help support the 14th amendment. watch beginning at 8:00 eastern and enjoy american history tv every weekend on c-span3. 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. he argues through fail ours and reinventions we've used the cobs to us as a tool to create our modern core values. the smithsonian associates hosted the event. >> good evening, everyone. can you all hear me in the back? great. my name is ruth robbins 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 when it's time for that, and we'll ask you to line up this 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 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, 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 with 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 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 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 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 address, lincoln looks back to the declaration as the birth of the nation. it takes a little bit of arithmetic to figure this out, but he'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 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 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, too, but first, i want to say a little bit about this one. the first thing to note is it's a backward-looking 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. it's 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, backward-looking story. second thing is this is a success story. yes, we've had our difficulties, but basically if you look back america always succeeds. we always triumph, and why is that? it's because of the wisdom of the founders and the ideals of the declaration, and the civil war is probably 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 more fully realizing those ideals. so backward-looking, success and then the third thing, it's a

story of continuity. it tells us there's 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 it's a success story because it's telling us basically we are the same people we've always been. we are the same nation. the signers of the declaration, the drafters of the constitution, they got it right. we're living in the world that they designed. we're 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 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, and when things look dark, answers exist if we look back to find them. there's 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 it's really not true. now, i know i've said that logical arguments don't dislodge stories, but now i'm 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. i'm going to present you, i think, with some claims that you will find surprising, that you don't hear in the standard story, that you don't hear very much at all actually, and here's the first one. the declaration of independence does not actually set out our modern values of liberty and equality. in fact, it's consistent with slavery, so this should be a surprise, right?

i don't think anyone else says this, and often if you're the only person saying something, it's crazy and you're wrong, but hear me out because i have -- i've become quite convinced of this. so generally speaking people say, of course there's an obvious contradiction between the declaration of independence and slavery. but let's look at the declaration and think about what its values actually are. so here's the preamble of the declaration and this is what people usually pay attention to. that's appropriate. after the preamble and a little bit of political philosophy we get 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 of their argument but they aren't 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 i'm going to talk about the argument that the declaration makes in a second. but first i want to talk about the argument that it doesn't make. which is the argument against slavery. so why do people think the declaration is inconsistent with slavery? because of these self-evident 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 slave's natural light to liberty. so it's prima fascia wrong. enslaving someone else is an infringement on their natural rights. that's true, so far, so good. the declaration does get you that far. but there's another step you need, which is that this infringement isn't justified because in the political world there are lots of infringements on people's natural liberty. if you use your liberty to steal someone else's property, we'll lock you up, we'll take away your liberty. if you commit a serious enough crime, we will take your life, that's 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 non-citizens? 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. so different factors come into play when we talk about outsiders. the argument gets even more complicated. and 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 it's 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? i've said that from the principles of the declaration you can get an argument that slavery is a violation of natural rights. but that doesn't actually tell you that 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, and 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 get christianity. they get civilization. then there were people who didn't think that slavery was so good, but nonetheless thought that slavery in america should be continued. they said slaves, if freed, couldn't survive on their own. they couldn't be assimilated

into american society. 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. 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. and it gives you a different argument because it is not concerned with the liberty and equality of individuals, it's 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 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 declaration of independence does make is not about individual rights. it's about national independence. and that's 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 aren't there to generate an anti-slavery argument because you don't find that argument in the declaration. we saw what that argument would look like, it's not there. so what is the argument that the declaration actually makes? it's an argument about when one people is entitled to declare its independence. it's 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 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. and that's a claim that the british crown might make. so the british crown might say 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 monarch does, king by the grace of god. rebellion against him would be unjustified. it would be, in fact, a sin. so that's the theory of the divine right of kings. it's 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. it's actually a very compressed argument of political philosophy. and we're going to see this again with the declaration. to modernize because we're not as steeped in enlightenment political philosophy 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 shorthand jefferson's equality. there are no kings. but are there slaves?

well, yes, of course there are. so 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 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 didn't even 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 are no slaves. slavery 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, 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 doesn't even really say that 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 are a slave, and i am entitled legitimately to demand your obedience but it doesn't reject or conflict with the idea that some people can say by your birth you are inferior and it's 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 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 its 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 are wrong, 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 is justified and the declaration doesn't 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 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 irrevocably, they couldn't have because that right is i inalienable. when people look at the declaration they often think an inalienable right is something that's important or something that shouldn't 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, that's complicated. sometimes deprivations of liberty 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 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 doesn't 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 it's 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. 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, it's a declaration of in dependence, it's 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 don't claim to. they weren't created by the slaves. here's 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. they're actually narrow political principles, they're 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 didn't 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, 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, philadelphia, drafting the constitution. is this a statement of our principles as americans? of the values that we hold dear. no, it's not, and it's 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 i'm not sure anyone else agrees with me on that. but what i'm 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 didn't 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 there's an overarching theme of the founders constitution, it's compromise, there's compromise between big states and small states. that's how we end up with two houses of congress. one has representatives determined by population, one has senators allotted, two to each state. it's 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 it's there mostly as a right of states. states are guaranteed equal representation in the senate, for instance. liberty does maybe a little bit better. there's freedom of speech. there's freedom of religion. there's 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. it's 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 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. there's also a provision that protects the international slave trade until 1808. and most important there's 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 presidents 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 three-fifths 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 don't actually find those values by looking back to the declaration and the founders constitution. they just aren't there. so one problem with the standard story is that it's imposing onto the past a set of values that didn't 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 it's 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. 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 jefferson's 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 can't 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, 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. so accepting slavery is the price of independence. it's 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 can't keep the states in line so a new government is needed. that's 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 can't 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, they'll 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 they're surprised because 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 william lloyd garcon said that and of those two descriptions i think garrison's is closer. the founders constitution is 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? well, the founders constitution is pro-slavery, i said, but it's not as pro-slavery as it could have been, it doesn't entrench slavery forever, it's 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 wouldn't 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 three-fifths 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 presidents, the adams from massachusetts, who oppose slavery. and then things change. the north grows in population. even with the three-fifths 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 anti-slavery, 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? it's because he's 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 anti-slavery 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 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 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 it's 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. there's 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 it's 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 there's 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 they're 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, it's "birth of a nation" from 1915. and it really is about the birth of the american nation. it's 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 we're 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 it's pretty horrifying. it's got rising action. the part of the movie where tensions are growing, things are getting worse, what is that? that's reconstruction. with the carpet baggers and the sally wags and the corrupt freed men. there's 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 there's 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 standing by the polling booths and they turn

around and go home and that's 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 we're all americans, as because we're 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 that's in response to other changes that make it harder to see redemption as our founding moment. the civil rights movement comes along in the mid-20th 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 t-bone steaks. he kicks off his 1980 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. obviously the electoral college overstates this a bit, that's 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, it's not liberty. it's not equality. it's 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 it's 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, it's 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 that's 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 i've said they don't 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. it's 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 it's a war, unfortunately i don't 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. it's 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 i've said, the civil rights movement marches on washington, martin luther king makes his i have a dream speech, it's an appeal for equality in the words of the declaration. it starts actually by echoing the gettysburg address rhetorically. it's 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, i've 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 i've said already the declaration and the founders constitution 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, 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 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 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, i've said, is not a moral principle, like liberty or equality. 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 the british would that i cake that just before independence there's 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 there's 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 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 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. 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 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 he's the one fighting for the declaration, and the founders constitution when, in fact, he's 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 you've got the hero. and the hero is supposed to be hunting down some deviant, something that's not human, it's a clone or an alien and it looks human but it's 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 that's human, and then he realizes something else, if that's the human, then who am i? right, i'm the robot, i'm the clone, i'm the bad guy. and that's the kind of realization that i want you all

to have about america and the declaration. what happens in the civil war? lincoln tells us we're fighting slavery, we're fighting the enemy of the declaration. and that's what we hunt down and kill, this deviant, un-american 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 as central to americanism are not there. jefferson's equality is not our equality. second, american identity doesn't 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 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 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 didn't turn out that way because the federal government won but they also didn't 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 lincoln's equality. not jefferson's equality. and it's 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 you're going to take that away we can leave the north says you can't leave, we're a union. both sides are fighting for their understanding of the status quo but at some point during the civil war and i'll say more about this later the vision of the union changes. they're not fighting for union anymore, they're 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 -- there's 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 you're 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 you're thinking about the rights that we enjoy today, the rights that are enshrined in those supreme court decisions, it's 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 don't we say this?

why don't we look to reconstruction as the source of our deepest american values? well, lincoln couldn't, of course, reconstruction was in the future for him. and it was a future that he wouldn't live to see. but it was the new birth of freedom that he prophecied in the gettysburg address. didn't exist when he spoke, it was coming. but what about martin luther king? there's 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 race-based 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, what's odd about this is twofold. first, segregation, denying blacks the vote, those are

perfectly consistent with the declaration of independence. they're 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. it's not a gleam in thomas jefferson's eye. 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 in public schools in 1953. in 1957 the president sends the 101st airborne to little rock to enforce its orders. so it's very strange that king's 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. there's 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, there's 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 founders 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, 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 they're 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 it's a war between two nations, 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 though this flag. that is our flag. and you know this flag. and most people would also think, that is our flag, that's the betsy ross flag. and you know 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 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 don't identify that strongly with the union side in the civil war. and that's true even more so for reconstruction. so to say that's us, that's where we came from, well, yes, right, it's divisive. and when you talk about declaration, there's broader buy-in. 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 can't 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 we're not just using a convenient fiction. we're actually 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 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 can't ever be descendants of slaves can never be u.s. citizens. so the spirit of '76, what is that? that's three white men marching forward together. and this was painted in 1876, which is, it's 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 you're born here, you're one of us. that is inclusive. so who feels excluded? well, it's 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 we're 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 doesn't 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. we're looking for america and we know that the america that we're 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 that's why. and after the emancipation proclamation, that's how we got black union soldiers. if the 15th amendment protects the rights of all citizens to vote, why do we have, today, in today's 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 we're like you can't do this so explicitly. and then rather than explicitly

discriminatory you get tests that are difficult to pass that most whites don't have to pass. if you're grandfather was allowed to vote, you don't have to pass this test. if he wasn't 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 you're 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 can't. 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. they're 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 jefferson's draft. and i believe the note that's 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. they're not objecting at the time that the institution had been forced on them. >> i'm just saying i don't think it would be contract to say it was not a gleam in jefferson's

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 didn't 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 anti-american. >> 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 nature's god don't 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 can't 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. i'm 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 they're 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 doesn't 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 they're from different parties, they may look and think they're 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 won't 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 don't 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 didn't 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 don't 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 didn't 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 it's initial version it's 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 don't 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 can't 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 isn't 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 don't 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 that's 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 can't 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 wasn't 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 we're featuring tv programs as a preview of what is available every weekend on c-span 3. tonight we begin with women's history. the world war one museum talked about mona sigell. the sacramento state history professor argue that's 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 c-span 3. >> next on american history tv a look back of the military career of george washington. the president and ceo of george washington's 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. i'm 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