As Americans look forward to celebrating Independence Day this holiday weekend, this week’s episode dives into the Declaration of Independence. We trace where its words and its ideals came from and how it went on to influence state constitutions, the U.S. Constitution, and other key American texts—including President Abraham Lincoln’s Gettysburg Address and Martin Luther King Jr’s “I Have a Dream” speech. Host Jeffrey Rosen was joined by Akhil Reed Amar of Yale Law School, author of The Words That Made Us: America’s Constitutional Conversation 1760-1840, and Steven G. Calabresi of Northwestern Pritzker School of Law.
FULL PODCAST
This episode was produced by Jackie McDermott, and engineered by Greg Scheckler and Jackie McDermott. Research was provided by Alexandra “Mac” Taylor, Olivia Gross, and Jackie McDermott.
PARTICIPANTS
Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University. He is the author of the new book The Words That Made Us: America’s Constitutional Conversation 1760-1840, which he recently discussed in a National Constitution Center America's Town Hall program.
Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is the author of many works on constitutional law, state constitutions, separation of powers, and more.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- "Laboratories of Democracy: The Importance of State Constitutions" America's Town Hall program
- "Akhil Reed Amar on The Words That Made Us" America's Town Hall program
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Akhil Amar: … when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's god entitled them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident. That all men are created equal. That they are endowed by their creator with certain unalienable rights that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men deriving their just powers from the consent of the governed that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to affect their safety and happiness.
Prudence indeed will dictate the governments long established should not be changed for light and transient causes. And accordingly, all experience has shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed, but when a long train of abuses and usurpations pursuing invariably the same object evinces are designed to reduce them under absolute despotism, it is their right, it is their duty to throw off such government and to provide new guards for their future security, such has been the patient sufferance of these colonies and such is now the necessity which constrains them to alter their former systems of government.
We, therefore, the representatives of the United States of America in general congress assembled appealing to the supreme judge of the world for the rectitude of our intentions do in the name and by authority of the good people of these colonies solemnly publish and declare that these united colonies are and of right ought to be free and independent states. That they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is and ought to be totally dissolved.
And that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of rights do. And for the support of this Declaration with a firm reliance on the protection of divine providence, we mutually pledge to each other our lives, our fortune, and our sacred honor.
I'm Akhil Amar. You've just heard excerpts from the Declaration of Independence approved by the Continental Congress on July 4th, 1776, announcing that the 13 North American British colonies sought independence from Great Britain. We discussed the Declaration and its influence on the constitution and beyond on this week's We the People, commemorating Independence Day. Here's my conversation with Professor Steve Calabrese, and your host, Jeffrey Rosen.
[00:03:57] Jeffrey Rosen: Akhil, you have introduced this show by reading the most famous passage from the Declaration of Independence the one that begins we hold these truths to be self-evident. Tell us, what were the philosophical sources of those words and what was the expression of the American mind as Thomas Jefferson put it that he was attempting to distill?
[00:04:30] Akhil Amar: So, I think there are three levels that we can talk about. First, we can talk about just the, the deepest background of the broader sources that influence the American revolutionary generation. Here's one thing that I say you are sweet, Jeff, and mentioning my new book, and then kind of a quote from it with with your indulgence and, and Steve's.
American revolutionaries sampled from a sumptuous smorgasbord of theorists, John Locke, Algernon Sidney, James Harrington English Levellers led by John Lilburne, Commonwealth pamphleteers such as John Trenchard and Thomas Gordon, Scottish enlightenment figures including David Hume, Adam Smith, Thomas Reed and Francis Hutchinson and many more. Okay?
So, there's a, just a broad philosophical background, of course for many Americans the bible is also a particularly important source of insight and inspiration. So there's that philosophical tradition. Then, there's a practical tradition. I say revolutionaries also built on more than a century and a half of de facto self-rule in the new world. So Americans have actually been governing themselves in homegrown assemblies, juries, militias, town meetings, other local democratic structures.
They've been making countless decisions day to day without the intervention of a king halfway across the world or, or nobility also halfway across the world and no real noblemen in, in America. So, so, there's some philosophical traditions. There's just a century and a half of actual, practical, self-government and a conversation that they've been having among themselves really beginning as early as 1760 as they begin to define their sense of, of what they think their rights are vis-a-vis George III, vis-a-vis the, the British Parliament.
And then so, and, and, and so there's, there's a lot of percolation from 1760 to 1776 that Jefferson is trying to distill all sorts of things that are happening in, in the Virginia House of Burgesses and the Massachusetts Assembly and Boston town meetings, and grand juries everywhere. So, there's all of that. It's a, it's a, a continent teeming with conversation awash in excited theorizing.
And then, as my friend, Steve, I think is a particular expert on. There's one particular distillation that comes out of Virginia by a man named George Mason that may have had a particular influence on Jefferson in composing especially the, the, the most famous words of, of the Declaration. And I'll, so, I'll let Steve tell that story.
[00:07:27] Jeffrey Rosen: Wonderful. Thank you so much for setting up these three categories. So, well, the philosophical sources which you summarize in chapter three of your book in which Jefferson said were an attempt to ex- harmonize the sentiments of the day expressed in conversation, letters, printed essays are in the elementary books of public right as Aristotle, Cicero, Locke, and Sidney, then a decade of experience in government under the state constitutions. And then, the Virginia Declaration, in particular.
Steve, let's take each of those in turn and on, on, on the philosophical point what was the broad vision of natural rights that Aristotle, Cicero, Locke, Sidney and the other were attempting [crosstalk 00:08:25]-
[00:08:11] Steve Calabrese: Well, if it's okay, because I get to the actual rights, I'd like to talk about the philosophical underpinnings of equality, which is mentioned in the Declaration before it gets to natural rights. And I agree here with what Akhil said. The first written formulation of the idea that all men are created equal that I am aware of is the Poet John Milton wrote a defense for Oliver Cromwell of the execution of King Charles the first.
And in defending it, he said that all men were create- were he said essentially all men were equal to one another, and therefore if a majority of men wanted to get rid of a king, they should be able to do so. And Charles the first was no better or no worse than any other citizen of the realm.
And Milton's ideas grew out of the tradition of the Levellers, which was a political movement in England in the 1640s that advocated equality and getting rid of feudalism and all of that. Thomas Hobbes in Leviathan says that he finds that men are essentially equal. And he says, "Even the strongest can be killed by the weakest if they conspire to use poison." And he says, "In terms of the faculties of intelligence he finds men even more nearly equal than they are in physical strength."
And then, John Locke picks up on the equality idea and emphasizes it heavily. And that's, it's probably Locke, especially who communicated it to George Mason. Locke also contributed the idea of inherent natural rights, and said famously, "In the beginning, all the world was America and you know, we're, the sovereign individual in a particular place and that person was a rights holder." So, I think, I think Locke gets a lot of credit for the, the individual rights idea.
Akhil is right. The, the first draft of Virginia's Declaration of Rights turning to the impact of these philosophical ideas was published in May of 1776. And it was a huge hit. It was republished in newspapers up and down all 13 colonies. It had a huge impact. And what George Mason said in the first draft is recognizable to those of us who've heard Akhil's reading of the Declaration of Independence. Mason said, "That all men are created equally free and independent and have certain inherent natural rights of which they cannot by any compact deprive or divest their posterity among which are the enjoyment of life and liberty with the means of acquiring and possessing property and pursuing and obtaining happiness and safety."
So, that language inspired similar clauses born free and equal clauses in Pennsylvania in September of 1776, in the Massachusetts Constitution of 1780. All in all seven of the original state constitutions had clauses that grew out of this clause. And miraculously enough, Benjamin Franklin and Thomas Jefferson had the Virginia Declaration, had all the State Bills of Rights, but particularly the Virginia Declaration of Rights translated into French in the 1780s.
And that had an impact on the French Declaration of the Rights of Man and of the Citizen which was moved by the Marquis de Lafayette, a close friend of Americans. And which was adopted by the French National Assembly in August of 1789 right after Bastille Day.
And I'll just read you the first article of the French Declaration of the Rights of Man and of the Citizen, which remains the Bill of Rights of France to down, down to the present day. It begins by saying, "One, all, these men are born and remain free and equal in rights. Social dis- distinctions maybe founded only upon the common good." And then, he it goes on in section two to say, "The aim of all political association is the preservation of the natural and imprescriptible rights of man."
This language of George Mason had an international impact. It was a huge impact on the colonies, impact on Thomas Jefferson in drafting the Declaration, and impact on the French Declaration of Rights, which is at the core of French Constitutionalism.
[00:12:56] Jeffrey Rosen: So, inspiring. Thank you so much for that wonderful history and context. Akhil Steve has introduced Mason's draft from May of 1776. What can you tell us about where Mason got those immortal words? Why it was Mason who channeled that language which influenced the other state constitutions? And what the influence of the Virginia Declaration was on the other state constitutions during the revolutionary period?
[00:13:26] Akhil Amar: So Je- Jefferson himself had been in Williamsburg not too long before he shuttles up to Philadelphia to be involved in the composition of the Declaration of Independence. So, he saw what, what Mason was doing. He himself wanted very much to play a role in the drafting of the Virginia Constitution of which the, this Declaration of Rights, Bill of Rights was a kind of a preface, a preamble, a part.
Now, just, just take, just a big step back for our audience. You see America is, is on, on the cusp of basically breaking the, the colonies on the cusp of, of breaking with England, war as a practical matter has already broken out in most places. Lexington and Concorde occur in 1775, April Bunker Hill, which is a, a huge battle and, and there, there are thousands of people killed and wounded in this furious struggle.
That's June 1775. George Washington has, is already in, in July up in Boston as the head of a, a self-proclaimed Continental Army that's been authorized by this Continental Congress. They haven't declared independence yet, but they're rebels, and they're, they're fighting. But for the moment, at least initially in 1775, they're saying, "Well, we're loyal. We just want you to respect our rights. And then, we'll, we'll go back to, our farms."
But, but by March, April, May, June of 1776, it's, it's becoming increasingly clear that the Brits aren't gonna back down. It's gonna come to full-blown war. And so, these colonies are beginning to think about formally declaring their independence, breaking away from Britain and, and if they're gonna do that, they're gonna need to come up with some legal structure of their own, both at the provincial level that… Well, it used to be colonies, they're gonna become states. So, they're gonna need to come up with state constitutions to replace their old colonial charters and other instruments of governance, and they're gonna need to come up with some a, a system of hanging together state to state to replace the British Empire.
So, so, Jefferson was down at Williamsburg, and he was really interested in, in Virginia coming up with rules for Virginians. Okay? And, and so, he is there with Mason. He's aware of this. He takes a version of Mason's Declaration. He has it among his papers. The newspapers are also picking up on what Mason has done, and not just in Virginia. On June 1st, the Virginia Gazette in Williamsburg publishes the language that Steve quoted.
But over the next few weeks that Virginia newspaper, the Virginia Gazette starts to circulate, you know, it's, it's like retweeting people are bringing it up to Philadelphia, and that draft gets reprinted in at least four Philadelphia newspapers. The, the Pennsylvania Evening Post, the Pennsylvania Ledger, the Pennsylvania Journal, the Pennsylvania Gazette. I'm mentioning all this because the National Constitution Center is obviously Philly-based and the Philly newspapers are picking up on, on, on this.
And, and so, people in Philadelphia working with Jefferson, other people on this committee of the Continental Congress that's been drafted to come up with, with some sort of reasons for declaring independence are paying attention to this. So, that's the initial story. The story of American independence independence of each state, and of the, the states as a, as an alliance. They, they will declare themselves on June, actually, on July second to be free and independent states. And then, they'll give a statement of reasons two days later in July 4th what we call the Declaration of Independence.
And they're influenced by this Mason draft that's appearing in local newspapers. But that's only half the story, because now all the other states are gonna have to have constitutions of their own as well, and they're looking at this Virginia documents and other documents. And as Steve told you that's gonna influence the Pennsylvania Constitution, which has a Declaration of Rights in 1776.
It's gonna influence he said in all seven state constitutions have Declarations of Rights that say in effect all men are born free and equal, including the Massachusetts Constitution of 1780 which is drafted in part by John Adams, who of course is right there with Thomas Jefferson and, and Ben Franklin and others in Philadelphia in 1776.
I'm gonna say one other thing, it's a little bit edgier, but we have to talk about it. It's the proverbial elephant in the room. These same words that are plus or minus in the Virginia Declaration, which gets tweaked a bit later on after that first draft. The same words that are plus or minus in Virginia that are in the what becomes the Pennsylvania Constitution of 1776. That are in the Massachusetts Constitution of 1780. A version of which are in the Declaration of Independence.
This idea that we're all free and equal, those words, of course, come to be operationalized very differently in the different states when it comes to slavery. That's the elephant in the room. And in Virginia, there are folks in Virginia who say, "Oh, gee, if it really is true that all men are born equally free and independent, well, then we can't have slavery." And so, that language actually gets changed in Virginia. So, it's all men when they enter into society.
And so, the theory of some is, "Oh, well, slaves really aren't part of the same society as ours or something." So, so, in Pennsyl-, in, in Virginia, they have those words and they don't get rid of slavery immediately. But in Pennsylvania, Philadelphia where the, the, the Declaration is adopted. The state constitution actually has these words and very shortly the Pennsylvania legislature will pass a statute in 1780 providing for the gradual abolition of slavery, not freeing of individual slaves, but ending slavery everywhere.
And in Massachusetts as Constitution of 1780 says, "All men are born free and equal." And the courts in Massachusetts by 1783, '84 are gonna read that language from John Adams building on Thomas Jefferson and George Mason. They're gonna read that language to abolish, to end slavery altogether in Massachusetts.
So, if we're gonna talk about everyone, you know, being free and equal, well, free, you know what about slavery? Equal, what about slavery? And these words, even though they're in a bunch of state constitutions come to mean different things. Let's say in Virginia than in Pennsylvania and Massachusetts.
[00:20:18] Jeffrey Rosen: Thank you so much for that, Akhil. Dear, We the People listeners, you can compare the language of the state constitutions that Akhil is describing by going to the interactive constitution. Click on the drafting table and you'll be able to see the various drafts of the free and equal clause that Madison drew on when he drafted the Bill of Rights.
So, Steve, Akhil has distinguished between the Virginia language that all men are by nature equally free and independent and have certain inherent rights of which when they enter into society they cannot by compact divest their posterity with Pennsylvania, which leaves out that society language that all men are born equally free and independent and have certain natural inherent and unalienable rights.
You've written so brilliantly about the influence of the Declaration on the state constitutions, help us disaggregate the various state constitutions further and describe the influence of the Declaration between 1776 and 1787.
[00:21:15] Steve Calabrese: Thank you. I, I agree with Akhil. There, the Virginia, the second final draft of the Virginia Declaration does qualify the Lockian language by saying it applies to men when they enter into a state of society, and that their slavery is actually challenged in Virginia under that second draft of the Virginia Declaration and the Virginia courts uphold it as constitutional.
The, the, the best rendition of the born free and equal idea appears in the Massachusetts Constitution of 1780, which says, "All men are born free and equal and have certain natural, essential, and unalienable rights. Among which may be reckoned the right of enjoying and defending their lives and liberties, that of acquiring possessing and protecting property in fine that of seeking and obtaining their safety and happiness."
Ad today Massachusetts has amended that clause so that it begins not all men, but all persons. And the story of the born free and equal clauses is that as Akhil said, 7 out of 12 states which had written constitutions in 1791 have lock-in clauses in them. So, that's a, a majority of the state constitutions in 1781. If you go forward and see the influence of the born free and equal idea, 24 states out of 37 in 1868 when the 14th Amendment was ratified had born free and equal clauses.
And if you move forward to today, 39 state constitutions out of 50 have born free and equal clauses. So, this idea of the Declaration of Independence and that we have birthright equality and birthright natural rights is baked into state constitutional law. It's baked into the 14th Amendment as I'd be happy to explain later. But there is, as you said, a difference in that the northern colonies don't have to enter into a state of society qualifier, which Virginia added to protect slavery.
The Massachusetts supreme, judicial court did as Akhil said, declare slavery unconstitutional based on this born free and equal clause. The New Hampshire Supreme Court and the Indiana Supreme Court said the same thing. So clearly, at least, in some of the colonies, it was recognized that slavery was inconsistent with the idea that all men are born free and equal.
[00:23:55] Jeffrey Rosen: Akhil, further thoughts on the free and equal clause, can you also disaggregate for our We the People friends, what an unalienable right is? The New Hampshire Constitution says, "Of natural rights certain are by their nature unalienable because no equivalent can be received for them of this kind are the rights of conscience."
And the framers thought that because our beliefs are the product of our reason, we can't alienate or surrender that power to reason to government, we can't control our own thoughts, and therefore we can't alienate to others the power to control them. Tell us more about how the framers understood alienable and unalienable rights and how that was expressed during this period.
[00:24:37] Akhil Amar: Okay. I'll do my best. And before that I just want to echo one really important thing that my friend, Steve, mentioned, which is this idea of born free and equal. That word born is really significant. And, and again Virginia qualifies it when they say, "Well, it's not just when you're born, but when you enter into society." But, but the other states just say you're born free, you're born equal, that word born is really important and Steve says it's gonna lead to an idea later on, it's the same root concept of birthright equality, a birthright freedom.
He said, and I agree with him. "Birthright citizenship." And in America after a civil war, this idea that you can… It's in Jefferson's Declaration, but he didn't quite live it out. Of course, he, he's a slaveholder who never frees his slaves and death, but this Jeffersonian idea is interpreted by Lincoln very famously when he says at Gettysburg. "Four score and seven years ago, And so, he's saying that in 1863 and 87 years earlier, that's 1776. He's talking about the Declaration.
Four score and seven years ago, our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. So, he's saying that's the central idea of America. He's reinterpreting it in a way, and things that's, what the central idea of America is?
Now, he dies shortly after the war but the 14th Amendment, and the 13th Amendment will end slavery everywhere, not just in, in Massachusetts, not just in Indiana, not just in New Hampshire, but in Virginia and everywhere else. Wow. Immediate, universal, uncompensated emancipation. Wow. Wow. Wow.
Then, the 14th Amendment will begin, as Steve said with a riff on this. All persons born, same key word, or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state where, and they reside. So, we're all… If we're born in America, we're born citizens. We're born free and equal, whether we're born black or white or brown or Jew or gen- gentile, in wedlock or out of wedlock, first born or fifth born in our families.
The three of us actually are all first born. [laughs] I just happen to know, you know, Jeff, Steve, Jeff and, and I. But, but, you know, we're, we're no better than our siblings in the eyes of the law in that regard. So, so, deep whether our parents our citizens or as are not citizen. Mine weren't the day I was born in Ann Arbor, Michigan, even if, whether they're here legally or not, we're all born equal, born citizens.
That's what Steve is talking about. And Jeff since you mentioned this amazing thing that the National Constitution Center has created, the interactive constitution, you mentioned the drafting table. I want our audience to know about a little essay that I did in the interactive constitution on that first sentence of the 14th Amendment where I sort of riff a little bit on this idea, which Steve helped me see more than anyone else that this is about the idea of birth equality, birth freedom, birth right citizenship.
It's a glorious idea, and now it's not just in the Declaration of Independence or various state constitutions. Oh, a version of it is explicitly in the federal constitution, and you see it in the word born which is this key word throughout the, the centuries.
Then, you asked me about a different word, which actually isn't in the constitution, you know, the word unalienable or inalienable. Now, I have to tell our audience that one of the best meditations on the meaning of this word that I know of was actually written by a student of mine way back when named Jeff Rosen in a note that he wrote in the Law Journal where he talks about all sorts of different kinds of rights, alienable versus unalienable.
But now, you're right. Here's the idea. Some rights, you can't give away. Some rights are waivable. For example, I have a right in a criminal trial not to speak a right to not be compelled to be a witness, but I also have a right to speak. I can choose not, I can choose to waive my right of silence and actually testify.
I have a right to a lawyer, but I actually if I really insist have a right not to have a lawyer. It can't be enforced upon me. Some rights are alienable. They're waivable. I can, I can give them up. Some things I can actually sell like if I have a piece of property, typically, I can sell it to someone else. I can give it to someone else. I can lend it to someone else. Many rights are alienable. We can give them away or, or trade them away for and that's part of our autonomy to do that.
Yes, but some things are inalienable. We can't give them away even if we want. They're not waivable. So, for example, our capacity of thought, that reason. We can't turn ourselves into, into beasts. So, even if I wanted to say, "Oh, you just do the thinking for me." No. I can't do that. What it means to be a human is I have to do the thinking for myself just like I have to do the breathing for myself.
I have to do the eating, and the and, and imbibing of beverages for myself. There's certain things that only I can do. In some religious traditions, I can't give away my life, even if I wanted to because it's not just mine. It's god's. It's a, it's a gift from god and, and, now, there are, there are other religious traditions in which that's not so. But now we're gonna have to have a deep discussion about what rights are actually waivable, because some are.
The right to be silent in a criminal trial, you know, the right to have a lawyer in a criminal trial and other rights are inalienable. On some traditions, life itself can't be given up even if you, you want, you can't surrender it. Definitely your conscience, your ability to think for yourself can't be surrendered because then you would cease to be basically a human being.
[00:30:49] Jeffrey Rosen: I have to do my thinking for myself. So inspiring, Akhil, such a beautiful expression of the founder's faith that reason could triumph over passion and cannot be alienated, expressed in Madison's memorial and remonstrance, and Jefferson's Declaration of Religious Freedom, and so many other sources.
Steve, any thoughts on inalienable rights? And then, since you both have introduced the fact that this idea of equal citizenship was finally enshrined in the 14th Amendment, tell us this story which you've told so well about the natural law sources of the 14th Amendment.
[00:31:27] Steve Calabrese: Thank you. The Declaration says that the unalienable rights are life, liberty, and the pursuit of happiness. And I think it's noteworthy that property is not listed there, but life and liberty are listed along with the pursuit of happiness, which is in the Virginia George Mason first draft.
I think the emphasis on equality in the Declaration is there, because just as John Milton when Charles the first was executed emphasized equality. And just as John Locke emphasized equality when James II was chased off the throne of England in the glorious revolution of 1688, Americans in 1776 wanted to assert, we are equal to George III. We are equal to English lords and all of that. And I think he was attempting to really emphasize that.
In terms of the way into the 14th Amendment of, of the born free and equal idea. I should first mention that Speaker of the House of Representative Schuyler Colfax in a speech urging ratification of the 14th Amendment said, "The first section of this constitutional amendment is going to be the gem of the constitution."
I will tell you why I love it. It's because it is the Declaration of Independence placed immutably and forever in the constitution. And I agree with Schuyler Colfax. I think that's absolutely a correct description of of what, what ends up happening. The the way in which, which the born free and equal clauses enter the constitution is in I think in part through the privileges or immunities clause of the 14th Amendment.
And when people during the debates in Congress were asked, "What does the 14th Amendment's privileges or immunities clause mean?" Invariably senators and representatives would say, "It means what Justice Bushrod Washington said in Corfield against Coryell, a case interpreting the privileges and immunities clause of Article 4 Section 2 of the Constitution."
And interestingly, Bushrod Washington in his opinion gives what can only politely be called a mangled version of the born free and equal idea. He says, Bushrod Washington says in Corfield against Coryell. "The privileges and immunities of citizens of the several states may be comprehended under the following general heads: protection by the government; the enjoyment of life and liberty with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole."
Well that language about protection by the government and rights to life and liberty and to pursue happiness and safety. That's all from the born free and equal clauses. And the framers of the 14th Amendment say, "That's what the privileges or immunities clause to the 14th Amendment meant." Now, unfortunately, the Supreme Court misread the privileges or immunities clause early on, but I think we can agree with Speaker Schuyler Colfax that the first section of the, of the 14th Amendment is the gem of the constitution, because it puts the Declaration of Independence immutably and forever in the constitution.
[00:35:18] Jeffrey Rosen: Akhil Steve has really beautifully showed us the connection between the Virginia Declaration and early drafts of the 14th Amendment. Again, if you go onto the drafting table and click on the equal protection clause, you see both Mason's draft, the all men are by nature equally free and independent. And then, the various drafts from Bingham's claim that Congress will have the power to make all laws necessary and proper to secure to all persons full protection and the enjoyment of life, liberty and property, all the way to the ones that Steve mentioned.
And then, there's also your essay on the citizenship clause. So, Akhil, tell us more about the relation between the Declaration and the 14th Amendment.
[00:35:58] Akhil Amar: So, Steve has done a beautiful job. I'm not sure there's a lot more to add except perhaps one or two interesting points. That privileges or immunities clause that Steve invoked begin with the, the words no state shall. Okay? So, if you're just a literalist, you say, "Oh, well, states can't abridge the privileges [inaudible 00:37:43] as citizens." But, hey, you know, the federal government can, can do whatever they want. But, no, that first sentence even before of the 14th Amendment, even before you get to the no state shall says everyone's born a citizen.
I was born in the United States. What it means to be a citizen is to have certain rights of citizenship. If, you know, your new testament, you know, that Saint Paul basically says, born as Saul of Tarsus. "I am a Roman citizen. And as a Roman citizen, you see I'm entitled to certain rights. Rome has to protect me wherever I go. That's what it means to be a Roman citizen."
So, of course, the federal government has to abide by the privileges and immunities of citizens as well. So, then, "Well, then, why didn't they say that?" You say in the 14th Amendment." "Oh, because that went without saying." "Okay. Well, then, Professor, why did they say no state shall?" "Oh, because that wasn't maybe completely clear because the constitution, the federal constitution was mainly a constitution about the federal government and mainly about the relationship of citizens to the federal government. So, so, they thought it really needed to be said with care that, 'Oh, these are principles, privileges and immunities of citizens that states have to abide by as well.'"
[00:37:46] Jeffrey Rosen: Steve, your thoughts about what Akhil just said, and also about further connections between the Declaration and the constitution itself.
[00:37:55] Steve Calabrese: Yes. So, I think the language in the Declaration is our national creed. And I think so because it's been echoed over the centuries in very famous places. One of the most important events of my lifetime was Dr. Martin Luther King Junior's march on Washington in 1963. And Dr. King said in his famous I have a dream speech. "I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed. We hold these truths to be self-evident that all men are created equal."
As Akhil mentioned, the equality ideas mentioned by Abraham Lincoln as with liber- born free and equal is mentioned by Lincoln in the Gettysburg Address, it's also mentioned famously in the Seneca Falls Declaration of Sentiments issued in 1848, which says, "We hold these truths to be self-evident that all men and women are created equal. That they are endowed by their creator with certain inalienable rights, but among these are life, liberty, and the pursuit of happiness."
So, I think that language about born free and equal goes to the essence of the way Americans think, not only of the constitution, but of the national creed. The founding principles of the United States. It can be contrasted with the language in the Canadian Constitution, which is the Canadian National Creed. And that language appears in Article 91 of the Canadian Constitution Act. And it empowers the national government to preserve peace, order, and good government throughout all of Canada.
Well, Americans believe in equality and life, liberty, and the pursuit of happiness. Canadians believe in peace, order, and good government. Part of the reason for that is that Canada, Ontario was founded by American Tories who fled there after the revolution. And so, Canada has always been a more tories country, while the United States is a more whiggish country. And that's expressed in these differing national creeds.
And Canada, for example, declined to find a right to one person one vote in seats for the, for the House of Commons. And as a result of that, Justin Trudeau was re-elected prime minister in the last election with winning only 37% of the vote nationwide. So, I think at the essence, I, I think it's, the, the Declaration of Independence and the Gettysburg Address and the Seneca Falls Declaration of Sentiments, and Dr. Martin Luther King's I have a dream speech are, as I tell my students, the four cornerstones on which the constitution rests. It's a very essence of what we are as a nation.
[00:41:19] Jeffrey Rosen: Beautifully put. And thank you for calling our attention to those four corners of the American Constitution, and for showing the way that Dr. King on the mall redeemed the promise of the Declaration that had been only partially fulfilled at the convention resurrected by Lincoln at Gettysburg evoked by the heroes of Seneca Falls. And then, enshrined again during the Civil Rights Movement.
Akhil, are there other parts of the Declaration that we need to study and commemorate to understand the meaning of July 4th?
[00:41:58] Akhil Amar: Absolutely. We've only talked about one paragraph, there are about 1300 words in all. So, we should just mention, at least some of the rest of the words and, and what they're about. But before I, I do that, I, I do want to agree completely with my friend, Steve about the I have a dream speech and and Seneca Falls, in addition to the Gettysburg Address. And, and, and these things do fit together to form a system, the American creed.
I just want to remind everyone that the of where exactly and how the, what we call the I have a dream speech in 1963, where and how those words were uttered. They're uttered in at the Lincoln Memorial. The man who actually remember Lincoln gave us the Gettysburg Address. And here's how Martin Luther King begins.
"Five score years ago, a great American in whose symbolic shadow we stand today." So, he's invoking, of course, the beginning of the Dec- of the Gettysburg Address, four, score and seven. When he says five, it's a hundred years after the Gettysburg Address, which was 1863. So we've got Jefferson building on Mason and all sorts of other sources in 1776.
Then, four score and seven years later, Lincoln expressly invoking the Declaration of Independence, all men are created equal. Then, five score years later in the Lincoln, at the Lincoln Memorial Martin King beginning by riffing on, on Lincoln by saying five score years ago, exactly 100 years ago on the Gettysburg Address.
And then, as Steve said quoting the Declaration. And then, of course, Seneca Falls, taking that word men in 1848, taking that word men and saying, of course, the deep idea here is men and women. And Steve earlier said in the the French have also understood that it's it's a more universal principle.
So, all of that, okay, but again, we've just, as Jeff you said, that's one paragraph of the Declaration of Independence there, as I said about 1300 words in all, what's the rest of it all about? And I would say it's all about two things in addition to this philosophical statement of first principles. Here's what we Americans are, are all about.
So, first and, and maybe most immediate, the Declaration of Independence is just what it says, a Declaration of Independence, not just the first principles of what we believe in, but we are saying that these colonies are now independent of Britain. The key sentence actually was adopted on July 2nd, 1776 by the Continental Congress. And it's repeated in the Declaration of Independence.
So, what's that key payoff sentence from July 2nd? Resolved that these united colonies are, and of right ought to be free and independent states. That they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is and ought to be totally dissolved. So, what were they saying in July 2nd?
We no longer answer to George III. He's not our king anymore. We're on our own. We're free and independent states. They say that on July 2nd. They repeat that, that sentence is embedded in the Declaration of Independence. It's prefaced by this statement of first principles. We want to tell the world what we're all about and and then, the, what's the rest of the Declaration about? The specific reasons why we are breaking with George III because he basically doesn't deserve our allegiance anymore.
And there are basically two or three big ideas here. It's a kind of mass divorce of sorts. He used to be, you know, our intimate partner, and now we're walking away from him, and here's why. First set of reasons, and it's a bill of indictment of sorts. These are all the things that he's done. Some of them he's done on his own, some of them he's done in tandem with his, his allies in, in the British Parliament who have, have misbehaved also.
So here's in a nutshell the, the, the rest of the Declaration. The reasons why we're breaking with the king. First, he has ruled as a tyrant who was inflicted on his subjects "A long train of abuses." And that's a phrase directly lifted from John Locke's 1689 two treatises of government. And again, some of these abuses are the kings alone. Some of them are in tandem with, with parliament. So, and here, here's what those are just so we remember them.
He either on his own or with parliament has imposed taxes without representation. He's violated jury trial rights, both the rights of defendants and the rights of jurors themselves, to govern their communities. He's forced to serve vile judiciary and a corrupt bureaucracy upon America. He's abrogated colonial charters. He's inflicting standing armies in peacetime without colonial consent.
He's quartered troops to overall civilians in, in urban context. He's prevented colonial assemblies from properly meeting. He shutted, he's shut down American ports. So, if this were like a, a a divorce suit, the, the first set of arguments is basically domestic cruelty. The second is, is abandonment. Americans aren't leaving George III. He's already left them. He's already started waging war on them. He's broken the basic social contract in which he's supposed to protect them and they're supposed to be loyal to him.
He's, he's already waging war on them. And and then finally, and pulling everything together, they say, "And we've asked him again and again and again to hear our grievances and he won't even listen to us. He won't converse with us. He, he won't, he, he, he's simply failed to, to, to keep up his end of what we, we're trying to have the relationship. We're trying to actually have a conversation with him about what our rights are, and he simply has turned a deaf ear to us.
And so here's the language. In every stage of these oppressions, we have petitioned for re- redress in the most humble terms, how repeated petitions have been answered only by repeated injury. A prince whose character is thus marked by every act which may define a tyrant is unfit to be the ruler of a free people.
[00:49:25] Jeffrey Rosen: Thank you so much for that and for reminding us that on July 4th we're celebrating not only the free and equal clause, but also the free and independent clause and the reasons that the drafters gave for independence. Steve, before we sum up all of this wonderful learning and light, do you have any thoughts for our We the People friends about the free and independent clause and the reasons that the drafters gave for independence?
[00:49:54] Steve Calabrese: Well, I agree with everything Akhil said. I would emphasize some additional language that we haven't talked about in the Declaration, which I think is hugely important. Akhil said that by the Declaration America divorced itself from the United Kingdom. And in some phase, it's possible to effectuate divorce by saying, "I divorce you," three times or a certain number of times publicly.
And there is the very famous first paragraph of the Declaration which bears quoting in this regard, which says, "When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's god entitle them. A decent respect to the opinions of mankind requires that they should declare the causes which compel them to the separation."
So, the list of injuries which Akhil beautifully summarized are the explanation for the divorce and the Declaration of divorce occurs in the first paragraph. In the second paragraph, aside from the part, parts that we've talked about the Declaration of Independence says that to secure all the rights that it mentions, governments are instituted among men deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter and to abolish it and to institute new government, laying its foundations on such principles and organizing such powers in such form as shall seem to them most likely to affect their safety and happiness.
Moving, moving on in the Declaration, I did want to comment specifically about the final clause in the Declaration, which effectuates independence. And in that final clause the Declaration says, "We, therefore, the representatives of the United States of America and general congress assembled, appealing to the supreme judge of the world for the rectitude of our intentions due in the name and by the authority of the good people of these colonies solemnly publish and declare, that these united colonies are and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is and ought to be totally dissolved."
This language is interesting to me, because in it you can see the ambivalence Americans have about federalism. On the one hand the operative clause talks about these united colonies. But it then goes on to say that they be, they are going to become free and independent states, which is certainly how they behave. So, there's an idea of the united colonies declaring the divorce, but there's also the idea that the states will all, 13 of them become separate nations confederated together, which I think is important.
So, you know, as to the other clauses, the causes of the separation and the injuries received, I just mentioned one more thing beyond what Akhil said, and that is that the Declaration is a list of grievances against King George III. It does not mention parliament. The American colonists thought that parliament had no jurisdiction over them, that only their colonial legislatures had jurisdiction over them.
So, they acknowledged that George III was their sovereign, but they did not acknowledge the authority of parliament over them. So, parliament goes unmentioned. All the grievances mentioned were committed by George III, and he's the one who gets mentioned and nailed for them. And in, in conclusion I should just say a final word about George III.
George III became king of England in 1760 at the age of 22. And he was of the view that his grandfather, George II, and his great-grandfather, George the first, had allowed powers that Queen Anne and William and Mary exercised to lapse. And he was de- determined to reassert them, and he wanted to reassert them in particular with the American colonies. This was really quite a terrible idea on his part. And I think that his youth, be- being 22 when he became king, and his idea of reasserting royal powers which had lapsed over a 70-year period of time is what created the conflict that led to American independence.
[00:55:09] Jeffrey Rosen: Well, it's time for closing thoughts in this wonderful close reading of the Declaration, which is teaching us so much about what we celebrate on July 4th. We had recently a program about state constitutions and I urged listeners to read their state constitutions and, and, and one listener John Barrett wrote and said, "He just read the New Hampshire Constitution and read the free and equal clause from the New Hampshire Constitution of 1784, all men are born equally free and independent, therefore, all government of right originates from the people is founded and consent and instituted for the general good."
Akhil Ammar you've done so much to teach Americans about the meaning of the Declaration and the Constitution and inspire us to learn more, please sum up for We the People listeners, what are the ideals of the Declaration that we celebrate on July 4th and what should each of them do to study, learn about, and celebrate those ideals on our national holiday?
[00:56:10] Akhil Amar: Well, we've talked about equality and freedom and happiness we've talked about the, the race issue with slavery. I'm not sure we've done full justice to gender equality. And I so appreciate Steve's mentioning the Seneca Falls Declaration of 1848 which is riffing on the language of the Declaration, just I'm gonna read again the opening of that.
"We hold these truths to be self-evident that all men and women are created equal." And as Steve said the Declaration of Independence is really declaring independence from George III. So, it keeps saying he's done this, he, he, he, he, and brilliantly in 1848, the women at Seneca Falls say, "Let's tell… We want to tell you how man, in general, has been tyrannical to women to woman."
The history of mankind is a history of repeated injuries and usurpation on the part of man toward woman. Having indirect object, the establishment of an absolute tyranny over her, that's just a total riff on 1776 to prove this, that facts be submitted to a candid world, he, he, he, and now, it's not George III, it's man in general toward women. So, it's a brilliant riff on the Declaration of Independence.
So, so, equality, yes. We've talked about racial equality, gender equality is important too. So, one thing if our audience wants a little more on that, I actually have an, an op-ed coming out in the New York Daily News sometime over the next few days. And it's all about the gender issue, and in particular the wonderful exchange between Abigail Adams and John Adams about remembering the ladies, because that's an exchange that occurs in the, the the, the early months of 1776.
So, equality liberty life inalienable rights happiness consent of the governed, not just racial equality though, but today, especially gender equality as well. So, that's the first part of my answer. The second is how should we observe this today? I, I think by reading the Declaration of Independence and with our family and with our friends at a picnic or in your backyard or wherever.
And I'm hopeful, Jeff, that in the future, you and I and others will actually be able to come up with some materials for our fellow citizens to help them think about how to celebrate the fourth, to do it right what they should do before the fireworks. Ideally, I think we should come up with some the Constitution Center should, should I hope we will be involved in this project, come up with some, some materials to, to help ordinary Americans across the country.
We're nonpartisan, red and blue, conservative and and liberal celebrate this thing, maybe come up with some materials. Kind of like a secular seder. Some, some ma- materials that, that people of all ages in the family, that, that the young ones can participate in and, and the older kids and, and the parents. So, but for now, there's no way to celebrate the fourth better it seems to me than to read the Declaration of Independence aloud with your friends and family.
[00:59:32] Jeffrey Rosen: So beautiful. I'm so looking forward to working with you, Akhil, to develop the materials that you suggest, so that when Americans read the Declaration aloud together with their families and friends, they can be guided and inspired to learn more. And this podcast is such a, such a wonderful building block for that celebration.
So, Steve Calabrese, the last word is to you. As Americans, and We the People listeners gathered together with their friends and family, to read the Declaration aloud on July 4th, what final thoughts would you like them to consider?
[01:00:06] Steve Calabrese: Well, I'd, I would mention something we haven't talked about yet, which is after World War II and after the horrors of Nazism and fascism and the holocaust Eleanor Roosevelt, the first US ambassador to the United Nations, drafted a Universal Declaration of Human Rights, which all the members of the United Nations signed.
And strikingly, Article 1 of the Universal Declaration says, "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." And Article 2 goes on to denounce racism, sexism, and all sorts of other forms of, of discrimination.
So the, the world's turned powerfully back in 1948 when the Universal Declaration of Human Rights was ratified toward the central importance of the born free and equal idea. And as to celebrating that July 4th, I completely agree with Akhil about reading the Declaration together with one's friends and family.
The most moving July 4th celebration that I have ever participated in was one about 15 years ago when I was on one of the Yale-sponsored cruises of Greece in the Greek islands. And when the fourth of July rolled around, the Yale professor, who was on that tour, suggested that we all get together in the auditorium and read the Declaration of Independence one sentence at a time. And we did, you know, floating somewhere off the coast of Crete.
And it was very powerful and very moving and I think passing the ideas of, on to our children and grandchildren of the centrality of the Declaration is something that we can do by reading it on July 4th, and that we should do.
[01:02:08] Jeffrey Rosen: How meaningful to read the Declaration off the coast of Greece where the ideals of Pythagoras and Plato and Aristotle inspired Locke and Montesquieu and Sidney, who in turn inspired Jefferson and Mason who in turn inspired the women at Seneca Falls and Martin Luther King. Thank you so much, Akhil Ammar and Steve Calabrese for an inspiring convening to celebrate the Declaration, and help us understand its meaning.
Dear, We the People listeners, please take up Akhil and Steve's invitation. Read the Declaration with your families and pledge with me and Steve and Akhil and the National Constitution Center to inspire your children, and their children to read the Declaration and learn from its ideals. Akhil Ammar and Steve Calabrese, thank you so much for inspiring all of us. And We the People listeners, happy July 4th.
Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Jackie McDermott, Mac Taylor and Olivia Gross. Welcome, Olivia. Please rate, review, and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone, anywhere who is eager for a weekly dose of constitutional debate and inspiration. And remember that the National Constitution Center is a private non-profit. We rely on the generosity, the passion, the engagement, and the devotion to lifelong learning of people from across the country who are inspired by our non-partisan mission of constitutional education and debate.
You can support the mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to support our work including this podcast at constitutioncenter.org/donate. Happy July 4th everyone. Dear, We the People listeners, thanks so much for learning together. And on behalf of the National Constitution Center, I'm Jeffrey Rosen.
