Transcripts For CSPAN3 Rethinking Americas Founding Narrative 20240711

Filming. Also, if youre wondering what all the equipment is in the back of the room, its cspan, so make show your nicest smile, brush your hair, get ready, just in case you get a cameo. And when we get to the q a part, there is a microphone in the back of the room, and well let you know when its time for that, and well ask you to line up this to ask your questions. In a politically restive time, its always worthwhile revisiting the documents that set us apart from british rule and created the framework for our government. Tonight, our guest speaker, kermit roosevelt, explores these documents and shares his 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 University and yale law. Before joining the penn faculty, he served as a law clerk to Supreme Court Justice David souter. His book, the myth of judicial activism, making sense of Supreme Court decisions, sets out 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, so please join me in a warm welcome for professor roosevelt and enjoy the program. [ applause ] thank you. Thank you all for coming. And happy super tuesday. So, as you know, of course, its super tuesday. The democrats are in the process of choosing their nominee. Later on, well have the general election, and we will choose our president , and that choice will reflect something about who we are as a nation, and thats 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 with the constitution and for our sense of ourselves as a country and as a people. So, who are we . Were americans. This is the most american slide i could find. But what does it mean to be an american . And how do we decide that . What gives us our sense of what america means . The first point i want to make is that stories do that. Stories tell us who we are. They organize the world for us. And this is true of individuals. When people think about their lives, they tend to think about them in narrative form. They find meaning in experience. They find themes and heroes and villains. James joyce once said, this is the artists task, transforming the daily bread of experience into the radiant body of everlasting life. But in that sense, were all artists. Were all the authors of our own stories. Not because we decide what happens. We dont actually get to decide that, but because we decide what it means. We decide how its interpreted. And usually, of course, we pick interpretations that flatter ourselves. We end up being the heroes of our own stories. So, this is true for individuals, and its also true for nations. People have a sense of National Identity that comes from stories about the nations history. And thats what im going to talk about tonight. Im going to talk about different stories of america. Where they come from, how they relate to each other. But before i do that, i want to say one more thing about stories which is theyre powerful. So, as you heard, im a law professor. Before that, i was a lawyer. I was doing appellate litigation and it was my job, and in some ways its still my job, to make people agree with me about the correct understanding of the law. And i learned something while i was working as a lawyer which has been reinforced by my 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. But thats not true all the time. And in particular, its not true if youre dealing with an issue that relates to peoples identities, to their sense of self. In those kinds of situations, you can make the best, the most logical argument in the world, and it wont have any effect. Because logic doesnt make people change their minds about who they are. Theres been some social Psychology Research on this, and it shows people are actually incredibly resistant to reasoned, logical argument if it conflicts with their narrative about the world, if it conflicts with the story that they tell themselves to make sense of the world. So they did a study where they took people with certain beliefs. In this study, it was beliefs about Climate Change, so they took Climate Change skeptics and Climate Change believers, and they took each group and exposed them to facts that suggested their beliefs were wrong. So the groups got different information. In each case, they got information that challenged their beliefs. You would have thought this would make them less confident, but the result was the people on both sides expressed greater confidence in those beliefs, because they felt a threat to their identity and basically they responded by reaffirming it. Those beliefs were not just factual beliefs about the world. They were beliefs that signalled membership in a particular community and because of that, they were part of peoples identity, part of the story that people told themselves about themselves. So, heres an ordinary factual question, right . Is it raining outside or not . Your belief about that doesnt relate to your identity at all and with questions like that, people do change their mind if theyre presented with contrary evidence. But with other things, with beliefs that are connected to identity, you cant dislodge those beliefs by facts or by logical argument. The analytical voice just doesnt persuade. So, what does . Well, this is another thing that i learned as a lawyer. I think its maybe the most important thing that i learned to teach my, students in the creative writing seminar that i teach at the law school. If youre wondering why is there a creative writing seminar at the law school . This is why. Because it actually can make you a much more effective lawyer, because the narrative voice persuades. To change beliefs that are connected to identity, to the story that 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 up a different way of understanding the world, and you can change peoples minds. You can change their selfconceptions, if you talk to them the way that their interior voice does, and for most people on these important issues, the interior voice is not giving arguments. Its telling stories. So, stories tell us who we are, both as individuals and as countries, and stories are powerful. Frequently, they cant be dislodged by reasoned argument or logical analysis. You might have heard some people say it takes a theory to beat a theory. I say it takes a story to beat a story. And 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 about the essence of america, about what it means to be american. So, im going to compare them, im going to analyze them, i will be doing some logical argument, im a law professor, i cant really get away from that, but in the end, i hope that you like the same story i do, not because of those arguments but because its a better story. It shows us in a better light. Its more inclusive. Its more optimistic. It is, im going to say, more american. But im going to start with what i call the standard story, and according to this story, American History, the history of america as a nation, starts with the declaration of independence. Here we go. The declaration. And the standard story that should be familiar to you, this is sort of what we say in our civic religion, our 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. They are endowed by their creator with inalienable rights including life, liberty, and the pursuit of happiness, and our founders fought a war for those principles and they built a society around them and the constitution was their vehicle for carrying those principles into execution. Hold on. Theres the constitution. Expect constitution, according to the standard story, sets out our fundamental values. What are those fundamental values . Liberty and equality. And it tells us what it means to be an american. It tells us who we are. And for more than 200 years, our constitution has served us well because of the wisdom of the founders. Our task as americans is basically 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 and then were codified in the constitution. Now, American History, the standard story admits, hasnt always been easy because we havent always lived up to those principles. We had slavery, of course, which is in direct conflict with the principles of the declaration, those values of liberty and equality. But we fought a war for those principles again. The civil war. That was a war fought in the name of the principles of the declaration. How do we know that . Well, Abraham Lincoln said so. In the gettysburg address. Thats an actual photo of lincoln delivering the gettysburg address. Because its such an early photo, its not really a very good one but hes there somewhere. And 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 hes giving the gettysburg address in 1863, he says, four score and seven years ago, subtract four score and seven years from 1863 and what do you get . Not 1787 and the constitution. You get 1776 and the declaration of independence. And lincoln, of course, invoked those principles, right, he says the nation is conceived in liberty and dedicated to the proposition that all men are created equal, so the civil war is a challenge, but its also an opportunity for americans to move forward, to more fully realize the promise of the declaration. Now, of course, the standard story concedes, even after the civil war, the work is not done. Racism and discrimination persist, and the Civil Rights Movement rises up to challenge those darker aspects of american life, and it does so again in the name of the declaration. So 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, you can see, is a much better photo than my photo of the gettysburg address. And he talks about the founders. He talks about the architects of our republic, the people who wrote the magnificent words of the constitution and the declaration of independence. They promised, he says, that all men, black as well as white, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness. Weve fallen short, he says. He points to segregation, to racebased denial of the right to vote, as breaches of the promise made by the declaration and he says he dreams of a day when we will rise up and live out the true meaning of all men are created equal and maybe that day hasnt come yet. Again, the standard story concedes, but it is getting closer because the story of america is a story of living up to the ideals of our founders, the ideals that started us on this journey. So, we move forward but were guided by the past. By the spirit of 1776. We remember, as president john f. Kennedy said in his inaugural address, that we are the heirs of that first revolution and we still carry that banner, the flag of freedom, the flag of equality. Were marching in the name of the declaration of independence, and if theres a picture of the true america, its Something Like a famous painting by Archibald Mcneil willard, the spirit of 76. So here you have the three men marching forward with a fife and a drum and in the background, the betsy ross flag with 13 stars arranged in a circle. So, this is what im 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. We are the descendants of the signers of the declaration, of the drafters of the constitution. American history starts with that declaration. It starts on a high note, and basically, were trying to sustain it. Were trying to live up to the ideals of the founders and the signers. Were following their wisdom and for 200 years, its pointed the way to a better america and a more perfect union. Im going to tell you a couple of other stories, too, but first, i want to say a little bit about this one. The first thing to note is its a backwardlooking story. It tells us our ideals have their or gyp in the past, at the very beginning. The declaration is the central document in the story. Its maybe more important, maybe more Truly American than even the constitution, about the founders constitution, the original constitution, that is important, too. The constitution has the answers to our current problems. America seems to be adrift, people think. Maybe we have lost our way. What is the solution . Go back to the wisdom of the founders. Focus on the constitution. Focus maybe 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. So, first, backwardlooking story. Second thing is this is a Success Story. Yes, weve had our difficulties, but basically if you look back america always succeeds. We always triumph, and why is that . Its because of the wisdom of the founders and the ideals of the declaration, and the civil war is probably the best example of that. Its a terrible war, yes, but the ideals of the declaration triumph, and we improve. We take a big step forward towards more fully realizing those ideals. So backwardlooking, success and then the third thing, its a story of continuity. It tells us theres a line that goes from the signers of the declaration of independence through the drafters of the constitution to us in the present day. We are the heirs of that first revolution, and this is related to the fact that its a Success Story because its telling us basically we are the same people weve always been. We are the same nation. The signers of the declaration, the drafters of the constitution, they got it right. Were living in the world that they designed. Were fighting for the ideals that they championed. So, this is a nice story in a lot of ways, and you can see why it appeals to people, i think. It says were basically good, we americans. We start out with good ideals. We dont always live up to them, but were Getting Better. Were succeeding. Theres a sense of inevitable progress, and when things look dark, answers exist if we look back to find them. Theres authority in the past. In a moment of unity that everyone can rally around, that everyone can share in. Everyone feels a connection to the founding, and the story emphasizes that. The problem though, well, one problem, is that its really not true. Now, i know ive said that logical arguments dont dislodge stories, but now im going to give you a bit of a logical analysis of this story which, of course, might not change your mind, but i hope that it will provoke you to question the story a bit. Im going to present you, i think, with some claims that you will find surprising, that you dont hear in the standard story, that you dont hear very much at all actually, and heres the first one. The declaration of independence does not actually set out our modern values of liberty and equality. In fact, its consistent with slavery, so this should be a surprise, right . I dont think anyone else says this, and often if youre the only person saying something, its crazy and youre wrong, but hear me out because i have ive become quite convinced of this. So generally speaking people say, of course theres an obvious contradiction between the declaration of independence and slavery. But lets look at the declaration and think about what its values actually are. So heres the preamble of the declaration and this is what people usually Pay Attention to. Thats appropriate. After the preamble and a little bit of political philosophy we get a set of grievances against king george, bad things that hes done. Those are not as important. Thats evidence that the founders are setting out sort of in support of their argument but they arent the argument. The declaration of independence is at heart an argument of political philosophy. It is an argument that tries to establish that the colonies are justified in declaring independence. In throwing off the authority of the british empire. And to understand the declaration the crucial thing is to understand how that argument works, and the use that it makes of these fundamental principles. And im going to talk about the argument that the declaration makes in a second. But first i want to talk about the argument that it doesnt make. Which is the argument against slavery. So why do people think the declaration is inconsistent with slavery . Because of these selfevident truths. All men are created equal. They are endowed by their creator with inalienable rights included life, liberty and the pursuit of happiness. Are they consistent it would go like this. People are created equal. Therefore, no one is entitled by birth to demand that someone else be his slave. Someone might have the power to enslave someone else. Doing so could actually be considered a form of liberty, that is just doing what you want to do but it also conflicts with the slaves Natural Light to liberty. So its prima fascia wrong. Enslaving someone else is an infringement on their natural rights. Thats true, so far, so good. The declaration does get you that far. But theres another step you need, which is that this infringement isnt justified because in the political world there are lots of infringements on peoples natural liberty. If you use your liberty to steal someone elses property, well lock you up, well take away your liberty. If you commit a serious enough crime, we will take your life, thats what we do, even to our own citizens, members of our Political Community. Because those deprivations of natural rights are justified and in fact the hall mark of Civil Society is that when people come together to form a society they surrender aspects of their natural liberty. The natural liberty is to some extent taken away from them. This is true of the people who form a community, the insiders and even more true perhaps of people outside out of Political Community. How does our nation relate to noncitizens . Sometimes quite harshly. If youre an enemy soldier well take your life without worrying too much about your natural rights, thats justified because were protecting our Political Community. So different factors come into play when we talk about outsiders. The argument gets even more complicated. And its even more complicated if were talking about a system where slavery exists already. And the choice is not should we start slavery, but should we end slavery . As well see its possible to think and Thomas Jefferson actually did think this, that the answer to the first question was no. Slavery never should have come to america. But that the answer to the second question was also no. Given that slavery existed, maintaining it was the best option. So what have i said so far . Ive said that from the principles of the declaration you can get an argument that slavery is a violation of natural rights. But that doesnt actually tell you that slavery is wrong because some violations of natural rights are justified, and that is particularly true if youre talking about outsiders, people who are not members of your Political Community, and its maybe more true if slavery exists already. So to get to the conclusion that slavery is wrong you need another step. You need to say the justifications put forward for slavery are inadequate. Now what were the justifications . Some people supported slavery as a positive, good thing. They said slaves get christianity. They get civilization. Then there were people who didnt think that slavery was so good, but nonetheless thought that slavery in america should be continued. They said slaves, if freed, couldnt survive on their own. They couldnt be assimilated into american society. They would pose a danger to whites. This was jeffersons view. Jefferson said, should we give our slaves freedom and a dagger . Now, obviously those are terrible justifications. Theyre not true. You dont need much of an argument to refute them. But my point is, the declaration doesnt give you any argument of that form. It gives you a totally different argument. And it gives you a different argument because it is not concerned with the liberty and equality of individuals, its concerned with the relationship between political communities, between one people who want to dissolve the political bands that have connected them to another and assume separate and equal station. This is what the declaration says in its first sentence. It tells you what its about. It says the laws of nature and natures god entitle who to what, entitle individuals to liberty and equality . No. Entitle them to equal treatment by the government . No. The laws of nature and natures god entitle peoples, that is political communities, to separate and equal status, status as nations, basically. So the argument that the declaration of independence does make is not about individual rights. Its about national independence. And thats why i say declaration of independence and not a declaration of rights. But of course we do have these principles about people being created equal, and endowed with inailenable rights. They arent there to generate an antislavery argument because you dont find that argument in the declaration. We saw what that argument would look like, its not there. So what is the argument that the declaration actually makes . Its an argument about when one people is entitled to declare its independence. Its about when legitimate Political Authority can be thrown off. That is when people are entitled to rebel. So how does that argument go . When are people entitled to rebel . Well, in order to answer that question we need to know where legitimate Political Authority comes from. We have to know how its acquired before we can say when it can be rejected and that is what the selfevident principles are about. So where does Political Authority come from . Well, one answer would be from birth. Some people are just born kings. Theyre born to rule. And thats a claim that the British Crown might make. So the British Crown might say you cant declare independence, george is your king, he was born to rule, he was given that 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, in fact, a sin. So thats the theory of the divine right of kings. Its a bit of straw man 1776 because the english monarchy is no longer claiming divine authority. The idea that be attacked by thinkers from milton to lock to thomas payne in a pamphlet entitled common sense but jefferson thinks he needs to deal with it, and he does with this simple proposition, all men are created equal, no one is born to rule. This is america, there are no kings here. So this looks like, to modern eyes, a broad moral principle, maybe. Its actually a very compressed argument of political philosophy. And were going to see this again with the declaration. To modernize because were not as steeped in enlightenment political philosophy as the drafters were, we tend to think of these things as broad moral principles, theyre actually and they were understood at the time tightly compressed arguments of political philosophy. So all men are created equal, there are no kings. This is what im going to call for shorthand jeffersons equality. There are no kings. But are there slaves . Well, yes, of course there are. So jeffersons equality tells you in sort of a literal sense kings dont exist. There is no such person. As a king who is entitled by birth to demand your obedience. But of course, right, slaves do exist. Jefferson owns several hundred. Now, other founders did too. By the standards of the age you were probably a progressive if you freed your slaves when you died. Jefferson actually didnt even do that. He freed a small number of slaves on his death, and those ones were actually his children. But back to jeffersons equality. This is the idea that there are no kings. It is not the idea that there are no slaves. Slavery is not inconsistent. With jeffersons equality. That tells you only that people are born equal. Theyre born equal but they dont have to stay that way. People might acquire authority over each other. They might do this legitimately, when people form a society they divide themselves into the governors and the governed and then the governed do have an able goi obligation to obey or they might do it through force, they might ensla enslave each other. And it doesnt even really say that it shouldnt happen. Thats a separate argument that you have to have. So jefferson and the declaration do reject the idea that some people can say to others by your birth you are a slave, and i am entitled legitimately to demand your obedience but it doesnt reject or conflict with the idea that some people can say by your birth you are inferior and its actually in your best interest to be my slave. Because i give you christianity. I give you civilization. That was a common justification for slavery at the time, and it actually fit pretty well with jeffersons views. Jeffersons views were complicated, but he did believe that blacks were inferior, that slaves if freed couldnt survive on their own, couldnt be assimilated into American Culture and would pose a threat to whites. So jeffersons equality is very limited. Its an idea of political equality as a starting point, political equality in the state of nature, this hypothetical world that people exist in in the absence of civil government. Its not saying that people will end up equal or free. And its not saying that government should try to make them so. Its just a theory, its just a principle about how people can legitimately become subject to an obligation to obey. So it is not a moral principle. About equal treatment by the government. So 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, if hes asserting a divine right to rule, the principle says flatly you are wrong, that is not how people are created. But to a slave who says what about my equality, the declarations answer is, well, thats complicated, we would need a different argument to decide whether or not this is justified and the declaration doesnt give it because 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 very compressed argument of political philosophy and its responding to a particular claim that the British Crown might make which is the claim of an indy soluble social contract. People start out equal, start out with natural rights including liberty but then when they form a society they irrev cably surrender those rights to the government. This is social contract theory of thomas hobbs, rather than john lock, and, again it would have been familiar to people at the time. So if you accept that theory, the colonists would say you violated my liberty, king george would respond you cant complain that im violating your liberty because you surrendered your liberty forever, along with all of your natural rights in exchange for my protection, for my keeping the peace. And again the declarations principle says to king george youre wrong, the colonists didnt surrender their liberty irrevocably, they couldnt have because that right is i inalienable. When people look at the declaration they often think an inalienable right is something thats important or something that shouldnt be violated. But it has a very precise legal meaning, which jefferson was surely aware of. 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 they divest themselves or their posterity. So liberty cannot be given away. Now, you could imagine a slave saying sort of the same thing, as the colonists. Saying you have violated my liberty. But again the answer that the declaration would give to that is, well, thats complicated. Sometimes deprivations of liberty are justified. We lock up criminals, for instance, and theres no philosophical error in that. Now, is it justified to enslave people . Of course not. But the reason its not justified is not that liberty is inalienable. Its that exercising dominion over another person based on force is wrong. Inalienability has nothing to do with that and no one said, as king george might have said of the colonists that slaves voluntarily surrendered their liberty. So the principle that liberty is inalienable is one the colonists can invoke against the crown, against this idea of an indissoluble social contract where you form a society and then you lose the right to change it but again it doesnt offer much help for the slave. Then we actually get to the heart of the declaration. The real fundamental principle. People create governments to secure their inalienable rights and when the government threatens those rights people can alter or abolish their government. So this is the right of rebellion. This says if the government threatens the rights that its supposed to protect you can change it and this, im saying, 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, that is what the declaration is all about, again, of course, its a declaration of in dependence, its about the status of the colonies which are particular political communities with respect to the crown, another Political Community. Now, this, too, you might think, has some relevance to the slave, right, or the colonial governments protecting the rights of the slaves, of course not, but, again, this is sort of on another page. Because they dont claim to. They werent created by the slaves. Heres another very fundamental point about the declaration, it is all about relationships inside a Political Community. Relationships between the governors and the governed, legitimate authority the declaration says is based on the consent of the governed. The argument of the declaration is about when that consent can be withdrawn. Slaves, of course, never consented. Slaves are held in bondage by force, they are outsiders, the Supreme Court will say, in the dread scott decision, that they are hereditary perpetual outsiders, the descendants of slaves can never become citizens of the United States. They can never be members of the Political Community. So the argument that the declaration is making about when a Political Community can be dissolved, when a legitimate government can be abolished has actually nothing to say about the situation of slaves. So what have i said so far . I have said the principles of the declaration are not broad moral principles. The way we often think of them now. Theyre actually narrow political principles, theyre technical, compressed arguments of political philosophy, this would have been familiar and intelligible to people at the time, it would have been understood that way at the time and if you look at the reception of the declaration at the time people didnt think the preamble was announcing anything revolutionary. So these are not the ideals that we now think of as fundamental to our identity as americans, theyre not our modern values of liberty and equality. Theyre not even directly in conflict with slavery. So what next . Well, what about the founders constitution . Here we have the founders. In founders hall, philadelphia, drafting the constitution. Is this a statement of our principles as americans . Of the values that we hold dear. No, its not, and its not for two reasons. The second reason, and this is something that i will talk about more later, is that the founders constitution is actually not our constitution. There is no line from the declaration through that constitution to us. We are not the heirs of the founding of the revolution, we come from somewhere else, but that point is farther down the road. The main thing i want to focus on now is the content of the founders constitution and what i just told you about the declaration of slavery i said im not sure anyone else agrees with me on that. But what im going to tell you now is actually relatively well accepted. Which is that even if you suppose the declaration contains these broad moral principles of liberty and equality they really didnt make it into the founders constitution. So the founders constitution 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 an american. But if you look at the document that was written in 1787 there are basically no undiluted principles there. If theres an overarching theme of the founders constitution, its compromise, theres compromise between big states and small states. Thats how we end up with two houses of congress. One has representatives determined by population, one has senators allotted, two to each state. Its compromise between free states and slave states. That is most notably the three fifths compromise which gives states some extra representatives in congress, based on members of the population that they enslave. So what about the values of liberty and equality . Well, equality is hardly in there at all, and its there mostly as a right of states. States are guaranteed equal representation in the senate, for instance. Liberty does maybe a little bit better. Theres freedom of speech. Theres freedom of religion. Theres the bill of rights. But like all of the original bill of rights these rights 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 and to their slaves. So another thing about the founders constitution, and its relation to liberty and equality, i said the declaration is not inconsistent with slavery, the declaration is really not concerned with slavery. Its sort of neutral, you could say, on the topic, i guess, because the argument that it makes simply doesnt relate to the practice of slavery. But the founders constitution is proslavery. There is, of course, the fugitive slave clause. Which says that a slave escaping to another state cannot, thereby, acquire freedom but must be returned upon demand to whom the Person Service is due. This strips is it states of some degree of sovereignty in order to prevent them from freeing slaves. Theres also a provision that protects the International Slave trade until 1808. And most important theres the 3 5ths compromise, this enhances the power of slave Holding States in the federal government, it gives them more representatives in congress, it gives them more votes in the Electoral College. Four of our first five president s come from the slave state of virginia, and one of them, our friend Thomas Jefferson, would have lost to john adams of massachusetts if not for the threefifths compromise, being an american nowadays means being committed to certain values, most notably, maybe the values of liberty and equality. And i mean that in the sense that these are aspirations. We think people should be free. We think people should be equal, we think 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 founders constitution. They just arent there. So one problem with the standard story is that its imposing onto the past a set of values that didnt really exist. If you want to look back to the declaration and the founders constitution and tell a story about an american identity that was born then and has endured through the years, you can do it. But its not a very happy story. If youre looking for a continuous theme in American History, the theme is really putting unity ahead of justice. Putting unity ahead of equality. This is a story about the shadow of slavery hanging over the nation. Its what i call the darker story. Of america. So this story also starts with the declaration which brings together the free states and the slave states. America is going to fight for freedom as one, and we have to do that. We 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. But it means free states and slave states must join together, and that means that the declaration is not going to say much about slavery. So jeffersons first draft does say something, it says two things. First it blames king george for the existence of slavery in america. Jefferson did think slavery should never have come to america. And then it also blames king george for inciting slave rebellions. Jefferson thought slaves cant be freed. They would be dangerous. The final draft takes out the attack on slavery itself but leaves in the complaint that king george is encouraging slaves to rebel. So even if the declaration announces principles that inconsistent with slavery, ive 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. So accepting slavery is the price of independence. Its 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 draft the arls of confederation remember the tyranny of the british. They set out to create a Central Government that is too weak to become a tyrant. And they succeed in that. They succeed brilliantly, but of course the Central Government that they create is also too weak to govern effectively. It cant keep the states in line so a new government is needed. Thats what the founders constitution gives us. But once again we have to get everyone on board. We have to get the free states and the slave states together because if we cant get one single dominant nation on the north American Land mass the european powers may pick off the isolated states one by one, france, spain, england, theyll come in and dismember the United States so the founders constitution accepts slavery. It protects it in the ways that i mentioned before, it rewards slave states with extra power in the federal government. One of the things that i always do with my constitutional law students is i take the first few weeks of class, we read through the founders constitution, clause by clause, we discuss just about every sentence going up through the bill of rights and then i ask them, what do you think . Is this a glorious statement of american principles that has served us well for over 200 years or is it covenant with death and an agreement with hell . And they laugh. People always laugh. They laugh because theyre surprised because of course theyve been taught the standard story about how wonderful and successful the constitution has been and most of them havent heard the phrase covenant with death and agreement with hell but the abolitionist William Lloyd garcon said that and of those two descriptions i think garrisons is closer. The founders constitution is a deal, you get an american nation but you must accept slavery. That is a bargain with evil. Its a deal with the devil. And like most deals with the devil it doesnt work out very well because what happens . Well, the founders constitution is proslavery, i said, but its not as proslavery as it could have been, it doesnt entrench slavery forever, its protection of the International Slave trade for instance explicitly expires in 1808. The issue of slavery basically just gets pushed down the road and that road leads where . To the battlefields of the civil war. So the civil war happened because the founders constitution compromised and did not resolve the issue of slavery. And i mean that first in a political sense. The constitution could have taken a position one way or the other. It could have said slavery forever. And maybe that constitution would have been ratified. Or it could have said slavery will end, not immediately, that constitution certainly wouldnt have been ratified but maybe in some number of years. They could have done something to set slavery on a path to extinction in a way that everyone understood. The most obvious way to do that, probably would have been to modify the threefifths compromise so that it changed as the years went by and the slave states would inevitably lose their power over the federal government. So that might have been acceptable, it was easier to say nothing about it. The constitution was structured to support slavery. In the early years the slave states control the National Government. So up until 1860 there are only two president s, the adams from massachusetts, who oppose slavery. And then things change. The north grows in population. Even with the threefifths compromise which remember increase it is federal representation of slave states the free states start exceeding the slave states in the house of representatives and in the Electoral College so the north is increasingly controlling the federal government and the presidency. In 1856 the south votes for james buchanan. He becomes president , defeating the antislavery, john fremont, free men, free labor, free speech, free soil, fremont. It was a good slogan. But he lost. In 1860, though, the south votes for john breckenridge. He does not win. Abraham lincoln wins, and Abraham Lincoln to an extent that is impossible to overstate is not the southern choice. So in ten of the eleven states that are going to secede lincoln gets zero popular votes, not a Single Person votes for Abraham Lincoln. Why is that . Its because hes not on the ballot because no one is willing to suffer the threat of violence and the social aprobe rum that would come, in the 11th, virginia, he is and he gets 1. 1 of the popular vote. So the south does not like Abraham Lincoln. The south cease the National Government falling into the hands of antislavery forces they fear that the National Government is going to end slavery. Which of the republicans were, in fact, trying to do. They wanted to do it. They didnt think they could do it directly but they had a strategy. They were trying to end slavery and seeing that coming, the south secedes. So the civil war comes about in part because of a political failure in the founders institution. But you can also see it as a consequence of a moral failure, as a consequence of the acceptance of slavery, of that deal with the devil. And Abraham Lincoln actually understood it that way. He said the civil war is a judgment upon us, that will last until every drop of blood drawn with the lash will be paid by another drawn with the sword. After the civil war of course we face a great task. What is it . Well, you might think that its achieving Racial Justice and true equality. And for a while during reconstruction about which i will say more later that did, in fact, seem to be what the nation was doing. Theres a brief period when we are really as a nation working towards Racial Justice. But pretty quickly the National Mission changes and it changes back to what it was with the declaration, what it was with the constitution, and actually what it was at the beginning of the civil war, which starts as a war for slavery on the side of the south but as a war for union on the side of the union, not as a war for freedom. It ends as a war for freedom. It does not begin that way. So the National Mission changes back to unity. Bring the north and the south together. Heal the wounds of the civil war, and how do we do that . Well, in the same way that the declaration and the constitution did, by sacrificing Racial Justice. With the compromise of 1877 federal troops withdraw from the south, the integrated governments that were set up are overthrown by force and southern whites take back control. And its southern whites like these. So this is what people called the redemption of the south. What it means is the promises of reconstruction go unfulfilled for about a hundred years. And there is actually a different version of the american story that focuses on this, that takes redemption s. A. T. Founding moment of america, as the birth of the nation. So theres a movie about the civil war and its aftermath. It follows two families, one from the north, one from the south, they fight on opposite sides of the civil war, but theyre both americans. And when the war is over, the reunion of the nation is symbolized by two marriages between these families, the bonds of matrimony knit up the wounds of war. What is this movie . You might have guessed, its birth of a nation from 1915. And it really is about the birth of the american nation. Its trying to tell us founding america broke apart, broke apart into two more or less equally legitimate sides but then came back together in the moment of redemption, and now we can all go forward happily together because in the end were all americans. Birth of a nation was controversial, but it was very popular in its day, including with president woodrow wilson, the first southerner to hold the presidency since the civil war. If you look at it nowadays its pretty horrifying. Its got rising action. The part of the movie where tensions are growing, things are getting worse, what is that . Thats reconstruction. With the carpet baggers and the sally wags and the corrupt freed men. Theres a climax in which the ku klux klan defeats the police force, the legitimate government of the South Carolina town where the movie is set. And then theres the falling action, which shows you that everything will be all right, and that occurs the day after that battle, the town holds new elections, the freed slaves turn out to vote, theyre met by armed klansmen standing by the polling booths and they turn around and go home and thats supposed to be a relief and then the resolution, as i said, is the weddings, which reaffirm that the nation can go forward as one, not so much because were all americans, as because were all white. And this is actually the dominant story for a while. This is the standard story. From maybe 1915 to maybe even 1980 when scholars start to reassess reconstruction. And thats in response to other changes that make it harder to see redemption as our founding moment. The Civil Rights Movement comes along in the mid20th century, the warren court comes along, this period is often called the second reconstruction. Congress enacts civil rights acts, prohibiting Racial Discrimination in various contexts, the Supreme Court issues decisions like brown v. Board of education which bans segregation in Public Schools, loving against virginia striking down bans on interracial marriage, here are some headlines about that. But the second reconstruction, like the first, is divisive. The 1960s and 1970s are a tumultuous period, people field like their the america they see when they look back is being taken from them and the Republican Party campaigns against welfare queens and strapping young bucks using food stamps to buy tbone steaks. He kicks off his 1980 president ial campaign with a speech praising states rights in philadelphia, but not philadelphia, pennsylvania, philadelphia, mississippi, where civil rights workers were murdered 16 years before. And reagans presidency is notable because it brings so many people together. Obviously the Electoral College overstates this a bit, thats not like the popular vote. But reagan wins two absolutely crushing electoral victories over carter and mondale. But it follows the pattern set in the declaration and repeated thereafter of bringing the nation together by pushing aside issues of racial inequality. So the pattern repeats itself. Its fading, i think, and if you want to tell a story of progress you could maybe tell it in that way but if you want to look back to the declaration in the founding for a basic theme of the american story, its not liberty. Its not equality. Its purchasing unity at the price of Racial Justice. And if you listen closely you can still hear that theme. My main point, though, is just that if you look back with clear eyes the story of america is not so much a burst of idealism that cast its light into the present day as it is a primal sin of the trail that echoes down the ages. Our standard story tries to put a happy gloss on this but its not really accurate. And the more accurate it gets, the closer it gets to birth of a nation. Which is much less happy. By modern lights. So now i want to explore why this is so. How did this come to be our standard story . Why is it the one that we tell ourselves . Well, its largely because of this man, Abraham Lincoln. Abraham lincoln puts the declaration front and center, and he did this really consistently through his life. But most notably probably during the civil war. Why does he do this . Well, part of the answer is necessity. So lincoln is, at the time of the gettysburg address fighting a war against 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 i would do it. If i could preserve the union by freeing none of the slaves, i would do it. But by the time of the gettysburg address it has become a war for freedom. What is the justification for that . Well, the battle hymn of the republic cast it in religious terms, as christ died to make men holy, let us die to make them free. But religion is on the other side too. In the south, people are appealing to religion. What can lincoln invoke thats undeniable . Well, not the founders constitution, right, the founders constitution does not protect equality, in fact it protects slavery so lincoln turns to the words of the declaration even though as ive said they dont really have the values that he is appealing to either. But second, by harking back to the declaration and the revolution lincoln is making a strategic move. He is saying that the civil war, like the revolution, is a war for america. Its a war for the idea of america as a nation conceived in liberty. And dedicated to the proposition that all men are created equal, and its a war, unfortunately i dont have this part of the gettysburg address there, but it is in your handout, it is a war to determine whether any nation so conceived and so dedicated can long endure. So at the time of the civil war pretty much everyone looks back fondly on the declaration. This is in part because following the revolution there was a purge on the people who opposed independence were largely driven from the country but the people who are left in america support the declaration. They look back fondly on the revolution. And lincoln is trying to convince people that in the civil war the union is fighting for the declaration, for the constitution. Its a good thing. If you can convince people that the declaration and the founders constitution are on your side. Because a lot of people subscribe to those documents. So after lincoln this practice continues. In 1963, as ive said, the Civil Rights Movement marches on washington, Martin Luther king makes his i have a dream speech, its an appeal for equality in the words of the declaration. It starts actually by echoing the gettysburg address rhetorically. Its given from the steps of the lincoln memorial, and king starts out by saying five score years ago, the same rhetorical form as lincoln. But lincoln, ive said, is counting back to the declaration, king is counting back 100 years to the emancipation proclamation but then he goes back farther, he talks about the founders, the architects of our republic, the people who wrote the magnificent words of the constitution and the declaration of independence, they promised, he says, that all men, black as well as white, would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness. Well, both lincoln and king are wrong about this so ive said already the declaration and the founders constitution dont have the values that lincoln and king are trying to put there. But the mistake is a little more severe even than that. So think about it. For a second. In the civil war, whose side is the declaration on . Well, the answer is actually pretty clear. It is on the side of the rebels, the south. So who marched on washington in 63 . Marching in the name of the declaration . Well, the Civil Rights Movement did in 1963 as i just said, but before them the real champions of the ideals of the declaration are these guys, the confederate soldiers who marched on washington in 1863. Because the real errors of the signers of the declaration of independence are the southern secessionists. Now this is Something Else that you dont hear that much but actually within the professional Academic Community i think its relatively well accepted, and if youre looking for documentary evidence it is abundant. If you look at the secession letters that the Southern States sent to Congress Overwhelmingly they invoke the declaration of independence. And they were right to. Because the heart of the declaration, ive said, is not a moral principle, like liberty or equality. Its the political theory that people form governments to protect certain rights, and if the government threatens those rights, people can rebel. The Southern States joined the revolution, and then they 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 that i cake that just before independence theres a decision in england saying slavery cannot exist in england. The Abolitionist Movement in the Southern States win independence they no longer have to fear that britain will end slavery. When they started to fear that the federal government would do that they left the union in the same way they left the empire. They started the second american revolution. Second american revolution, by that of course i mean the civil war and theres a big difference between the first revolution and the second because the rebels won the first war and they lost the second but i want to talk a bit about the similarities, 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 governments threaten those rights and in both cases the right to own slaves is very definitely one of the rights in peoples minds. So the declaration is on the side of the south. What about the founders constitution . Well, this is a little bit harder to see. But again, the answer is probably the south. So what is supposed to happen when the states fear the froedel 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. They think a distant general government might become a threat to liberty, it might start to oppress its citizens. Thats what king george did and when that happens, the states stand up to defend the rights of their citizens. Thats what the state militias did fighting off the red coats and that war, the revolutionary war is the model that is built into the founders constitution. That is what the Second Amendment is about. The well regulated militia is supposed to protect the security of free states by fighting off the federal army if it comes to that. So along comes the second american revolution, the states stand up for the rights of their citizens. The states are supposed to win. According to the vision of the founders constitution, the south is actually supposed to win the civil war. So Abraham Lincoln did a lot of remarkable things but the most remarkable, i think, is this sort of magic trick that he makes people think hes the one fighting for the declaration, and the founders constitution when, in fact, hes really against them. If you draw a line from the declaration of independence, through the founders constitution, it does not go to us. It goes to the rebel south, and of course it stops there. So we are not, as john f. Kennedy says, the heirs of the first revolution. We are not the heirs of the founders. We are the heirs of the people who rejected the theory of the declaration. Who defeated it by force of arms. There are several different ways to make this point. But the one that i like best is sort of an analogy to a plot device that you find a lot in Science Fiction movies. So youve got the hero. And the hero is supposed to be hunting down some deviant, something thats not human, its a clone or an alien and it looks human but its really not. You see this in blade runner, maybe a little bit of a spoiler. But anyway, so the hero hunts this thing down, kills it, is looking at the body on the ground and suddenly realizes thats human, and then he realizes Something Else, if thats the human, then who am i . Right, im the robot, im the clone, im the bad guy. And thats 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 were fighting slavery, were fighting the enemy of the declaration. And thats what we hunt down and kill, 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. Its the founders constitution. They are dead, and we are the ones who killed them. So what does that mean . Well, it means several things. First, our american identity doesnt come from the declaration of independence. The moral principles that we think of as central to americanism are not there. Jeffersons equality is not our equality. Second, american identity doesnt come from the founders constitution. Our deepest values are not there either. Not in philadelphia in 1776, not in philadelphia in 1787, pennsylvania, maybe, but gettysburg, right, the civil war, reconstruction. The civil war and reconstruction are a rupture in American History. The rebels win the first revolution. According to the declaration and the theory of the founders constitution theyre supposed to win the second but they dont. And that is the end of the theory of the declaration. It is also the end of the founders constitution. The constitution that we get after the civil war, after the reconstruction amendments is a break from the founders design, 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 fight off the tyrannical government. Things didnt turn out that way because the federal government won but they also didnt turn out that way because it turned out the states were tyrants. The state oppressed people and it was the federal government that fought for liberty, that fought for equality. The reconstruction amendments reflect this new understanding. They trust the federal government. They give it more powers. They distrust the states. They put new restrictions on the states. They give us our values of liberty and equality, not as narrow political principles, but as broad moral ones. They give us lincolns equality. Not jeffersons equality. And its also worth noting that the reconstruction amendments were forced on the south. So we upend the founders understanding, we totally change the structure of our government. And we do this not really. We say this now, but not really through the ordinary article 5 amendment process, we do this bu bu by dissolving return to congress until they ratify these amendments. What happened in the civil war, i like to say is the rebels lost but the revolutionaries won. And what i mean by that is at the beginning i said both sides are really fighting for their understanding of the status quo. The south says we have the right to own slaves and if we think youre going to take that away we can leave the north says you cant leave, were a union. Both sides are fighting for their understanding of the status quo but at some point during the civil war and ill say more about this later the vision of the union changes. Theyre not fighting for union anymore, theyre fighting for freedom. At this Point Jefferson davis is leading a rebellion, Abraham Lincoln is leading a revolution and a revolution is what you get after the Union Victory with the reconstruction amendments. So the reconstruction constitution is very different from the founders constitution. And it is the one that we live under. So another thing that i do with my students in the beginning of the semester is i ask them to list big important Supreme Court cases, the ones that define the constitution for us. And typically they come up theres the Supreme Court. Typically they come up with mostly the same cases. Year after year. So 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 they say hodges, the right to same sex marriage. And all of those cases, i tell them, have one thing in common which is that none of them could have happened under the founders constitution because all of those cases are people asserting constitutional rierts against the states, not the federal government, which is something they can do only after the civil war, after reconstruction, after the 14th amendment. So what are the battles that gave us the nation we live in today . Is it bunker hill . No. If youre thinking about the constitution we have today it is gettysburg. Who are the soldiers who died for our rights . Is it the minutemen and the Colonial Army . No. If youre thinking about the rights that we enjoy today, the rights that are enshrined in those Supreme Court decisions, its the union army. So the best way to put this, i think, is to say that the founders constitution was a failure. It has not served us well for over 200 years. It lasted about 70 years. It failed cataclysmically and it was set aside. We got a better constitution, a more just one, and we became a different nation. The revolution, Abraham Lincoln says in the gettysburg address 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. Now why dont we say this . Why dont we look to reconstruction as the source of our deepest American Values . Well, lincoln couldnt, of course, reconstruction was in the future for him. And it was a future that he wouldnt live to see. But it was the new birth of freedom that he prophecied in the gettysburg address. Didnt exist when he spoke, it was coming. But what about Martin Luther king . Theres something deeply odd about the i have a dream speech, almost as odd as the gettysburg address. So king, as i mentioned before, talks about the founders and the declaration of independence. They made a promise, he says, that america is dishonoring, and he points to segregation, to signs that say whites only, he points to racebased denial of the right to vote. Live up to your promise, he says. I have a dream that one day we will rise up and live out the true meaning of all men are created equal. Now, whats odd about this is twofold. First, segregation, denying blacks the vote, those are perfectly consistent with the declaration of independence. Theyre perfectly consistent with the founders constitution. Slavery is protected by the founders constitution. These things are absolutely fine in 1789. But in 1963 there is something they are not consistent with, and that something is not a distant aspiration. Its not a gleam in Thomas Jeffersons eye. Theyre 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 Public Schools in 1953. In 1957 the president sends the 101st airborne to little rock to enforce its orders. So its very strange that kings dream is that the nation will rise up and live out the true meaning of all men are created equal which is something that was written 200 years before on a very dubious relevance rather than maybe just looking down and reading the 14th amendment written considerably more recently and directly on point, reading the 15th amendment, which says no Racial Discrimination with respect to the right to vote. Theres a promissory note that the nation is dishonoring in 1963 but the note is not the declaration of independence, it is the reconstruction amendments. And Martin Luther king knew this. Once again, theres documentary evidence, if you look at kings writings, youll find an early one, he wrote it in high school, called the negro and the constitution. In which he prefigures a lot of what he says in the i have a dream speech, but he talks about reconstruction. Not the declaration, not the founders constitution. He switches at some point. He switches the focus of his rhetoric. Why does he do this . Well, as ive suggested before, its strategic, the declaration is something that all americans subscribe to, the call to live up to the declaration, means something to everyone, the call to live up to the reconstruction amendments, well, not so much, right, certainly in 1963, even now, reconstruction is divisive. And you can see this, i think, by asking yourself a simple question, who won the civil war . Most people will say the north. And i think maybe they say that even more consistently if theyre from the south. But that is clearly not the right answer. Because the north was not even fighting in the civil war. So from one perspective its a war between two nations, its a war between the United States of america and the Confederate States of america, that is the confederate perspective. From the other perspective its a war between the United States and traitors. But in either case the winner is the United States. It is us. We won 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. And heres a way to think about that. That i think makes the point. You though this flag. That is our flag. And you know this flag. And most people would also think, that is our flag, thats the betsy ross flag. And you know this flag. And probably fewer of you would say thats our flag. Thats my flag. Some people would. Even if you wouldnt say that, though, you know that flag. But what about this . Does anyone say this is my flag . No. But what is this . This is the fort sumter flag. This is the union flag in the civil war. I got it put on a mug. To bring to my constitutional law class. But i had to custom design it. So you can get an american 50 state, 50 star flag on a mug very easily, you can get a betsy ross 13 stars on a mug, 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 dont identify that strongly with the union side in the civil war. And thats true even more so for reconstruction. So to say thats us, thats where we came from, well, yes, right, its divisive. And when you talk about declaration, theres broader buyin. Well, when i first started thinking about this, that seemed obvious. It seemed unavoidable. It seemed unobjectionable because of course, right, everyone can rally behind the declaration and of course you cant expect the same support for reconstruction. But actually i have come to think neither of those things is true. And when we tell ourselves this standard story, when we locate our ideals in the declaration of independence instead of reconstruction were not just using a convenient fiction. Were actually doing what i said the darker story of america shows, which is were purchasing unity at the price of Racial Justice. Can everyone rally behind the declaration and the founders constitution . Can everyone say Thomas Jefferson stated my deepest ideals . Well, not the real declaration, not the real founders constitution, not maybe the Thomas Jefferson that we have come to know through more detailed historical analysis and genetic testing because black americans or any american who thinks compromising with slavery is unacceptable might find it hard to rally around that. To think of those documents as what creates their american identity. Because black americans are not included in the promises of the declaration. They are not included in the rights of the founders constitution. The Supreme Court said exactly that in the dread scott case, blacks are not included, they cant ever be descendants of slaves can never be u. S. Citizens. So the spirit of 76, what is that . Thats three white men marching forward together. And this was painted in 1876, which is, its not a coincidence, right at the end of reconstruction. The nation decides to look back to independence, forget the late unpleasantness, move forward together, look back to a moment when everyone felt unified. Well, so what about reconstruction . It is divisive. But who feels excluded . Not blacks anymore. Right, the 14th amendment overrules the dread scott decision in its first sentence, that is the point of birthright citizenship. There can be no hereditary outsiders, no matter who your parents were, if youre born here, youre one of us. That is inclusive. So who feels excluded . Well, its people who identify with the losing side in the civil war. It is people who identify with traitors. Who made war against the United States. To preserve a regime built on slavery. That is just the truth. So it no longer seems at all obvious to me that we should agree to locate american identity in the that we should agree in the declaration rather than reconstruction. I think if were going to exclude some people, celebrate something that marginalizes them, it is probably better to marginalize the traitors. We want to look at the civil war and say we did, we the people of the United States. We should maybe have the battle hymn of the republic. The gettysburg address as our founding document. We could say that these men are the real heros of our constitution. And the more that i have thought about that i thought about the case for black Union Soldiers is actually pretty strong. Why is that . The civil war like i said before starts as a war for union. No one is entirely sure but i believe the answer is black military service. Once you have black Union Soldiers fighting for your service it has always been a path to citizenship. If you have black union soldi s soldiers, they have to be full participants Going Forward. So what turns the civil war into the war for freedom . What gives us the push . I think it is, in fact, black military service. So what does this mean . It means that we can tell a different story. A story about Getting Better, but it doesnt look back. It is not about Getting Better by getting close to to a mythical past, it is about Getting Better by making a better future. Making a nation that is more just. It is a Success Story. It is the story of an unfinished project and not a story of continuity. It breaks with the past. The america boring in 1776 is flawed. It is flawed of necessity. To win ratification of the constitution. But it is deeply flawed by slavery. The improvement comes at the cost of a civil war, but the amendments give us better constitution. Not immediately, it is blunted and driven back, but generations later they start to redeem the promise of reconstruction. And we keep going. There is opposition. There is always opposition, and there are mistakes and set backs. But what makes us american is that we keep trying. America is born in an attempt to find a new and better way to escape the monarchies of europe. Were looking for america and we know that the america that were hooking for is not given to us. It is something that we make, something that we find inside of ourselves. It is created anew by each generation. Created a little better. And we get the opportunity to get a little closer than we did to ourselves. That is the promise that we must keep. Thank you. So now i think we have a question and answer period . Yeah. Thank you so much for a very 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 and thats why. And after the emancipation proclamation, thats how we got black Union Soldiers. If the 15th amendment protects the rights of all citizens to vote, why do we have, today, in todays society, so many antivo antivoting problems. Okay, so thanks for the comment. The question is about the 15th amendment. And the answer there is that the 15th amendment is pretty narrowly targeted. It is related to race discrimination with the right to vote. We needed perhaps the 19th amendment. Why do we have so much voter suppression. . So the 15th amendment is part of reconstruction. It is very overt and explicit refusal to allow blacked to vote in lots of places in the country. Other places as well. There are problems. So eventually the nation moves forward a little bit and were like you cant do this so explicitly. And then rather than explicitly discriminatory you get tests that are difficult to pass that most whites dont have to pass. If youre grandfather was allowed to vote, you dont have to pass this test. If he wasnt allowed to vote, you do. How does that effect descendants of slaves. So how do you deal with that . Well it turns out to be very difficult. You know you can have people who sue the states directly for denying their right to vote. But you know how do you prove that a particular test is being being given in a discriminatory way. It is hard. And if youre talking about the context of a individual election, can you get a challenge to the courts and get a decision in time to remedy the problem, no you cant. Then maybe the next election comes around and you do Something Else. So Congress Enacts the Voting Rights act, and one of the things it. They are making changes by your voting laws. Rather than trying to bring these individual suits against states and trying to do things as the elections are being held, you can stop the black misses from going into effect beforehand. And the Voting Rights act works really well. It works so well that it will be counted against holder. They are following the states that had been subject to that and enact the restrictions on societies. They probably would not have been able to do it if they got preclearance. It is very difficult to challenge these things. So the answer is there is a lot of people that want to restrict voting. And the National Government and the Supreme Court opposed that for awhile. Theyre not opposing it any more. The declaration of independence says king george wages a cruel war against life itself. A distance people that never ochbted him capty gaiti ttivati carrying him into slavery. He did not put in the braf. It is a continental congress. That is in Thomas Jeffersons draft. And i believe the note thats we have say that at the insistence it was taken out. So jefferson does have this passage in his first draft criticizing the practice of slavery. So he blames king george for introducing slavery to america which is a little strange if you think about it historically. Theyre not objecting at the time that the institution had been forced on them. Im just saying i dont think it would be contract to say it was not a gleam in jeffersons eye, he certainly wrote it down. Right, when i said the passage of the gleam in his eye, it was racial segregation. It was what Martin Luther king was objecting to. And it was the full registration of the ideals of the declaration shows those things are not permissible. Once you realize that the declaration as a passage criticizing the path to slavery but takes it out, leaves in the passage that protects slavery in other way. And they have no worry about segregation or the race based deny. It becomes harder to say those are the promissory notes, and then the question is why didnt they point to the parts of the constitution that do condemn these things, because there are parts that do it, right . The reconstruction amendments. And it is a High School Junior that won a contest with his essay the negro and the constitution. And it talks about conquering southern armies and southern hate. Why did he start out talking that way and move on to the sort of optimistic unity based theme. Presumably he thought it would be more effective. Interestingly later in his life he seems to have changed his mind again. He seems to have lost faith in the idea that appeals to unity or the most effective way forward. He said the super official optimism of the i have a dream speech needed to be considered and he exblepressed greater frustration with the consequences of the standard story. If you tell yourself american ideals are antiamerican. You ask r can look at the problems of racism and say it is overt ray activism you can put those practices out of american live and solve the problem. What king said is you need to realize that racism is more deeply imbedded that than. That i think is true. So the standard story that kels us it was an some Union Soldiers are really what created this count country. I look at the current future now. I want your opinion of the constitution Going Forward. Right now the constitution looks like a profoundly flawed document. And it is based on the concept of independence that exists nowhere in the known universe. From the current virus that is threatening us, to bioterrorism, to whatever the threats are, our independent agencies, our independent states, and our states rights on a global scale cannot deal with these problems without getting at the root causes. My view, my story, is what part about the laws of nature and natures god dont you understand. What is the golden rule. It is Abraham Lincoln that said our declaration of independence is our golden apple and the constitution is a silver frame around it. To form a more perfect union, that would give us our maximum pain and security. The privacy cant be done. Anyway, so what the constitution Going Forward baised on these flawed concepts, what is your view . Well, i think that the constitution is flawed. There are several things in the constitution that i would change if i could. I think a fixed term for the president is maybe not a president. I think it should be easier to remove a president who lost the confidence of the american people. Im not a big fan of equal statement suffrage in the senate. That was designed for a different world demographically. It will be the case, i think projected within a few decades that 80 of the population will live in like 18 states. And there will be just dramatic distortion through the senate. So not a huge fan of that and particularly the Electoral College i think is a bad idea. Now conceivably we could get around the Electoral College without amending the constitution. If each state or enough states agreed to constitute the college. Maybe we could goat a vote without amending the constitution. There is an interstate compact. Unfortunately people think, and i think theyre mistaken, but people think this would have partisan effects. And anything that is going to have partisan effects you probably cannot age the constitution to aclooef. It is so diblt to do the framers did not anticipate the party system. They thought that members of one branch would necessarily feel loyalty to that branch and they would view the other members of the branchs of government as rivals. So they look and think there is a rival for the afepgs of people. It doesnt come out that way once you turn the party system in. They look at the president and they think there is the captain of my team. If theyre from different parties, they may look and think theyre the president of the other team. So rather than checks and balances based on other assessments from the different good, you get either sort of single party come license you get the partisan infighting. Either case it wont work out all that bell well. I would say, a point they think you were suggesting, the idea of individual responsibility in the extent to which we have to be responsible and our political system and our government, it is also, i think, a very important idea and benjamin frankly leaving the constitution convention. They were responding a republic if you can keep it. That is something that i think we need to all bear in mind. If i could ask you a question, i dont disagree with a lot of points you made especially about the constitution being flawed and so much more of who we are now coming out of reconstruction, but it did have the bill of rights with the freedom of speech, religion, assembly. So it seems to me that some of our personality, some of the positive things that we are can be traced back to the constitution. I understand a lot of the freedoms didnt come through until the 14th amendment. It is a very interesting question. There is amendments, they place limits on the federal government, they protect values if is also an interesting fact that one, the bill of rights was not understood the same way it is today until after it started being applying to the states. So if you look for early uses of the afraid the bill of rights you dont get anyone calling the first ten amendments the bill of rights until after reconstruction. If you look at the content, it is very different. So the bill of rights now has all of these really important rights and fundamental effects in the way that government conducts itself. They didnt really do that until the rights were applied against the states. And part of that is different. The states were doing more impressive things. But a lot of these rights were understood differently. One of the things to understand is that in its initial version its not quite as focused on individual rights as people might think. A lot of it is focused on empowering the states. They trust the states, they think they protect liberty, or at least they dont want to interfere with state practices. So if you think about the establishment clause, it says that congress will make no law respecting an establishment of precedent. That mean most official religion, right . No official federal religion or state religion. So the clause gets invoked when they put up displays, ten complete and accurate me commandments in the schools, you have a right to have the government not telling you what official religion is. But if you think about this before the 14th amendment, why did they say congress should make no law respecting no establishment of religion . The answer is they were trying to do two things. They were trying to prevention a national religion. That is something they do, but they were also trying to protect state establishments. A bunch of states had official religions. Congress cant disestablish those. So the establishment clause is the moss vivid examples. They change their content and change their meaning, and they are refracted through the 13th amendment. That is certainly very eloquent on the constitution and the declaration involving comprises with zlaf ri as a means of creating a union, but isnt it true that the reck rick rhetoric, and that many of the southern slave holders that benefitted from it, it is a moral good that came later when cotton, cultivation of cotton became profitable. They have done a lot of historical analysis. They have gone to a fair amount how the declaration received it there is some sarcastic commentary about how ironic it is that the slave drivers are yelping about liberty, but i dont they is a serious engagement with the argument of the declaration. When it is celebrated, which it is, it is celebrated not as a source of moral principals, but as our independent. And this changes basically around 1830, i think, when the conflict over slavery is intensifying and abolitionists are looking nor rhetorical resources. It is effective to say it is inkwent our fundamental American Value thats were there from the beginning. They say that and you know i think they believe it. Abraham lincoln said consistently he thinks he believes it. I also think it is a misinterpretation. I think if you read it in the context that it was written would we expect Thomas Jefferson to write something about how outsiders, how people who are not part of a Political Community should be treated by the government . And that they cant be enslaved . That seems very strange for him to do. Because it is inconsistent with the practice of every government that ever existed, basically. And it has nothing to do with the argument that he is trying to make about when legitimate Political Authority can be rejected. Jefferson himself said he wasnt trying to write anything novel. He was trying to produce a boilerplate enlightenment, social contract political philosophy analysis of where it comes from and where it can be rejected. At particular moments he needs to distinguish between different strands of theory. And he does that in a typical and precise way. But the part of the declaration that people considered important was actually not the preamble, right . Not until about 1830. Oh, sorry. [ cheers and applause ] weeknights this month were featuring tv programs as a preview of what is available every weekend on cspan 3. Tonight we begin with womens history. The World War One Museum talked about mona sigell. The Sacramento State history professor argue thats a Diverse Group of women pushed for more rights in the wake of world war one. And some of these women that were attending the paris peace conference helped to pu push woodrow wilson. Enjoy American History tv every weekend on cspan 3. Next on American History tv a look back of the military career of george washington. The president and ceo of George Washingtons mount vernon traces the first president s military degree from the french and indian war through the american revolution. Here we are again, welcome back to mount vernon. Im doug bradburn. It has been my delight to have these live opportunities to talk about our mission here. Last wednesday we were in our museum. This is what we call our education center