A cameo. When we get to the q a part there is a microphone in the back of the room and we will let you know when it is time you will line up there to ask your questions. It is always worthwhile to revisit the documents that set us apart from british rule and created the framework for our government. Our guest speaker, kermit roosevelt, explores these documents and shares interpretation of their meaning and relevance. Professor roosevelt teaches constitutional law at the university of pennsylvania law school. He was born and raised in d. C. And attended harvard and yale. Before joining, he served as a law clerk to Supreme Court Justice David souter. His book sets standards by which citizens can determine whether the Supreme Court is abusing its authority to interpret the constitution. He also teaches creative writing and is the author of two novels. In the shadow of the law and allegiance. Please join me in a round of applause for professor roosevelt. [applause] thank you. Thank you all for coming. Happy super tuesday. [laughter] as you know, it is super tuesday, the democrats are in the process of choosing their nominee. Later on we will have the general election and choose our president. That choice will reflect something about who we are as a nation. That is what i want to talk about tonight. Who we are, how we decide who we are and what our sense of ourselves means for our relationship to the constitution and for our sense of ourselves as a country. So, who are we . We are americans. This is the most american slide i could find. [laughter] what does it mean to be an american and how we do we decide that . What gives us a sense of what america means . The first point i want to make is that stories tell us who we are. They organize the world. This is true of individuals. When people think about their lives they think about them in narrative form. They find meaning and experience. They find themes, heroes, villains. James joyce said this is the artists task, transforming the daily bread of experience into the radiant body of everlasting life. In that sense we are all artists. We are the authors of our own stories. Not because we decide what happens we dont get to decide that but because we decide what it means. We decide how it is interpreted and usually we pick interpretations that flatter ourselves. We end up being the heroes of our own stories. This is true for individuals and also true for nations. People have a sense of National Identity that comes from stories about the nations history. That is what im going to talk about. I will talk about different stories of america. Where they come from, how they relate to each other, but before i do that want to say one thing about stories. They are powerful. I am a law professor and before that i was a lawyer. I was doing litigation and it was my job in some ways it is still my job to make people agree with me about the correct understanding of the law. I learned something while working as a lawyer. That has been reinforced from experiences with legal scholarship which is that sometimes, on some issues, you can present a strong, logical argument and people will change their minds. Sometimes the voice that persuades is an analytical voice. That is not true all the time. In particular it is not true if youre dealing with an issue that relates to peoples identity, their sense of self. In those situations you can make the most logical argument in the world and it will not have any effect. Because logic does not make people change their minds about who they are. There has been social Psychology Research on this and it shows people are actually incredibly resistant to logical argument if it conflicts with their narrative of the world. If the conflicts with the story they tell themselves to make sense of the world. They did a study where the two people with certain beliefs and it was about climate change. They took skeptics and believers and they took each group and exposed them to facts that suggested their beliefs were wrong. They got different information and in each case they got information that challenge their belief. You would have thought this would make them less confident. The result was the people on both sides expressed greater confidence in those beliefs. They felt a threat to their identity and they responded by reaffirming it. Those beliefs were not just factual beliefs about the world, they were beliefs that signal membership in a community. Because of thats they were part of peoples identity, part of the story they told themselves. Heres an ordinary factual question is it raining outside or not . Your belief about that does not relate to your identity and with questions like that people do change their mind if they are presented with contrary evidence. With other things, beliefs that are connected to identity, you cannot dislodge those beliefs by facts. The analytical voice does not persuade. So what does . This is another thing i learned as a lawyer. I think it is the most import thing i learned as a lawyer. It is what i try to teach my students in the creative writing seminar i teach. If you are wondering why there is a creative writing at the law school, this is why. The narrative voice persuades. To change beliefs connected to identity, to the story we tell ourselves about the world and our place in it, you have to offer a different story. You have to offer a story that opens a different way of understanding the world. You can change peoples minds if you talk to them the way their interior voice does and for most people, the interior voice is not giving arguments, it is telling stories. Stories tell us who we are both as individuals and as countries. Stories are powerful. Frequently they cannot be dislodged by reasoned argument or logical analysis. You might have heard some people say it takes a theory to be a theory, i say it takes a story to be a story. What i want to do now is tell you some of the stories about america. About who we are. These different stories say Different Things about the past but, perhaps more important, they have different ideas of the essence of america. What it means to be american. Im going to compare them, analyze them, i will be doing some logical argument i cannot really get away from that but in the end, i hope you like the same story i do. Not because of the arguments but because it is a better story. It shows us in a better light. It is more inclusive, optimistic. It is, i am going to say, more american. I am going to start with what i call the standard story. According to this story the american history, the history of america as a nation, starts with the declaration of independence. Here we go. In a standard story should be similar this is what we say in our civic religion or basic celebrations of america. The standard story says long ago, back in 1776, our great founders wrote down some wonderful principles. They called these selfevident truths. All men are created equal, endowed by their creator with inalienable rights, including life, liberty, and the pursuit of happiness. Our founders fought a war for those principles. They built the society around them and the constitution was their vehicle for carrying those principles into execution. Hold on. Theres the constitution. The constitution, according to standard story, sets out our fundamental values. What are those . Liberty and equality. It tells us what it means to be american. It tells us who we are. For more than 200 years, our constitution has served us well because of the wisdom of the founders. Our tasks as americans is to live up to their example. To fulfill their vision of america. To be true to the principles that started in the declaration of independence were codified in the constitution. American history, the standard story, has not always been easy. We have not always looked up to those principles. We had slavery which is in direct conflict with the declaration of independence. But we fought a war for those principles again. The civil war was fought in the name of the principles of the declaration of independence. How do we know that . Abraham lincoln said so. That is an actual photo of lincoln delivering the gettysburg address. It is not very good but he is there somewhere. [laughter] in the gettysburg address lincoln looks back to the declaration as the birth of the nation. It takes a little bit of arithmetic to figure this out but he is giving the gettysberg address in 1863 and says four score and seven years ago and subtract that from 1863 and what you get . You get 1776 and the declaration of independence. Lincoln invoked this principles and says the nation is conceived in liberty and dedicated to the proposition that all men are created equal. The civil war is a challenge but also an opportunity for americans to move forward, to realize the promise of the declaration. Of course, the standard story concedes that even after the civil war, work is not done. Racism and discrimination persist. The Civil Rights Movement rises up to challenge the darker aspects of american life. It does so again in the name of the declaration. The Civil Rights Movement sponsors the march on washington in 1963. Martin luther king gives his i have a dream speech from the steps of the Lincoln Memorial. This is a much better photo. [laughter] he talks about the founders, the architects of our public, the people who wrote the magnificent words of the constitution and declaration of independence. They promised, he said, all men, black as well as white would be guaranteed unalienable rights of life, liberty, and the pursuit of happiness. We have fallen short, he says, he points to segragation, to the right to vote, and reaches of the promises made. He dreams of a day when we will rise up and live out the true meaning that all men are created equal. Maybe that day has not come yet. The standard story concedes but it is getting closer because the story of america is living up to the ideals of our founders. The ideals that started us on this journey. We move forward but we are guided by the past, by the spirit of 1776. We remember, as john f. Kennedy said, that we are the heris of that first revolution and carried that banner. The flag of freedom, the flag of equality. Here you have three men marching forward and in the background, the betsy ross flag. This is what i am going to call our standard story. This is what we usually tell ourselves to explain who we are. We are the heirs of the first revolution. American history starts with that declaration. It starts on a high note and we are basically trying to sustain it. We are trying to live up to the ideals of the founders and signers. We are following their wisdom and for 200 years it has pointed the way to a better america and a more perfect union. I am going to tell you a couple of other stories. First, want to say a little bit about this one. The first thing to note is that it is a backward looking story. The declaration is the central document in the story, it may be more important, more american, than even the constitution. The foundersconstitution is important too. The constitution has the answers to our current problems. America seems to be adrift, people think. What is the solution . Go back to the wisdom of the founders. Focus on the constitution. Focus on the original understanding of the constitution. Live up to the ideals of the founders, be more like them, the way forward is by recovering the greatness of the past. First, backward looking story. Second, this is a Success Story. Yes, we have had our difficulties but if you look back, america always succeeds. We always triumph and why is that . It is because of the wisdom of the founders and the ideals of the declaration. The civil war is probably the best example. It is a terrible war, yes, that the ideals of the declaration triumph and we improve. We take a big step forward toward more fully realizing those ideals. Backwardlooking, success, and story continuity. It goes from the signers of the declaration, to the drafters of the constitution, to us in the present day. We are the heirs of that revolution. This is related to the fact it is a Success Story because it is telling us we are the same people we have always been. We are the same nation. The signers of the declaration, the drafters of the constitution, they got it right. We are living in the world they designed. We are fighting for the ideals they championed. This is a nice story in a lot of ways. You can see why it appeals to people, i think. It says we are basically good, we americans. We start with good ideals and we dont always live up to them but we are Getting Better. There is a sense of inevitable progress and when things look dark answers exist if we look back to find them. There is authority in the past. In a moment of unity everybody can rally around, everyone can sharon. Everyone feels a connection to the founding. One problem is that it really is not true. I know i said logical arguments do not dislodge stories but im going to give you a logical analysis of the story. Which might not change your mind. I hope that it will provoke you to question the story a bit. Im going to present you with some claims you will find surprising. That you dont hear in the standard story, you dont here very much at all. Heres the first one. The declaration of independence does not actually set out our modern values of liberty and equality. In fact, it is consistent with slavery. This should be a surprise. I dont think anyone else says this. Often if you are the only person saying something, its crazy and you are wrong. But hear me out. I have become quite convinced of this. Generally speaking people say, of course, there is contradiction between the declaration of independence. But let us look at the declaration and think about what its values actually are. Here is the preamble of the declaration at this is what people Pay Attention to. That is appropriate. After the preamble and a little bit of political philosophy we get grievances against king george. Bad things he has done. Those are not as important. That is evidence the founders are setting out in support of their argument but they are not the argument. The declaration of independence is an argument of political philosophy. There is an argument that tries to establish the companies are justified in declaring independence and throwing off the authority of the british empire. To understand the declaration the crucial thing is to understand how the argument works and the use it makes of these fundamental principles. I am going to talk about the argument the declaration makes in a second. First, i want to talk about the argument it does not make which is the against slavery. Why do people think the declaration is inconsistent with slavery . Because of these selfevident truths. They are endowed by the creator with inalienable rights including life, liberty, and the pursuit of happiness. Now, are those principles inconsistent with slavery . You can start with them and make an antislavery argument. It would go like this. People are created equal therefore no one is entitled, by birth, to demand someone else be his life. Someone might have the power to enslave someone else. Doing so could be considered a form of liberty just doing what you want to do but it conflicts with the slavesnatural right celebrity liberty. That is an infringement on natural rights. That is true. This is not justified because in the political world there are lots of infringements upon natural liberty. If you use your liberty to steal someone elses property, we will lock you up. We take away your liberty. If you commit a serious crime, will take your life. That is what we do even to our own citizens. Members of our Political Community because those deprivations of natural rights are justified. In fact, the hallmark of Civil Society is that when people come together to form a society they surrender aspects of their natural liberty. Their natural liberty is taken away from them. This is true of the people who form a community, of the insiders, and even more true of people outside our Political Community. How does our nation relate to noncitizens . Sometimes quite harshly. If you are an enemy soldier, we take your life without worrying too much about your natural rights. That is justified because we are protecting our Political Community. Different factors come into play when we talk about outsiders. The argument gets even more complicated. It is even more complicated if we are talking about a system where slavery exists already and the choice is not should we start slavery, but should be and slavery. It is possible to think and Thomas Jefferson did think best that the answer to the first question was no, slavery should never have come to america. The answer to the second question was also no. Given that slavery existed maintaining it was the best option. So, what if i said so far . I said that from the principles of the declaration you can get an argument that slavery is a violation of human rights. That does not actually tell you slavery is wrong. Some violations of natural rights are justified. That is particularly true if youre talking about outsiders, people not members of your Political Community, and more true if it exists already. To get to the conclusion slavery is wrong you need another step. You need to say the justifications put forward for slavery are inadequate. What were the justifications . Some people supported slavery as a positive thing. They said slaves get christianity, civilization. Then there were people who did not think slavery was good but nonetheless thought slavery in america should be continued. They said slaves, if freed, could not be assimilated into American Society. They would pose a danger to whites. This was jeffersons view. He said should be give our sleds freedom and a dagger . Those are terrible justifications. They are not true. You dont need much of an argument to review them but my point is the declaration does not give you argument of that form. It gives you a totally different argument. It gives you a different argument because it is not concerned with the liberty and equality of individuals. It is concerned with the relationship between political communities. Between one people who wanted to dissolve the political bands and assume separate and equal station. This is what the declaration says in its first sentence. It tells you what it is about. The laws of nature and natures god entitle individuals to liberty and equality . No. The laws of nature and natures god to separate and equal status. Status as nations basically. The argument the declaration of independence does make is not about individual rights, it is about national independence. That is what the declaration of independence and not declaration that is why it is called declaration of independence not to declaration of rights. They are not there to generate an antislavery argument. We saw what that argument would look like. What is the argument the declaration actually makes . It is an argument about when one people is entitled to declare independence. It is about when legitimate Political Authority can be thrown off. That is when people are entitled to rebel. How does that argument go . When are people entitled to rebel . In order to answer that question we need to know where Political Authority comes from. We have to know how it is acquired before we can say when it can be rejected. That is with the selfevident principles are about. Where does Political Authority come from . One answer would be fromrkykyky. Some people are just born kings. They are born to rule. That is a clean the British Crown might make. The British Crown says, you cannot declare independence, king george is your king, he was given the authority by god. This is what it means to say as the british monarch does king by the grace of god. Rebellion against him would be unjustified. It would be a sin. That is the theory of the divine right of kings. It is a bit of a strawman in 1776 because the english monarchy is no longer claiming find authority. The idea has been attacked by thinkers from milton to thomas payne in common sense but jefferson thinks he needs to deal with it. He does with this proposition all men are created equal. Nobody is born to rule. This is america, there are no kings here. This looks like to modernizea broad moral principle. It is a compressed argument of political philosophy. We are going to see this again with the declaration. Two modernize because we are not as steeped in political philosophy as the founders were, we tend to think of these as broad moral principles. They were understood at the time tightly compressed arguments of political philosophy. All men are created equal, there are no kings. This is what i am going to call jeffersons equality. There are no kings but are there slaves . Yes, of course. Jeffersons equality tells you in a literal sense kings do not exist. There is no such person as a king who is entitled by birth to demand your obedience. Of course slaves do exist. Jefferson owned several hundred. Other founders did and by the standards of the age you are if you freed your slaves when you died. Jefferson did not do that. He freed a small number on his death and they were his children. [laughter] but back to jeffersons equality. It is not the idea there are no slaves. Slavery is not inconsistent with jeffersons equality. That only tells you that people are born equal. They are born equal but do not have to stay that way. People might acquire authority over each other. They might do this legitimately when people form a society by dividing themselves into the governors and governed. The governed have an obligation to obey. Or they might do it through force. They might enslave each other. But nothing in the idea of being born equal says that cannot happen. It does not even say it should not happen. That is a separate argument you have to have. Jefferson and the declaration reject the idea that some people can say to others, by your birth you are a slave and i am entitled, legitimately, to demand obedience. It does not reject or conflict with the idea that some people can say, by your birth you are inferior and in your best interest to be my slave. I can give you christianity, civilization. That was a common justification at the time and it fit pretty well with jeffersons views. His views were complicated but he did believe blacks were inferior, that slaves, if freed, cannot survive on their own or assimilated into culture and would pose a threat to whites. Jeffersons equality is very limited. It is the idea of political equality as a starting point. Political quality in the state of nature. It is not saying that people will end up equal or free and not saying governments should try to make them so. It is just a theory, just a principal, about how people can legitimately become subject to an obligation to obey. It is not a moral principle about equal treatment by the government. If you think about that, and its relation to slavery, the principle that all men are created equal says Different Things to different people. To king george asserting divine right to rule, it says youre wrong. That is not how people are created. But to a slave who says what about my equality . The declaration answer is well, that is complicated. We would need a different argument to decide whether or not this justified in the declaration does not give it. The declaration is not interested in that question. Exactly the same thing is true of the principle that people have inalienable rights including liberty. Once again, this is a compressed argument of political philosophy and it is responding to a claim the British Crown might make. That is the claim of an insoluble social contract. This claim would be yes, people start out equal they start with natural rights including liberty but when they form a society, they irrevocably surrender those to the government. This is the social contract theory of Thomas Hobbes rather than john locke and it would have been familiar to people at the time. If you accept that theory, the colonists would say you have violated my liberty and king george would respond, you cannot complain i am violating liberty because you surrendered your liberty forever along with all natural rights in exchange for my protection. And again, the declarations principles say, you are wrong. The colonists did not surrender irrevocably. They could not have because that right is inalienable. Something that is inalienable is something that you cannot give away. If you look at the virginia declaration of rights, you get a more expanded statement of this principle. It says people have inalienable rights including liberty of which, by no compact, can that divest themselves or posterity. Liberty cannot be given away. Now, you can imagine a slave saying that sort of the same thing. Saying, you have violated my liberty but the answer the declaration regifted that is, well, thats complicated. Sometimes they are justified. We lock up criminals and there is no philosophical error in that. Is it justified to enslave people . Of course not, but the reason it is not justified is not that liberty is inalienable. Its the exerciseing dominion over another is wrong. And nobody said as king george might have that slaves voluntarily surrender liberty. The principle that liberty is inalienable is when the colonists can invoke against the crown against an indissoluble social contract we form a society and lose the right to change it. Again, it does not offer much help for the slave. Then we get to the heart of the declaration. People create governments to secure their inalienable rights. When the government threatens those rights people can alter or abolish their government. This is the right of rebellion. This says that if the government threatens the rights that are supposed to protect, you can change it. This is the heart of the declaration not the principles that we find earlier on. If the government threatens your rights, you can change it. Rebellion and when it is justified is what the declaration is about. It is a declaration of independence. It is about the status of the colonies which are particular communities with respect to the crown. Another Political Community. This, you might think, has relevance to the slaves. At the colonial governments protecting the rights . Of course not. But again, this is on another page. They dont claim to. They were not created by the slaves. Here is another fundamental point about the declaration. It is all about relations in the Political Community. Relationships between the governors and governed. Legitimate authority is based on the consent of the governed. The argument of the declaration is about when that consent can be withdrawn. Slaves never consented. They are held in bondage by force. They are outsiders. The Supreme Court would say they are perpetual outsiders, the descendents of slaves can never become citizens of the United States. They can never be members of the Political Community. The argument the declaration is making about when it Political Community can be dissolved, when a legitimate government to be abolished, has nothing to say about the situation of slaves. What have i said so far . The principles of the declaration are not broad moral principles the way we often think. They are narrow political principles. Theyre pretty technical, compressed, this would have been familiar to people at the time. In fact, if you look the reception of the declaration at the time, people did not think the preamble was announcing anything revolutionary. These are not the ideals we now think of as fundamental to our identity. They are not our modern values of liberty and equality. They are not even directly in conflict with slavery. So, what next . What about the foundersconstitution . This is the Founders Hall in philadelphia. Is this a statement of our principles as americans . Of the values we hold dear . No, its not. The it is not for two reasons. Second, the constitution is not our constitution. There is no line from the declaration through the constitution to us. We are not the heirs of the founding revolution. That point is farther down the road. The main thing i want to focus on is the content of the constitution. What i just told you of the declaration of slavery is that, im not sure anyone else agrees. What i am going to tell you now is relatively well accepted. Even if you suppose the declaration contains these broad moral principles, they really did not make it into the foundersconstitution. The foundersconstitution contains very few strong statements of principles or values. We talk about it as if it does. We sort of think that the founding constitution gathers together our american ideals, that it tells us what it means to be american. If you look at the document that was written, there are no undiluted principles. If there is an overarching theme of the constitution, its compromise. Theres compromise between big states and small states. That is how we end up with two houses of congress. One has senators and one has one based on population. It is compromise between free states and slave states. That is most notably the 3 5 compromise. What about the values of liberty and equality . Equality is hardly in there at all. It is there mostly as a right of state. States are guaranteed equal representation in the senate. Liberty does a little bit better. There is freedom of speech, freedom of religion, the bill of rights. But like all original bill of rights, the right to free speech and free exercise of religion are available only against the federal government. The states can basically do what they want to their own citizens. Another thing about the constitution in relation to liberty and equality, i said the declaration is not inconsistent with slavery. It is not concerned with slavery. It is neutral on the topic. Because the argument it makes simply does not relate to the practice of slavery. But the foundersconstitution is proslavery. There is the fugitive slave clause which says a slave escaping to another state cannot thereby acquire freedom but must be returned upon demand of the person to whom services do. This strips the state of some degree of sovereignty in order to prevent them from freeing slaves. There is also a provision that protects the International Slave trade until 1808. And most important, there is the 3 5 compromise. This enhances the power of slaveholding states in the federal government. It gives them more representatives in congress, more votes in the Electoral College. Four of the first five president s come from the slave state of virginia and Thomas Jefferson would have lost the election to john adams of massachusetts if not for the 3 5 compromise. So, what have i said . Being an american nowadays means being committed to certain values. Most notably the values of liberty and equality. I mean that in the sense that these are aspirations. We think people should be free, people should be equal, people are entitled to complain if the government infringes on their liberty or treats them unequally. But you dont actually find those values by looking back to the declaration and the foundersconstitution. They are not there. One problem with the standard story is that it is imposing on the past a set of values that did not really exist. If you want to look back to the declaration and constitution and tell a story about an american identity that was born then and endure through the years, you can do it but it is not a happy story. If you are looking for a continuous theme in american history, the theme is putting unity ahead of justice. Putting unity ahead of equality. This is a story about the shadow of slavery hanging over the nation. It is what i call the darker story. This story starts with the declaration which brings together the free states and the slave states. America is going to fight for freedom as one. We have to do that, have to do that to achieve independence because the states acting separately cannot defeat the british. This is the most powerful empire in the world. It means that free states and slave states have to join together and that means the declaration is not going to say much about slavery. Jeffersons first draft does say something. First, it blames king george for the existence of slavery in america. Jefferson did think slavery should never have come to america. Then it also blames king george for inciting slave rebellions. Jefferson thought slaves cant be freed. That would be dangerous. The final draft takes up the attack on slavery itself but leaves in the complaint that king george encourage slaves to rebel. Even if the declaration announces principles inconsistent with slavery, i said i dont think it does, it very deliberately does not criticize the practice. You can see it, its in there, it gets taken out. Accepting slavery is the price of independence. It is also the price of union. After the revolution, we get the articles of confederation. Those are basically a treaty among independent states. The people who drafted the articles of confederation remembered the tyranny of the british. They set out to create a Central Government that is too weak to become a tyrant. They succeed in that. But the Central Government that they create is also too weak to govern effectively. Government is needed. Once again, we have to get everybody on board. We have to get the free states and slave states together. If we cannot get one single, dominant nation, the european powers they pick up the isolated states one by one. France, spain, england will come in and dismember the United States. The foundersconstitution accepts slavery. It protects it in the ways i mentioned before. It rewards slave states with extra power in the federal government. One of the things i always do with my constitutional law students is i take the first few weeks of class, we read through the foundersconstitution clause by clause, we discussed just about every sentence going to the bill of rights and then i ask them, what do you think . Is this a glorious statement of american principles that has surfaced well for over 200 years . Wars and it or is in an agreement without . [laughter] they laugh. People always laugh. They left because they are surprised. Theyve been taught the standard story about how wonderful and successful the constitution has been and most of them have not heard the phrase, covenant with death and agreement with ho hell. Of those two descriptions, i think garrisons is closer. The foundersconstitution is a deal. You get an american nation but you must except slavery. That is a bargain with people its a deal with the devil, unlike most it does not work out very well. So whats happened . The foundersconstitution is proslavery but not as proslavery as it couldve been. Not like the confederate constitution. It does not entrench slavery forever. Its protection of the International Slave trade, expires in 1808. Slavery gets pushed down the road. That road leads where . To the battlefields of the civil war. The civil war happened because the foundersconstitution compromised and did not resolve the issue of slavery. I mean that first in a political sense. The constitution couldve taken a position one way or the other. It could have said slavery forever. Maybe that constitution would be ratified. Or it could have said slavery will end. Not immediately, that would not have been ratified, but in a number of years. They could have done something to set slavery on a path to extinction in a way everyone understood. The most obvious way to do that probably would have been to modify the 3 5 compromise so that it changed as the years went by. The slave states would inevitably lose their power over the federal government. That mightve been acceptable but it was easier to say nothing. That is what the founders did. The constitution is structured to support slavery. In the early years, the slave states controlled the National Government. Up until 1860 there are only two president s the adamswho oppose slavery. Then things change. The north grows in population. Even with the 3 5 compromise the free states start exceeding the slave states in the house of representatives. The north is increasingly controlling the federal government and the president cy. The south both for James Buchanan and he defeats john fremont. Freemen, free soil, free land, it was a good slogan. But he lost. In 1860, the south votes for john breckenridge. He does not win. Abraham lincoln wins. Abraham lincoln, to an extent, is not the southern choice. [laughter] in 10 of the 11 states that are going to secede lincoln gets zero popular votes. Not a Single Person votes for Abraham Lincoln. Why is that . Because he is not on the ballot. Nobody is willing to suffer the threat of violence in the social opprobrium that would come from putting him on the ballot in those states. In the 11th, virginia, he gets 1. 1 of the popular vote. The south does not like Abraham Lincoln. The south sees the National Government falling into the hands of antislavery forces. They fear the National Government is going to end slavery. Which the republicans were trying to do. They wanted to do it. They did not think it could do it directly but they had a strategy. Seeing that coming the south succeeds. The civil war comes about in part because of a political failure. You can also see it as a consequence of a moral failure, a consequence of accepting slavery. Abraham lincoln understood it that way. He said the civil war is a judgment upon us. That will last until every drop of blood will be paid by another drawn with the sword. After the civil war, we face a great task what is it . You think it might be achieving true equality and for a while, during reconstruction, that did seem to be the nation what the nations doing. There is a brief period where we are working toward Racial Justice but then National Mission changes. It changes back to what it was with the declaration, with the constitution, and what it was at the beginning of the civil war. That starts is a war for slavery on the side of the south but for union. The National Mission changes back to unity. Bring the north and south together. Heal the wounds of the civil war. How do we do that . In the same with the declaration and constitution did by sacrificing Racial Justice. With the compromise in 1877, federal troops withdraw from the south, the integrated government set up are overthrown by force, and southern whites take back control. It is southern whites like these. This is what people call the redemption of the south. What it means is the promise of reconstruction go unfilled for about 100 years. There is a different version of the american story the focus is on this. It takes redemption at the founding moment of america. There is a movie about the civil war and its aftermath the follows two families one from the north one the south they fight on opposite sides but they are both americans. When the war is over the reunion of the nation symbolized by two marriages between these families, the bonds of matrimony knitting up the winds of war. The movie is birth of a nation. From 1915, it is about the birth of an american nation. It is telling us that america broke apart into two legitimate sides. It came back together in the moment of redemption and that we can all go forward happily together because in the end, we are all american. It was controversial but very popular in its day. Including with president woodrow wilson, the First Southern president to hold since the civil war. If you look at it today, its pretty horrifying. The part of the movie were tensions are rising, things are getting worse, that is reconstruction. There is a climax. That is a battle in which the ku klux klan defeats the integrated militia and police force. That is the legitimate government of the South Carolina town where the movie is set. Then there is the falling action which shows you that everything will be all right. That occurs the day after the battle. The town holds a new election, the freed slaves turn out to vote, they are met by armed klansmen standing in front of the polling booths and they turn around to go home. That is supposed to be a relief. The resolution is the wedding. This reaffirms the nation can go forward as one, not so much because we are all american but because we are all white. This is the dominant story for a while. This is the standard story. From 1915 to about 1980 when scholars start to reassess reconstruction. That is in response to other changes that make it harder to see redemption as the founding moment. The Civil Rights Movement comes along in the mid20th century, the warren court, this is often called the second reconstruction. Congress enacts the Civil Rights Act prohibiting Racial Discrimination, the Supreme Court issues brown v board of education which bands segregation in public schools, loving against virginia. Here are some headlines. The second reconstruction, like the first, is divisive. The 1960s, 1970s, are tumultuous. The america is being taken from them and the Republican Party campaigns against the warren court. Ronald reagan talks about welfare queens, strapping young bucks using food stamps. He said the Voting Rights act was accumulation of south. He kicks off his president ial campaign praising states rights where civil rights workers were murdered. Reagans presidency is notable because it brings so many people together. Obviously the Electoral College overstates the spis. Reagan wins two crushing victories. The pattern repeats itself. It is fading i think and if you want to tell a story progress you could tell it in that way. But if you want to look back to the declaration and founding for a basic theme of the american story, it is not liberty, equality, it is purchasing unity at the price of Racial Justice. If you listen closely, you can still hear that they. My main point is that if you look back with clear eyes, the story of america is not so much a burst of idealism that casted light into the present day as a primal sin. A betrayal that echoes down the ages. Our standard story tries to put a happy gloss on this but it is not really accurate and the more accurate it gets, the closer it gets to the birth of a nation which is much less happy. I want to explore why this is so. How did this come to be our standard story . Wise is the one we tell ourselves . It is largely because of this man. Abraham lincoln puts the declaration front and center. He did this really consistently through his life but most notably during the civil war. Why does he do this . Part of the answer is necessity. Lincoln is come at the time of the gettysburg address, fighting slavery. Like i said, the civil war did not start as a war against slavery. Lincoln famously said, if i could preserve the union by freeing all the slaves, by freeing them of the slaves, i would do it. But the time of the gettysburg address it has become a war for freedom. What is the justification . The battle hymn of the republic casts it in religious terms. As christ died to make them holy let us die to make them free. Religion is on the other. In the south, people are appealing to religion. What can lincoln invoke that is undeniable . Not the foundersconstitution. That does not protect equality. It protects slavery. Lincoln turns to the words of the declaration. Even though they do not really have the values hes appealing to either. Second, by harking back to the declaration, lincoln is making a strategic move. He is saying the civil war, like the revolution, is a war for america. It is a war for the idea of america conceived in liberty and dedicated to the proposition all men are created equal. I dont have part of this address, it is a war to determine whether a nation so conceived and dedicated could long endure. At the time of the civil war pretty much everyone looks back fondly on the declaration. Following the revolution there was a purge and the people who opposed independence were largely driven from the country. The people who are left support the declaration. They look back fondly on the revolution and it lincoln is trying to convince people that in the civil war the unit is fighting for the declaration. Union is fighting for the declaration. It is a good thing if you can convince people the declaration and foundersconstitution are on your side. A letter people subscribe to those documents. After lincoln this practice continues. In 1963, Martin Luther king makes his i have a dream speech. It starts by echoing the gettysburg address rhetorically. It is given from the steps of the Lincoln Memorial and king starts out by saying five score years ago. Lincolns counting back to the declaration but king is counting back to the emancipation proclamation. Then he goes back farther. He talks about the architects of our republic. The people who read the constitution and the declaration of independence. They promised, he said, that all men black and white would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness. Well, both lincoln and king are wrong. I have said already the declaration of foundersconstitution do not have the values theyre trying to put there. But the mistake is a little more severe even than that. Think about it. In the civil war whose side is the declaration on . The answer is actually pretty clear. It is on the side of the rebels, the south. Who marched on washington . Marching in the name of the declaration . The Civil Rights Movement did but before them the real champions of the ideals of the declaration are these guys. The confederate soldiers who marched on washington in 1863. The real heirs are the southern secessionists. This is Something Else you do not hear that often but within the professional Academic Community i think it is relatively well accepted. If you are looking for documentary evidence, it is abundant. If you look at the secession letters the Southern States sent to congress, overwhelmingly they invoke the declaration. They were right to. The heart of the declaration is not a moral principle like liberty or equality, it is the political theory that people form governments to protect certain rights and if the government threatens those the Southern States joined the revolution and then joined the union to protect rights that they valued. And high on that list was the right to own slaves. They might have feared that the british would take that away just before independence, a decision and ingrid saying slavery cannot exist and england, the Abolitionist Movement is starting. If Southern States when their independence, they no longer have to fear that britain will and slavery. When they started to fear the federal government would, they left the union in the same way they left the empire. They started the second American Revolution. Second American Revolution the civil war there is a big difference between the first revolution at the second because the rebels won the first war and lost the second. I want to talk about the similarities because these are both wars fought in the name of the declaration of independence. Under the political theory that people form governments to protect rights and can rebel if the government threatens those rights. In both cases, the right to own slaves is definitely one of the rights in peoples minds. The declaration is on the side of the south. What about the foundersconsititution . This is a little harder to see. I again, the answer is probably the south. What is supposed to happen when the states fear the federal government and take up arms to fight against it . Who is supposed to win that contest . In the minds of the founders, the answer is clear. The founders think a distant dental government might become a threat to liberty, it might start to our press its citizens. When that happens, the states stand up to defend the oywrighs of their citizens. That is what state militias did fighting off the redcoats. The revolutionary war is the model that is built into the foundersconsititution. That is what the Second Amendment is about. The wellregulated militia is supposed to protect the security of free states by fighting off the federal army. If it comes to that. Along comes the second revolution, the states stand up for the rights of their citizens, states are supposed to win. According to the vision of the foundersconsititution, the south is supposed to win the civil war. Abraham lincoln did a lot of remarkable things. But the most remarkable is this magic trick that he makes people think he is the one fighting for the declaration and the constitution when in fact he is against them. If you draw a line from the declaration through the constitution, it does not go to us. It goes to the battle south and it stops there a culturally rebel south, it stops there. We are the heirs of the people who rejected the theory of the declaration by force of arms. There are several ways to make this point, but the one i like best is an analogy to a plot device you find a lot in Science Fiction movies. You have the hero, the hero is supposed to be hunting down some deviant, something that is not human, a clone or alien and looks human but it is not. You see this in blade runner. This is maybe a spoiler. Anyway, the hero hunts this thing down, kills it, looking at the body, and realizes, that is human. Then he realizes something out. If that is the human, who am i . I am the robot, i am the clone, i am the bad guy. That is the kind of realization that i want you all to have about america and the declaration. What happens in the civil war . Lincoln tells us, we are fighting slavery, fighting the enemy of the declaration. That is what we hunted down and killed, this deviant, unamerican idea. But actually, it was the declaration itself. The body on the ground at the end of the civil war is the declaration of independence. It is the foundersconsititution. They are dead and we are the ones who kill them. What does that mean . It means several things. First, our american identity does not come from the declaration of independence. The moral principles we think of are not there. Jeffersons equality is not our equality. Second, american identity does not come from the constitution. Our values are not there either. Not in philadelphia in 1776, not in philadelphia in 1787. Pennsylvania, maybe. But gettysburg, the civil war, reconstruction. The civil war and reconstruction are a rupture in american history. The rebels win the first revolution. According to the regulation the right according to the declaration, they are supposed to win the second but they dont. It is the and of the foundersconsititution. The constitution that we get after the civil war after be construction amendments is a break from the foundersdesign and it is just as big a break as the break created by independence from the british empire. The founders had a basic vision that said the federal government is dangerous. The federal government is a threat to liberty. States protect liberty, state militias will fight off the tyrannical federal government. Things did not turn out that way because the federal government one, but they also did not turn out that way because it turned out to the tyrants. The state suppressed people. It was the federal government that fought for liberty. The right construction armaments reflect this new desk the be construction amendments will fleck to this new reality the reconstruction amendments reflect this reality. They give us lincolns a quality, not jeffersons equality. It is worth noting noting that the reconstruction amendments were forced on the south. We upend the foundersunderstanding, we change the structure of our government, and we do this not really we say this, but not really through the ordinary article five process, we do this by dissolving southern legislatures, putting the south under military control, and not allowing their representatives to return to congress until they ratify these amendment. What happened in the civil war is the rebels lost, but the revolutionaries one. What i mean is at the beginning, i said, both sides are fighting for their understanding of the status quo. The south says we have the right to own slaves, if we think you will take that away, we can leave. The north says, you cannot leave, we are a union. Both sides are fighting for their status quo. But at some point i will say more later the vision of the union changes. They are not fighting for that union, they are fighting for freedom. At this point, Jefferson Davis is leading a rebellion and Abraham Lincoln is leading a revolution. A revolution is what you get with the reconstruction amendments. The reconstruction constitution is different from the foundersconsititution. And it is the one that we live under. Another thing i do with my students in the beginning of the semester is i ask them to list important Supreme Court cases, the ones that define the constitution. Typically, they come up with mostly the same cases. They say brown, loving, cases about Racial Discrimination. They say miranda, gideon, cases about the rights of criminal defendants. Maybe they say roe v. Wade, the right to abortion. More recently, hodges, the right to samesex marriage. All of those cases have one thing in common. None of them could have happened under the foundersconsititution. All of those cases are people asserted Constitutional Rights against the states, not the federal government. Which is something they can do only after the civil war, after reconstruction, after the 14th amendment. What are the battles that gave us the nation we live in today . Is it bunker hill . No. If you are thinking about the constitution we have today, it is gettysburg. Who are the soldiers who died for our rights . The minutemen and Colonial Army . No. If you are thinking about the rights we enjoy today, the rights enshrined in those Supreme Court decisions, it is the union army. The best way to put this, the foundersconsititution was a failure. It has not served us well for 200 years. It lasted about 70 years, it failed cataclysmic lee, and it was set aside. We got a better constitution. We became a different nation. The revolution, Abraham Lincoln says, brought forth on this continent a new nation, but it was not this one. It was not our america. Our america is reconstruction america and the war that gives birth to it is the civil war. Why dont we say this . Why dont we look to be construction as the source of our American Values . When lincoln could not. Reconstruction was in the future for him at a future he would not live to see. It was the new birth of freedom that he prophecy in the gettysburg address. It did not exist when he spoke, it was coming. What about my new thinking . What about Martin Luther king . There is something odd about the i have a dream speech. King talks about the founders and declaration of independence, they made a promise, he says, that america is dishonoring. He points to segregation, he points to racebased denial of the right to vote. Live up to your promise, he says. I have a dream that we will rise up and let out of the true meaning of all men are created equal. What is ought about this is twofold. First, segregation, denying blacks the vote, those are consistent with the declaration of independence. They are consistent with the foundersconsititution. Slavery is protected by the foundersconsititution. These things are fine in 1789. But in 1963, there is something they are not consistent with. That something is not a distant aspiration, not a gleam in Thomas Jeffersons eye. They are inconsistent with the reconstruction constitution. The 14th and 15th amendments say states cannot do these things. The Supreme Court said that about racial segregation in 1953, in 1957 the present sense the airport to little rock to enforce its orders. It is strange that came that kings dream is that the nation will live up to the words that all men are critical, rather than looking down and reading the 14th amendment, reddened more recently added directly on point, leading the 15th amendment, which says no Racial Discrimination with respect to the right to vote. There is a promissory note that the nation is dishonoring in 1963, but the note is not the declaration of independence, it is to be construction amendments. Martin luther king knew this. There is evidence, if you look at his writings, you will find an early one that he wrote in high School Called the negro and other constitution and which he prefigures what he says of the i had a dream speech but talks about reconstruction, not the declaration. He switches at some point. He switches focus of his rhetoric. Why . As i suggested, it is strategic. The declaration is something all americans subscribe to. The call to live up to the declaration means something to everyone. The call to to live up to the reconstruction amendments, not too much. Particularly in 1963. Even now, reconstruction is divisive and you can see this by asking yourself, who won the civil war . Most people will say the north. I think maybe they see that even more consistently if they are from the south. But that is clearly not the right answer because the north was not fighting in the civil war. From one perspective, it is a war between two nations come up between the United States and confederate states. That is the confederate perspective. From the other perspective, it is a war between the United States and traitors. In either case, the winner is the United States. It is us. We want the civil war. But we dont say that and why dont we say that . Because looking back, not everyone feels affiliated with the winning side. Here is a way to think about that that i think makes the point. You know the slide, that is our flag you know the flag, that is our flag. You know this flag. Most people would think, that is our flag. That is the betsy ross flag. You know this flag. Probably fewer of you would say that is our flag. Some people would. Even if you would not say that, you know that flag. But what about this . Does anyone say, this is my flag . No. This is the fort sumter flag. This is the union flag in the civil war. I got a put on a mug to bring to my constitutional law class but i had to custom design at. Custom designed it. You can get a 50 star flag on a mug easily. You can get a betsy ross flag easily. You can get a Confederate Flag on a mug. But if you want the Union Civil War flag, you have to special order it. People do not identify that strongly with the union side in the civil war. That is to even more so for reconstruction. To say that is us, that is where we came from, yes, it is divisive. When you talk about the declaration, when i first started thinking about this, that seemed obvious, it seemed unavoidable, it seemed unobjectionable. Of course everyone can rally behind the declaration and of course you cannot expect the same support for reconstruction. But actually, i think neither of those things is true. When we tell ourselves this story, when we locate our ideals and the declaration of independence instead of reconstruction, we are not just using a convenient fiction, we are doing what i said the darker story of america shows, which is we are purchasing unity at the price of Racial Justice. Can everyone rally behind the declaration and foundersconsititution . Can everyone say Thomas Jefferson stated my ideals . Not the real that the region. Not the real foundersconsititution. Not maybe the Thomas Jefferson we have come to know through detailed historical analysis and genetic testing. [laughter] black americans or any american who things compromise with slavery is unacceptable might find it hard to value about that. To think of those documents as what creates their american identity. Black americans are not included in the promises of the declaration. They are not included in the rights of the foundersconsititution. The Supreme Court said exactly that in the dred scott case. Blacks are not included, they cannot be descendents of slaves can never be u. S. Citizens. The spirit of76 is a three white men walking together. This is painted in 1876, the end of reconstruction. The nation decides to look back to independence, forget the unpleasantness, move forward together, look back to a moment when everyone felt unified. What about the construction . It is divisive. But who feels excluded . Not blacks anymore. The 14th amendment overruled the dred scott decision. That is the point of birthright citizenship. There can be no hereditary outsiders. No matter who your parents were, if you are born here, you are one of us. That is inclusive. Who feels excluded . It is people who identify with the losing side in the civil war. People who identify with traitors who made war against the United States to preserve a regime built on slavery. That is the truth. It no longer seems obvious to me that we should agree to locate our american identity and the declaration instead of reconstruction. I think if we will exclude some people, if we will celebrate something that marginalizes them, it is probably better to marginalize the traitors. I think we should look at reconstruction and see ourselves, we should ask who one of the civil war and answer, we did. The people of the United States. We should maybe half the battle hymn of the republic as our national anthem. We should have the gettysburg address instead of the declaration of independence as our founding document. We should be able to say that these men are the real heroes of our constitution. And the more i thought about that, i think the case for black Union Soldiers as the heroes of our constitution is pretty strong. Why . The civil war starts as a war for union. It ends as a war for freedom. How does that ship occur . No one is entirely sure, but i believe the answer is black military service, because once you have black Union Soldiers fighting for their country, military service has always been a path to full citizenship going back to the roman empire. It became obvious to lay did come out to the other people leading the union, if you have black Union Soldiers, you can no longer have slavery when the war ends because blacks have to be citizens and participants in the American Society going forward. So what turns the civil war into the war for freedom . What gives us the push that lead to the abolition of slavery . I think it is black military service. So what does this mean . It means we can tell a different story about america. A story about Getting Better, like a standard story is, but it does not look back. It is not about getting closer to some mythical past. It is about Getting Better by creating a better future. Making a nation that is more just. It is not a Success Story. Not yet, maybe not ever. It is the story of an unfinished project. It is not a story of continuity. It is a story of rupture with the path. The america board in 1776 is flawed. It is flawed of necessity because compromise is required to win independence from britain, to win ratification because the delusion. It is flawed by its embrace of slavery. Then we get better. The improvement comes at a terrible cost, the civil war. But they reconstruction armaments give us a better constitution. Not immediately. Reconstruction is opposed, blunted, driven back. Generations later, the Supreme Court and Civil Rights Movement started to redeem the promise of reconstruction and we keep going. There is opposition. There is always opposition and there are mistakes and setbacks. But what makes us americans, our deepest ideal, is we keep trying. America is born in an attempt to find a better way, you escape the oppressive monarchies of europe. We dont get it right it mediate lee but we keep going. We are looking for america at the america we are looking for is not something given to us by founding fathers, it is something we make. Something we fight in ourselves. The true america is not handed down from the past, but created by each generation. Created a little better. What we can give the future is the opportunity to get a little closer than we did ourselves. That is the promise that makes us america. That is the promise we must keep. Thank you. [applause] so now i think we have a question and answer period . Thank you so much for an interesting lecture. I have one comment and one question. The comment is that actually, the emancipation proclamation was only passed because the north was losing too many battles, so that is why. After the emancipator proclamation, that is how we got black Union Soldiers. My question is this. If the 15th amendment protects the rights of all citizens to vote, why do we have in Todays Society so many antivoting problems . Thanks for the comment. The question is about the 15th amendment. The answer there the 15th amendment is pretty narrowly targeted. The 15th im emmett relates to race discrimination. For sex discrimination, we needed the 19th of may meant all amendment. Why do we have so much Voter Suppression nowadays . The 15th amendment is part of a construction almost immediately thereafter, it is a dead letter. Because there is overt and explicit refusal to allow blacks to vote in a lot of places in the country, a lot of the south, other places as well, there are problems. And eventually, the nation moves forward a little bit, you know, you cannot do this so explicitly, then, rather than literally discriminatory restrictions on the right to vote, you get tests that are administered on equally or tests that are difficult to pass, most whites dont have to pass because there are grandfather clauses, this is the origin of the phrase grandfathered in, if your grandfather was allowed to vote, you dont have to pass the test. If your grandfather was not allowed to vote, you do. Who does that effect . It it affects descendents of slaves. How do you deal with that . It turns out to be very difficult. You can have people who sue the state directly for denying their right to vote, but how do you prove that a particular test is being administered in a racially discriminatory way or a racially discriminatory motive behind it . It is hard. If you are talking about the context of an individual election, can you get a challenge to the court and a decision in time to remedy this problem . You cannot. The next election comes around and they are doing Something Else. Eventually, Congress Enacts the voting by fact Voting Rights act and one of the things it does is it says certain jurisdictions with a history of racebased Voter Suppression must get approval on the Justice Department before they can make changes to their voting laws. This turns out to be in normas the effective desk enormously effective because now rather than trying to bring these individual suits against states and trying to do things at the elections are being held, you can stop the disco mentor i practices from going into effect before hand. The Voting Rights act works well. It works so well that of the Supreme Court decides we dont need it anymore. The Supreme Court invalidates the preclearance requirement and following that, a bunch of states that have been subject to that in act a bunch of restrictions on voting, which they probably would not had that have been able to dude if they have been required to get preclearance and it turns out, it is difficult to challenge these things. The answer is, there are a bunch of people who want to restrict voting and the National Government and Supreme Court opposed that for a while, and they are not opposing it anymore. Thank you very much. Thomas jeffersons draft of the constitute the declaration of independence has a paragraph that says in part, king george has waged cruel human nature itself, violating its most sacred right of life, liberty, and persons of a distant people who never offended him, carrying them into slavery. I dont think it was Thomas Jefferson who was against slavery, Thomas Jefferson put a paragraph in the decoration it was congress, other members. That is in Thomas Jeffersons draft, i believe the notes we have say that at the insistence of represent us from South Carolina and georgia it was taken out. Jefferson does have this passage in his first draft criticizing the practice of slavery. He blames king george for
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