Why History Matters Now
Commonweal celebrated its fiftieth anniversary in 1974. Across the country, but perhaps especially in the San Francisco Bay Area, the anger, exuberance, and idealism of the sixties were souring into disillusionment and disaffiliation. That year, I began graduate studies in history and humanities at Stanford. As a student of American intellectual history rummaging around in little magazines such as the Nation, the New Republic, and Dissent, I stumbled across Commonweal. Since then it has been a lifeline for me, at first because it confirmed my anxious hope that the phrase “Left Catholic intellectual” was no oxymoron, and then because the magazine has provided a forum for diverse yet distinctively Catholic perspectives on political and social issues. I write as our nation holds its breath, waiting to see whether we will confirm our commitment to democracy or swerve toward some unknown alternative. Having been invited to reflect, as a historian, for this centennial issue, I will briefly recount my own odyssey toward becoming a Commonweal Catholic before explaining why history is particularly important now, both for understanding the wrong turns taken recently in American politics and law and for envisioning a just democracy.
My conservative upbringing included twelve years of parochial school. I served as an altar boy, sang in a traditional Gregorian boys’ choir, and subscribed to William F. Buckley’s National Review. Too young to think much about Vatican II as it happened, I first encountered progressive Catholic ideas thanks to the efforts of a teacher named Joyce Burton, who brought a spirit of inquiry to our high-school religion classes and ignited my interest in moral theology. At Dartmouth College, I learned right away that such questions were out of fashion in Anglo-American analytic philosophy, so I shifted my focus to government, literature, art, and eventually the history of ideas, where I was free to study the issues that engaged me.
I continued attending Mass more or less faithfully, even though the priest who ran the Newman Center at Dartmouth was a better fundraiser than homilist. During those years—from “Cambodia spring” of my first year, 1970, to Nixon’s dispiriting landslide in 1972—the war in Vietnam changed my politics dramatically. I renounced the National Review but struggled to find a political home congenial to my still-firm Catholic faith, a home with room for both radical egalitarianism and respect for private property, something like the position first sketched in Pope Leo XIII’s Rerum novarum (1891) and elaborated later by the U.S. Catholic Bishops in Economic Justice for All (1986).
I knew about the Berrigan brothers, Robert Drinan, and Michael Harrington, but at Dartmouth I didn’t personally know anyone whose ideas aligned with theirs. Uneasy with the burn-it-down nihilism of some and the gleeful hedonism of many other members of my generation, I was attracted more to the ancient concept of “autonomy,” meaning literally “self-rule,” than to the too-simple notion of freedom from all constraints. The ideas I found most compelling, in addition to the gospels, were Rousseau’s ideal of the general will, the early Marx’s concept of man as a cooperative “species being,” and the philosophical pragmatism of Dewey and especially James. In James’s brilliant Varieties of Religious Experience, I found the American source of what later came to be known as existential phenomenology, the grounding of faith in experience rather than dogma or syllogism. But what way of life would be consistent with those ideals? What was my vocation?
Since I had devoted almost as much time in high school and my first year in college to participating in debate as to playing baseball, most people assumed I was headed to law school. A conversation with the dean of Dartmouth College, who had practiced law in New Haven and headed the admissions office at Yale Law School, changed my mind. When I asked him about his most satisfying experience as a lawyer, he recounted having successfully defended a “two-bit mobster” who was “guilty as hell,” as he put it. Asked whether he had any qualms about that, he responded simply, “The majesty of the law, my boy, the majesty of the law.” Although I had learned as a debater to argue on both sides of any issue, and although I understood his point, I began thinking that my vocation might lie elsewhere. My most satisfying experiences had come as a student, reading and discussing books or writing papers, or as a teacher, training altar boys or choir boys or debaters or novices learning French. One of my most politically radical professors recommended against an academic career because I would only be training the next generation of the elite. But I knew otherwise. It was my education that had transformed me, and I thought that teaching and writing might offer me just the morally charged vocation I was seeking, a way of serving students and readers while also serving God.
holds its breath, waiting to see whether we will
confirm our commitment
to democracy or swerve
toward some unknown alternative.
It was the Graduate Program in Humanities (GPH) that lured me to Stanford, and it met my expectations. For two glorious years, I wrestled with Plato and Aristotle, Augustine and Aquinas, Luther and Montaigne, Rousseau and Kant, Hegel and Marx, Kierkegaard and Nietzsche, Heidegger and Beauvoir, and many more. I supplemented these texts with the conflicting interpretations in the comprehensive histories of philosophy written by the acerbic atheist Bertrand Russell and Frederick Copleston, SJ. I was somewhat surprised to find that my own readings usually aligned with the Jesuit’s instead of the Oxford don’s. William Clebsch, director of the GPH and a scholar of American religion, convened us regularly to engage in what he unironically called “high discourse” on the purposes of higher education. When I was awarded a Danforth Fellowship, I was invited to conferences devoted to questions of ethics and values. The grounding of those values, however, like the reasons for studying and teaching the humanities, remained frustratingly undeveloped—even though the experience deepened my own sense of scholarship as a vocation.
Through it all, I remember no conversations focused on religion. Among graduate students in U.S. history, too, the topic seemed to me to have become all but taboo. Although my wife and I continued to attend Mass at Stanford’s Newman Center, few homilies addressed Catholic social teaching. For all those reasons, Commonweal, whose pages were filled with lively articles on topics that mattered to me, offered an oasis. When Commonweal editor Peter Steinfels presented, in his fine book The Neoconservatives, an argument parallel to the one I had advanced in a seminar paper on the founders of the Public Interest, I realized that the folks at Commonweal were speaking to me.
Before entering graduate school I had read a little book by the Oxford historian E. H. Carr, What Is History? I found his answer persuasive: it is a practice of interpretation. Historians can never make up their facts. Within the boundaries of the available evidence, however, historians cannot avoid engaging in hermeneutics. A fact, to use Carr’s image, is like an empty sack. It cannot stand up without the meaning that a historian provides. Such historical interpretations, of course, are always subject to debate, but no one is entitled to her own facts.
That is why, in the fall of 2024, history matters. For more than a decade, a spectacle has been unfolding before our eyes. Interpretations have escaped the boundaries of evidence. It is the ethical responsibility of historians to insist that, inescapable as interpretation is, history untethered from facts becomes a masquerade. In politics it is not only the Big Lie of Donald Trump’s election denial and his and his allies’ baseless insistence that all the indictments issued for his illegal activity are politically motivated “witch hunts.” The masquerade is also evident elsewhere: in the concerted effort of some school boards to ban books and shape history teaching to their liking; on the fringes of the internet, where fantasies pass for reality; and in books written by right-wing provocateurs and published by mainstream presses. These efforts to whitewash U.S. history require suppressing inconvenient facts such as genocide, slavery, and white male supremacy and replacing them with the comforting fiction of heroes who brought peace and prosperity to the world. What we need instead is a frank reckoning with injustice, including the appropriation of Indian lands, the enduring effects of centuries of enslavement, and the lingering remnants of earlier beliefs that consigned women to second-class status. There is much in the record of American history worthy of praise; there is also plenty to criticize.
In law, the most consequential rejection of serious history is the blatant mythmaking that goes under the name of originalism, a brand of partisan jurisprudence that serious historians reject. Because I have written about our bitterly partisan politics in several earlier essays in Commonweal, I will focus here on the fictions being presented as history in the law.
The Supreme Court of the United States has gone rogue. Throwing out precedent, logic, and common sense, the recent decisions of the Court’s conservative majority have outraged the Court’s minority and bewildered almost everyone in the community of legal scholars. Troubling as many of the Court’s recent decisions have been, the most dangerous of all might be Trump v. United States, the case in which the Court claimed that the president of the United States must enjoy broad protections from criminal prosecution for “official acts” performed while in office. That ruling is invoked to shield the former president, already convicted of thirty-four felonies and under indictment for several other unlawful acts, from facing any immediate consequences for his role in inciting the unprecedented January 6 attack on the nation’s Capitol.
That decision, despite the Court’s attempt to legitimate it with references to Alexander Hamilton’s interest in a strong executive, is inconsistent with any understanding of the original intent of the Constitution. Almost every eighteenth-century American, having chafed under an autocratic king and his equally autocratic royal governors, feared a chief executive granted too much independence, and everyone agreed that the separation of powers between the legislative, judicial, and executive branches was the best defense against tyranny. Thus, not only the idea of a single, authoritative, “original meaning” of the Constitution but also the idea that the president, immune from prosecution for “official acts,” effectively stands above the law are laughably inconsistent with professional historians’ understandings of eighteenth-century American history. Although academic historians disagree passionately about many issues, almost all agree that the ideas undergirding originalism are a cynical ploy concocted to confer authority on a fantasy. The simplistic ideology of originalists has never been the law of this land or any other. The attempt to elevate it above our immensely complicated historical record deserves opprobrium rather than pious genuflections by our nation’s highest court.
The replacement of Joe Biden with Kamala Harris and Tim Walz has made Trump’s election somewhat less likely. Should he return to the White House, however, Trump would certainly attempt to pardon himself, along with everyone else involved in his and his allies’ months-long efforts to overturn the results of a legitimate presidential election. Millions of Americans heard the president invite violence and watched with horror as the insurrection of January 6 unfolded on our television screens. Republican as well as Democratic lawmakers condemned the president, who was impeached a second time. Dozens of those who participated in the attack have been convicted. Yet the Supreme Court’s ruling in Trump may allow Trump to escape criminal accountability for these crimes. What has happened to the American legal system?
The blunt answer is that much of it has been captured by very wealthy donors who have worked for decades to hijack legal education to serve their own interests. The Federalist Society—a conservative cult committed to undoing a tradition of jurisprudence stretching from the eighteenth century through the Progressive Era, the New Deal, and the 1960s to our own day—preaches the gospel of greed, otherwise known as unregulated corporate capitalism, as the authentic American Way. That view of law requires overturning an unbroken chain of rulings stretching back beyond the nation’s founding and persisting into the present. As Cathleen Kaveny pointed out recently in Commonweal, the Loper Bright decision empowering judges to overturn the authority of regulatory agencies such as the EPA, the FCC, and the ICC represents the culmination of a decades-long right-wing crusade to deny the legitimacy of economic regulation itself and to establish the sovereignty of corporations to do as they wish.
Meanwhile, District of Columbia v. Heller (2008), an outrageous originalist ruling that overturned centuries of precedent on the constitutionality of regulating gun ownership, answered the prayers of the National Rifle Association. The Court disregarded all those precedents, as well as the explicit text of the Second Amendment, which specifies that it is members of militias, not individuals outside the context of those eighteenth-century amateur military organizations, who are guaranteed the right to “bear arms.” Invoking the world of flintlock muskets to legitimate owning AK-15 assault rifles is problematic enough, but deliberately distorting the words of the Second Amendment showed as clearly as any other decision the shameless partisanship behind so-called originalism.
Distinguished legal historians such as Akhil Amar, Nikolas Bowie, Saul Cornell, Alison LaCroix, William Novak, Noah Rosenblum, Reva Siegel, and Ganesh Sitaraman have refuted originalists’ claims concerning not only the eighteenth-century founding of the United States but also the complicated unfolding of American law during the following two centuries. Commonweal readers interested in originalism should consult an authoritative account published this year, Jonathan Gienapp’s Against Constitutional Originalism. The Historians Project at the Brennan Center for Justice, directed by Thomas Wolf, provides rich resources for those interested in tracking—and countering—the Roberts Court’s far-reaching assault on American history.
To put it simply, there never was a single, shared, definitive “original understanding” of the Constitution at the time of its writing and ratification. The document itself and the Bill of Rights were both the products of complicated negotiations among people with incompatible convictions and different aspirations. They disagreed with each other passionately. The resulting documents, rather than being brought down from Mount Sinai, sparked contentious arguments from the beginning. The Federalist Papers, which originalists often treat as holy writ, were pamphlets cobbled together on the fly by Alexander Hamilton, James Madison, and John Jay to persuade New Yorkers to ratify the Constitution. Historians have shown that many of the arguments advanced did not even persuade all three authors. Hamilton feared the people and wanted an oligarchy controlled by wealthy bankers and merchants. Madison, like his friend and ally Thomas Jefferson, wanted a representative democracy controlled by independent yeoman farmers (even though Jefferson and Madison hardly fit that model themselves). Some of the founders, passionately opposed to slavery, agreed to allow the execrable institution to survive—although the slave trade was to be outlawed after twenty years—only because the delegates from South Carolina and Georgia promised to walk out if the issue of abolition even came to the floor of the Constitutional Convention. Some delegates to the Convention opposed the very idea of an upper house of Congress, let alone a Senate comprising two representatives from every state, from the least to the most populous. Delegates from small states such as Rhode Island and Delaware, however, fearful that big states such as Massachusetts and Virginia would dominate the new nation, insisted on two senators and on the anti-democratic Electoral College, which has enabled candidates who lost the popular vote, including George W. Bush in 2000 and Donald Trump in 2016, to win the presidency. In short, there was no “unitary understanding” of the Constitution at the moment of its origin, which renders the Court’s appeals to such a singular understanding meaningless.
There are plenty of alternatives. The tradition of legal realism, which originated in attacks on legal formalism by both the cynical nihilist Oliver Wendell Holmes Jr. and the idealistic egalitarian Louis Brandeis, came to maturity at around the same time that Commonweal was founded. Realists such as Benjamin Cardozo helped legitimate the New Deal. Before Vatican II, Catholics under the spell of neo-scholasticism criticized legal realists for abandoning natural law, which they insisted must be preserved as an unchanging foundation for legal theory and practice. With its roots in the writings of James and Dewey, legal realism went into a brief eclipse after World War II, along with the rest of the pragmatist philosophical tradition. It returned in the later decades of the twentieth century, as thinkers such as Hilary Putnam, Richard Bernstein, Joan Williams, Nancy Fraser, and Roberto Unger resurrected the earlier tradition as an alternative to the sterility of Anglo-American analytic philosophy and legal theory. Since Vatican II, many Catholic thinkers have come to accept the legitimacy of weighing outcomes as a complement to the underlying principles of the law, and Catholic jurists such as William Brennan played an important part in shaping the Warren Court’s progressive jurisprudence. More recently, former Supreme Court justice Stephen Breyer has defended legal pragmatism against originalists, and a New Legal Realism has gathered momentum on both sides of the Atlantic. Scholars and jurists are arguing again for integrating both inquiry into the purposes intended by legislatures and considerations of law’s consequences. Originalists resist such considerations because they complicate making decisions on the basis of ideology rather than evidence.
Five of the six Catholic members of the Roberts Court are conservatives. For that reason, many Americans—and many Catholics—assume that the Court’s recent rulings are consistent with Catholic teaching. That is an error. It is true that the tradition of Catholic social thought, at least from Leo XIII’s Rerum novarum to the present, offers ideas that can be appropriated by both parties. Only a small, and shrinking, majority of American Catholics has voted for Democratic candidates in recent years. The Church’s defenses of property rights and opposition to abortion appeal to many Republicans. On the other hand, the Church’s insistence that along with rights come social obligations, particularly the obligation to do justice to the poor, appeals to many Democrats. Ever since the 1960s, the Catholic hierarchy’s emphasis on vexed issues of sexual morality has blurred essential features of Catholic social thought that should be kept in focus. Catholic teaching has condemned not only Marxism and state socialism but also unregulated market capitalism, offering an alternative ideal in which intermediate institutions such as the family, labor unions, and voluntary associations play an important part in securing for every individual a chance to live a life of virtuous flourishing.
The Church’s moderate communitarianism explains the willingness of post–WWII Christian Democratic parties in Europe to ally themselves with Social Democrats in creating the generous systems of social provision that have guaranteed for their citizens universal medical care, education, public housing, old-age and unemployment insurance, and job training. The 1965 Vatican II document Gaudium et spes insisted that “economic activity is to be carried on...within the limits of the moral order” rather than with attention only to growth, productivity, and efficiency. It built on many precedents, including not only Rerum novarum but also the American Catholic Bishops’ 1919 plan for social reconstruction and John Ryan’s books A Living Wage (1906) and Distributive Justice (1916). Gaudium et spes condemned “so-called economic laws” that reduced workers to instruments of capital, called for a living wage, and affirmed workers’ right to form labor unions. Sollicitudo rei socialis (1987) and Pope Francis’s Laudato si’ (2015) underscored those principles. Francis’s exhortation Evangelii gaudium (2013) excoriated “an economy of exclusion,” “the idolatry of money,” “a financial system which rules rather than serves,” and “the inequality that spawns violence.”
“The great danger in today’s world,” Francis wrote, “pervaded as it is by consumerism, is the desolation and anguish born of a complacent yet covetous heart, the feverish pursuit of frivolous pleasures, and a blunted conscience.” Lest anyone miss the point of that critique, he continued, “We can no longer trust in the unseen forces and the invisible hand of the market. Growth in justice requires more than economic growth.” Justice instead requires “a better distribution of income, the creation of sources of employment and an integral promotion of the poor which goes beyond a simple welfare mentality.” Attempts “to increase profits by reducing the work force and thereby adding to the ranks of the excluded” are but a “new poison.” In sum, the guiding assumptions of most neoliberals in the Democratic Party as well as the GOP and the Roberts Court are inconsistent with the central social teachings of the Catholic Church. In contrast to Milton Friedman’s influential and disastrous imperative that firms consider only stockholders’ returns, Church teachings align with rising demands to consider the interests of all stakeholders, including not only workers but also consumers and the natural environment.
Commonweal Catholics, no matter how much we might disagree about issues ranging from abortion, papal infallibility, the ordination of women, and transubstantiation, should be able to agree on certain central ideas. We must, as the American Catholic bishops wrote in 1986, “situate particular interests within the framework of a coherent vision of the common good. The latter is not simply the sum of particular interests”—as free marketeers insist that it is—“rather it involves an assessment and integration of those interests on the basis of a balanced hierarchy of values; ultimately it demands a correct understanding of the dignity and the rights of the person.” Efficiency and productivity must not be taken as the only measures of social justice. Neither should they be the touchstones of Catholic jurisprudence.
This article was published in Commonweal’s hundredth-anniversary issue, November 2024.
No comments:
Post a Comment