Perhaps Edward Bellamy anticipated the retrospective examinations that would mark our country's culture in this bi-millennial year. Bellamy, long famous for his utopian novel Looking Backward 2000-1887, regarded the year 2000, traditionally enough, as "the closing year of the twentieth century," the ending of the millennium–not, like current political leaders, as the first year of the twenty-first century and the new millennium. In most other respects, however, this nineteenth-century social critic was far more innovative in making his predictions of the twentieth century's material and moral advances. He placed the dateline "Historical Section, Shawmut College, Boston, December 26, 2000" on his novel in 1887, and with the passage of the actual date, we can appraise the accuracy of the vision with which Bellamy himself putatively "looked backward" on it–much as the arrival of 1984 marked the occasion for numerous assessments of George Orwell's anti-utopian novel.

The hero of Bellamy's utopian novel, Julian West, awakes in the Boston of 2000 from a Rip Van Winkle-like sleep of 113 years. He gazes out upon an urban landscape and can scarcely recognize it as the same city in which he went to sleep, when he sees the new Boston's size and grandeur:

At my feet lay a great city. Miles of broad streets, shaded by trees and lined with fine buildings, for the most part not in continuous blocks but set in larger or smaller enclosures…along which statues glistened and fountains flashed in the late-afternoon sun. Public buildings of a colossal size and architectural grandeur unparalleled in my day raised their stately piles on every side. Surely I had never seen this city nor one comparable to it before…. [Then] I looked east–Boston harbor stretched before me within its headlands, not one of its green islets missing.

Even harder for the awakened West to grasp is the changed social order of 2000. West, who had been among the privileged, prosperous few in his city, finds rather that there is universal–and equal–prosperity for all. Each American annually receives a "credit card," and everyone is entitled to receive the identical amount of credit, against which he or she can draw in charging chosen purchases of commodities or services. Bellamy's so-called credit card functioned much as a bank debit card would today, if each year began with the direct deposit by the US Treasury of an identical (and generous) sum into each cardholder's account. Nor did the citizens of 2000 brook any gender discrimination: Bellamy foresaw the entry of women fully into the work force of the twentieth century, and his utopia provided equal pay (or rather equal credit) for equal work. The payment of these annual credits into each account was funded by "the nation," which in turn owned all the means of production and distribution, and so received the fruits of everyone's paid labor.

But no Marxian revolution had brought about that state of equality and common ownership. Rather, it had resulted from the ultimate, logical development of corporate America, arising from a growth pattern much like that of the continuing takeovers, mergers and aggregations of today. As Bellamy described it, writing in "2000":

Early in the last century the evolution was completed by the final consolidation of the entire capital of the nation. The industry and commerce of the country, ceasing to be conducted by a set of irresponsible corporations and syndicates of private persons at their caprice and for their profit, were entrusted to a single syndicate representing the people, to be conducted in the common interest for the common profit. The nation, that is to say, organized as the one great business corporation in which all other corporations were absorbed; it became the one capitalist in the place of all other capitalists, the sole employer, the final monopoly in which all previous and lesser monopolies were swallowed up, a monopoly in the profits and economies of which all citizens shared. The epoch of trusts had ended in The Great Trust.

The culminating political action was taken through election of the "national party," comprising a coalition of all classes.

In a word, the people of the United States concluded to assume the conduct of their own business, just as one hundred-odd years before they had assumed the conduct of their own government, organizing now for industrial purposes on precisely the same grounds that they had then organized for political purposes. At last, strangely late in the world's history, the obvious fact was perceived that no business is so essentially the public business as the industry and commerce on which the people's livelihood depends, and that to entrust it to private persons to be managed for private profit is a folly similar in kind, though vastly greater in magnitude, to that of surrendering the functions of political government to kings and nobles to be conducted for their personal glorification.

The shocking thing to Bellamy, were he to awake in 2000, would be the inexplicable increase in economic inequality that has in fact accompanied those very gains in productivity that he believed would result from steadily increasing industrial concentration. Bellamy would be surprised not by the technological progress he would see today but by the want of accompanying moral progress. To him, cooperation was the human ideal, and the unbridled economic competition of the nineteenth century was its antithesis. Probably the book's most famous passage, and imagery, is his comparison of nineteenth-century society to a towed coach:

By way of attempting to give the reader some general impression of the way people lived together in those days, and especially of the relations of the rich and poor to one another, perhaps I cannot do better than to compare society as it then was to a prodigious coach which the masses of humanity were harnessed to and dragged toilsomely along a very hilly and sandy road. The driver was hunger, and permitted no lagging, though the pace was necessarily very slow. Despite the difficulty of drawing the coach at all along so hard a road, the top was covered with passengers who never got down, even at the steepest ascents. These seats on top were very breezy and comfortable…. Naturally such places were in great demand and the competition for them was keen…. By the rule of the coach a man could leave his seat to whom he wished, but on the other hand there were so many accidents by which it might at any time be wholly lost. For all that they were so easy, the seats were very insecure, and at every sudden jolt of the coach persons were slipping out of them and falling to the ground, where they were instantly compelled to take hold of the rope and help to drag the coach on which they had before ridden so pleasantly.

Yet nineteenth-century gentility was not always hardhearted:

Commiseration was frequently expressed by those who rode for those who had to pull the coach, especially when the vehicle came to a bad place in the road, as it was constantly doing, or to a particularly steep hill. At such times, the desperate straining of the team, their agonized leaping and plunging under the pitiless lashing of hunger, the many who fainted at the rope and were trampled in the mire, made a very distressing spectacle, which often called forth highly creditable displays of feeling on the top of the coach. At such times the passengers would call down encouragingly to the toilers of the rope, exhorting them to patience, and holding out hopes of possible compensation in another world for the hardness of their lot, while others contributed to buy salves and liniments for the crippled and injured….
      If the passengers could only have felt assured that neither they nor their friends would ever fall from the top, it is probable that, beyond contributing to the funds for liniments and bandages, they would have troubled themselves extremely little about those who dragged the coach.

Bellamy perhaps would view today's socioeconomic conditions as utopia delayed but not yet denied. We now have the technology available for Bellamy's projected "credit card" society, and are approaching a cashless economy, in which women and men have at least made progress toward equality of political power and economic opportunity. We have placed a safety net on the coach, to prevent people from falling all the way down and off. One emerging twentieth-century economic trend would have been most encouraging to Bellamy: that toward the increase in ownership of corporate equities by workers' retirement funds, whether these are invested in the market through the Social Security system, as Clinton has proposed, or in the individual retirement accounts favored by Bush, or through company pension funds. Each mega-merger of giant corporations may also bring about a mega-merger of their respective pension funds. When and if the growing public and private pension funds, plus equities owned through the Social Security system, attain majority ownership and control of corporate America, some form of Bellamy's utopia might still arrive. The "Great Trust" foreseen by Bellamy may come to be owned ultimately by its workers and retirees.

I first read Looking Backward in about 1947, upon the recommendation of my high school history teacher, close to the sixtieth anniversary of the book's publication. I expect that new readers are less frequent now, half a century later. Yet Looking Backward was a leading bestseller in the generation that witnessed its first publication. In a 1935 survey commissioned by Columbia University, Looking Backward was ranked, both by educational philosopher John Dewey and by leading US historian Charles Beard, as the most influential American book of the previous half-century. (On an international scale, Dewey and Beard ranked its influence second only to that of Marx's Das Kapital.) Julian West's story richly deserves reading or critical rereading–perhaps in an edition that can be purchased with the credit cards of the twenty-first century.

In campaign speeches George W. Bush repeats Al Gore’s defense of his 1996 campaign fundraising phone calls from his government office–“there is no controlling legal authority”–so often that it’s become a stock line in Bush’s stump remarks. Attorney General Janet Reno’s recent refusal of Republican requests to refer Gore’s alleged violation of federal law to an independent counsel gave the GOP an opening to heap even more verbal abuse on Gore. Gore’s words, spoken at a press conference three years ago, although including a phrase common enough among lawyers, were widely perceived at the time as defensive or evasive. His use of the phrase was judged by many commentators to have been a political mistake of the first order.

Ironically, it was also a legal mistake. There was and is “controlling legal authority” that actually favors Gore: It is the Constitution of the United States. The law he allegedly violated–Section 607 of the US Criminal Code–would very likely be found unconstitutional if it was ever tested in court.

Section 607 makes it a felony “for any person to solicit or receive any contribution…in any room or building occupied in the discharge of official duties.” Attorney General Reno determined that Section 607 covers only “hard money” campaign contributions. Gore testified that he believed that the sums he was soliciting were “soft money.” Thus, Reno concluded there was nothing to prosecute and no reason to appoint a special prosecutor.

But Reno’s narrow technical explanation for exonerating Gore did not dispel, and may have compounded, the fallout from the “no controlling authority” rationale. A compelling constitutional authority is a much firmer vindication.

The constitutional failing of Section 607 is that it does not require proof of criminal intent. Section 607 says “any person who violates this section shall be fined under this title or imprisoned not more than three years, or both.” The three-year maximum sentence makes every violation of Section 607 a felony–even when those involved had unintentionally failed to comply with the law’s technical requirements. The Federal Criminal Code (like that of most states) defines a felony to include any offense punishable by imprisonment of more than a year. Every felony is also an “infamous crime” as that term is used in the Constitution. (The Fifth Amendment guarantees that no person may be prosecuted for an “infamous crime” unless a grand jury votes to charge him in an indictment.)

The concept of a felony that does not require criminal intent is jarring to every law school graduate who studied Justice Robert Jackson’s classic opinion in the Supreme Court case Morissette v. United States (1952). In his ruling, Jackson traces back to Blackstone’s famous eighteenth-century book of Commentaries the Anglo-American concept that a crime requires a “vicious will” in addition to a prohibited act. Jackson states the governing principle this way: “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”

Applying this principle, the Supreme Court threw out the conviction of Morissette, who had been found guilty of the crime of “converting” (i.e., stealing) government property because he had taken and sold some rusty and apparently abandoned bomb casings that were lying around the grounds of a military bombing range. The Court roundly rejected the trial judge’s instruction to jurors that Morissette’s belief that the casings had been abandoned by the government was no defense against the criminal charge of stealing government property. The Supreme Court ruled that proof of a criminal intent on Morissette’s part was required to convict him of being a thief.

The due process clause of the Fifth Amendment was designed to preserve the fundamental principles of fairness that the Anglo-American legal tradition recognized in Thomas Jefferson’s time. The lawyers who framed, adopted and ratified the due process guarantee of the Bill of Rights were steeped in the study of Blackstone and would surely have considered a requirement to prove criminal intent for an infamous crime a fundamental principle of Anglo-American jurisprudence, a part of the “due process of law” that their Bill of Rights guaranteed.

The due process clause, along with Blackstone’s Commentaries and cases such as Morissette, thus provides “controlling legal authority” that should protect the Vice President, or any other officeholder or citizen, from being prosecuted under the felony-without-fault provisions of Section 607. The Vice President and the nation would have been better served had the Attorney General recognized this as a controlling basis for denying the requests for an independent counsel–and had she done so three years ago, before Gore invoked the infelicitous phrase that there is “no controlling legal authority.”