republican Party, their ideas and goals are not conservative.  Conservatives tend to support the status quo and accept most of the progressive reforms of the twentieth century.  Right-wingers are radicals who reject the reforms of the Progressive Era, the New Deal, and the Great Society, and want to incite a counterrevolution that would essentially hurl American society back to the nineteenth century.[1]

Constitutional Originalists represent the judicial side of this radical right-wing movement.  The late Antonin Scalia and Clarence Thomas have been radical right-wing proponents of Originalism on the Supreme Court.  Kavanaugh would ostensibly follow in Scalia’s footsteps.  The purpose of this essay to demonstrate that despite its exposition by supposedly learned members of the high court, Constitutional Originalism is patently nonsense and merely a pseudo-legal cover for the radical right-wing political views of these men.  There are many reasons the Originalist theory is false and even fraudulent.  I will outline three simple reasons that I think are sufficiently conclusive.

Reason #1: There were no American dictionaries in 1780’s and there is no other way of determining the definitive meaning for the Founders of the words in the Constitution.

This is really simple.  Originalists say that we should interpret the language of the Constitution exactly as the Founders who wrote it would have interpreted it.  The problem is that there is no way of knowing exactly what the founders meant by the words they used.  There were no American dictionaries at the time and there is no other way of finding out.  But linguistics and etymology are not the real concerns of the Originalists.

Originalists are more concerned with legal results than with linguistics.  Originalism arose in opposition to the “living document” theory of Constitutional interpretation that has long been held by the majority of judges and legal scholars.  According to the “living document” theory, the provisions and words of the Constitution should be interpreted in conformance with the changing circumstances of American society.  As social institutions and norms change, interpretations should change.  On that basis, the Supreme Court found, for example, a right to privacy in the Constitution during the 1960’s and 1970’s that had not previously been declared and used that right as the basis for finding a Constitutional right to contraception and abortion.  Originalism has largely been motivated by opposition to the Court’s finding that the Constitution guarantees rights to privacy and abortion, as has been the right-wing movement generally.

Originalists object to the “living document” theory on the grounds that it undermines the rationale for having a written Constitution and gives judges the power to change the Constitution at will.  They claim it condemns us to a government of fickle men rather than fixed laws.  In this regard, Originalists argue that the “living document” theory destroys the principle of stare decisis, the principle that once something is decided, you should not revisit and revise the decision.  Stare decisis ensures continuity and peace in the law, and it is one of the key principles of the English Common Law from which American common law and constitutional law has evolved.  Without stare decisis, the law becomes a free-for-all struggle in which might makes right.

In claiming that the “living document” theory abjures stare decisis, Originalists are complaining  that it leaves constitutional principles uncertain and subject to partisan changes every time membership on the Supreme Court changes.  This is the reasoning that Originalists use when, for example, they argue that the death penalty should not be condemned under the “cruel and unusual” punishment clause of the Constitution.  If hanging was good enough for the Founders when they composed that clause, it should be good enough for us today.

There are many flaws in the Originalist argument.  To take an obvious one, the way in which we generally determine the meaning of words is through consulting a dictionary.  Dictionaries were invented as a means of standardizing the meanings and spellings of words so that we can have a reasonable idea of what each person is saying when we communicate with each other.  When Noah Webster issued the first comprehensive dictionary of American words in the early 1800’s, his goal was to eliminate the chaos of meanings and spellings that existed in the country.  There was no American dictionary in the country when the Constitution was drafted and ratified, and the fact is that residents of the various states had closer communications and cultural ties with England than with each other.  So, colonists from different states did not necessarily mean the same things with the same words.

The fact that the Founders were able to agree to use the words that are in the Constitution does not mean they held the same views of those words.  And there is no way of finding out because the Founders did not attach an explanatory statement to the Constitution, as most Legislatures do with the laws they enact today.  The Founders seemingly left it to their descendants to decide what the words were going to mean to them.  In this view, words are approached as symbols that need to be reinterpreted as the situations to which they refer change.  Language as well as the law is viewed as living.

With respect to stare decisis, this principle has never been considered absolute and has always been qualified by the facts of changing circumstances.  If the circumstances under which a decision has been made substantially change, then the basis for the original decision may no longer exist, and even the language in which the decision was couched may have changed meanings.  As a result, the decision may need to be revisited and possibly revised, and a new consensus may need to be reached as to the meaning of the words in which the decision is articulated.  The necessity of reinterpreting the law in light of changing circumstances, and the idea that the law is a living and evolving thing, is a basic principle of the common law and of statutory and constitutional interpretation.

And the Founders were fully aware of this principle of changing circumstances when they made the Constitution.  The Revolution had stemmed from the fact that constitutional arrangements between England and the colonies that had been mutually acceptable in prior years were no longer working because the circumstances of both England and the colonies had substantially changed.  And the dispute between England and the colonies focused on the different meanings they were giving to words — words such as “representation,” “taxation,” “domestic trade,” and “foreign trade” — about which they had previously agreed, but did so no longer.

Both the American colonists and the English were citing the same statutes and constitutional principles but using the words in ways that were different from each other and were different from how people had used them in the past.  Meanings had changed with changing circumstances.  Appeals to stare decisis satisfied neither side and did not resolve their differences.  As a consequence, new decisions and new arrangements had to be made.

The Founders knew that meanings change as circumstances change.  As a result, pretending to know what the Founders definitively meant by the words in the Constitution is not only impossible, and essentially a fraud, but runs counter to the Founders’ own intent.  This conclusion leads to Reason #2.

Reason #2: Many of the key phrases and provisions in the Constitution are couched in relativistic terms for which there can be no definitive meaning.

This is simply obvious.  The Constitution is couched in open-ended terms that do not lend themselves to definitive meanings, let alone the definitive meanings of the Founders.  The Founders were not fools, and so they must have known that the Constitution would be subject to competing and changing interpretations.

The Constitution is a remarkably short document, which is probably one of the reasons for its longevity.  It is full of abstract and flexible terms that have to be interpreted and that acquire new meanings as circumstances change.  Many of the most important provisions can have no fixed meaning.  Phrases such as “due process,” “equal protection,” “cruel and unusual punishment,” “establishment of religion,” and “speedy trial,” among many others, can only be defined pragmatically to fit the times, places, and circumstances in which they are applied.  And the Ninth Amendment, which provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People,” is an open invitation for future generations to discover new Constitutionally protected rights as circumstances change.

The meaning of “due process,” for example, depends upon what process people think is due in a particular time, place, and circumstance.  The flexibility of the term is not, however, infinite.  There is a long history in Anglo-American law as to what sort of process is due in various situations.  Based on the principle of stare decisis and on the importance of precedents generally in American law, any determination as to what is due process in a situation must start with past determinations. Then, any deviation from those past determinations must be justified by facts and reasons as to how changing circumstances require the new interpretation.  The meaning of the phrase “due process” should not, in this way, be subject merely to the whims of fickle men or partisan politics.

In the “living document” approach, the words used by the Founders set the parameters for Constitutional interpretation.  As such, you should not be able to use Orwellian double-speak to contradict the Founders’ words.  “Equal” in the Constitution’s equal protection clauses, for instance, should not be construed to mean unequal.  At the same time, the word “equal” does not necessarily mean “the same,” so there is room within the concept of equal protection to come to different and changing interpretations of the phrase, albeit not infinite room.

In Anglo-American law, interpretation has historically been guided and limited by the “reasonable person” standard.  Since we are all products of our times, places and circumstances, and our judgments will be affected thereby, perfect objectivity is impossible and some subjectivity is inevitable.  At the same time, unfettered subjectivity is unacceptable as it would result in the fickleness and partisanship about which the Constitutional Originalists claim to be concerned.  So, the golden mean of interpretation is the reasonable person.  An interpretation is acceptable if it conforms with what a reasonable person in that time, place and circumstance would conclude.  “Reasonable person” is a consensus benchmark, albeit one that is constantly being challenged and revised.  And as consensus on the idea and ideal of the reasonable person evolves, interpretations of the Constitution and other laws can legitimately evolve.

We have historically seen this evolution in cases dealing with public school segregation.  In the case of Plessy v. Ferguson, the Supreme Court decided in 1896 that equality under the law did not require integrated schools, and permitted segregated schools so long as they provided reasonably equal opportunities for education.  In the highly charged racial circumstances of that time, in which many white people, especially in the South, did not want to provide any public education at all for blacks, the Court deemed “separate but equal” a reasonable compromise.

In Brown v. Board of Education, the Supreme Court in 1954 decided that segregated schools had not proven to provide equal educational opportunities and, thereby, violated the requirement of equal protection under the law.  The Court also concluded that segregation was by its nature unequal and unreasonable.  Changing circumstances had led reasonable people to a changed interpretation.  The “reasonable person” in 1954 was effectively more knowledgeable and less racist than in 1896.

Along with stare decisis, the idea of a living law, and the reasonable person standard of interpretation, another basic principle of American law has been the presumption that people intend the natural consequences of their actions.  The Founders created a Constitution that requires interpretation and that for the last two hundred thirty years has been treated as a living document subject to changing interpretation as circumstances have changed.  Given the way the Constitution was drafted and filled with abstract and flexible clauses, the Founders seemingly got what they intended, a living and evolving document.  The attempt by Originalists to radically regress Constitutional interpretation back to the 1780’s is at best a hopeless attempt to put the genie back in the bottle, and more likely a fraud in which they themselves don’t really believe.  This conclusion leads to Reason #3.

Reason #3:  Judges claiming to be Originalists regularly violate their supposed Originalism to uphold radical right-wing rulings.  And that’s what definitively makes it a fraud.

This is simply embarrassing.  Justices Scalia and Thomas and would-be Justice Kavanaugh can wax eloquent about Originalism when they are using it as a pretext to strike down some progressive interpretation of the Constitution or some progressive legislation, but they are complete hypocrites when it comes to upholding right-wing interpretations and laws.  I will cite only three well-known examples.

The first is the idea that money is speech under the First Amendment, and that the First Amendment’s guarantee of free speech permits a person to spend as much money as the person wants on political campaigns and political contributions.  This interpretation makes any serious campaign finance regulations almost impossible and leaves American politics a plaything for the rich.  It is consistent with the Social Darwinian principles of the radical right-wing in America which hold that the rich should rule and those who own the country should run it.

Although the Founders were themselves elitists, the idea that money would be considered the equivalent of speech and that the Constitution would promote unlimited spending in politics was unthinkable to them. When the Founders drafted the Constitution, they hoped to keep political campaigning out of America altogether.  The historical record is clear that they hoped the country would naturally choose the best and brightest to hold political office, without political parties or partisan campaigning.  The Electoral College, for example, was originally supposed to be a colloquium of the best people who would choose the President and Vice President based on who they thought would be best for the country.[2]

Moreover, to the Founders speech was people speaking, not money talking.  There is nothing either in the Constitution or in anything the Founders have left us to reach the conclusion that spending money was considered by them to be protected First Amendment speech.  Such a conclusion is not merely faulty Constitutional interpretation and bad public policy, it is a gross departure from any Originalist interpretation.  Self-styled Originalists, such as Scalia, Thomas, and Kavanaugh, have, however, consistently supported such an interpretation.

The second example, which follows from the first, is the idea that corporations are “persons” under the Constitution, that they deserve the civil rights protections of persons, and that, in particular, they have the First Amendment right to spend unlimited amounts of money on political campaigns.  This idea is literally nonsense on its face and completely contrary to any intention of the Founders.

It is nonsense because it is universally acknowledged that private corporations are merely legal fictions that are created under state laws and that have no right or reason to exist unless allowed by state laws.  There is nothing in the concept of a corporation that resembles the human beings who are protected as persons in the Constitution.  There is also nothing in the Constitution about corporations and there are no private federal corporations.  When the Constitution was drafted, some states didn’t even allow private corporations.  Those states that allowed them kept them under strict control as to what they could do, how big they could become, and how long they could exist.  Nothing could be farther from the concept of a “person” in the Constitution.

Corporation law developed during the mid-nineteenth century, and the regulations governing them became looser over time.  Today, however, each state still has its own corporate law, so that there are fifty different definitions of a corporation, and a corporation can exist only if a state allows for it.  That is not a person.  That’s a thing or a mechanism.

In any case, the Founders had a deep distrust of corporations and hoped they would be used only for public projects that no individual or group of individuals could otherwise undertake.  The historical record is absolutely clear on this.[3]  As a result, the idea of giving corporations the rights of human persons under the Constitution would have been anathema to the Founders.  Nonetheless, self-proclaimed Originalists such as Scalia, Thomas, and Kavanaugh consistently support this interpretation of the Constitution, a misinterpretation that is consistent with their radical right-wing political views.

The third example is the idea that the Second Amendment provides individuals the right to own and keep handguns and rifles in their homes for personal self-protection, and to own and carry handguns and assault weapons in public.  This is nonsense on its face and would have been inconceivable to the Founders.  Among the many reasons, I will cite four simple ones.[4]

The first reason is that guns in those days were muzzle-loading, which meant that you had to pour gunpowder down the gun’s barrel for each shot you took.  This, in turn, meant you had to have a bag of gunpowder handy in order to shoot your gun.  The problem is that gunpowder in those days was extremely volatile.  It might explode with the slightest change in the humidity or barometric pressure.  It was not until the mid-nineteenth century that additives were discovered that made gunpowder safe to store.  As a result, few people during the 1780’s were foolish or foolhardy enough to want to keep a bag of gunpowder in their home.  In turn, few people would have had any reason to keep guns in their home.  So, the Founders would not have conceived the Second Amendment as protecting the right to keep a gun in one’s home since almost no one did.

The second reason is that guns in those days were a very inefficient means of self-protection.   Guns had to be reloaded after every shot, and reloading took several minutes – which would be very inconvenient if you missed your attacker with your first shot.  In addition, most guns were smooth-bored muskets that were extremely inaccurate.   To shoot them, lead balls were shoved down the barrel with some gunpowder.  When the gunpowder was ignited with a match, the ball would rattle down the barrel and wobble into the air.  It was almost impossible for even the most practiced gunman to hit anything at which he was aiming if it was more that a few feet away.

Muskets were effective weapons when shot en masse simultaneously by one bunch of people in a line at another bunch of people.  What was in effect a wall of lead would emerge from the group of shooters and would mow down the other group.  It did not matter that no one hit the person at whom he was aiming because as part of the wall of lead, each person’s ball would likely hit someone.  That is why most military attacks in those days consisted of lines of musketeers shooting at each other.  Muskets were good only if you were in a group, such as a militia, not if you were shooting by yourself.

As a result of the inefficiency of guns for personal self-defense, few people, and very few townspeople, owned guns.  They relied, instead, on spears and hatchets for self-defense.  Militias stored guns and gunpowder in armories that were generally a safe distance away from the populace of a town.  That is why British soldiers were marching to Lexington and Concord when the shot that was supposedly heard around the world and that ostensibly signaled the beginning of the American Revolution was fired at them.  The British were aiming to confiscate guns and gunpowder of the local militias that were stored in armories in those towns.

That first shot probably missed its target, as did most of the subsequent shots fired by colonists hiding behind trees as the British marched eighteen miles down the road.  Some four thousand colonists fired almost continuously all day long at around fifteen hundred British soldiers who were in the open and at relatively close range.  As a result, seventy-three soldiers were killed and 174 were wounded.  There could not be a better illustration of the inefficiency of guns in those days, and why people did not carry guns around with them or keep them in their homes.  It is insulting to think that the Founders would have promoted a Constitutional amendment to protect gun rights that nobody wanted.

The third reason, which follows from the first two, is that the wording of the Second Amendment clearly applies the right to bear arms to militias and not to individual persons.  That wording and that meaning clearly follow from the historical facts recited above about guns and gun ownership, facts that any Originalist smart enough to be on the Supreme Court should know.

The fourth reason is that the Founders could have had no idea of the weapons of mass destruction and the mass production of those weapons that exist today and that the Supreme Court has proclaimed to be protected by the Second Amendment.  The Founders could not have anticipated assault weapons.  So, according to an Originalist interpretation, the Constitution could not conceivably protect the right to own them.

Nonetheless, despite the obviousness of these reasons, so-called Originalists such as Scalia, Thomas, and Kavanaugh, in a manner that is inconsistent with their Originalism but consistent with their radical right-wing political agendas, support gun ownership rights that the Founders could not have intended and that the words of the Second Amendment could not mean.

Conclusion.  Fraud at the highest levels is the highest level of fraud.  Originalism is just such a fraud.  It is so obviously lame that it would be pathetic if it weren’t so harmful.

[1] I have written a blog post on this website that discusses the development of the differences between conservatives and right-wingers.  It is “Do unto others before they do unto you: The Devolution of Conservatism from Burke to Trump And the Evolution of Pragmatic Liberalism from Madison to Obama.”

[2]I have written a chapter on this in my book Was the American Revolution a Mistake (Authorhouse, 2013). It is “Choice #5:Perfecting a Government for an Imperfect Society in the 1780’s-1790’s:Was the Constitution a Mistake?”

[3] I have written a chapter on this in my book Was the American Revolution a Mistake (Authorhouse, 2013). It is “Choice #8: General Incorporation Laws, 1830’s-1880’s: Was the Corporate Revolution Necessary and Proper?”

[4] I have written a blog post on this issue which is posted on this website.  It is “History as Choice and the Second Amendment: Would you want to keep a musket in your house?”

Dreamers and Misdemeanors: Amnesty and Honesty. Adverse Possession as the American Way of Life.

Dreamers and Misdemeanors: Amnesty and Honesty.

Adverse Possession as the American Way of Life.

Burton Weltman

Prologue: An Argument on behalf of the Dreamers.

I am writing this in early February, 2018 in the midst of the national debate about what should be done with the so-called Dreamers, undocumented immigrant children who were illegally brought to the United States by their parents and who have grown up as Americans.  Depending on how you define Dreamers, there are between some 800,000 and two million of them.  I present herein an argument on their behalf.

Illegal is not Dishonest.

One of the talking points of the xenophobes who are opposed to allowing so-called Dreamers to remain in the United States is that allowing the Dreamers to stay would be giving them and their parents a reward for illegal behavior.  Xenophobes have couched the debate in terms of amnesty versus honesty, denigrating those who support the Dreamers’ right to stay as favoring an ignominious amnesty, and congratulating those who oppose the Dreamers as upholding the principles of honesty.  The debate is portrayed by the xenophobes as dishonest law breakers versus honest law supporters.

I think the xenophobes have got it right that the debate is about honesty versus amnesty.  I just think they have it the wrong way around.  Honesty is defined by Webster’s Dictionary as being fair and straight-forward.  By this definition, the Dreamers are the honest ones.  They have not done anything underhanded or unfair.  The overwhelming majority of them have lived upright and productive lives in the United States.  They may be illegal, but they are not being dishonest.

It is their xenophobic predators who are being dishonest.  And I think the debate is better seen as between faith breakers and faith makers, a matter of honesty is as honesty does.  It’s the Dreamers who are the honest faith makers and their opponents the dishonest and dishonorable faith breakers.  The Dreamers were brought here as children, are in this country on good faith, and are just doing what most good young people here do to be successful.  It is the xenophobes who are breaking faith with the Dreamers.  In turn, I do not think the Dreamers should be seen as needing amnesty.  They just need a fair construction of the law.

Illegal is not a Crime.

There is a fundamental distinction in our legal system, going back to the Middle Ages, between what is termed malum in se and malum prohibitum.  Something that is malum in se is considered evil in itself and is deemed illegal because it is evil.  Something that is malum prohibitum is considered inconsistent with the public welfare or disruptive of the public welfare, and is deemed illegal essentially because it is inconvenient.

There is also a fundamental legal principle going back to the Middle Ages that considers something as your right if you have been doing it continuously and it is not harmful in itself, i.e., is not a malum in se.  That means if something is merely a malum prohibitum, you can gain the right to do that thing if you have been continuously doing it.  Just because something is illegal, that is, it is not authorized by the law, does not necessarily make that thing a crime.  And it may even become legal under the appropriate circumstances.

Trespassing on somebody’s land is the classic example of a malum prohibitum that becomes a legal right if you do it continuously.  If you regularly walk or drive across someone’s land for long enough with at least the implied knowledge and/or acquiescence of the landowner, the landowner will eventually no longer be able to prohibit you from entering and traversing his land.  You have gained the right to cross his land by what is called adverse possession.  It takes years to gain this right, but it is an example of turning something illegal into something lawful.

For most of American history, there were no prohibitions against immigration.  Anyone could come into this land and after a period of years could apply for citizenship.  With the exception of a short and shameful period during the 1790’s when the Alien and Sedition Acts provided for the deportation of immigrants on political grounds, there was virtually no regulation of immigration until the late nineteenth century, and no immigration quotas until the early twentieth century.

Most citizens of the United States today are the descendants of immigrants who came here when immigration was either totally or almost completely free.  In the early 1900’s, laws were enacted which changed things, and essentially required you to get authorization from the federal government to immigrate into the United States. These laws made unauthorized entry into the country illegal.

What is called illegal immigration under current law is really two different things: unlawful or unauthorized presence in the United States and unlawful entry into the United States.  Unlawful or unauthorized presence in the United States is not defined as a crime.  Dreamers who were brought by their parents to this country as children may be present unlawfully, but they did nothing wrong and they have not committed a crime.  Under the law, they can be deported but not otherwise punished.  Their only offense is living, and theirs is a genuinely pro-life defense.

Unlawful entry is a crime.  The Dreamers’ parents may be guilty of unlawful entry and, therefore, guilty of a crime.  But it is only a malum prohibitum.  There is nothing inherently evil about what they did.  And both the unlawful presence of the Dreamers and the illegal entry of their parents are essentially forms of trespassing.  As a consequence, continual residence in the United States especially by the Dreamers, but also by their parents and most other illegal immigrants of longstanding presence in the country, ought to lead to the right to remain here, especially if they have otherwise been lawful residents.  The Dreamers, their parents and most illegal immigrants ought to benefit from the principle of adverse possession.

Honesty should not be a Crime.

Amnesty is for people who have committed crimes.  The Dreamers should not need amnesty because their status is not criminal.  Not a felony, not a misdemeanor, not even an infraction.  The idea that allowing Dreamers to remain in the United States and possibly become citizens is a form of amnesty is contrary to the fundamental principles of our legal system.  It is dishonest to treat them as offenders when they have committed no offense.  Unfortunately, dishonesty is not a crime in this country.  If it was, it is those who oppose the Dreamers who would be the offenders, not the Dreamers.  But if dishonesty is not a crime, honesty should certainly not be considered one. For this reason, the Dreamers should not need amnesty.

It is ironic that most of the people who are objecting to the Dreamers’ presence in the United State are descendants of immigrants who came here when immigration was essentially free, and who occupied this country in what could only charitably be called adverse possession against the real owners of the country, the Native Americans.  The occupation of the country by Europeans was actually more like breaking-and-entering with murderous force, a highest level of felony in our criminal code.  But, at this point, the Europeans’ continued appropriation of the land is justified as a so-called fact-on-the-ground, a fait accompli that represents the right of their adverse possession.

The Dreamers have done nothing so egregious as the Europeans who took this country by force and fraud from the Native Americans.  The justification that most European Americans today would give for their right to continue to live here is that European settlers (“settler” being a euphemism for trespasser) and their descendants have been here for so long, it would be unfair to send them back to Europe.  The same reason should apply to most illegal immigrants.

Since this country essentially justifies its existence on the grounds of adverse possession and continues to operate under that principle to the present day, Dreamers and other ostensibly illegal immigrants of longstanding residence in the country should not need a charitable act of amnesty to be able to stay here.  The honest thing to do would be to recognize their continued residence in the United States as a matter of right.

BW 2/6/18