class? >> the deepest cause where we'll find the true meaning of the revolution was in this transformation that took place in the minds of the american people. >> so we're going to talk about both of these sides of this story here, right? the tools, the techniques of slave owner power and we'll also talk about the tools and techniques of power that were practiced by enslaved people. >> watch history professors lead discussions with their students on topics ranging from the american revolution to september 11th. lectures in history on c-span3 every saturday at 8:00 p.m. eastern on american history tv and lectures in history is available as a podcast. find it where you listen to podcasts. kermit roosevelt, a constitutional law professor and the great-great grandson of theodore roosevelt, presents a talk titled the constitution and declaration of independence: a contrary view. professor roosevelt argues that the america of today did not emerge from the revolution and

that we should not traces our values back to the founders. instead, he argues that through failures and reinventions, we've used the constitution as a tool to create our modern core values. smithsonian associates hosted this event. >> good evening, everyone. can you all hear me in the back? great. my name is ruth robins and it's a pleasure to welcome you all here tonight for our program. before we get started, just a couple quick things. if you have electronic devices, now's a good time to turn them off. as usual in our programs, there's no photography and no filming. also, if you're wondering what all the equipment is in the back of the room, it's 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 we'll let you know what it's time for that and you'll just line up there to ask your questions. in a politically restive time, it's 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 pseudoer. his book, the myth of judicial activism, 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 radios ve professor roosevelt, and enjoy the program. >> thank you. thank you all for coming. and happy super tuesday. so, as you know, of course, it's super tuesday, the democrats are in the process of choosing their nominee. later on, we'll have the general election, and we will choose our president, and that choice will reflect something about who we are as a nation, and that's 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 and as a people. so, who are we? we're 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 artist's task, transforming the daily bread of experience into the radiant body of everlasting life. but in that sense, we're all artists. we're all the authors of our own stories. not because we decide what happens, we don't actually get to decide that, but because we decide what it means. we decide how it's 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 it's also true for nations. people have a sense of national identity that comes from stories about the nation's history. and that's what i'm going to

talk about tonight. i'm 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, they're powerful. so, as you heard, i'm a law professor. before that, i was a lawyer. i was doing appellate litigation and it was my job, and in some ways it's 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 that's not true all the time. and in particular, it's not true if you're dealing with an issue that relates to people's 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 won't have any effect. because logic doesn't make people change their minds about who they are. there's been some social psychology research on this, and it shows people are actually incredibly resistant to reasoned, logical argument and 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 people's identity, part of the story that people told themselves about themselves. so, here's an ordinary factual question, right? is it raining outside or not? your belief about that doesn't relate to your identity at all and with questions like that, people do change their mind if they're presented with contrary evidence. but with other things, with beliefs that are connected to identity, you can't dislodge those beliefs by facts or by logical argument. the analytical voice just doesn't persuade. so, what does? well, this is another thing that i learned as a lawyer. i think it's maybe the most important thing that i learned as a lawyer and it's what i try to teach my students in the creative writing seminar that i teach at the law school. if you're 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 people's minds, you can change their self-conceptions, 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. it's telling stories. so, stories tell us who we are, both as individuals and as countries, and stories are powerful. frequently, they can't 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, i'm going to compare them, i'm going to analyze them, i will be doing some logical argument, i'm a law professor, i can't 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 it's a better story. it shows us in a better light. it's more inclusive. it's more optimistic. it is, i'm going to say, more american. but i'm 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 self-evident 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. there's 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, hasn't always been easy because we haven't 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. that's an actual photo of lincoln delivering the gettysburg address. because it's such an early photo, it's not really a very good one but he's there somewhere. and in the gettysburg, 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's 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 it's 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. we've fallen short, he says. he points to segregation, to race-based 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 hasn't come yet. again, the standard story con seeds, 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 we're 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. we're marching in the name of the declaration of independence and if there's a picture of the true america, it's 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 i'm 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, we're trying to sustain it. we're trying to live up to the

ideals of the founders and the signers. we're following their wisdom and for 200 years, it's pointed the way to a better america and a more perfect union. i'm going to tell you a couple of other stories wisdom. it's a barked looking story. it tells us our ideals have their origin in the past. at the very beginning. the declaration is the central document in the story. it's maybe more important, maybe more truly american than even the constitution. the orginal constitution is important too. it has the answers to our current problems. focus on the constitution. focus on the original understanding of the constitution. live up to the ideals of the

founders, be the way more like them. the way forward is recovering the greatness of the past. so first backward looking story. second thing is this is a success story. yes, we've had difficulties but america always succeeds. we always triumph. and why is that? it's because of the wisdom of the founders and ideals of the declaration and the civil war is the best example of that. it's a terrible war, yes, but the ideals of the declaration triumph and we improve. we take a big step forward towards realizing the ideals. backward looking, success, and a story of continuity. there is a line that goes from the signers of the declarations of independence through the drafters of the constitution to us in the president ebt day. this is related to the fact that it's a success story because it's telling us basically we are

the same people we've always been. we're living in the world they designed w fearing for the ideals they championed. so this is a nice story in a lot of ways. you can see why it appeals to people, i think. it dez we're basically good, we americans. we start out with good ideals, we don't always live up to them. but we're getting better. we're succeeding. there's a sense of inevitable progress. there's authority in the past. in a moment of unity that everyone can rally around, everyone can share in. everyone feels a connection to the founder. and the story emphasizes that. the problem though, well one problem, is that it's really not true.

i know i said logical arguments don't dislodge stories. now i'll give you a logical analysis of the story, which of course, might not change your mind. but i hope that it will provoke you to question the story a bit. i'm going to present with you claims you find surprising, that you don't hear in a standard story that, you don't hear during much at all, actually. the declaration doesn't set out our modern values of liberty. it's consistent with slavery, actually. this should be a surprise. i don't think anyone else says this. often if you're the only person saying something, it's crazy and you're wrong. but hear me out. i've become quite convinced of this. generally speaking people say, of course, there is an obvious

contradiction between declaration of independence and slavery. but let's look at the declaration and think about what its values actually are. this is the preamble of the declaration. that's appropriate. after the preamble and a little political philosophy, we have a set of grievances against king george. bad things that he's done. those are not as important. that's evidence that the founders are setting out, sort of in support for their argument. but they are not the argument. the declaration of independence is at heart an argument of political philosophy. it's an argument that the colonies are justified in declaring independence in, throwing off the authority of the british empire. the crucial thing is to understand how that argument works and the use that it makes of thefundamental principles. i'll talk about the argument that the declaration makes in a

second. first i want to talk about the argument it doesn't make. why do people think the declaration is inexhibit with slavery? because of the truths. all men are created equal. they're endo youed by their creator with rights including life, liberty and pursuit of happiness. now are the principles inconsistent with slavery? well, you can start with them and you can make an anti-slavery argument. 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 be considered a form of liberty. that is just doing what you want to do. it also conflicts with the slaves natural right to liberty. so it's prima fascia wrong. enslaving someone else is and infringement on the natural rights. that's true. right? so far, so good. the declaration does get you

that far. there is another step you need which is that this infringement isn't justified. if you use your liberty to steal someone else's property, we'll lock you up. if you commit a serious enough crime, we take your life. that's what we do, even to our own citizens, members of our political community. because those natural rights are justified. and, 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 it's even more true, perhaps, of people outside our political community. so how does our nation relate to noncitizens? sometimes quite harshly. if you're an enemy soldier,

we'll take your life without worrying too much about your natural rights. that's justified because we're protecting our political community. different fact come into play when we talk about outsiders. it's even more complicated if we're talking about a system where slavery exists already. and the choice is not should we start slavery, but should we end slavery? as we'll see the 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. maintaining slavery is the best option. so what have i said so far? i've said that from a the principles of the declaration you can get an argument that slavery is a violation of natural rights. but that doesn't actually tell that you slavery is wrong. because some violations of natural rights are justified and that is particularly true if

you're talking about outsiders, people who are not members of your political community. it's 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 -- slaves get christianity and civilization. then people didn't think slavery is so good but nontetheless sai it should be continued in america. if freed, they couldn't survive on their own. they would pose a danger to whites. this was jefferson's view. jefferson said should we give our slaves freedom and a dagger? now obviously, those are terrible justifications. right? they're not true. you don't need much of an argument to refute them. but my point is the declaration doesn't give you any argument of

that form. it gives you a totally different argument. it gives you different argument because it is not concerned with the liberty and equality of the individuals. it's concerned with the relationship between political communities. between one people who want to dissolve the political bands that connected them to another and assume separate and equal station. this is what the declaration says in the first sentence. it tells what you it's about. it says the laws of nature and nature's 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 nature's god entitle peoples that, is political communities, to separate and equal status. status as nations, basically. so the argument that the dem laration of independence does make is not about individual rights. it's about national independence. and that's why it's a declaration of independence and not a declaration of rights.

but, of course, we do have the principles about people being created equal and endowed with rights. they're not there to generate an anti-slavery argument. you don't find that argument in the declaration. we saw what that argue wait a moment look like. its not there. so what is the argument that the declaration actually makes? it's an argument about when one people is entitled to declare the independence. it's about when legitimate political authority can be thoen off. that's 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 it's acquired before we can say when it can be rejected. and that is what the self-evident principles are about. so where does political authority come from?

well, one answer would be from birth. some people are just born kings. they're born to rule. thatches a cla that's a claim the british crown might make. you can't 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 man ark does, king monarch does, king by the grace of god:to rebel would be a sin. so in a is the theory of the divine right of kings. it's a bit of a straw non17man 1776. the idea has been attacked by thomas payne in an pamphlet called common sense but jefferson thinks he needs to deal with it and he does with the 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 modernize a broad moral principle maybe. it's a very compressed argument of political philosophy. we're going to see this again with the declaration so modernize because we're not as steeped in enlightenment as the drafters were, we tend to think of these things as broad moral principles. they're 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 i'm going to call for shorthanded jefferson's equality. there are no kings. but are there slaves? well, yes, of course there are. jefferson's equality tells you in sort of a literal sense kings don't exist. there is no such person as a king who is entitled by birth to demand obedience. but, of course, right, slaves do exist.

jefferson owns several hundred. the other founders did too. by the standards of the age, you were a progressive if you freed your slaves when you died. jefferson didn't do that. he freed a small number of slaves on his death and those ones were actually his children. but back to jefferson's equality, this is the idea that there are no kings. it is not the idea that there is no slaves. slavely is not inconsistent with jefferson's equality. that tells you only that people are born equal. they're born equal but they don't have to stay that way. people might acquire authority over each other. they might do this legitimately. they divide themselves into the governors and governored and then the governored 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 can't happen. it doesn't even really say it

shouldn't happen. that's 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're a slave. i'm entitled legitimately to demand obedience. it doesn't reject or conflict with the idea that some people can say by your birth you're inferior and it's actually in your best interest to be my slave. ive give you cyst hristianity ie you civilization. it fit well with jefferson's views. jefferson's views were complicated. but he did believe that blacks were inferior, that slaves if freed couldn't survive on their own, couldn't be assimilated into american culture, and would pose a threat to whites. so jefferson's equality is very limited. it's 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. it's not saying that people will end up equal or free. and it's not saying that government should try to make them so. it's just a theory. it's 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 the relation to slavery, the principle that all men are created equal says different things to different people. to king george, if he's asserting a divine right to rule, the principle says flatly, you're wrong. right? that is not how people are created. but to a slave who says what about my equality, the declaration's answer is, well, that's complicated. we would need a different argument to decide whether or not this justified and the declaration doesn't give it. the declaration is not interested in that question. exactly the same thing is true of the principle that people

have rights including liberty. once again this is a very compressed argument of political philosophy. it's responding to a particular claim that the british crown might make. so this claim is, yes, people start out equal. they start out with natural rights including liberty. but then when they form a society, they surrender those rights to the government. this is the 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 can't complain that i'm 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 declaration's principle says to king george, you're wrong.

the colonists didn't surrender their liberty. they couldn't have because that right is inalienable. so inalienable, what does that mean? now adays when people look at the declaration they mean it means an inalienable right is something that is important or something that shouldn't be violated. but actually, inalienable has a precise legal meaning which jefferson was surely aware of. something that is inalienable is something that you cannot give away. and if you look at the virginia deck lar af declaration of rights, you get this principle, people have inalienable rights including liberty of which by no compact can they divest themselves or 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. that's complicated. sometimes liberties are justified. we lock up criminals, for instance. and there's no philosophical error in that. now is it justified to enslave people? of course not. but the reason it's not justified is not that liberty is inalienable. it's 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 they can envoek against the crown and you lose the right to change it. but again, it doesn't offer much help for the slaves. then they actually get to the heart of the declaration. the real fundamental principles.

people create governments to secure inalienable rights. and when the government threatens those rights, people can alter or abolish the government. so this is the right of rebellion. this says if the government threatens the rights that are supposed to protect, you can change it. and this i'm saying is the heart of the declaration not the principles that we find earlier on: on. if the government threatens your rights, you can change it. rebellion and when justified, that's what the declaration is all b again, it's a declaration of independence, 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. are they protecting the rights of the slaves? of course not. but again, this is sort of on another page because they don't

claim to. relationshipsen with the governors and the governored. 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 con sented. slaves are held in bondage by force. they're outsiders. the supreme court will say and the dred scott decision that they are hereditary outsiders. the descendents of slaves can never become citizens of the united states. the 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 said the principles of the

declaration are not broad moral principles. the way we often think of them now. they're actually narrow political principles. the they're pretty technical, compressed arguments of political philosophy. this is familiar and intelligible to people at the time. it would have been understood at the time and if you look at the reception of the declaration at the time, people didn't think that the preamble was announcing anything revolutionary. these are not the ideals we think of as fundamental to our identity as americans. they're not our modern values of liberty and equality. they're not even directly in conflict with slavery. so what next? well, what about the founders constitution? here we have the founders in founders hall in philadelphia drafting the constitution. is this a statement of our principles as americans? of the values that we hold dear? no, it's no the. and it's not for two reasons.

the second reason and this is something i will talk about more later is that founders constitution is actually not our constitution. there is no line from the declaration through that constitution to us. we come from somewhere else. but that point is a little furnl down t further down the road. what i just told you about the declaration of slavery, i said i'm not sure anyone else agrees with me on that. but what i'm going to tell you no you is actually relatively well accepted. which is that even if you suppose the declaration contains the broad moral principles of liberty and equality, they really didn't make it into the founders' constitution.

they gather together our american ideals. it tells us what it means to be an american. but if you look at the document that was written in 1787, there are base he cannily no undiluted principles there. this is compromise between big states and small states. that's how wend up with two houses of congress. one has represented by determined of population. one has senators, a lot two to each state. it is compromised between free states and slave states. that is most notably the three fifth compromise which gives states extra representatives in congress. so what about the values of liberty and equality? well, equality is hardly in there at all. and it's there mostly as a right of states. states are guaranteed equal representation in the senate. liberty does a little better. there is freedom of speech.

there is freedom of religion. there is 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 the relation to liberty and equality, i said the declaration is not inconsistent with slavery. the declaration is not concerned with slavery, it is sort of neutral you could say on the topic. i guess. because the argument that it makes simply doesn't relate to the practice of slavery. but the founders constitution is pro slavery. there is, of course, the slave clause which says a slave escaping to another state cannot thereby acquire freedom but must be rernd upon demand of the person to whom service is due. this strips the states 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 three fifth compromise. this enhances the power of slave holding states in the federal government. it gives them more represent nifz congress and more votes in the electoral college. four of the first five presidents come from the slave state of virginia and one of them, our friend thomas jefferson woshgs have lost the election of 1800 to john adams of massachusetts if not for the three fifth compromise. being an american nowadays means being committed to certain values. notably, the values of liberty and equality. and i mean that in a sense that these are aspirations. we think people should be free. we think people should be equal. we think people are entitled to kplin if the government infringes on the liberty or treats them unequal. you don't find the values by

looking back to the declaration and founders constitution. they just aren't there. so one problem with the standard story is that it's imposing on to the past a set of values that didn't really exist. if you want to look back to the declaration and tell a story about an american identity that was born then and has endured through the years, you can do it. it is not a very happy story. if you're 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. it's what i call the darker story. 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 n independence. 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. jefferson's first draft says, first, it blames king gorges for the existence of slavery in america. jefferson thought slavery should never come to america. then it also blames king george for insighting slave rebellions. jefferson slaves cannot be freed, they would be dangerous. the final draft takes out the tack on slavery itself. so even if the declaration announces principles that inconsistent with slavery, i've said i don't think it does, it very deliberately does not criticize the practice. you can see it. it's 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 draft the articles 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 can't keep the states in line. so we knew government is needed. that's what the founders constitution gives us. but once again, we have to get everyone onboard. we have to get the free states and the slave states together. if we can't get one single dominant nation on the north american landmass, the european powers may pick off the isolated states one by one. france, spain, england. they'll come in and dismember

the united states. so the founders constitution accepts slavery. it protects it in 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 ski them, what do you think? is this a glorious statement of american principles that served us well for over 200 years? is it a covenant with death, an agreement with hell? and they laugh. they laugh because they're surprised. of course, they've been taught the standard story about how wonderful and successful the constitution has been and most of them haven't heard the phrase covenant with death and agreement with hell.

but the abolitionist said that. and of those two descriptions, i think his is closer. the founders constitution is a compromise. it's a deal. you get an american nation but you must accept slavery. that is a bargain with evil. it's a deal with the devil. and like most deals with the devil, it doesn't work out very well. because what happens? the founders constitution is pro slavery, i said. but it's not as pro slavery as it could have been. not like the confederate constitution. the issue of slavery basically just gets pushed down the road. and that road leads to the battle fields of the civil war. 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. they could have had slavery forever or they could have said slavery will end. but maybe in some number of years they could have done something to it is slavery on a path to extinction this a way that everyone understood. most obvious way is modify the three fifth compromise so that it changed as the years went by. and the slave states would inevitably lose their power over the federal government. there are only two presidents,

the adams from massachusetts who oppose slavery. then things change. the north grows in population. even with the three fifth compromise which increases 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 anti-slavery john fremont. built he lost. abraham lincoln to an extent that is impossible to overstate is not the southern choice. so in ten of the 11 states that

are going to succeed, lincoln gets zero popular votes. not a single person votes for abraham lincoln. no one is willing to suffer the threat of violence that will come from trying to put lincoln on the ballot in those states. in the 11th virginia he is. and gets 1.1% of the popular vote. they see the national government falling into the hands of anti-government forces. the they fear the national government is going to end slif slavery which the republicans were in fact trying to do. they wanted to do it. they didn't think they could do it directly. but they had a strategy. they were trying to end slavery. and seeing that coming, the south succeeds.

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 understood it that way. he said the civil war is a judgement 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 it's achieving racial justice and true equality. for a while during reconstruction, that did in fact seem to be what the nation was doing. there is 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.

how do we do that? well, in the same way that declaration and the constitution did by sacrificing racial justice. the 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 100 years. there is different version of the american story that focuses on this, that takes redemption as the founding moment of america, as the birth of the

nation. so there's a movie about the civil war and aftermath, it falls two families, one from the north, one from the south, they tight on opposite sides of the civil war but they're both americans. the bonds of matrimony knit up the bonds of war. what is this movie? "birth of a nation" from 1915. it really is about the birth of the american nation. founding america broke apart. broke apart into two more or less equally legitimate sides. but then came back together. "birth of a nation" was controversial but 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, it's horrifying. it's got rising action, right, the part of the movie where

tensions are growing, things are getting worse. what is that? that's reconstruction with the carpetbaggers and the corrupt and deprived freemen. there is a climax. it is bait will in which the ku klux klan defeat the police force. it is the legitimate government of the south carolina town where the movie is set. and then there is 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. they're met by armed klansmen and they turn around and go home and that's supposed to be a relief. the nation can go forward as one, not so much because we're all americans as because we're all white.

congress enacts civil rights acts prohibiting discriminate ngs 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 headlines about that. the 1960s and 70s is minimtumul. ronald reagan talks about

welfare queens, about strapping young bucks using food stamps to buy t bone steaks. he says the voting rights act was a hue yamiliation of the so. he kicks off the presidential 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 reagan's presidency is notable because it brings so many people together. 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. it's fading, i think. and if you want to tell a story of progress, can you maybe tell it in that way. but if you want to look back to the declaration and the founding

for basic theme of the american story, it's not liberty. its not equality. it's purchasing unity at the price of racial justice. the story of america is not so much a burst of idealism that cast a light into the present day as it is a prinlal smal sin. we try to put a happy gloss on this. . it is not really accurate. 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 become our standard story? why it is the one we tell ourselves? rain ham lincoln puts the declaration front and center. he did this really consistently through his life.

but most notably probably during the civil war. like i said, the civil war did not start as a war against slavery. lincoln famously said if i can preserve the union by freeing all the slaves i would do it. if i could preserve the union way freeing none of the slaves, i would do it. by the time of the gettyburg address, it is a war of freedom. what is the justification for that? the battle hymn of the republic said as christ died to make men holy, let us die to make them free. religion is on the other side too. in the south. people are appealing to religion. what can lincoln envoik that is undeniable? well, not the founders constitution. the founders constitution does not protect equality. in fact, it protects slavery. so lincoln turns to the words of the declaration.

even though as i've said, dhoent really have the values that he is appealing to either. but second, by hashging back to the declaration and revolution, lincoln is making a strategic move. he is saying that the civil war like the revolution is a war for america. it is dedicated to the proposition that all men are created equal, it is a war to determine whether any nation so conceived and so dedicated can long endure. everyone looks back fondly on the declaration. this is in part because following the revolution there is a purge and people who opposed opposed independence were left in america. they looked 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. it's a good thing if you can convince people that declaration and founders constitution is on your side. a lot of people subscribe to those documents. so after lincoln this practice continues. in 1963, as i've said, the civil rights movement marches on washington. martin luther king makes his "i have a dream" speech it's in the words of the declaration. it echos the gettysburg address. given from the steps of the lincoln memorial. and king starts out by saying five score years ago, the same form as lincoln. but lincoln, i said, is counting back to the declaration. king is counting back 100 years to the emancipation proclamation. but then he goes back further. he talks about the founders, architect of the 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 pursuit of happiness. both lincoln and king are wrong about this. they don't 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 who's 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? 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 heirs of the s signers of the declaration of independence are the southern successionists. this is something that you don't hear that much but actually within the professional academic community i think it's relatively well accepted and if you're looking for documentary evidence, it is abundant. if you look it he letters that the southern states sent to congress overwhelmingly they invoke the declaration of the independence. the heart of the declaration is not a moral principle, it's 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

british would take that away just before independence. there is a decision in england saying slavery cannot exist in england. the abolitionist movement is starting in england. if the southern states win their 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 exactly the same way that they left the empire. they started the second american revolution. second american revolution by that, of course, mine the civil war. and there is 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 about the similarities. these are both wars fought in the name of the declaration of independence. and in both cases, the right to own slaves is very definitely one of the rights in people's 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 federal government and take up arms to fight against it? who is supposed to win that contest? well, in the minds of the founders, the answer is pretty clear. the founders think a distant general government might become a threat to liberty. it might start to oppress the citizens. that's what king george did. and when that happens, the states stand up to defend the rights of their citizens. that's what the state militias did, fighting off the red coats. and that war, the revolutionary war, is the mod that will is bui model that is built into the founder's constitution. the well regulated militia is supposed to fight off the federal army if it comes to

that. along comes the second american revolution. the states stand up to the rights of the 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 the sort of magic trick that he makes people think he's the one fighting for the declaration and the founders constitution in wh when in fact against them. if you draw a line through the founders constitution, it does not go to us. it goes to the rebel south and, of course, it stops there. they defeated it by force of arms. there are several different ways to make this point. but the one that like best is sort of an analogy to a plot device you find a lot in science

fiction movies. so you've got the hero and the hero is supposed to be hunting down some deviant, something that is not human. it's a clone or an alien. it looks human but it's not. you see this in blade runner. this is 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 that's human. that's the kind of realization that i want you to all have. that's when 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. it's 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 doesn't come from the declaration of independence. the moral principles that we think of, the central to americanism are not there. jefferson is not our equality. second, american identity doesn't come from the founders constitution. our deepest values are not there either. giti gettysburg, 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 theories of the founers constitution, they're supposed to win the second but they

don't. 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 found hersers had a basic v that said they're a threat to liberty. states protect liberty. state militias will fight off the tie rannical federal government. things didn't turn out that way. the federal government won but they also didn't turn out that way because it turned out that the states were the tyrants. the states oppressed people and the federal government fought for liberty. the reconstruction amendments were reflect this new understanding. they distrust the states. they put new restrictions on the states. they give us values of liberty and equality, not as narrow

political principles but as broad moral ones. they give us lincoln's equality, not jefferson's equality. and it's also worth noting that the reconstruction amendments were forced on the south. so we up end 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 by dissolving southern legislatures putting the south under military control and not allowing their representatives to return to congress until they ratify the amendments. what happens 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 you're going to take that away, we can leave.

the north says, you can't leave. the we're a union. both sides are fighting for their understanding of the status quo. but at some point during the civil war, i'll say more about this later, the vision of the union changes. they're not fighting for union anymore. a revolution is what you get after the 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. and they come up, there is the supreme court, they come up with the same cases year after year. so they say brown, loving, cases about racial discrimination. they say miranda, gidian.

cases about the rights of criminal defendants. maybe they say roe v. wade, the right to abortion, more recently they say 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 rights against the states, not the federal government. which is something that 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? it is bunker hill? no. if you're thinking about the constitution we have today, it is gettysburg. who are the soldiers who died for our rights? is it the minute men and colonial army? no. if you're thinking about the rights that we enjoy today, the rights that are enshrined in the supreme court decisions, it's the union army.

it was a failure. it has not served us well for over 200 years. it lasted about 70 years. it failed cat caclysmically ande got a more just 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. now why don't we say this? why don't we look to reconstruction as the source of our deepest american values? lincoln couldn't, of course. reconstruction was in the future for him. and it was a future he wouldn't live to see. but it was the new birth of freedom that he prophecied. it was coming.

but what about martin luther king? there is 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 for 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 race-based deed nile of the rigdenial. i have a dream that one day we will rise up and live out the true meaning of all men are created equal. now what's odd about this is twofold. first, segregation, denying blacks the vote, those are perfectly consistent with the declaration of independence. these things are absolutely fine in 1789. but in 1963, there is something they are not consistent with.

and that's something is not a distant aspiration. it's no the a glean in thomas jefferson's eye. the they're inconsistent with the reconstruction constitution. the 14th and 15th amendments say states cannot do these things. the supreme court said that about racial segregation and public schools in 1953. in 1957, the president sends the 101st airborne to little rock to enforce the orders. its very strange that king's degree murder is that nation will rise up and live out the true meaning of all men are created equal. which is something written 200 years before. 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. there is a promise note that the nation is dishonoring in 1963. the note is not the declaration of independence. it is the reconstruction amendments. and martin luther king knew

this. once again, there is documentary evidence if you look at king's writings, you'll 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 founder's constitution. he switches at some point. he switches the focus of his rhetoric. why does he do this? well, as i've suggested before, it's strategic. right? is it the declaration is something that all americans subscribe to. of 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. in 1963, even now, reconstruction is divisive. and can you see this, i think, by asking yourself a simple question. who won the civil war? most people will say the north. i think maybe they say that even more consistently if they're

from the south. that is clearly not right answer. the north is not even fighting in the civil war. it's a war between the united states of america and the confederate states of america. that is the confederate perspective. from the other perspective, it's 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 don't say that and why don't we say that? because looking back, not everyone feels affiliated with the winning side. and here's a way to think about that. that i think makes the point. you know this flag right? that is our flag. and you know this flag. and most people would also think

that is our flag. that's betsy ross flag. and you no he this flag. and probably fewer of you would say that's our flag. that's my flag. some people would. even if you wouldn't say that though, you knowthat, you know that flag. but what about this? does anyone say this is my flag? no. this is the fort sumpter flag from 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. you could get a betsy ross, 13 stars on a flag and you could get a confederate battle flag, there is a market for that. but if you want the union flag you have to special order it. people don't identify that strongly with the union side in

the civil war. and that is true even more so for reconstruction. so to say that's us, that's where we came from, well, yes, it is divisive. and when you talk about the declaration, there is broader buy-in. well, when i first started thinking about this, that seemed obvious. it seemed unavoidable. it seems unobjectionable. everyone could rally behind the declaration and you can't expect the same support for reconstruction but i come to think neither of those things is true. and when we tell ourselves the standard story, when we locate our ideals in the declaration of independence instead of reconstruction, we're not just using a convenient fiction. we're doing what i said the darker story of america shows which is we're purchasing unity at the price of racial justice. can everyone rally behind the declaration and the founder's

constitution? can everyone say thomas jefferson stated my deepest ideals. well not the real declaration, not the thomas jefferson that we have come to know through more details historical analysis 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 dred scott case. blacks are not included. they can't ever be descendants of slaves could never be u.s. citizens. so the spirit of '76. what is that? that is three white men marching forward together and this is painted in 1876, which is not a

coincidence, rightality the end of reconstruction, the nation decides to look back at independence and move forward together and look back to a moment when everybody felt unified. well, so what about reconstruction? it is divisive. but who feels excluded? not blacks any more. right. the 14th amendment overrules the dred scott decision in the first sentence. that is the point of birth right citizenship. there could be no hereditary outsiders, no matter who your parents are, if you are born here you're one of us. so who feels excluded. those who identify with the losing side in the civil war and the traitors who made war with the united states to build a regime built on slavery. that is just the truth. so it no longer seems obvious that we should have the declaration instead of

reconstruction. if we're going to exclude some people and celebrate something that marginalized them, it is probably better to marginalize the traitors. so i think we should look at reconstruction and see ourselves. ask who won the civil war and answer we did. we the people of the united states. we should maybe have the battle hymn of the republic as our national anthem and 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 that i thought about that, i think the case for black union soldiers as the heroes of our constitution is actually pretty strong. why is that? well the civil war, i said before, starts as a war or union. it ends as a war for freedom. how does that shift 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 services that always been a path to full citizenship, back to the days. roman empire. it became obvious to lincoln, to the other people leading the union, if you have black union soldiers, you could no longer have slavery when this war ends because blacks have to be full citizens and full participants in the american society going forward. so what turns the civil war into the war for freedom? what gives us the push that leads to the abolition of slavery and the reconstruction of amendments, i think it is black military service. so what does all this mean? it means that we could tell a different story about america. now it is a story about getting better like the standard story is but it doesn't look back. it is not about getting better, closer to some mythical past, it is about getting better by making a better future. making a nation more just. and it is not a success story.

not yet. maybe not ever. because it may never be over. it is the story of an unfinished project and not a story of continuity, it is a story of rupture and breaks from the past. the america born in 1776 is flawed according to this story. it is flawed of necessity compromise is required to win independence from britain, to win ratification of the constitution. but it is deeply flawed by the embrace of slavery. and then we get better. the improvement comes at a terrible cost. the death and destruction of the civil war. but the reconstruction amendments give us a much bet constitution. not immediately. reconstruction is opposed. it is blunted. it is driven back. but generations later the supreme court and civil rights movement redeem the promise of reconstruction and we keep going. there is opposition. there is always opposition. and there are mistakes and there are setbacks. but what makes us america, our deepest ideal, is that we keep

trying. america is born in an attempt to find a new and better way to escape the stale and oppressive monarchy of europe. and we don't get it right immediately. but we keep going. we're looking for america. and we know that the america we're looking for isn't something given to us by founding fathers, it is something that we make and something we find inside ourselves. the true america is not handed down from the past. but created anew by each generation, created a little bit better. and we could get 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 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 so that is why. and after the emancipation

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 today in today's society so many anti-voting problems. >> okay. so thanks for the comment. the question is about the 15th amendment. and the answer there is the 15th amendment is pretty narrowly targeted. so the 15th amendment is related to race discrimination with respect to the right to vote. for sex discrimination for instance we needed the 19th amendment. why do we have so much voter suppression nowadays. so the 15th amendment is part of

reconstruction, almost immediately thereafter it is a dead letter. because there's very overt and explicit refusal to allow blacks to vote in lots 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 and we're like, oh, you know, you can't do this so explicitly and then rather than explicitly discriminatory restrictions on the right to vote, you get tests that are administers unequally or tests that are very difficult to pass that most whites don't have to pass because there are grandfather clauses, this is the origin of the phrase grandfathered into something. if your grandfather was allowed to vote you don't have to pass this test.

if your grandmother wasn't allowed to vote, you do. who does that affect? that affects descendants of slaves. so how do you deal with that? well it turns out to be very difficult because you could have people who sue the states 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 there is a motive behind it. it is hard. and if you talk about the context of an individual election could you get a challenge to the courts and get a decision in time to remedy this problem? no, you can't. so maybe you win the case but it has no effect and the next election comes around and they're doing something else. so eventually congressen acts the voting rights act. and one of the things that the voting rights act does is it says certain jurisdictions with

a history of race-based voter suppression, basically, must get approval from the justice department before they can make changes to their voting laws. and this turns out to be enormously effective. because now rather than trying to bring these individual suits against states and trying to do things as the elections are being held, you could stop the discriminatory practices from going into effect beforehand. and the voting rights act works really well. it works so well, that the supreme court decided we don't need it any more in shelby county against holder. and the supreme court invalidated the preclearance requirement and following that a whole bunch of states that had been subject to that enact a bunch of restrictions on voting which they probably would not have been able to do if they would have been required to get

preclearance and it turns out once again it is practically very difficult to challenge these things. so the answer is there are a bunch of people who want to restrict voting. and the national government and the supreme court oppose that for a while. and they're not opposing it in the same way any more. >> thank you very much. >> thomas jefferson's draft of the declaration of independence has a paragraph that says in part, he, king george, wages cruel war against human nateur itself, violating the most sacred lights of life and liberty of a person who never offended them and captivated them and slavery in another hemisphere. i don't think thomas jefferson was against slavery. he put that paragraph in the -- his declaration of independence. it was the continental congress, other members. >> that is in thomas jefferson's

draft. and i believe the notes that we have say that at the insistence of representatives from south carolina and georgia, it was taken out. so jefferson does have this passage in the first draft criticizing the practice of slavery. so he blames king george for introducing slavery to america. which is a little bit strange if you think about it historically because the colonists were not objecting that this was forced on them and they are willing participants. >> i don't think it is accurate to say it was a gleam -- it was not a gleam in jefferson's eye. he certainly wrote it down. >> right. when i saw the passage gleam in jefferson's eye was raced base right to vote which martin luther king was objecting to in the i have a dream speech and the standard story has full

realization of the declaration shows us that those things are impermissible. once you realize that the declaration has this passage and takes it out, leaves in the passage criticizing king george for inciting slave rebellions and then we move on to the founders constitution and protected slavery and -- has no problem with the raced based denial of the right to vote it becomes harder to say those are the promissory notes that the nation is dishonoring and then the question is why didn't king point to the parts of the constitution that explicitly do condemn those things. there are parts that do it. it is the reconstruction amendments. and you realize as a high school junior, king won a national oratory contest which is all about the reconstruction amendments and talks about conquering southern armies but

unable to conquer southern hate. why did he talk that way and then move on to the sort of optimistic unity-based theme of i have a dream. presumably he thought it would be more effective. although interestingly later in his life, king seems to have changed his mind again. he seems to have lost faith in the idea that appeals to unity are the most effective way forward. he said that the superficial optimism of the i have a dream speech needed to be reconsidered and he expressed greater frustration with honestly what i've come to think of sort of the consequence of the standard story. so if you tell yourself american ideals from the beginning are anti-slavery. they are from the beginning anti-racist. you could look at the problems of racism and say it is overt racism, right. it is slavery. it is segregation. it's lynchings. and once we're not doing that

any more, racism is over. it was an aberration. it is superficial. can you cut those practices out of american life and you've solved the problem. and what king said was you need to realize racism is more deeply embedded in american life than that. racism is a deeper part of our nation's identity. and that i think is true. so the standard story that tells us it was an aberration, encourages a kind of complacency and unwillingness engage with the depth and pervasiveness of rateism and racial inequality. >> hi. i only have about 15 questions. i'll get through them real quick. no, for me the punchline of your story is profound, that the union soldiers are what created this country. but i'm a biologist, i'm not a lawyer.

and when i look at the laws that most of the lawyers, members of congress pass, based on the constitution, and 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 which exists nowhere in the known universe. from the current virus that is threatening us, to cyber to climate change to bio terrorism, whatever the threats are,/tm ou independent agencies, our independent states and our states' rights on a global scale cannot deal with the problems without getting at the root causes and it is my view, my story that i'm telling, is what part about the laws of nature and nature's god don't you understand. that when i look at every

religion that comes from the golden rule, and it's abraham lincoln who said our declaration of independence is our golden aiple and in order to form a more perfect union to thomas payne would say would give us our maximum freedom and security we need to be responsible with our freedoms and we are not. and the story that we have of our independence and our in siftence on independence in our constitution, our fourth amendment could not protect us against terrorism. the privacy can't be done. so anyway, the constitution going forward based on the flawed concepts that don't fit with reality, 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 not a good idea. i think it should be easier to

remove a president who has lost the confidence of the american people. [ applause ] i'm not a big fan of equal state suffrage in the senate. that was designed for a different world demographically. it is going to be the case, i think, projected within a few decades, that 80% of the population will live in like 18 states and there is going to 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. [ applause ] now, conceivably we could get around the electoral college without amending the constitution because if each state agreed or enough states constitute a majority ato award

leeektors to the winner of the national popular vote, then maybe we could get to a national popular vote without amending the constitution and there is an interstate compact where states are pledging to do this. unfortunately, though, people think, and i think they're mistaken, but think this would have partisan effect. and anything that is going to have partisan effects you probably can't amend the constitution to achieve. because it's so difficult to do. the party system is the other real problem. the party system interacts with our constitution in an unfortunate way. the framers didn't anticipate the party system. they thought that members of one branch of government would necessarily feel loyalty to that branch of government and they would view members of the other branches of government as rivals. so member of congress looks at

the president and thinks, there is a rival for the affection of the people and i should try to govern wisely so people will like me more. doesn't turn out that way once you bring the party system into the picture, because now if the members of congress and the same party, the member of congress looks at the president and said there is the captain of my team. and if they're from different parties the member of congress looks at the president thinks there is the captain of the other team. and so rather than checks and balances, based on sort of different assessments of the public good and different independent judgment of wise policy, you get either single-party compliance and an absence of checks and balances, our get this partisan in-fighting and hypertrophies checks and balances, in either case it doesn't work out all that well. and i would say -- a point that i think you were suggesting, the

idea of individual responsibility and the extent to which we have to be responsible and we should feel responsible for our political system and our government is also, i think, a very important idea. and benjamin franklin leaving the constitutional convention was supposedly asked by some woman what form of government had you given us, there franklin and famously supposedly he responded, a republic if you can keep it. and that is something i think we need to all bear in mind. >> if i could ask you a question. i don't disagree with a lot of the points that you made, especially about the constitution being flawed and so much more of what we are or who we are now coming out of reconstruction. but the constitution did have -- the bill of rights, freedom of speech, freedom of religion, freedom of assembly and double

jeopardy and all of that kind of stuff. some of our personality, some of the positive things that we are and who we are can be traced back to the constitution. and i understand a lot of those freedoms didn't come through until the 14th amendment applied them to the states but they were an integral part of who we were after the constitution was passed. >> well, it's a very interesting question. and on the one hand, yes, right, i agree with. there are these amendments. they place limits on the federal government and protect important values. it's also an interesting fact, though, that, one, the bill of rights was not understood in the same way as it is today until after it started being applied against the states through the 14th amendment. so if you look for early uses of the phrase the bill of rights, you don't really get anyone

calling the first ten amendments the bill of rights until after reconstruction. and if you look at the content of those rights, it's very different. so the bill of rights now has all of these really important rights and very fundamental effects on the way that government conducts itself, didn't really do that until those rights started being applied against the states. and part of that maybe has something to do with the way in which the federal government differs from the state and the states were doing morrow pressive things and the judiciary is less interested in checking. and one of the important things to understand about the bill of rights, i think, is that in its initial version it's not quite as focused on individual rights as people might think. a lot of it is focused on empowering states. because the founders think the federal government is a threat to liberty and they trust the

states. they think the states are going to protect the liberty. or at least they don't want to interfere with state practices. so if you think about the establishment clause, that is maybe the most vivid example of this. it says congress shall make no law respecting an establishment of region and nowadays that means there could be no official religion. of course, no official federal religion and also no official state religion. so the establishment clause gets invoked when states put up crosses in front of courthouses or put the ten commandments in the school or school prayer. this is the right to have the government not telling you what the official religion is. but if you think about this before the 14th amendment, at the time of the founding, why did they say congress shall make no law respecting an establishment of religion rather than there should be no establishment of religion. the answer is they were trying

to do two things. first they were trying to prevent the federal government from establishing a national religion and that is one thing the establishment clause clearly does but they were trying to protect state establishments. so at the time of the founding, a bunch of states had official religions and the point of the establishment clause was congress can't dis-establish those. so the establishment clause is the most vivid example of this. but there are a number of other constitutional rights in the bill of rights, the amendment is also one of these that change their content and change their meaning when they get refrkted through the 14th amendment and they become much more individual rights and much less what they started out as which is protection for state authority. >> you're certainly very eloquent on the question of both the constitution and the declaration of course involving compromises with slavery as a means of creating a union that

involved slave states. but isn't it true that the rhetoric in the preamble was interpreted by contemporaries as condemning slavery and inconsistent with slavery and the southern slave holders who had been -- benefited it personally thought it was an evil that would go into extinction and the most defensive of slavery as being a moral good later when the colonization of cotton became so profitable. >> so how was the declaration of independence understood at the time. very interesting question. the way that it looks to me, and i think the best source on this is pauline mayor, american scripture, she's done more research than i have with original sources and i depend to a fair amount on her research. but if you look at how the

declaration of independence is received, at the time that it is promulgated, most people do seem to understand all men are created equal and liberty is unalienable in the way i've described it. there is commentary among the british how ironic that the shrive drivers are yelping about liberty but i don't think that is really a serious engagement with the argument of the declaration. when the declaration is celebrated, which it is, it tends to be celebrated not as a source of moral principles about liberty and quality but as our independence. and this changes basically around 1830, i think. when the conflict over slavery is intensifying and abolitionists are looking for rhetorical resources.

right, how could we effectively fight against slavery. it is effective to say it is inconsistent with the fundamental values with the declaration of independence. and they say that. and i think they believe it. abraham lincoln said this consistently, i think he believed it. but i also think that it is a misinterpretation. if you read the declaration in the context in which 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 can't be enslaved. that seems a very strange thing for him to do because it is inconsistent with the practice of every government that had ever existed, basically. and it has nothing to do with the argument that he's trying to make. which is about when legitimate political authority can be

rejected. jefferson himself said he wasn't trying to write anything novel, he was trying to produce a sort of boilerplate enlightenment social contract political philosophy analysis of where legitimate authority comes from and where it could be rejected. and at particular moments he needs to distinguish between different strands of social contract theory. he needs to go with lock rather than with hobbs and he does that in a compressed but a very precise way. but the part of the declaration that people considered important was actually not the preamble. not until about 1830. oh, sorry. [ applause ]

[ concluded ] weeknight this is month, we're featuring american history tv programs as a preview of what is available every weekend on c-span 3. tonight we begin with a night of lectures hosted by the university of mary washington in fredericksburg, virginia, with historian joann freeman on the american duelling culture. she described the so-called code of honor that led to duelling and explains the political strategy behind the confrontations. american history tv, this week and every weekend on c-span 3. this year marks the 100th anniversary of the start of prohibition banning the sale or transportation of intoxicating liquors. up next from the smithsonian associates historian and author and tour guide garrett peck discusses the rise and fall of