• We The People Podcast

The Declaration of Independence and its Influence on the Constitution

June 20, 2019

In honor of the anniversary of the ratification of the Constitution, June 21, and the upcoming Independence Day holiday on July 4 – today’s episode celebrates the influence of the Declaration of Independence on the Constitution and constitutional movements throughout history. We explore how the Declaration influenced the drafting of the Constitution itself; the abolitionist movement and Abraham Lincoln’s conception of a new birth of freedom after the Civil War; the Seneca Falls Convention and the campaign for women’s suffrage; the Progressive movement and the New Deal; Dr. King and the Civil Rights revolution; through to the modern conservative originalist movement as well as progressivism today. Host Jeffrey Rosen is joined by Danielle Allen – James Bryan Conant University Professor at Harvard and author of the book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality – and Ken Kersch – professor of political science at Boston College and author of Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism.



Dr. Danielle Allen is James Bryant Conant University Professor at Harvard University and Director of Harvard’s Edmond J. Safra Center for Ethics. She is also the principal investigator for Harvard’s Democratic Knowledge Project. She is a political theorist who has published broadly in democratic theory, political sociology, and the history of political thought, and is the author of numerous books including Our Declaration: A Reading of the Declaration of Independence in Defense of Equality.

Dr. Ken Kersch is professor of political science at Boston College studying American political and constitutional development, American political thought, and the politics of courts. He is the author of four books, including Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism, and of the University of Maryland Law Review article “Beyond Originalism: Conservative Declarationism and Constitutional Redemption”.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

This episode was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Michael Boyd.

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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of Constitutional debate. The National Constitution Center is a non-partisan non-profit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. June 21st is the anniversary of the ratification of the Constitution and in honor of that anniversary and the upcoming July 4th Independence Day holiday, today's episode explores the relationship between the Declaration of Independence and the Constitution.

The Declaration has been invoked by constitutional thinkers throughout American history, and joining us to discuss the relationship between the Declaration and the Constitution are two of America's leading historians and scholars about both documents. It's such an honor to have both of them and to introduce them to you, dear We the People listeners. Danielle Allen is James Bryant Conant University Professor at Harvard University and Director of Harvard's Edmond J. Safra Center for Ethics. She is principal investigator for Harvard's Democratic Knowledge Project, she's the author of pathbreaking invaluable books, including Our Declaration: A Reading of the Declaration of Independence in Defense of Equality. Danielle, it is an honor to have you back with us.

Danielle Allen: [00:01:30] Thank you, Jeff, it's an honor and a pleasure to be here.

Rosen: [00:01:33] And Ken Kersch is professor of Political Science at Boston College, studying American political thought and constitutional developments. He has written several books on this subject, including the forthcoming American Political Thought: An Invitation, and I must make a plug for Ken's most recent book which I have just devoured with great profit and interest, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism. Ken, it is an honor to have you as well.

Ken Kersch: [00:02:04] My pleasure to be here, Jeff.

Rosen: [00:02:07] Danielle, let's jump right in. The Declaration has been invoked by constitutional movements on both the left and the right throughout American history and we're going to explore each of those movements, but just to introduce our listeners, tell us about the broad ways that the Declaration has been invoked by progressive movements on behalf of equality.

Allen: [00:02:29] The wonderful thing about the Declaration is that it has a principle of change in it, it endorses a principle of change. When you take that all important second sentence about the self-evident truths, it concludes by saying that it's the right of the people to alter or abolish the government if it's not doing its job of securing rights, and institute a new version thereof, and that principle of change has been picked up throughout time. Lincoln, of course, re-founded the polity on the principle of equality invoked at the Declaration and so many of his political choices were motivated by it. Martin Luther King Jr. in the civil rights moment, is another figure who drew intensely on the language and ideals and principles of the Declaration of Independence.

Up to the present day, I think you'll find that ... I like to say it's really ... it belongs to everybody. The Tea Party was motivated by a lot of people who grabbed the Declaration and used its text history to write out a new series of grievances and progressives operating now in the wake of Donald Trump's election are doing the same thing with the Declaration of Independence. It really ... It's a text that belongs to everybody and has a principle of change in it and therefore has been an engine of progressive action in the country throughout its history.

Rosen: [00:03:35] Ken, as Danielle says, the Declaration belongs to everyone and has and has been invoked by everyone and it has been also specially invoked by conservatives throughout American history, starting with the founding. Give us a sense of some of the leading invocation by conservatives' movements, of the Declaration.

Kersch: [00:03:55] I certainly agree with Danielle, not only that the Declaration of Independence belongs to everybody, but I'd make a related statement about that and that is that it has been ubiquitous in American political thought throughout the country's history. The Declaration of Independence has always been cited on diverse sides of important political struggles in American history, and the categories of progressive and conservative obviously change over time. One thing I would say about the Declaration of Independence and its relation to the Constitution and ultimately to conservatism, is that the Declaration of Independence is what scholars have referred to as a credal document.

It states fundamental principles of free governments in liberal regimes and many thinkers across American history, I'll just cite Abraham Lincoln who is obviously one of the most prominent, famously referred to the Constitution, I mean, the Declaration of Independence as the apple of gold in a picture of silver. The apple of gold being the Declaration and the picture of silver, by that, Lincoln means a picture frame of the Constitution. The conservative thinker, Harry Jaffa, referred to the Declaration with his own metaphor, as the soul of the American political regime and the Constitution is its body.

I would say that contemporary conservatives have invoked the Declaration very prominently in recent years, but if we look back across American history, one thing and we can talk more about this, is that different types of conservatives have invoked the Declaration for different propositions over the course of American history. Frankly, that depends on whether or not they are liberal conservatives who tend to emphasize limited government and natural rights, or whether they are traditionalist conservatives. In the past there has been a tradition of conservatives, some sliver of conservatives, particularly before the Civil War, denying the principles of the Declaration of Independence and natural equality, while also emphasizing things like government by consent and limited government and contract. Within the conservative thought, it actually is invoked for different purposes, and has been over the course of American history.

Rosen: [00:07:03] Thank you for introducing us to the distinction among conservatives who have invoked the Declaration and also for introducing us to a concept that you've called, declaration-ism, namely that the Constitution is best interpreted in light of the principles of the Declaration. Danielle, let's now begin at the beginning, around the Founding Era, and give us a sense of the first time that the Declaration was invoked on behalf of constitutional arguments as early as the Founding Era abolitionists, such as the African American abolitionist, David Walker, born in 1796, invoked the Declaration on behalf of the self-evident claim that all men are created equal and the slavery itself violated principles of natural rights. Were those the first invocations of the Declaration? Give us a sense of how the Declaration was invoked.

Allen: [00:07:54] I'm going to take you earlier than that, two important moments. You're right about one, abolitionism, the other is, just as Ken was saying, the Constitution. On the front of abolitionism, the very first person, period, to use the Declaration for something other than the purposes of independence was a free African American in Boston named Prince Hall. He invoked the language of the Declaration, the nature of inalienable rights and the creation of all to have these, (inaudible) submitted it to the Massachusetts Assembly into, sorry, January of 1777, seeking an end of slavery in Massachusetts and emancipation.

His petition was not immediately successful, but in fact by 1780 in the state constitution, Massachusetts did also use the language of the Declaration of Independence. That then was followed by Supreme Court decisions in the state of Massachusetts in 1783, ruling slavery unconstitutional in the Massachusetts State Constitution. Abolitionism crystallized in those years, between 1777 and 1783, by drawing on the language of the Declaration of Independence. People don't realize that that key moment, the Declaration launched abolitionism and slavery was ended in Massachusetts, Pennsylvania and Vermont by that point, early in the 1780s. That's one really important invocation.

The second one is that James Wilson, founding father signer of the Declaration and the Constitution and one of the first Supreme Court Justices, stood up in the Constitutional Convention and read the Declaration in full to the assembled gathering to make the case that the new country had been founded on a complete people, a whole national people, not on a treaty among separate states. He provided the intellectual basis for a popular founding for the country and nationalists founding throughout the Constitutional Convention, he consistently referred back to the Declaration to make that argument. Those are your two earliest uses of the Declaration to redefine domestic politics, the case of abolitionism with Prince Hall and James Wilson providing an intellectual grounding for the Constitution at the convention.

Rosen: [00:10:02] Wow! That is so fascinating. We have at the Constitution Center, Wilson's original draft of the Constitution, the very first draft and as you say, his notion that we, the people of the United States as a whole where sovereign was key to Lincoln's insisting that the session was unconstitutional. I hadn't known that he invoked the Declaration and thank you so much for teaching us about those two crucial connections and early invocations of the Declaration. Ken, can you beat that and tell us about early invocations of the Declaration, either before the Constitution was ratified or just after, and did the Framers of the Constitution themselves think that the Declaration had legal or constitutional relevance or status?

Kersch: [00:10:42] I can't beat that. However, I would say that in a way, while the particular in vocation of it, that Danielle spoke of, is especially interesting because it's abolitionism. Most people tend to date the abolitionist movement when the Declaration was perhaps most famously and broadly invoked to the 1830s and I think what Danielle very interestingly in line with some recent scholarship has emphasized is that this really, these invocations go back to the very founding. Again, I want to underline that I think invocations of the Declaration of Independence very much from the moment it was ratified were ubiquitous, and they were ubiquitous anytime someone claimed that their fundamental God-given rights had been violated. Or, conversely, anytime someone claimed that the government was surpassing its powers that had been delegated to it by the people.

Therefore, when I say the Declaration of Independence is credal, it's almost impossible to separate out political discussion in America across its entire history from invocations of the Declaration of Independence because anytime you ask about ... Anytime the issue of fundamental liberty comes up, anytime the issue of equality comes up and any time the issue of government by consent comes up, the Declaration of Independence and for that matter, July 4th, comes up as a touchstone of argument about those broader credal principles of the American polity.

Rosen: [00:12:51] Danielle, is there anything more you can tell us about invocations of the Declaration in the Constitution making era at the convention and then take us up through the abolitionist period and describe the invocation of the Declarations by abolitionists in the years leading up to the Civil War?

Allen: [00:13:07] Thanks Jeff. Yes, there is a really important moment in the convention that deserves attention. The all important sentence that I mentioned, the sentence about self evident truths lays out the job of citizens of a democratic republic. That job is to judge whether their government to securing their rights and then if it's not, to lay the foundations to institute new government. It says, “Laying the foundation on such principle and organizing its powers in such form as to them shall see most likely to effect their safety and happiness.” This division between the foundation and principle and how you organize the powers of government was fundamental to how they thought about the work of building a democratic republic.

In that moment, in June of 1776, when they decided to pursue the question of independent states, simultaneously set up a committee to write the Declaration, the preamble, the statement of principle and a committee to draft the Articles of Confederation, the document that would organize the powers of government. When we come to the Constitutional Convention, this notion that there are two tasks for citizens of a Democratic Republic returns and the Committee of Detail, which James Wilson served on, they paused, they had been ... They were a smaller committee within the convention who in the middle of the summer were given the job of actually nailing down the text.

They paused, as they sat down to do their work, to ask the question of, “Do we need a new statement of principle or is it just our job to redo the instrument organizing the powers of government?” They determined that they did not need a new statement of principle, that they were only going to reorganize the powers of government. That is an implicit endorsement of the Declaration in its role as that statement of principle, that credal document as Ken was saying, to explain the meaning, the weight, the haves, the content, the aspiration, the goals of the document, the constitution that would organization the powers of government.

Wilson was ... He read the Declaration, he invoked it regularly in the convention, and then in the context of this small committee he served on, they'd directly engage the question of whether it would stand as that foundational principle and the decision was, yes, it was going to stand. That's how important it was to the founding. You're right that after the founding, it was primarily abolitionists who picked up its language and you mentioned David Walker, who was an incredibly famous African American writer, thinker who really helped motivate people to rethink the ideals of American independence and what that meant for individuals as well as for collective society.

Of course, interestingly abolitionists very quickly became connected as well to the efforts of women to make space for themselves inside the ideals of the Declaration. In the middle of the 19th century, you get the Seneca Falls Declaration, where we get the rewrite in words, all people are created equal, all human beings are created equal, not just men, and women, self consciously right themselves into the story of the Declaration of Independence.

Rosen: [00:15:52] Ken, you mentioned Harry Jaffa, a conservative thinker and his notion that Lincoln's invocation of the Declaration were central to conservative thought. Lincoln was such a devotee of the Declaration that he stood in front of Independence Hall in 1861, and gave a speech saying, “I would rather be assassinated on this spot than abandon the principles of the Declaration of Independence.” It's an unforgettable speech and we have here at the Constitution Center in our new exhibit on the constitutional legacy of the Civil War and reconstruction, the flag that flew over Independence Hall when Lincoln gave that speech. Tell us about the significance of the Declaration to Lincoln, who famously in the Gettysburg Address, referred not to the founding but to the July 4th, 1776 four score and seven years ago to the date of the Declaration. What was the constitutional significance of the Declaration for Lincoln and his new birth of freedom?

Kersch: [00:16:47] Let me frame this, including Lincoln's thought and including Jaffa's thought, by going back to the time of the drafting of the Declaration itself, by Thomas Jefferson and the committee. One of the key things to recall about the dynamics of the Declaration of Independence is that even as it was being written, there was a deep suspicion that the country ... Even as this great credal document about liberty and equality and popular government and government by consent was being written and praised by the likes of James Wilson and many others as July 4th was being celebrated, there was this undercurrent of unease. The unease of course, was that because of chattel slavery, the country at the moment it was articulating this creed, was also violating the creed and at the moment of declaring it, they were repudiating it.

Chattel slavery became the preeminent example of this, although as Danielle noted, other groups, including women, the women at Seneca Falls, would come to argue that their rights under the Declaration of Independence, their natural rights to be treated as equals were being violated. I want to emphasize that that suspicion was a dynamic that was with the country from the start, that it was betraying its creed, that the Declaration of Independence was insincere or as Frederick Douglass put it in his very famous oration from the 1850s, “What to the slave is the 4th of July?” Lincoln was someone, particularly in his debates, in his senate campaign against Stephen Douglas, essentially raised this issue of whether or not the country was going to live up to the claims of the Declaration.

Lincoln, in the Lincoln–Douglas debates in a way split the baby. Lincoln was not an abolitionist, the issue was would slavery be recognized and even protected in the new territories as the country expanded westward. In the Lincoln debates, I say Lincoln split the baby, he did not call for the elimination of chattel slavery immediately. That is because he agreed to honor the original constitutional compact that was made by We the People under the principles of the Declaration. However, he simultaneously declared chattel slavery to be a violation of fundamental rights under the principles of the Declaration.

Therefore, Lincoln drew a line and he said essentially that, “We will tolerate it where it exists. It's an abomination, but we will not allow it to spread any further beyond its current borders.” That is a statement for which Harry Jaffa, which you mentioned in your question, really placed a lot of emphasis on and Jaffa, the conservative from the mid 20th century, characterized Lincoln's position in the following way. He characterized it as a foundational articulation of the view that the core American principle under the Declaration is the equality of natural rights. He posited that as Lincoln's argument against Stephen Douglas, who was articulating the view that law comes from the people, we call that in law positive law.

The Lincoln's view was a natural law view, that rights come from God, from the Creator and they are eternal and they are permanent and they never change. That is called natural law, that there are certain timeless principles of how God created man, that man is entitled to life, liberty and the pursuit of happiness, to use the language of the Declaration. Stephen Douglas in Jaffa's characterization and an accurate one, is that Stephen Douglas held to the view that law comes from man, it is made by people and you are obligated to follow the positive law. For Harry Jaffa, Lincoln and Douglass, in their debates, stood for an epic debate over the supremacy of natural or positive law, of God's law, the law of the Creator, the law of nature and nature's God versus the law of mere human beings.

Rosen: [00:22:43] Danielle, do you agree or disagree about Ken's characterization of Lincoln's relationship with the Declaration being one of the equality of natural rights? Tell us about Lincoln's relationship to the Declaration and the relationship with the Declaration to the Reconstruction Amendments to the Constitution, which enshrined the principle of equal protection under law into the Constitution.

Allen: [00:23:07] The question of Lincoln's relationship to slavery is immensely complex. There's the question of what he thought about slavery as an institution, and that's distinct from the question of what he understood to be the politics of addressing slavery. With regard to what he thought of slavery as an institution, I think the best way of encapsulating that is in his remark, "As I would not be a slave, so I would not be a master. That's the only definition of democracy that I know." I may have gotten that slightly wrong in essence but that's the best definition of democracy. I can't remember exactly, but that key phrase, as I would not be a slave so I would not be a master, really encapsulates Lincoln's fundamental commitment to equality.

Each of us should be the author of our own lives, but also means being a co-creator of our public life together through political participation and political empowerment. There should be no slaves, there should be no masters, so my view is that he had a steady and unyielding repudiation of slavery in his thought all the way through. His politics adjusted as he proceeded politically, as he sought ways of addressing that truth about slavery within the confines of the rule of law. He bound himself by the existing rules of the game, but pursued the truth as he saw it within those rules, hence the importance of the Emancipation Proclamation applying to those who were enslaved under the territory of the adversary, the military adversaries.

He took the law of war that permitted him to have control over the contraband, taken from the enemy, and use that to free slaves in those occupied area. He was a very legalistic thinker and that legalism is another expression of his commitment to be equality in so far as his belief was that because we have rules of the game because we can adhere to them, that's actually how we protect our equality with each other. He pursued equality for all in the context of also advancing a project of institutionalizing equality through the rule of law. That's how I see Lincoln's view about equality there. I think Ken did hit on one of the fundamental places where you do get a divergence between progressive and conservative interpretations of the Declaration.

It came out in the phrase he quoted when he referred to the laws of nature and nature's God as being the basis of the arguments in the Declaration. He's right, that is the basis of the argument there, this idea that there are the laws of nature and of nature's God, but that sentence is in some sense a belt and suspenders sentence. It means that for those who have a view that is a deist few or even an atheistic view, but nonetheless think that there are patterns in human life that support to the notion that things like the rule of law bring peace and so forth and those are durable universal patterns, they don't necessarily need a concept of a god to anchor them.

The phrase, laws of nature and nature's God gives you a basis both in a theological perspective and in a secular humanistic perspective for endorsing the ideals of the Declaration. Conservative interpretations have tended to, to rely heavily on a religious or theological interpretation, progressive interpretations have tended to rely more heavily on a secular humanist interpretation. That's an important thing to recognize because even at the moment of the writing of the Declaration in 1776, the question of the role of religion in the foundation was a matter of compromise where there was an overlapping consensus, not shared agreement. For example, in fact, Jefferson did not put the key terms about religion in the Declaration, he did not put in the language about divine providence or the supreme judge, Congress added those additions.

He didn't even put in the word creator, that came in from either Ben Franklin or John Adams. The point is that the language and the Declaration is capacious, it permits people to embrace it regardless of whether their foundation for doing so is a secular humanistic foundation, or theologically inspired foundation. Importantly, none of the religious words in the Declaration connect to a specific doctrinal tradition, they're not specifically Christian, they're not specifically Judaic, et cetera. At any rate, the point was that they developed open-ended language, yet the controversies, the disputes, disagreements among us with regard to interpretations at the Declaration tend to come because people pick one or the other pillars of justification and foundation for their ideals in the text.

Rosen: [00:27:34] How fascinating to learn that Jefferson's really draft did not refer to the creator.

Allen: [00:27:40] He used the verb create, just to be vivid, he did use the verb create, but then Franklin and or Adam's turned that into creator.

Rosen: [00:27:47] I have to ask, was it, we hold these truths to be self-evident that all men are created with certain unalienable rights? What was the sentence?

Allen: [00:27:55] That's exactly right. Something like that, yes.

Rosen: [00:27:58] Ken, take us to the Reconstruction Amendments. One of the really exciting things we have in our new exhibit about the Civil War and reconstructions is interactive as which will be online in September that allow you to look at early drafts of the 13th, 14th and 15th Amendments. We see that an early draft of the 13th Amendment, had kind of Equal Protection Clause proposed by Charles Sumner, who insisted that equality of rights is the first of rights and invoked the Virginia Declaration of Rights written by George Mason saying that all men are free and equal in their life, liberty and property and endowed by their creator as such. Tell us more about the influence of the Declaration, which after all channeled Mason's Declaration on the 13th, 14th and 15th Amendments to the Constitution.

Kersch: [00:28:47] The angle light I'd like to take that on is related to that, but somewhat different, and that is the role of government and in particular the national government in making the enjoyment of these natural rights a reality. I'm not abandoning your question because of course, Charles Sumner and what we call the radical Republicans, which is a controversial term, their view was not only that these rights are foundational, inalienable, but that the government ... that governments generally and the federal government had new powers to make the enjoyment of these rights a reality. In fact, that was the major issue or one of the major issues with the Civil War or Reconstruction Amendments, the 13th, 14th and 15th Amendments.

What I'm saying is the issue is less the principal than the constitutional mechanism for making sure that that principle is now enforceable by the government of the United States, going forward from the Civil War. The language of rights ... The 13th Amendment basically declares that chattel slavery, or involuntary servitude, unless in punishment for a crime for which one is duly convicted, shall not exist within the United States. All of these ... The 14th Amendment, besides doing a lot of other things, guarantees the rights to privileges and immunities of all citizens, equal protection of the law and the due process of law, and the 15th Amendment concerns voting rights.

What I would say in answer to your question is particularly relevant to the Declaration of Independence in its own way, is that for many people, the Declaration of Independence was a charter of limited constrained government. Jefferson himself viewed government as a necessary evil and that is because he thought governments were the primary threat to individual rights. At the same time, however, there is this paradox or irony in the Declaration of Independence that it justifies and legitimated the establishment of a powerful government that itself implicitly is indispensable to the protection of rights.

The political theory of the Declaration of Independence both empowers and legitimates government to protect rights and at the same time, says that governments are the greatest threat to rights. I think that tension, if not contradiction, has carried through all of American history and at the time of the drafting of the Civil War Amendments, one thing that changed with regard to the principle of the equality of natural rights was that the 13th, 14th and 15th Amendment, all were not only Declarations of rights and additions to rights of the Constitution, but they each had as concluding section that said, “The Congress shall have the power to enforce this provision by appropriate legislation.”

Actually, the 13th, 14th and 15th Amendments added to Article One's grant of power to the national government and specifically to the US Congress. For Conservatives and liberals, this is going to be a point of contention ever since, many conservatives today still look back to the 18th century and view the Declaration as a charter of very limited government, but the Civil War Amendments, and this is what Lincoln meant in part by a new birth of freedom, is that we've learned from slavery that governments are not necessarily the chief threat to rights, that federalism does not protect rights as we might have initially thought, and that we need a newly empowered Congress and national government to enforce rights.

In that sense, Lincoln, and certainly the radical Republicans, really were conceiving of a new understanding of the constitution and a new addition to powers of the national government to protect rights of people.

Rosen: [00:34:19] Danielle, we have at least three more eras to get through so let's get to it. I'm going to ask you now about the Progressive Era and you'd mentioned the invocation of the Declaration by women's suffrage advocates at Seneca Falls. Tell us about that and of other indications of the Declaration during the Progressive Era, including by conservatives on behalf of property rights.

Allen: [00:34:45] The key feature of the Progressive Era is of course the achievement of the right to vote for women, and we are all just going through our conclusions of celebrating that 100th anniversary on that front, and the language of the Declaration was a very common feature of that effort. I think it's important then also to recognize that the nature of the conversation about rights has itself been one always about the evolution of context and the concept there. FDR for example, then famously elaborated an argument about four freedoms but those four freedoms stand in a slightly different relationship to the kinds of freedoms articulated in the Declaration.

They include, the freedom from want and freedom from fear alongside the freedom of religion and your more conventional views about freedom. This is a moment in the 20th century where a question is being put on the table about social rights alongside political and civil rights. At the founding, the concepts of freedom and equality were really tied to a picture of political equality and where what you were talking about was the right to participate in the political process, to run for office, to vote. Those were restricted rights to start but the rights continually broadened. Then we include new groups in those political and civil rights, but then in the early 20th century, what you start seeing is the conversation about expanding the rights category to include social rights.

That then really crystallizes in the UN Declaration of Rights, which lays out a big picture of human rights, which includes the political and civil rights that have always been a part of the American tradition and also includes economic rights and social rights. This is the point at which the conversation starts to take on a really different shape as a big human rights discourse also begins to evolve. All of that, which we're now very familiar with in the early 21st century, does have its origins in the Declaration of Independence, but it's really important to see the way in which that progressive moment, that mid century World War II moment, begin to add social rights and economic rights into the discussion of what kinds of rights a government has an obligation to secure.

On that last point, I think it's important to say that again, the Declaration itself is a motor of change because when it lists those core rights, it does so as providing a set of examples. It says, “All men are created equal and endowed by their creator with certain unalienable rights.” That, "Among these, are life, liberty and the pursuit of happiness." That list of three is ... it's a set that are examples, “Among those inalienable rights are these three.” That of course leaves open the question, well, what other rights fit underneath that umbrella of unalienable rights? That's really the topic that the mid 20th century takes up as social rights and economic rights come into view for deliberation and consideration as basic things the government ought to secure and protect.

Rosen: [00:37:46] Ken, as Danielle so powerfully said, the Declaration discourse was expanded during the Progressive Era to include not only the 18th century natural rights, but also social and economic rights and Franklin Roosevelt in his Commonwealth Club Address on the Declaration of independence in 1932, invoked the Declaration on behalf of the protection of social and economic rights. Later, in his Four Freedoms speech, he invoked the Declaration on behalf of a second Bill of Rights, which included the right to a remunerated job, adequate clothing and so forth. Conservatives responded to the new deal by objecting to its expansion of government authority and its attempt protect social economic rights.

What's so fascinating for our discussion, is that in their reaction to the new deal, they once again invoked the Declaration in attempting to repeal it. This is a story that you tell so powerfully in your new book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism. Give us a sense of the different strands of the conservative movement that invoked the Declaration in their opposition to the new deal.

Kersch: [00:39:04] Well, Jeff, progressives at the time spoke to different categories of thinking about the Constitution that get to the question that we're talking about today. Progressives, and I'll talk about conservatives next because obviously that's the other side of the coin here, progressive historians distinguished between what they called the spirit of the Declaration versus the spirit of the Constitution. For progressives, the spirit of the Declaration meant democracy, the power of the people to set their own direction, to make their own laws that they think will best serve their needs and advance their rights. The spirit of the Declaration embraced change, it embraced revolution, it embraced popular sovereignty.

I think the way progressives would think about the developments that Danielle was talking about towards social and economic rights, and certainly FDR invoked the Declaration of Independence for this very purpose in his famous Commonwealth Club Address is, he invoked the Declaration for first of all, the idea that the Constitution is a ... that the polity is based on a fundamental compact. FDR said that essentially, the country is not ... the government is not living up to its compact with the people. That the people are suffering, they are not able to exercise their rights, they are not able to make them a reality in their day to day lives and therefore the compact and the compact theory that underlies the Declaration and also its promise of popular sovereignty was being violated.

FDR was invoking the spirit of the Declaration that progressives were talking about and of course he got his start as assistant secretary of the navy in the Wilson, he came out of the Progressive Era . For their part, the progressive's said, “The barrier here, is the spirit of the Constitution,” which they identified with conservatives. This is the natural rights view, and the Conservatives at the time said, “Well, yes, of course we believe in democracy, but we believe in constitutional democracy, which is premised on the idea of limited government, property rights and the rights of minorities.” And, “The Constitution was there, where appropriate, to check the majorities and to limit the powers of government.”

In the Progressive Era , the conservatives identified progressives as upholders of the constitution and they viewed that many progressives, particularly the radicals as a negative but they appealed to the spirit of Declaration Independence in the positive. Let me just add, to move forward to the new deal and the things that Danielle was talking about, one of the things that changes under Franklin Roosevelt is current conservatives basically label new deal liberalism, just another form of progressivism. By that they mean, it's purely majoritarian democratic and it does not heed the spirit of the constitution that I just mentioned, protection for minority rights, protection for property rights and adherence to constitutional principles of limited government.

I think what changes under FDR, particularly because of what's happening in the broader world with the rise of Nazi-ism and World War II and Hitler, is that FDR, unlike the progressives or most progressives, re-embraces the language of rights and implicitly re-embraces the limited government spirit of the Declaration while also embracing an active government spirit of the Declaration. Therefore, he affects a synthesis. To conclude, I would just say, what are the four freedoms, freedom of speech and expression, freedom of religion. Those are what we call negative liberties, they are restrictions on the power of government and in that sense they are very Jeffersonian.

But then, FDR also says, “Freedom from want and freedom from fear, which call upon the government to act.” That, I would argue is Lincolnian. That is in the spirit of the Declaration as refracted through the Civil War Amendments that calls for more government. The Four Freedoms speech, FDR synthesizes that and says the issue isn't government limiting government or empowering government, it is doing one in one case, doing the other in the other case, to fulfill our contract to the people to advance the public interest and to advance the common good of our constitutional democracy.

Rosen: [00:45:02] Well, it's time for closing arguments in this fascinating debate. Danielle, my question is, are progressives in the post New Deal era from 1936 to the present, also continuing to invoke the Declaration on behalf of efforts continually to expand equality and popular sovereignty, or has Declaration language fallen out of fashion among progressives in recent years?

Allen: [00:45:28] As Ken said earlier in this conversation, use of the Declaration is ubiquitous and so you can find it all over progressive or left leaning political movements as well. It's relevant to this effort to do Equal Rights Amendment and women's rights, it comes up in various places in that context. Again, of course Martin Luther King so famously invokes it in a letter from the Birmingham jail, the Black Power movement even repurpose the language of the Declaration. Then you find surprising things outside of this country, like Ho Chi Minh's rewriting of the Declaration as he tries to establish independence for Vietnam, so it's uses are astonishingly wide and varied.

I will just share that I myself, a couple of years ago, published an op-ed in The Post, rewriting the Declaration to argue for a Declaration of Independence from the war on drugs. You could call that a kind of blend of progressive and libertarian position. It really is a rich document because it does set up a framework for judging what the purpose is of a democratic government should be, what our responsibilities are to one another and what the tools are that we have for bringing about adjustments to the framework for mutual living arrangements. As I said at the start, it's for everybody, it has been used as much on the left as on the right.

I think perhaps the conversations are more consolidated on the right than on the left, they're perhaps a bit more spread out and disparate on the left so perhaps not as visible, but the text and the ideals of the Declaration are very much alive across the political spectrum.

Rosen: [00:46:59] Ken, the last word is to you. How are conservatives continuing to invoke Declaration language in our constitutional debates today ranging from abortion and fetal life to gay marriage and the scope of limited government?

Kersch: [00:47:15] As you mentioned, Jeff, the Declaration of Independence plays a major role in contemporary conservative thought and contemporary conservative constitutional thought, particularly within the conservative movement generally but also in some cases on the Supreme Court, and I believe you mentioned Clarence Thomas in that regard, who is acknowledged as someone who's picked up on this. I think we might see even more of it in the future on the Supreme Court, as a new Republican justices are appointed. Essentially the work that citations to the Declaration of Independence are doing in the contemporary conservative movement, is really to emphasize that conservatives believe that this country is founded upon certain timeless principles of natural rights, natural right and also natural law.

They essentially argue that progressives and their legatees ever since the Progressive Era , have repudiated the framework that the polity needs to be anchored in certain grounding foundational principles. They charge progressives and liberals with essentially abandoning both the principles of the Declaration of Independence and relatedly, the Constitution, which they argue is inextricably linked to the Declaration of Independence. As far as the particular issues you mentioned, abortion, fetal personhood, gay rights, conservatives have a particular reading of the meaning of the Declaration of natural rights in the Declaration of Independence.

There's a considerable debate about the terms of this, but much of what's driving this is broadly a statement that Jefferson and the Founders believed in natural law. Essentially, they end of the argument and obviously in some sense that is true. I'm not going to go into it, but I would dissent a bit from Danielle Allen saying that the creator reference, which is an interesting point that she has made and an interesting argument, but essentially what the concurrent conservatives are doing is that ... are arguing is that because of the Declaration and Lincoln's importation of it into the Constitution, that natural law is inherent in the Constitution itself. I think that's fairly clear.

I think what's controversial certainly to me, is that they then say, and this is why the Declaration has been so important to the Christian and the culture wars, they then say, “Well, what is the content of natural law?” Different aspects or strains of the conservative movement say, “I'll tell you what the content of the natural law is, this is something we've thought about quite a bit. If you want to know what the natural law is, why not look to Thomas Aquinas's Summa Theologica?” Liberals will say, "That's importing your Christian views into the Constitution, that's theocracy. Jefferson would not have agreed with that."

Christian conservatives would say, “No, it's not the fact that it's Catholic, it's not the fact that we think of a natural law in Evangelical Christian terms. It's that these understandings of natural law are true and it is true that these religious thinkers had explicated the natural law, but that natural law is reasonable and it is sensible.” Therefore, the Declaration, and it's commitment to, quote unquote, “natural law,” is taken within the conservative movement as a conduit for traditional Christian understandings of right and wrong. The argument is essentially that abortion can never be a right because it violates the moral law, the fetus is a person because it's consistent with moral law, there can be no gay rights because that is inconsistent with the moral law.

By returning to the Declaration as a foundation and importing that into the Constitution, they are essentially working to align the Constitution with their understandings of right and wrong, which are found in natural law and in correct thinking, understandings of natural rights. They wanted to return ... By the way, I would just add, they said that was understood clearly at the time of the founding, the Founders operated within that framework, and the progressives repudiated it and it's time for us to return to the original understanding in which it is not only the correct understanding of rights, but also was part, implicitly, of the bargain, the compact, the contract of the original Constitution that was ratified by the American Founders.

Rosen: [00:53:19] Thank you so much, Danielle Allen and Ken Kersch, for an absolutely riveting, rich and illuminating discussion of the relation between the Declaration of Independence and the Constitution throughout American history. Danielle, Ken, thank you so much for joining.

Allen: [00:53:33] Thanks a lot, Jeff. Ken, great to talk with you.

Kersch: [00:53:35] Great to talk with you, Danielle. My pleasure, Jeff.

Rosen: [00:53:41] Today's show was engineered by Kevin Kilbourne and produced by Jackie Mcdermott. Research was provided by Lana Ulrich and the constitutional content team. Dear We the People friends, your homework this week is obvious. Please read Ken Kersch's new book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism, and Danielle Allen's book, Our Declaration: A Reading of the Declaration of Independence in Defense of Equality. If you succeed in both homework assignments, then write to me and tell me what you thought of both books, [email protected]

Please rate, review and subscribe to We the People on Apple podcasts or wherever you listen to your podcasts, and recommend the show to friends, colleagues, or anyone everywhere who's hungry to understand the relationship between the Declaration of Independence and the Constitution. Always remember, We the People friends, that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, engagement, and hunger for constitutional light, of people like you across the country who are taking the time to educate yourself about the Constitution and the Declaration. Please support our 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. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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