weeknights this month we're featuring american history tv programs as a preview of what's available every weekend on c-span3. tonight we begin with women's history. the national world war 1 museum hosted mona siegel to talk about peace on our terms. the global battle for women's rights after the first world war. a diverse group of women from around the world pushed for more rights in the wake of world war i and that some of these women who were attending the 1919 to 1920 peace conference helped push woodrow wilson to support the 19th amendment. watch beginning at 8:00 eastern and enjoy american history tv every weekend on c-span3. kermit rose relosevelt, a constitutional law professor and great-great grandson of theeder roosevelt talks the declaration of independence's contrary view.

he argues thaw failures and reinventions we use the constitution 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? >> my name is ruth robbins and it is a pleasure to welcome you to our program, before we start a couple of quick things. if you have electronic devices, now is a good time to turn them off. as usual in our programs, there is no photography and no filming. also, if you're wondering what our equipment is in the back of the room, it's c-span. so make -- show your nicest smile, brush your hair, in case you get a cameo and when we get to the q and a part, there is a meeker phone in the back of the

room that will let you know when it's time for that and you'll get time to ask your questions. in the rest of times it is always worthwhile to visit the documents that set us apart from british rule and created the framework of the government. today our guest speaker kermit roosevelt explains these documents and shares their interpretation of 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 pen faculty, he served as a law clerk to supreme court justice david suitor. his book, 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. 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 the election and that choice will reflect 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 in what gives us a sense of what america means.

the first point i want to make is stories do that. stories tell us who we are. they organized world for us and this is true of individuals. when people think about their lives they tend to think of them in narrative form. they find meaning in experience and find heros andvilleance. james said this is the artist's task, transforming the daily bread of experience into the radiant body of everlasting life. in that sense, we're all artists and 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 interet prettied and usually 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 come from stories about the nation's history ask that's what i'm going to talk about tonight and i'll 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. as you heard, i'm a law professor before that i was a lawyer doing appellate litigation. it was my job, 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 pervades 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 identitieses to their sense of self. in those kinds of situations you can make the best and 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 have been social psychology research on this ask it shows people are incredibly resistance to reasonable 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 group's got different information in each case, they got information that challenged their beliefs. you would have thought this would make them less confident and the result is the people on both sides express greater confidence in those beliefs because they felt a threat to their identity and they basically respobed by reaffirming it. those beliefs were not just f t

factual beliefs about the world and because of that they were part of the story and the story that people told themselves about themselves. so here's an ordinary factual question. is it raining out or not? your belief about that didn't relate to 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 is the most important thing that i learned as a lawyer and it's what i try to teach my students 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 can make you an 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 the place in it you have to offer a different story that offers up a different way of understanding the world. you can change people's minds and change their self-perceptions and if you can talk to them about the way your interior voice does. for most people, the interior voice is not giving arguments. it's telling stories. stories tell us who we are, and stories are powerful. frequently they can't be dislodged by recent 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 america. so i will compare them. i will analyze them and i will be doing a logical argument. i'm a law professor and i can't get away from that and 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 america, 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 and basic celebrations of america. the standard story says long ago 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 right, 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. >> the constitution sets out our fundamental values. what are those fundamental values? liberty and equality. it tells us what it means to be in america and 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 and to fulfill their vision of america, to be true to the principles that started in the declaration of independence and 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 confidence with the principles of declaration with the liberty and equality, but we fought a war with those principles again, the civil war, and that was in the name 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 and because it's an early photo it's not a 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 a ri s arithmetic to figure it out and he's getting the gettysburg address in 1863, and subtract

four score and seven years from 1863 and what do you get? not 1787 in the constitution, you get 1776 and the declaration of independence and lincoln, of course, invoked those principles. the nation is conceived in liberty and dedicated to the proposition that all men are created equal. so the civil war is a challenge and it is also an opportunity for americans to move forward to more formally realize the promise of a declaration. being, the standard story concedes even after the civil war the work is not done. racism persists and the challenge rises up to challenge the 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. he talks about the founders and the architects of our republic. the people who wrote the magnificent words of the constitution and the declaration of independence. they promised, he says, all men black as well as right will 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 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 concede, 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 startedous 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're the heirs of that first revolution and we still carry that banner, the flag of freedom, the flag of equality and we're marching in the name of the declaration of independe independence and if there's a picture of the true america it's a famous paenting by archibald mcneil willard, the spirit of 1776. so here you have the three men marching forward with the fife and a drum and in the back, the betsy ross flag with 13 stars in a circle. this is what we call the standard story and this is what we usually tell ourselveses to explain who we are. we're the heirs of the first revolution and we are the descendants 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 that wisdom and for 200 years it's pointed the way to a better america and a more per ekt union. i'm going to tell you a couple of other story, 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 has 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, but the founders' constitution, and 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 and focus on the constitution. focus may be on the original understanding of the constitution. live up to the ideals of the founders and be more like them and the way forward is by

recovering the greatness of the past. so first, backward-looking story. second thing is this is a success story and basically if you look back america always succeeds and we always triumph and why is that? it's because of the wisdom of the founders and the ideals of the declaration ask the civil war is probably the best example of that. it's a terrible war, yes, and the ideals of the declaration triumph and we improve. we take a big step forward toward realizing those ideals. so backward looking, success and the third thing is a story of continuity and it tells us there is a line that goes from the signers of the declaration of independence through to 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 ask weir the same nation. we are the signers, and the drafters of the constitution and we got it right. 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 and we don't always live up to them, but we're getting better and we're succeeding and a sense of inevitable progress. there's authority in the past. in a moment of unity that everyone can rally around and everyone can share in. everyone feels a connection to the founding and the story emphasizes that. the problem, though, one problem is that it's really not true. now, i know i've said logical arguments don't dislodge story,

but now i'm going to give you a bit of 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 and i'll present you with 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. i've become quite convince of this. generally speaking, 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 are and here's the preamble and here's what people usually pay attention to. that's appropriate. after the preamble and a bit of political philosophy, we get grievances against king george and bad things that he's done and those are not as important and that's evidence that the founders are figuring out in support of the argument. the declaration of independence is an argument of political philosophy and there's an argument that the governments are justified in throwing off the authority of the british empire and to understand the crucial desperation 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. why do people think the declaration is consistent with slavery because of these self-evident truths, all men are created equal and endowed by their creator with inalienable rights including the pursuit of life, liberty and happiness. people will 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 and it conflicts with the slaves' natural right to liberty so it's prima facie wrong. 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 and take away your liberty. if you commit a serious enough crime we'll take your life, and that's what we'll do even to our own citizens and members to our own community because they're 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 to some extent 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 non-citizens? sometimes quite harshly. if you're an enemy soldier we'll take your right without worrying

about your rights and that's justified because we're protect tekti teprotecting our political community. 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 question is not should we start slavery and it this end slave reand it's impossible to think that the first question was no, slavely should have never in to america and the second question knowing it existed it and maintaining it was the boast option. so what i've said so far, i said that from the principles of the declaration you can get an argument that slavery is a vileation of actual rights and that doesn't tell me that slavery is wrong and 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, right? you need to say the justifications were inadequate. what were the justifications? some people supported slavery as a good thing. they said slaves get christianity, they get civilization and then there were people that didn't think slavery was so good and nonetheless thought that slavery in america should be continued. they said slafves if freed couldn't assimilate into morn society and they would pose a danger to whites. jefferson said should we give our slaves freedom and a dagger? >> those are terrible justifications. they're not true. you don't need much of an argument, the domestic lagz

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 and between one people who want to dissolve the political bands that have kec d connected them to another and have assumed separate, but equal station and this is what it says in the first sentence. it tells you what it's about and the laws of nature's god entitle individuals to liberty and equality. no. entitle them to equal treatment by the government. no. the law of nature and nature's god entitles people, 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 and 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 these

principles about being people created equal and endowed with inalienable rights and they are 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 of when one people is entitled to declare its independence and it's about when 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? 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 these self-evident principles are about. so where does political authority come from? well, one answer would be from birth, right? 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 and 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 and it would be, in fact, a sin and that's the theory of the divine right of kings and it's a bit of a strong man in 1776 because at that point they're no longer claiming divine authority and the idea has been attacked by milton to locke to thomas payne in a pamphlet entitled common sense and he thinks he needs to deal with and with the simple proposition, all men are created equal and 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 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 in steeped in enlightenment, we tend to think of these things as broad moral principles and they were 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 king, but are there slaves? well, yes. of course, there are. so jefferson's equality in sort of a single sense, kings that are entitled by bigger to demand obedience. >> they do exist.

by the standards of the edge -- is over know is would feed a small number and those were his children. back to jefferson's equal and the idea that there are no kings and there are no slaves and slavery is not consistent with jefferson's, quality. that tells you 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 from the governor or they might do it through fofs aa way that can be and 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 and it doesn't reject 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 and that was common for justification and it fit pretty well with jefferson's views. jefferson's views were complicated and he did believe that blacks were inferior that, blacks couldn't survive on their own and couldn't be assimilated to american culture and would pose a threat to whites. so jefferson's equality is very limited and it's an idea of political quality 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 would end up equal and free and not that government would 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 say different things to different people. to king george, if he's asserting a divine right to rule, the principle says flatly, you're 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 it's 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 and once

again, this is a very compressed argument of political philosophy and it's responding to a particular claim that the british crown might make which is the claim of an indissolvable social contract and this claim would be that yes, people start out equal and they start out with natural rights including liberty, but then when they form a society, they irrevocably surrender those rights to the government and this is the social contract theory of thomas hobbs rather than john locke and it would have been familiar to people at the time. so if you accept that theory, the colonists would say you've violated my liberty and king george would respond, you can't complain that i'm violating your liberty because you've surrendered forever, your inalienable rights in exchange for my keeping the peace and the declaration says to king george, you're wrong. the colonists did not surrender their liberty irrevocably, they

couldn't have because that right is inalienable. inalienable. what does that mean? nowadays when people look at the declaration they mean the inalienable right is something that's important or something that shouldn't be violated, but actually, inalienable has a very precise legal meaning which jefferson knew the meaning of, it is something you cannot give away and if you look at the virginia declaration of rights you get a somewhat more extended statement of the principle which means people have inalienable rights including liberty of which by no compact can they divest themselves or their posterity so liberty cannot be given away. you can imagine the slave saying the same thing saying you have violated my liberty and the declaration says that's

complicated. sometimes deprivations of liberty are justified and we lock up criminals, for instance and no philosophical error in that and is it justified to enslave people? think not, it's not that liberty is inalienable and it's exercising dominion based on force is wrong. inalien ability has nothing to do with that and no one said that slaves voluntarily surrendered their liberty. so the principle that liberty is inalienable is something against the idea of a social contract, but it doesn't offer much help for the slave. then we actually get to the heart of the declaration and the real fundamental principle. people create governments for

inalienable rights and people can alter or abolish their 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 and 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, it's the declaration of independence and the status of the colonies which are particular political communities with respect to the crown, another political community. now this, too, you may think have relevance to the slave and are the colonial governments protecting the rights of the slave, of course, not. but this is on another page because they don't claim to they

weren't created by the slaves. the relationships between the governors and the governed. leg legitimate authority is when that consent can be withdrawn. slaves, of course, never consented and slaves are held in bondage by force and they're outsiders. the supreme court will say and the dread scott decision that they are hereditary perpetual outsiders and 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 whether 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 i have said so far? i have said the principles of declaration are not broad, moral

principles the way we think of them now. they are actually narrow political principles and they're technical and compressed articles of political philosophy. it was ineligible and it would have been understood at that time and if you look at the reception at that time, people wouldn't think that they're announcing something revolutionary. so these are not the ideals that we now think of as fundamental to our identity and we have the founders in founders' hall drafting the constitution. is this a statement of 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 they 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. the main thing we want to focus now is the content of the founders' constitution and what i just told you about the declaration of slavery i'm not sure anyone else agrees with me on that, but what i'm going to tell you now is relatively well accepted which is even if you suppose the declaration contains these broad moral liberties and quality they didn't make it into the constitution. 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 representative determined by population. one has senators allotted to to each state. it's compromised between free states and slave states. that's 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? equality is hardly in there at all, and it's there mostly as a rite of states. states are guaranteed equal representation in the senate, for instance liberty does better and there's freedom of religion and the bill of right, but like

all of the original bill of rights these rights to free speech and 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 was not inconsistent with slavery. the declaration is not concerned with slavery. it's sort of neutral, you can 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 a slave escaping to another state cannot thereby acquire freedom, but must be returned 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's also a provision that protect the international slave

trade until 1808 and most important, there's the three-fifths 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 state of virginia and our friend thomas jefferson would have lost the election of 1800 to john adams of massachusetts if not for the three-fifths compromise. so what have i said now? being an american nowadays means being committed to certain values, most notably, the values of liberty and equality and i mean that in the sense that these are aspirations and we think people should be free and we think people should be equal and 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 at the

declaration and the founders' constitution and they just aren't there. 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 at the founders' constitution and tell a story about identity that was born there and borne 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 nati 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 will fight for freedom as one and we have to do that to

achieve independence because the states acting fth and that means the declaration will not say much about slavery. so jefferson's first draft does say something. first, it blames king george for the existence of slavery in america and jefferson did not slavery should never have come to america and it blames king george for -- jefferson thought slaves can't be freed. they would be dangerous. it leaves in the complaint that king george is encouraging slaves to rebel. so even if the declaration announces principles that are 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 and it gets taken out. accepting slavery is the price

of independence. it is also the price of union. after the revolution, we have the articles of confederation. those are basically a treat among independent states. the people who draft the articles of confederation remember the tyranny of the british and they set out to create a central government that is too weak to become a tyrant and they succeed in that, and succeed brilliantly and it is too weak to govern effectively and it can't keep the states in line. so a new government is needed and 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 because if we can't get one single, dominant nation on the single north american land mass, the european pows are may pick off the isolated states one by one, france, spain, england will come in and dismember the united states. so the founders' constitution

accepts slavery. it protects them and 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 a covenant with death or an agreement with hell? [ laughter ] and they laugh. people always laugh. they ask 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 haven't heard the phrase covenant with death and agreement with hell, but the abolitionist william lloyd garrison said that, and of those

two descriptions, i think garrison's is closer because the founders' constitution is a compromise. it's a deal you get an american nation and that is a bargain with evil and 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 not like the confederate constitution and it doesn't entrench slavery forever. it's protection of the international slave trade and it explicitly expires in 1808 and the issue of slavery basically just gets pushed down the road and that road leaves where? to the battlefields of the civil war. so the civil war happened because the founders' constitution compromised and did not resolve the issue with slavery, and i mean that first

in a political sense and the constitution could have taken a position one way or the other and it could have said slavery forever and maybe that constitution would have been ratified and slavery will end not immediately and that constitution certainly would not have been ratified, but maybe in some number of years, and they could have done something to set off on a path of extension in a way everyone understood. the most modest way to do that is to change as the years went by and the slave states would inevitably lose their power over the federal government so that would have been acceptable, but it was easier to say nothing about it and that's what the founders did and the constitution is structured to support slavery in the early years and in the early years the slave states controlled the national government, and there are only two presidents, and the adams' of massachusetts who opposed slavery. and then things changed.

the north grows in population. even with the three-fifths compromise which remember, increases the federal representation of slave states and 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 buchanon. he becomes president defeating the antislavery john fremont. free men, free speech, fremont. it was a good logo, 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 11 states that are going to succeed, 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 aproprium that would come from putting lincoln on the ballot in those state. 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 sees 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' constitution, 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 last will be paid by b 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 truly 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 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 for a war from freedom. it does not begin that way. 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. 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 100 years. and there is actually a 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 its aftermath. it follows two families, one

from the north, one from the south. they might 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 marriage between these two citizens. what is this movie? 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 sides but came back together in the moment of redemption and now we can 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. 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 fiscalth a climate. 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 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. for 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 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, the 1970s is a tumultuo tumultuous period. 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 humiliation of the south. he kicks off his campaign with a speech praising states rights. 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 partner set in the declaration and repeated there after of bringing the nation together by pushing aside issues of racial inequality. the pattern repeats itself. it's fading, i think. if you want to tell a story of progress, you can tell it in that way. but if you want to look back to the declaration and 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. if you listen closely, you can still hear that theme. my main point is if you look back at clear eyes, the story of america is not so much a burst of idealism that cast its lights into the present day as it is a sin. 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? 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. the civil war did not start as a war against slavery. lincoln said if i could preserve the union by freeing all of the states, it would do it. the i would preserve the union by freeing none of the states i would do. but by the time of the gettysburg address, it's become a war of freedom. the battle hymn of the republican cast it in religious terms. religion is on the other side too. in the south, people are appealing to religion. what can lincoln invoke that is undeniable. not the founders' constitution. the founders' constitution does not protect equality. it protects slavery. so lincoln turns to the words of the declaration. even though as i said, they don't really have the values

that he's appealing to either. but second by harking back to the declaration and the revolution, lincoln is making a strategic move. he's 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, but it is in your handout. it's 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 and the people opposed independence were large largely driven from the country. but the people who 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 deceleration, 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 the civil rights movement marches on washington, martin luther king makes his "i have a dream" speech. it starts 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 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 rights of life, liberty and the pursuit of happiness. well, both lincoln and king are wrong about this. 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? the answer is actually pretty clear. it's 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 heres of the

signers of the declaration of independence are the southern secessionists. this is something else that you don't hear that much. but within the 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, overwhelming, 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. if the government threatens those rights, people can rebel. the southern states joined the revolution and the union to protect rights that they valued. and high on that list was the right to own slaves. they might have feared that the british would take that away just before independence,

there's 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, 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 because these are both wars fought in the name of the declaration of independence. under the political theory that people form governments to protect rights and can rebel if the 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 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 clear. the founders think a distant general government might become a threat to liberty. it might start to oppress it's citizens. that's what king george did. 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. along comes the second american revolution.

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 institution when 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 said, the herirs of the first revolution. we're the heirs who defeated it. there are several different ways to make that 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 is not human. it looks human, but it's really not. you see this in "blade runner." this is maybe a little bit of a spoiler. the hero hunts this thing down, kills it, is looking on 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? 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, right? we're fighting the enemy of the declaration. and that's what we hunt down and kill this deviant un-american idea. actually, it was the

deceleratideclaration itself. 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 mortal 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's the end of the theory of the declaration.

it's 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's just as big a break as the break created by independence from the british empire. the founders had a basic vision that said the federal government is dangerous, the federal government is a threat to liberty. states protect liberty. state militias will fight off the tyrannical federal government. but they didn't turn out that way because it trurned out that the states were the tyrants and it was the federal government that fought for liberty and 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. 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 your 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, and not allowing their representatives to 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. at some point, 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. a rive a revolution is what you get after a victory. the reconstruction constitution is different from the founders constitution and it is the one that we live under. 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 with -- there's the supreme court. typically they come up with mostly the same cases year after year. they say brown, loving, cases about racial discrimination, they say miranda, gideon, maybe

they say roe v. wade, 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? is it bunker hill? no, it is gettysburg. who were 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 a new nation, but it was not this one. it was not our america. our america is reconstruction and the war that gives birth to it is the civil war. 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, right, 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 free that he prophesied in the gettysburg address. didn't exist when he spoke. it was coming. what about martin luther king.

there's something odd about the i have a dream speech. almost as odd as the gettysburg address. king as i mentioned 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." live up to your promise, he says, right, i have a dream that one day we will rise up and live out the true meaning of all men are created equal. 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's something they're 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 and public schools in 1953. in 1957, the president sends them to little rock. it's strange that king's dream is that the nation will rise up and live out the true meaning of all men are created equal, 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" strepee but he talks about reconstruction. he switches at some point. he switches the focus of his rhetoric. why does he do this? it's strategic. the declaration is something that all americans subscribe to. the call to live up to the declaration. it 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.

[ laughter ] 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 traders. 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, right? 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 ft. 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-star flag on a mug, very easily. you can get a confederate battle flag on a mug. there's a market for that. 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. to say that's us, that's where we came from, well, yes, right, it's divisive. and when you talk about the declaration, there's broader buy-in. 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 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 founders constitution? can everyone say thomas jefferson stated my deepest

ideals? well, not the real declaration. not the real founders constitution. maybe not the thomas jefferson we have come to know through more detailed analysis and genetic testing. black americans or, you know, 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 descendents of slaves can never been u.s. citizens. the spirit of '76, that's three white men marching together. 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 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 dred scott decision in its first decision. that's 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 traders 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 declarationed in of reconstruction. if we're going to exclude some people, celebrate something that

marginalizes them, it's probably better to marginalize the traders. so i think we should be able to look at reconstruction and see ourselves, we should be able to 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. we have the gettysburg address 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 for union. it ends as a war from 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 service

has always been a path to full citizenship going back to the days of the roman empire. it became obvious to lincoln, to the other people leading the union, if you have black union soldiers, you can 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 amendments? i think it is in fact black military service. so what does all this mean? it means that we can tell a different story about america. now it's a story about getting better, like the standard story is. but it doesn't look back. it's not about getting better by getting closer to some mythical past. it's about getting better by making a better future. making a nation that is more just. and it's not a success story. not yet. maybe not ever. because it may never be over.

it's the story of an unfinished project and it's not a story of continuity. it's a story of rupture, breaks with the past. the america born in 1776 is flawed, according to this story. it's flawed of necessity because compromise is required to win independence from britain, to win ratification of the constitution. but it is deeply flawed by its 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 better constitution. not immediately. reconstruction is opposed. it's blunted. it's driven back. but generations later, the supreme court and the civil rights movement start to redeem the promise of reconstruction and we keep going. there's opposition. there's always opposition and there are mistakes and there are set backs. 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 steal and oppressive monarchies 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 that's given to us by founding fathers. it's something that we make, something we find inside ourselves. the true america is not handed down from the past, but created anew by each generation. created a little better. and what we can give the future is the opportunity to get just a little closer than we did ourselves. that is the promise that makes us american. that is the promise we must keep. thank you. [ applause ] plaus plaus plaus plaus

[ applause ] 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. so that's why. and after the emancipation proclamation, that's 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 antivoting problems? >> thanks for the comment. the question is about the 15th amendment. and the answer is, the 15th amendment is narrowly targeted. it's related to race discrimination with respect to the right to vote. for sex discrimination we needed the 19th amendment. why do we have so much voter suppression nowadays? the 15th amendment is part of reconstruction, almost immediately thereafter it's a

dead letter because there's very overt and explicit refusal to allow blacks to vote in lots of places in the country, in the south, other places as well there are problems. and eventually, you know, the nation moves forward a little better. oh, you can't do this so explicitly. and then rather than explicitly discriminatory restrictions on the right to vote, you get tests that are administered 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 zroedon't have to this test. if your grandfather wasn't

allowed to vote, you do. who does that affect? that affects descendants of slaves. how do you deal with that? it turns out on very difficult. 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 administered in a racially discriminatory way or there's a racially discriminatory motive behind it? it's hard. if you're talking about the context of an individual election, can you get a challenge to the courts and get a decision in time to remedy this problem? no, you can't. maybe you win the case but it has no effect. the next election comes around and they're doing something else. so eventually congress enacts 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 can 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 decides we don't need it anymore in shelby county against holder. and the supreme court invalidates essentially the preclearance requirement and following that, a whole bunch of the states that had been subject to that enact a bunch of restrictions on voting which they probably would not have been able to do had they been required to get preclearance. and it turns out, once again, it's practically very difficult

to challenge these things. so, you know, 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 anymore. >> thank you very much. >> thomas jefferson's draft of the declaration of independence has a paragraph that says in part, he, king george, waged cruel war against human nature itself, violating its most sacred rights of life and liberty captivating and carrying them into slavery in another hemisphere. i don't think it was thomas jefferson who was against slavery. thomas jefferson put that paragraph in the declaration of independence -- his declaration of independence, it was a continental congress, other members. >> well, that's in thomas jefferson's draft. 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 his first draft criticizing the practice of slavery. so he blames king george for introduci introducing slavery to america which is a little bit strange. the collinists were not objecting at the time -- >> i'm just saying, i don't think it would be accurate to say it was a gleam -- it was not a gleam in jefferson's eye. he certainly wrote it down. >> right. when i said the passage, i was talking about racial segregation and race-based denial of the right to vote which are the things that martin luther king were objecting to in the "i have a dream" speech and the story says, full realization of the ideals of the declaration shows us that those things are

impermissible. once you realize that the declaration has this passage but takes it out leaves in the passage criticizing king george, and we move on to the founders constitution which protects slavery in various ways and there's no problem with either segregation or the race-based denial of the right to vote, it becomes harder to say, those are the promissory notes that the nation is dishonoring and the question is, why didn't king point to the parts of the constitution that explicitly do condemn these things? because there are parts of the constitution that do it. it's the reconstruction amendment and is the question becomes more pointed when you realize as a high school junior, king won a national oratory contest with his essay which focuses all about the reconstruction amendments and talks about conquering southern armies but being unable to

conquering southern hate. why did he start off talking that way and move on to the optimistic unity-based theme of "i have a dream." 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 the consequence of the standard story. so if you tell yourself american ideals from the beginning are antislavery, american ideals from the beginning are antiracist, you can look at the problems of racism and say, it's overt racism, right? it's slavery. it's segregation. it's lynchings. and once we're not doing that anymore, racism is over.

it was an aberration. it's superficial. you can 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 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 an unwillingness to engage with the depth and pervasiveness of inequality. >> hi. i only have about 15 questions. i'll get through them real quick. no. i really -- for me, the punch line of your story is profound. union soldiers are what created this country. i'm a biologist. i'm not a lawyer. when i look at the laws that

most of the 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's based on the concept of independence which exists nowhere in the known universe from the current virus that's threatening us to cyber violence, to climate change, to bio terrorism, 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. and it's my view, my story that i'm telling, is, what part about the laws of nature and nature's god don't you understand? when i look at every religion that comes from the golden rule

and it's abraham lincoln who actually said, our declaration of independence is our golden apple. and our constitution is a silver frame around it. and in order to form a more perfect union, that thomas payne might 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 insistence on independence in our constitution, our fourth amendment cannot protect us against terrorism. the privacy can't be done. anyway, so what the constitution going forward based on these flawed concepts that don't fit with reality, what's 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. 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's going to be the case, i think, projected -- it's projected within a few decades that 80% of the population will live in 18 states and there's 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. if each state agreed -- if enough states to constitute a majority of the electoral college agreed to award all of their electors to the winner of the national popular vote, 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. people think this would have partisan effects. and anything that's 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 a member of congress looks at the president and thinks, you know, there's a rival for the affection of the people and i

should try to governor wisely so people will like me more. it doesn't turn out that way once you bring the party system into the picture. because now, if the member of congress and the president are of the same party, the member of congress looks at the president and thinks, there's the captain of my team. if they're from different parties, the member of congress looks at the president and thinks, there's the captain of the other team. rather than checks and balances based on sort of different assessments of the public good and different independent judgments about wise policy, you get either sort of single-party compliance and an absence of checks and balances, or you get this partisan infighting and sort of high per trophied checks and balances. in either cases, it doesn't work out all that well. 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 have you given us mr. franklin. and famously he responded, a republic, if you can keep it. and that's something i think we need all to bear in mind. >> if i can ask you a question, i don't disagree with a lot of the points that you make, especially about the constitution being flawed and so much more of 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, double jeopardy, and all that kind of stuff. it seems to me that some of our personalities, 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 that 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 you. there are these amendments. they place limits on the federal government. they 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 the 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 delivers from the states and the states were doing more repressive things and maybe the federal judiciary is less interested in checking the federal government. but also a bunch of these rights just were understood differently 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 the 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 liberty, or at least they don't want to interfere with state practices. so if you think about the establishment clause that's maybe the most survived exampvi this, it says, congress shall make no respecting an establishment of religion, and that means there can be no official religion. no official state or federal religion. the establishment clause gets invoked when states put up religion displays and crosses in front of their courthouses or have school prayer. we think of this as an individual right. you have a right to have the government not telling you what the official religion is. but if you think about this before the 14th amendment, why did they say congress shall make no law respecting an 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's one thing the establishment clause clearly does. but they were also trying to protect state establishments. at the time of the founding a bunch of states had official religions. and the point of the establishment clause was, congress can't disestablish 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 second amendment is also one of these, that sort of changed their content and changed their meaning when they get refracted 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 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 involves slave states. but isn't it true that the

soaring rhetoric that is in the preamble was interpreted by many contemporaries as condemning slavery and that even many of the southern slave holders who benefitted from it personally felt that it was an evil that would ultimately go into extinction, as being a moral good really came later when cultivation of cotton became so profitable? >> well, so how was the declaration of independence understood at the time? very interesting question. the way that it looks to me -- and i think maybe the best source on this is pauline mayor, american scripture. she's done more research than i have with original sources. 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 its promulgated, most people do seem to understand all men are created equal and liberty is inailable in the ways that i described it. there's some sarcastic commentary among the british about how ironic it is that the slave drivers are yelping about liberty, but i don't think that's 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 equality, but as our independence. and this changes basically around 1830, i think, when the conflict over slavery is intensifying and abolitionists are looking for rhetoric resources. how can we effectively fight against slavery?

it's effective to say it's inconsistent with our fundamental american values that were there from the beginning in the declaration of independence and they say that and, you know, i think they believe it. abraham lincoln said this consistently. i think he believed it. but i also think that it's 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, right, 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's 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 analysis of where liberty comes from and where it can be rejected. at particular moments he needs to distinguish between different strands and he does that in typically a very compressed way, but a very precise way. but the part of the declaration that people considered important was actually not the preamble, right, not until about 1830. [ applause ]

weeknights this month we're featuring american history tv programs as a preview of what's available every weekend on c-span3. tonight we begin with women's history. the national world war i museum and memorial hosted mona siegel to talk about her book. the sacramento state history professor argues that a diverse group of women pushed for more rights in the wake of world war i and some of these women who were attending the 1919 to 1920 paris peace conference helped push president woodrow wilson to support the 19th amendment. enjoy american history tv every weekend on c-span3. next on american history tv, a look back at the military career of george washington, the president and ceo of george washington's mt. vernon, doug