Kermit Roosevelt III on the Founding and Re-Founding of America
tags: slavery,Constitution,legal history,Declaration of Independence,founders
We are in the middle of a metamorphosis here, a metamorphosis which will, it is devoutly to be hoped, rob us of our myths and give us our history.—James Baldwin
Acclaimed professor of law and author Kermit Roosevelt III calls for a reexamination of America’s past and our myths in his provocative and illuminating recent book The Nation That Never Was: Reconstructing America’s Story (University of Chicago Press).
The book challenges the “standard story” that most of us learn in school: that our nation’s Founders stood for ideals, reflected in the Declaration of Independence and Constitution, such as the proposition that “all men are created equal.” Yet, based on careful textual analysis of those documents and their historical context, Professor Roosevelt contends that this “standard story” is not only exaggerated, but patently false. The Founders, many of whom enslaved other human beings, did not envision equality for all—or even a majority of inhabitants of the new nation. Indeed, as Professor Roosevelt’s incisive analysis reveals, the founding documents enshrine white supremacy and protect the institution of slavery. Only white males are equal, under the Declaration, and segregation, enslavement and denying Black people the vote are consistent with that document.
For a more hopeful story of America that makes real the values of justice and equality regardless of race or color, Professor Roosevelt looks beyond the Founders to President Abraham Lincoln’s words on equality from his Gettysburg Address and other remarks, and to the post Civil War Reconstruction Amendments to the Constitution that ended slavery, protected individuals from abuse of state power, and assured the right to vote for all (males), including Black citizens.
In effect, we are not the heirs of the Founders, but instead the heirs of those who threw off the beliefs of the Founders and dismantled that old order with a new Constitution, argues Professor Roosevelt. And he celebrates this proud past rooted in the war to end slavery and the postwar Amendments that provide a foundation today for a country that embodies the principles of justice and equality—for all.
Professor Roosevelt’s book is especially timely and urgent as some right-wing political leaders advocate for censoring or whitewashing or erasing history and defeating “wokeness,” a vague concept which seems to embody the values that frighten the right such as historical truth, justice, tolerance, democracy, knowledge, equality, and more. The Nation That Never Was suggests, I believe, that we can advance as a nation only with full knowledge of our history, including the harsh reality of human enslavement, the treasonous Confederate secession, the legacy of white supremacy, emancipation and Reconstruction, lynching and mass white racial violence, Jim Crow segregation, the lethal myth of Confederate Lost Cause, the Civil Rights Movement, and ongoing racist violence as well as discrimination and inequality.
Professor Roosevelt’s innovative study has been praised by legal scholars, historians and political commentators alike as a historical corrective with a more nuanced and accurate view of our past, as well as a possible blueprint for a more just future. His thought-provoking book is based on extensive research, rigorous analysis of historic documents, and a passionate commitment to social justice.
As the David Berger Professor for the Administration of Justice at the University of Pennsylvania Law School, Professor Roosevelt’s teaching focuses on constitutional law and conflict of laws. He has written several scholarly books, including The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, as well as numerous law review articles, and two acclaimed novels, In the Shadow of the Law and Allegiance (on the incarceration of Japanese Americans during WWII). He is also a member of the Presidential Commission on the Supreme Court, and he frequently comments in print and broadcast media on the Court and current affairs. His articles have appeared in The New York Times, TIME, Newsweek, and The Hill, among many other publications. After law school at Yale, he clerked for the Honorable Stephen F. Williams of the U.S. Court of Appeals for the District of Columbia Circuit and then for the Honorable Justice David Souter of the U.S. Supreme Court. He is the great-great-grandson of President Theodore Roosevelt.
Professor Roosevelt graciously responded by email to a barrage of questions on his career and on his new book The Nation That Never Was. Many thanks Professor Roosevelt.
Robin Lindley: Congratulations Professor Roosevelt on your engaging new book The Nation that Never Was, a revelatory exploration of the beginnings of our republic and how the vision of equality of all Americans arose in our history. Before getting to the book, I wanted to ask about your background. How did being a member of the distinguished Roosevelt family influence your interest in history and law? It seems you were almost be predestined for a career in law or politics.
Professor Kermit Roosevelt III: It’s a bit of a double-edged sword, to be honest. On the one hand, I think TR and FDR were great presidents, and they’re inspirational figures, and it’s nice to feel connected to them. And certainly, I never looked at politics and thought "Someone like me couldn’t do that.” On the other hand, I did look at politics and think “I could never do that as well as they did,” and I got into law, and constitutional law, in a slightly roundabout way.
My first love was creative writing, really, and I wanted to be a writer. But that’s a risky and speculative career, so I was pursuing it on the side, while also following a more conventional track. I studied philosophy as an undergraduate, and I decided I wanted to teach, so then my choice was between law school and philosophy graduate school as a way into academia. I chose law, and then actually I was thinking I’d become a tax professor, because people had told me there was always demand for tax professors. I ended up in constitutional law mostly because of my Supreme Court clerkship.
Robin Lindley: Yes. After law school, you had a prestigious position as a clerk for admired Supreme Court Justice David Souter. What are some things you learned from that work and from Justice Souter? Did that work inspire you to seek work as a professor—or did you practice before you began your teaching career?
Professor Kermit Roosevelt III: I learned an enormous amount from Justice Souter—about what it takes to be a good judge, and a good lawyer, and a good person. I admire Justice Souter more than anyone else I’ve worked for or with. In terms of judging, he taught me to be aware of the practicalities of a decision. Law clerks are smart young lawyers, and we often like to come up with complex and sophisticated theories, and Justice Souter reminded me that what the Supreme Court says has to work in the real world. As a lawyer, he taught me the importance of clarity and candor. And as a person, he treated everyone with kindness and respect and a constant focus on how they, not he, could benefit from the relationship. The way he treated his clerks is what I keep in mind as a model for how I should treat my students.
The clerkship led to me teaching constitutional law, because it was my time working at the Supreme Court that made schools take me seriously as a potential constitutional law professor. I wouldn’t necessarily say that Justice Souter encouraged me to teach. He did send a very high percentage of his clerks into academia, I think because he hired people with an academic temperament. But he actually advised me to spend a couple of years in practice first, which I did. I practiced appellate litigation with the Chicago office of Mayer, Brown, Rowe & Maw.
Robin Lindley: How did you come to teach at the University of Pennsylvania Law School?
Professor Kermit Roosevelt III: Some schools sent members of their hiring committees to the Supreme Court to talk to clerks who were interested in teaching, and the people from Penn said that they thought I was ready to come and give a talk and be considered for an appointment. I thought that was a great opportunity to get a position at an elite law school without going through the normal process, which can be pretty arduous. I talked about conflict of laws, which was what I had focused my scholarship on, but they also needed someone to teach constitutional law and I had been working on constitutional issues at the Court, so they also hired me for that.
Robin Lindley: You’re a multitalented writer and deft storyteller, as evidenced by The Nation that Never Was. In addition to books on law and history, you’ve written two novels. What sparked your interest in creative writing?
Professor Kermit Roosevelt III: As I said, fiction was really my first love. I was writing novels through college and law school, but I couldn’t get them published—probably because I didn’t really have stories that were interesting to a lot of people. (My early novels were heavily autobiographical.) After law school, I realized that I had developed an understanding of a world that people were interested in but that most of them didn’t really understand—the legal world. So, I started writing about law—first about ethical issues in big firm practice, in In The Shadow of the Law, and then about the conflicting duties of government lawyers during World War II in Allegiance.
Robin Lindley: Thanks for mentioning those acclaimed novels. What inspired The Nation that Never Was? I wondered if there was an incident or event that prompted your innovative look at our history and law at a time when the country is deeply polarized and some leaders appear to embrace a kind of neo-Confederate thinking.
Professor Kermit Roosevelt III: I don’t know if I can identify a particular event. I tend to look back to a book review that the Texas Law Review asked me to write, of two books by Jack Balkin, who’d been a professor of mine at Yale. Writing that review started me thinking more about the Declaration of Independence, and what it actually meant to the people who wrote and read it in 1776, and how its meaning has changed over time. For a while I thought this was just sort of an academic point—isn’t it interesting that we’ve read into the Declaration a lot of values that weren’t really there at the beginning? And then I started thinking that it’s actually very important—and very harmful—that we locate our fundamental values in the Founding and the America of 1776 rather than Reconstruction and the America of 1868.
Robin Lindley: You stress that the value of unity has taken precedence over justice throughout our history. What are some ways this tension plays out in our past? Is that the major theme of your book?
Professor Kermit Roosevelt III: I think it’s the major theme of American history—that at crucial moments we have to choose between unity and justice, and too often we choose unity. I think the early examples of this choice are understandable, because the alternative is no America. With the Declaration of Independence, for instance, there’s a passage in an early draft that criticizes the international slave trade. But the Continental Congress takes it out, because that won’t help unify the colonists. A complaint about the British freeing enslaved people and encouraging slave rebellions, by contrast, does help unify the colonists, because they all feel threatened by these dangerous outsiders, so that stays in.
Much the same thing happens with the Constitution written in 1787. There are both pro- and anti-slavery drafters, but the pro-slavery people are willing to sacrifice unity to protect slavery—the Southern delegates keep threatening to walk out if they don’t get what they want. The anti-slavery people are willing to accept slavery to get unity, so they make several compromises that favor slavery. And again, it’s understandable, because the alternative is no America.
Then, during the Civil War and Reconstruction, America briefly chooses justice over unity. We’re willing to tolerate conflict among white Americans to promote equality. But that ends with Redemption, when we abandon the integrated governments of the South to white supremacist terrorism. White America comes back together; Black America is left behind. That wasn’t necessary to save the American nation, so I consider it a significantly greater failing than the Declaration or the 1787 Constitution.
And then later we see racial inequality being promoted almost for its own sake, because heightening the salience of race is a way to bring whites together and win elections. That’s the Republican Party’s infamous Southern Strategy. So, we see unity—and I call it a false and partial unity, unity of just enough people to take and hold power—being built on inequality.
Robin Lindley: You also note two visions of America: one of inclusive equality and one of exclusive individualism. How do you see these competing perspectives in viewing our history?
Professor Kermit Roosevelt III: Exclusive individualism, to take that one first, says that there’s a sharp line between insiders and outsiders—between the people who count, whose rights the government must protect, and the people who don’t, who are different and dangerous. And it says that the government must consider people as individuals—it can’t think about the welfare of the community in general. More specifically, what that means is that redistribution is generally considered a bad thing, in particular if it’s done to promote equality. Taking from one person because they have a lot and giving to another person because they have little is bad according to this vision because it’s violating individual rights.
Inclusive equality says that outsiders aren’t necessarily that different or dangerous, and they can become insiders. Maybe automatically, even if some people want to exclude them—maybe they become insiders just by being born here. And it says that promoting equality, even by redistribution, is a legitimate and even important thing for the government to do.
These visions, I say, are fundamentally the ideologies of the Founding (exclusive individualism) and Reconstruction (inclusive equality). You can see this in the fundamental documents from each period, and in the political debates, too. The Declaration of Independence talks about the purpose of government as securing the rights of individuals, and it shows outsiders as threats to the colonists’ lives: rebellious enslaved people, Hessian mercenaries, and Natives.
In the Founding era, there was a lot of debate about whether the federal government could fund infrastructure projects or provide disaster relief, because people thought it was redistribution that violated individual rights. By contrast, the Fourteenth Amendment gives us birthright citizenship, which makes outsiders into insiders against the will of some states. And it’s about equality, and so is the Gettysburg Address, and Lincoln talks repeatedly about how important equality is as a goal for the government to promote.
Robin Lindley: You write of a standard story about America that most of us learn in school. To simplify, isn’t that the idea that the Founders in the Declaration of Independence declared that “all men are created equal” and that the Founders Constitution embodies that value, and we grow up thinking that the Founders envisioned equality for all. What would you like readers to know about the standard story?
Professor Kermit Roosevelt III: I’d like them to know that Founding America really was not dedicated to equality for all people. The Declaration of Independence was primarily concerned with the independence of the colonies, not the equality of people. “All men are created equal” was a shorthand invocation of the social contract theory of John Locke, and it was basically a rejection of the divine right of kings. It plays a role in the argument for independence, but it doesn’t mean much about how society should be structured. In particular, it doesn’t condemn slavery.
The Founders were opposed to the idea of a superior class of insiders—they didn’t like hereditary privilege, and you can see this in the Founders’ Constitution, which prohibits titles of nobility. But they were okay with the idea of an inferior class of outsiders—most obviously, the people they enslaved.
Robin Lindley: How does the standard story protect “insiders” from “outsiders.”
Professor Kermit Roosevelt III: I think once you start looking for this distinction, you see it over and over again. The basic political theory of the Declaration of Independence is that people start out equal—no one has authority over anyone else. But some people might use force to violate the rights of other people. So people form governments to protect their rights from other people, and that’s what government is supposed to do: protect the rights of the people who formed it. The insiders. And if you look at what people said about slavery at the time of the Declaration and later, this is it. Enslaved people didn’t agree to form the government. They aren’t part of the social compact. They’re outsiders. So the government has no duty to respect their rights. This is why the colonists could complain that King George was trying to make them into slaves while they enslaved half a million people—the colonists were subjects of the British Empire, but enslaved people were outsiders.
So the colonists were hypocrites here in a way—they thought that their liberty was important and the liberty of black people wasn’t—but their argument wasn’t self-contradictory. Fast forward eighty years, and what is the big conflict over the Fourteenth Amendment about? Why does John Wilkes Booth say he’s going to kill Abraham Lincoln? Black citizenship—making the outsiders insiders. Fast forward another hundred years, and what’s the basic neo-Confederate complaint? What did interviewers find motivating Trump voters? The idea that the government is taking things that belong to the real Americans, the insiders, and giving them to undeserving others—immigrants, who are outsiders, or black people, who are technically insiders but not fully accepted.
Robin Lindley: And of course, you debunk the standard story. Indeed, as you write, the Declaration’s author, Thomas Jefferson, stated that “all men are created equal” but he saw Black people as inferior and he and many signatories of the Declaration were enslavers of Black people. You offer an extensive analysis of the Declaration. Rather than a statement on equality, what did this document really mean?
Professor Kermit Roosevelt III: So, it is a little technical, and people who read the Declaration in 1776 were more familiar with Enlightenment social contract theory than people are today, which is why the Declaration could give as compressed a version as it did. But the way to understand the Declaration, I think, is just to walk through the argument. Jefferson is trying to establish that the colonists are justified in declaring their independence. That’s the purpose of the Declaration—not to make bold new statements about moral principles like equality, but to make an argument, within a framework that was generally accepted at the time, about independence.
To do this, he needs to do three things. First, explain where legitimate political authority comes from. Second, explain when it can be rejected. And third, show that the colonists’ situation fits that description. And this is exactly what the Declaration does.
“All men are created equal” doesn’t tell you where authority does come from; it tells you where it doesn’t come from. It’s not the case, this says, that some people are chosen by God to rule over other. If you imagine a world with no government and no laws—and this is the “state of nature” thought experiment that Enlightenment social contract theory generally started with—no one would have legitimate authority over anyone else. It’s a rejection of the divine right of kings. And basically, that’s all it is in 1776. (I’m confident in saying that it’s not an antislavery principle because an antislavery principle doesn’t help the argument for independence—it actually weakens it by showing that the colonists are acting wrongfully—and because we know that the Continental Congress deleted a passage that criticized the international slave trade.)
So then we get the theory that people form governments to protect their rights, and governments get their just authority from the consent of the governed. And it follows relatively easily that if the government strays from its purpose and starts oppressing people rather than protecting their rights, then they have a right to alter or abolish that government and make a new one that will do its job.
That’s what the Preamble says. What remains is to show that the British government has become oppressive, and that’s what the list of grievances against King George does. So it’s pretty easy to reconstruct the argument for independence, and once you do that, you see that the issue of how the government should treat outsiders—whether it can enslave them, for instance—just isn’t in there. And obviously this makes sense, because a broad antislavery principle would undermine the argument and also divide the colonists.
Robin Lindley: You also describe how the Founders Constitution is, in many respects, a pro-slavery and white supremacist document. What are a few things you learned about the protection of slavery in our founding documents? Weren’t the drafters sly in not literally mentioning slavery?
Professor Kermit Roosevelt III: I think in retrospect it’s unfortunate that the Constitution didn’t use the word “slave.” The pro-slavery people didn’t care about this: they wanted legal protections for slavery, and they got them. The anti-slavery people were able to feel better about what they were doing, or not admit it, and that made it easier for them to make these deals with the devil.
There are several pro-slavery provisions, but the most important one is the three-fifths compromise, which gave slave states extra representatives in congress based on people they enslaved. That gave them extra influence over the federal legislature, directly, and then because a state’s number of electors is determined in part by its number of representatives, it gave them extra influence over the executive, the president. And then because the president appoints judges, it gave them extra influence over the judiciary. So the whole federal government tilted in favor of slavery.
Because the constitution didn’t use the word “slave,” some people argued that it was in fact an anti-slavery document. I think it’s important to understand that anti-slavery constitutionalism, while it was growing in influence, was still not doing very well right up until the Civil War. Dred Scott, which is an aggressively pro-slavery interpretation of the Constitution, was a 7-2 decision in 1858, and afterwards one of the dissenters resigned in disgust and President James Buchanan appointed a pro-slavery replacement. So reversing Dred Scott was going to be a heavy lift, and of course what ended slavery was not the Founders’ Constitution but the Civil War and Reconstruction.
Thinking about the Founders’ Constitution and slavery highlights another choice that recurs in American history: make the best of what you have, or tear it down and make something new. My big point is that we did in fact tear down the legal structure of Founding America and make something new with Reconstruction. But because we had spent eighty years trying to make the best of what we had, we had trouble admitting that we had destroyed it.
Seeing the past clearly lets us understand whether we are the heirs of Founding America, as the standard story tells us, or the heirs of the people who destroyed it, which is my claim. And that’s why we’d be better off if the Founders’ Constitution had used the word “slave.” If it said what it meant, we would realize that we have rejected it.
Robin Lindley: Can constitutional provisions such as establishment of the Electoral College and the Second Amendment right to bear arms (in a well-regulated militia) be seen as efforts to protect slavery and exclude Black people from government protection and rights?
Professor Kermit Roosevelt III: Absolutely. The Electoral College is a structural feature that tilts the national government in favor of slavery, because the states’ electors are determined in part by their number of representatives, and the three-fifths compromise gives slave states more representatives than they should have. States are supposed to have more representatives when there are more people that they represent. But the extra slave state representatives didn’t represent enslaved people; they represented enslavers. And the Second Amendment is supposed to protect state militias so that they can, among other things, suppress slave rebellions.
Robin Lindley: How do you see the role of abolitionists and others before the Civil War in addressing the work of the Founders? How did they view the Declaration of Independence and its apparent promise of equality and the Constitution?
Professor Kermit Roosevelt III: Abolitionists actually took two different tacks, which I alluded to before. Some of them said, let’s take what we have and read it in the best light and see how far we can get. That’s the antislavery constitutionalism of the Republican Party and Abraham Lincoln. But others said that the system was fundamentally corrupt, and they weren’t willing to compromise with slavery, and they actually wanted free states to leave the Union. That would be someone like William Lloyd Garrison, who burned a copy of the Constitution and called it “a covenant with death and an agreement with hell.”
Frederick Douglass, interestingly, started out on the Garrison burn-it-down side and then shifted closer to Lincoln. Also interestingly, all the abolitionists read the Declaration as anti-slavery. It’s abolitionists who are chiefly responsible for our modern reading, who took the phrase “all men are created equal” and started reading it to mean something about how the government should treat outsiders. I view this as mostly the product of necessity. Before the Civil War, if you reject the Founders’ Constitution and the Declaration, there’s really nothing left of America. So you can’t do that and then argue that America is devoted to equality. But now, of course, we can do that—because instead of the Declaration and the Founders’ Constitution, we can base our American identity on the Gettysburg Address and the Reconstruction Constitution.
Robin Lindley: You analyze the Supreme Court’s Dred Scott decision and stress how Chief Justice Roger Taney and six other justices found that Black people were not included in the Declaration and also that the Declaration prohibited abolition of slavery. How did the decision use our founding documents to support the majority’s white supremacist perspective?
Professor Kermit Roosevelt III: Dred Scott says two things. First, black people cannot become citizens of the United States. Second, Congress cannot ban slavery in territories controlled by the federal government—places that haven’t yet become states.
There’s one explicit discussion of the Declaration in the context of the first issue, where Taney says that black people weren’t included in its promise because, if they had been, the Founders would have been hypocrites for enslaving them. I think that’s mostly true, although Taney didn’t get the argument quite right. I think that the Declaration is about the rights of insiders, not outsiders, and enslaved people were outsiders. Making that a racial line, the way Taney did, is a little harder, because there were some free blacks who participated in the ratification of the Constitution, so they were insiders. But I think Taney wasn’t clearly wrong that there was some racial limit on national citizenship, because I think it’s true that the slave states wouldn’t have accepted a Constitution that meant that black citizens from Massachusetts could go to South Carolina and have the rights of citizens there—like the right to bear arms. The Founders’ Constitution didn’t answer that question clearly, but Taney went with what was probably the implicit Southern understanding.
What most people don’t know, even law professors who’ve studied this, is that the Declaration plays a role—and a more significant one—with the second issue. Why can’t Congress ban slavery in the territories? Because, Taney says, that’s an arbitrary interference with the right to own property. You can’t say that someone loses their property just because they bring it to a particular place.
Now, I think that’s wrong—I think that making a compromise about where slavery will be permitted and where it will be banned is exactly the kind of thing the federal government was supposed to do under the Founders’ Constitution. But what’s important to understand is where that argument comes from. An arbitrary interference with people’s rights is unconstitutional—it’s no law at all, Taney says. Why is that? Because the purpose of government is to protect people’s rights, so they wouldn’t give it the power to restrict those rights in arbitrary ways. And that’s the theory of the Declaration of Independence—that government exists to protect the rights of the people who create it, and loses its legitimacy if it goes against those rights.
Robin Lindley: Slavery ended only with the horrific violence of the Civil War. You note that President Lincoln initially was more interested in re-uniting the nation during the war than in ending slavery. How did his views evolve as the war continued?
Professor Kermit Roosevelt III: Lincoln’s views change in two very important ways. First, he shifts from the goal of union to the goal of justice, meaning the end of slavery. Before the war, he said he had neither the power nor the intention to interfere with slavery where it existed. He wrote a famous letter to Horace Greeley in August, 1862, in which he said that if he could save the union by freeing all the slaves, he would do it, and if he could save it by freeing none, he would do that. But sometime around the end of 1862 and the beginning of 1863, that changes. The end of slavery—the new birth of freedom Lincoln mentions in the Gettysburg Address—becomes a war goal.
And that raises another question: what will be the place of the formerly enslaved in the new America? This is an issue on which Lincoln also changed his mind, and it’s maybe even a more important issue in terms of what kind of a nation we became. One possibility was to end slavery but not include black people in the American political community—not make them citizens. Lincoln for quite a while believed that it was impossible for blacks and whites to live together, and he notoriously supported colonization. The preliminary emancipation proclamation talked about colonization. But the final emancipation proclamation said that black people would be received into the armed services of the United States, which was a traditional path to citizenship, and by the end of his life Lincoln was talking about black citizenship.
Ending slavery took a war, of course, but by the end of the Civil War everyone knew it was pretty much inevitable. Black citizenship was another step, and it was intensely controversial, too. I would say, it took a revolution, because I understand Reconstruction as a revolution.
Robin Lindley: You find Lincoln’s 1863 Gettysburg Address transformative—the beginning of a new understanding of America. How did Lincoln depart from the Founders? Why was this speech honoring the American military dead so important? Is this when Lincoln began to see “a nation” rather than “the Union”?
Professor Kermit Roosevelt III: It is around the time of the Gettysburg Address and the Emancipation Proclamation that we see this shift in the nature of the war. One of the markers of the shift is that Lincoln stops talking about “the union” so much and starts talking more about “the nation.”
The United States is a plural phrase in the Founders’ Constitution; it’s a union of states and not a single nation. But the Gettysburg Address tells us it is a nation, and a nation dedicated to the ideal of equality, and that ideal is what Lincoln’s side is fighting for.
Lincoln, he attributes that ideal to the Declaration and the Founding, which I think is inaccurate. And even he admits that realizing it requires change. The Gettysburg Address promises a new birth of freedom. Not a rebirth, but a new birth, which I think is the right way to put it. The Founders really didn’t think that protecting individual rights was the job of the national government—but the Reconstruction Congress did.
Robin Lindley: You stress the importance of the Reconstruction Amendments—Amendments XIII, XIV, and XV—in truly embodying the value of equality. Of course, the Thirteenth Amendment ended slavery and the Fifteenth Amendment protected the right to vote for citizens including Black people. How does the Fourteenth Amendment protect citizens beyond the provisions of the Founders’ Constitution?
Professor Kermit Roosevelt III: The Fourteenth Amendment does two incredibly important things, both of which are stark breaks with the vision of the Founders. First, it says that states can’t decide who their citizens are. Everyone born in the United States is a citizen of the United States, and then also a citizen of whatever state they decide to live in. This rejects one of the ideas of the Declaration, which is that political societies are formed by mutual agreement and can exclude who they want. The Fourteenth Amendment tells states that their political communities are defined from above—not horizontal agreements among the state citizens but direction from the national government.
And then the second thing is to say that there are federal constitutional rules about how the states must treat their citizens. The Founders were aware that states might mistreat the citizens of other states, and so the Founders’ Constitution has some provisions that protect against this danger. But they really did not imagine that the federal government would tell states how to treat their own citizens, and there are almost no provisions in the Founders’ Constitution regulating that relationship.
But after the Civil War, and after Congress has declared that the formerly enslaved are citizens of the former Confederate states, this is obviously an extremely pressing issue. The former confederate states resisted black citizenship, and they resist black equality, and that’s what the Reconstruction Amendments are meant to overcome. Black people will be full and equal citizens of the new American nation, and the national government and the U.S. Army will protect their rights. But of course, the former Confederates didn’t accept that, and their resistance outlasted the national will to fight for equality.
Robin Lindley: Despite the Reconstruction Amendments, Southern states violently defeated Reconstruction and soon successfully implemented Jim Crow segregation and denied Black people the right to vote. How do you see this defeat that white southerners called “the Redemption?” And Reconstruction ended despite the “new Constitution” with the Reconstruction amendments.
Professor Kermit Roosevelt III: I see Redemption as a counter-revolution to Reconstruction. It’s an attempt to restore the political regime that Reconstruction destroyed, the regime of white supremacy. And it’s an interesting question whether we should identify that regime as the Confederacy or the Founding. My view is that there’s much greater similarity between the Confederacy and the Founding than we like to admit. When the Confederates wrote their constitution, for instance, they basically copied the Founding Constitution. They made explicit a few of the things that they had argued were implicit in that constitution. But they did not see themselves as rejecting the U.S. Constitution—they claimed that the free states and the Republicans were distorting it.
And there’s one terminological point that I think has some broader significance. People are often surprised when I refer to the overthrow of Reconstruction as Redemption. They’re surprised because redemption is supposed to be a good thing, but the overthrow of Reconstruction was bad. I use that label because that’s how historians refer to it. But historians refer to it that way because that’s how the people who did it described it. And I think it says something about our approach to history that we have accepted the label used by white supremacist terrorists—it shows how much we accepted their perspective. For most of the twentieth century, mainstream historians would tell you that Reconstruction was an oppressive overreach and Redemption restored the natural and appropriate order.
Robin Lindley: Thanks for explaining the term Redemption in this account. You take the story of America into the twentieth century and to the Civil Rights Movement. You detail how Dr. Martin Luther King Jr. and Malcolm X viewed the Declaration and the Founders Constitution. What are a few things you learned?
Professor Kermit Roosevelt III: I learned so many fascinating things! I said before that I think we misunderstand the Declaration of Independence, that we overread the phrase “all men are created equal” and lose sight of its historical context. When I started thinking about the way that claim works in the Declaration (I say it’s a rejection of the divine right of kings and nothing more), I was very interested in the question of whether this was the original understanding, and whether other people had described it that way. Pauline Maier’s article The Strange History of “All Men Are Created Equal” does a great job, I think, of showing that it was the 1776 understanding. Then the abolitionists started reading it differently. But did anyone keep asserting the original understanding?
Yes, it turns out. In the years before the Civil War, you did see some people arguing for what I call Jefferson’s version of equality, rather than Lincoln’s. And it shouldn’t be surprising that these were supporters of slavery, people like John C. Calhoun of South Carolina and Alexander Smyth of Virginia, and Jefferson Davis of Mississippi. (Just to be precise, this is not the same thing as saying that “all men” doesn’t mean “all people.” That was another argument that supporters of slavery made, people like Stephen Douglas and Roger Taney. I think that argument is stupid and wrong. What I believe is that “created equal” does not have the significance we assign to it now.) Then that understanding goes away, almost totally. But you do find someone else saying it in the 1960s: Malcolm X. And this is a very powerful illustration of the point that the significance of a particular reading of the Declaration might change over time. It might change depending on what else you have to rely on. If there’s nothing else, then reading the Declaration to be consistent with slavery supports slavery. But if you have Reconstruction, then you don’t need to argue that the Declaration is anti-slavery.
Which brings us to Martin Luther King, because Martin Luther King relies on the Declaration of Independence in much the same way Lincoln did in the Gettysburg Address—but unlike Lincoln, he had alternatives. So in the I Have a Dream speech, King argues that racial segregation and race-based denial of the right to vote are inconsistent with American values, and he calls on America to live up to its promise of equality—the promise made in the Declaration of Independence. And all of that makes perfect sense from a constitutional law perspective, right up until the end. I’ve argued that the Declaration of Independence doesn’t actually make a promise of equality, but even if it did, everyone agrees it has no legal force. But the Fourteenth and Fifteenth Amendments to the Constitution do, and they ban exactly what King is complaining about, racial segregation and the denial of voting rights to blacks. So it’s very odd that King is looking back to the Founding, rather than to Reconstruction.
It becomes still odder when you learn that nineteen years earlier, as a junior in high school, King had entered an oratory contest with a speech called The Negro and the Constitution in which he addressed the same question as I Have a Dream—what determines how black Americans are entitled to be treated. But that speech is all about the Civil War and Reconstruction. We are fighting to translate the Reconstruction Amendments “from writing on the printed page to an actuality,” he said, and if blacks are given the rights they are owed, they will “defend even with their arms, the ark of federal liberty from treason…”
So why did King switch from Reconstruction to the Founding? The answer, I’m pretty sure, is that he learned that Reconstruction was divisive. He wanted to appeal to whites who wouldn’t listen to an appeal in the name of Reconstruction but might listen to one in the name of the Founding. And then, later, I think he learned that this strategy didn’t work, after all, and that a focus on the Founding tended to support the status quo. And that strategy is what we’re still pursuing today, and we have to learn the lesson that King did.
Robin Lindley: And you write of a Second Reconstruction and then a Second Redemption. How do you see those periods?
Professor Kermit Roosevelt III: The Second Reconstruction is the Civil Rights movement that King was a part of, when the Reconstruction amendments are brought back to life and Congress passes antidiscrimination laws and maybe most crucially the Voting Rights Act of 1965. It’s a real step forward for equality. But equality movements are always divisive—that’s part of what King learned—and there’s a backlash. I date that backlash to 1980, with the election of Ronald Reagan. Reagan famously endorsed states’ rights and promised to shrink the federal government. He promised to appoint Supreme Court Justices who would read the constitution the way the Founders intended and undo the Second Reconstruction decisions of the Warren Court. This is what I call the Second Redemption, because it’s an attempt to undo or roll back the Second Reconstruction. And that’s the era we’re living in now.
Robin Lindley: Is it fair to see Ronald Reagan and Donald Trump as neo-Confederate presidents who advanced racists policies to appeal to their voters and for other political gain?
Professor Kermit Roosevelt III: I think so. Broadly speaking, I think both of them advance a vision of what I called exclusive individualism, rather than inclusive equality, and exclusive individualism is what I see as the ideology of the Confederacy—though also the Founding. Both of them tell white Americans that undeserving others—chiefly blacks and immigrants—are taking what rightfully belongs to the real Americans. And there’s a very direct line from those sorts of dog whistle political appeals to the earlier determination to exclude blacks from national citizenship. It’s an attempt to draw or maintain the line between insiders and outsiders, and to say that the government mustn’t give benefits to the outsiders. And both Reagan and Trump use the slogan “Make America Great Again,” which I think is also an appeal to an era when the government protected the right people and outsiders were kept outside.
Robin Lindley: How do you see the January 6, 2021 attack on the Capitol to overturn a democratic presidential election? The evidence now indicates that the deadly assault was instigated by a sitting president who sought to retain office by sparking a violent coup. And this former president persists in the Big Lie that he won the election. How do you see the January Sixth attack and ongoing lies about the election in the context of the history you present?
Professor Kermit Roosevelt III: I think the January 6 attack looks a lot like Redemption: it’s the refusal to accept the legitimacy of a democratic election because people don’t like the outcome. And this connects in an interesting way to bigger questions about the Founding and Reconstruction, because the Declaration of Independence isn’t pro-democracy. It’s not anti-democratic, but the test that it sets out for whether a government is legitimate doesn’t require democracy.
The Declaration says that to be legitimate, a government must be formed by consent, and it must protect the rights of the people who formed it. It’s the Gettysburg Address, with its invocation of government “of the people, by the people, for the people,” that makes a commitment to democracy. So what is the complaint of the January 6 insurrectionists? It’s that the government isn’t protecting the right people, the real Americans. That’s the Trump politics of white grievance, but it’s got a basis in the Declaration. And if that’s what you care about, democracy doesn’t matter. All of this makes sense and actually hangs together pretty well if you accept two premises—the government has to protect insiders and not outsiders, and black people are outsiders. And those are ideas that you can get from the Declaration and the Founders’ Constitution—that’s what the Supreme Court said in the Dred Scott decision—but they’re rejected by Reconstruction. So January 6 is a crystallization of the Second Redemption.
Robin Lindley: To realize the “better story” of America and the vision you present, what should happen next? Are reparations appropriate for Black citizens now? What other measures involving education, housing, healthcare, mass incarceration, militarization of police, etc. may be required to assure equality and justice?
Professor Kermit Roosevelt III: I’m in favor of reparations, although as a strategic matter I probably wouldn’t use that word. And I wouldn’t frame it as payments from wrongdoers to victims, because I think that’s politically a non-starter.
What I would suggest is targeted investment: take some of the massive amounts of money that the federal government spends, and look for ways to spend it that would reduce, rather than increase, the racial wealth gap. I don’t know if that would strike people as radical, but once you realize that for the past century we’ve been working in the opposite direction—for a hundred years or so, we’ve engaged in massive federal spending that quite deliberately tended to exclude black people—it seems very reasonable to me. This could be an intervention in housing, or education, or healthcare, or all of them. There are so many ways that we could try to decrease rather than increase racial inequality. The militarization of police is a slightly different issue, but it’s also a problem I’m concerned about, and it’s also one that, when you look at the history, turns out to have a lot to do with race.
Robin Lindley: You find hopeful the vision of liberty and equality that came out of Reconstruction. Where do you find hope now, particularly in view of our divided political landscape and a majority rightwing Supreme Court? It’s worrisome for many that the Court has gutted the Voting Rights Act and eliminated a woman’s right to choose in the recent Dobbs as our fragile democracy hangs in the balance.
Professor Kermit Roosevelt III: I find hope in my students, and in younger people generally. I like the generation that’s coming into adulthood now quite a lot. I think that generational replacement is moving us in the right direction, because it looks as though these younger people are staying progressive as they age.
I think that demographic change is generally positive—as the white percentage of the population declines, I think we’ll see greater racial equality. In some ways conflict is a positive sign: sometimes conflict means that a hierarchy is being challenged, and that those in power feel a threat. The easiest way to see if an equality movement is making headway, maybe, is to see if it inspires a backlash.
Robin Lindley: You suggest, I think, that some parts of the Constitution deserve reconsideration and perhaps repeal or amendment such as the Electoral College provision which, as you write, “creates a false unity,” while excluding some voters and giving others a disproportionate voice. What must be re-examined in the Constitution?
Professor Kermit Roosevelt III: I think the Constitution has some unfortunate and antidemocratic features. These didn’t matter so much until they started having a partisan valence, but now they’re empowering a rural white minority and, in some cases, allowing it to control branches of the federal government that should be controlled by the majority. The electoral college is one, and I’m in favor of trying to circumvent that with the National Popular Vote Compact. Equal state representation in the Senate is another, and while we can’t change that without a constitutional amendment (or maybe even with one, since article V says that can’t be changed without the states’ consent), we could ameliorate the problem by admitting some small blue states, like the District of Columbia. And I’m in favor of term limits for Supreme Court Justices, as a way of tying the composition of the Supreme Court to presidential elections.
Robin Lindley: I think you suggest that there’s a more important musical than Hamilton that should be produced now. To tell your story of reconstruing and reconstructing our past, who or what should a new artistic endeavor focus on? Frederick Douglas or Lincoln or Charles Sumner? Dr. King? John Lewis and Selma? Other people or events?
Professor Kermit Roosevelt III: It’s hard to pick the right person, but using Hamilton as a model—and I’m actually pretty serious about this—I think that Frederick Douglass would be a great through-line. He’s born into slavery, he attains freedom, he becomes an abolitionist, he has both a pro- and anti-slavery reading of the Constitution, he sees the Civil War, and Reconstruction, and Redemption—we could tell the whole story through his eyes. There’s a musical now, American Prophet, that does tell some of that story.
Robin Lindley: I liked your idea of changing our national anthem from “The Star-Spangled Banner” to “The Battle Hymn of the Republic.” How is the latter song a better choice and more in keeping with the rethinking of our history you posit?
Professor Kermit Roosevelt III: “The Star-Spangled Banner” is about the War of 1812, not the Revolution, but that war has all the same problems as the Revolution. Enslaved people escape and join the British forces to fight against their American enslavers, and the Americans think this is terrible. There are complaints about that in the Declaration of Independence, and in
“The Star-Spangled Banner” there’s a reference to American victory over “the hireling and slave.” So I don’t think that’s something we should celebrate in our national anthem.
We should celebrate the war that ended slavery, which of course is the Civil War. And “The Battle Hymn of the Republic” is about that. It’s about making sacrifices to help other people, which I think is a better message. As Christ died to make men holy, it says “let us die to make them free.” And by the way, when I say that Martin Luther King eventually moved away from the Founding and back to the Civil War and Reconstruction, this is where he landed. The last line of his last speech, his last words to America, is the first line of “The Battle Hymn of the Republic”: “Mine eyes have seen the glory of the coming of the Lord.”
Now, when I said this in an interview a lot of people pointed out that “The Battle Hymn of the Republic” is very religious, which of course it is, and they objected to it as a national anthem on that ground. I have to concede that’s a fair point.
Robin Lindley: Some also people also like Woody Guthrie’s “This Land is You Land” for an anthem.
Many thanks for hanging with me Professor Roosevelt. I appreciate your generosity. We’ve covered a lot. Is there anything you’d like to add for readers about your work or your book that we haven’t covered?
Professor Kermit Roosevelt III: I think we’ve covered a lot! I’d like to add that I’m working on a Coursera course that develops the themes of the book, which I hope will be available in the summer of 2023.
Robin Lindley: That course seems an excellent way to continue the conversation on our Founding, Reconstruction, and equality. Thank you, Professor Roosevelt, for your generosity, thoughtfulness and insights. And congratulations on your new book of law and history, The Nation That Never Was, an outstanding starting point for discussion of our past with a new understanding of where we have been. You have shared a vision of a more just and equal nation that grows out of Reconstruction rather than from the Founders’ documents that ignore racial equality and oppression. Best wishes on your continuing work.
Robin Lindley is a Seattle-based attorney, writer, illustrator, and features editor for the History News Network (historynewsnetwork.org). His work also has appeared in Writer’s Chronicle, Bill Moyers.com, Re-Markings, Salon.com, Crosscut, Documentary, ABA Journal, Huffington Post, and more. Most of his legal work has been in public service. He served as a staff attorney with the US House of Representatives Select Committee on Assassinations and investigated the death of Dr. Martin Luther King, Jr. His writing often focuses on the history of human rights, social justice, conflict, medicine, visual culture, and art. Robin’s email: email@example.com.
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