The struggle to understand the Declaration’s 2nd paragraph
The Supreme Court recently decided that two universities using affirmative action in their admissions processes violated the 14th Amendment’s equal protection clause, which prohibits discrimination, rejecting the rationale that the need to create or diverse student populations justified the policy. A few days later, we celebrated Independence Day and the nation’s historic commitment to equality, which requires opportunity for all. Is that consistency or obvious irony?
Everyone knows about July 4, 1776: An ad hoc group of American leaders meeting in Philadelphia adopted the Declaration of Independence, creating a nation calling itself the United States of America. Then-Gen. George Washington called the War for Independence “the Glorious Cause”, and the Declaration sought to give this cause clear national purpose, but, to this day, we struggle to understand the Declaration’s second paragraph, which expressed the philosophy of the American Revolution.
In early 1776, shortly after migrating from England, Thomas Paine published “Common Sense,” the most famous pamphlet of the Revolution. Eight months into the war against Great Britain, Paine argued that immediate independence and continental union were necessary. To inspire still-doubting Americans, Paine wrote: “We have it in our power to begin the world over again.”
What would Paine’s world look like? Most of the Declaration of Independence was written by Thomas Jefferson, a young, wealthy, college-educated lawyer and plantation-owner from Virginia. While drafting the Declaration, Jefferson was advised by a small committee of style that included Roger Sherman, the plainspoken but wise, influential Connecticut statesman. Support for the Declaration from men such as Sherman demonstrated that the American pursuit of independence was more than a narrow contest between Britain’s governing elites and their counterparts across the Atlantic.
When the Declaration stated, “all men are created equal”, the phrase always had different meanings to readers. To Jefferson, Sherman and their fellow of the Declaration, the United States was seeking to assume a status equal to that of the other self-governing nations of the world. To these leaders, Jefferson stated the principles of their fight against a distant, corrupt monarchy. To enslaved people — about 700,000 in the 13 colonies at the time — an American Revolution seeking “liberty” necessarily required the abolition of slavery. And to revolutionary women such as Abigail Adams, the wife of one future president and the mother of another, independence meant improving the lives of wives and mothers.
Nearly 90 years later, during the Civil War, in his Gettysburg Address, President Abraham Lincoln asserted that the nation founded in 1776 had been “dedicated to the proposition that all men are created equal.” Lincoln went on to predict that a Union victory in the conflict would result in a “new birth of freedom.” That was possible only if all citizens are equal, a cornerstone of American democracy
The challenge of interpreting the Declaration can be further seen in another short phrase, “consent of the governed.” Today, most of us believe government is legitimate only if it has the broad support of the people. But that idea is not self-defining. After the Declaration’s adoption by the Continental Congress, it was never formally approved by the people in the states, most of which declared their independence separately. Even if local ratification had been needed, who would have voted? In early-national America, some elections were held, but, in general, only white men who owned property had voting rights. Would approval by that narrow political class have satisfied the requirement of consent of the governed? That is a tricky question.
The iconic second paragraph of the Declaration of Independence essentially is a statement of revolutionary philosophy and was never intended to be the supreme law of the land. The Constitution of 1787 was adopted more than 10 years later, and the 14th Amendment was added in 1868. The Supreme Court’s recently completed term included decisions in several important cases requiring interpretation of the Constitution, but those cases could not answer fundamental questions about the Declaration and addressing the longstanding opportunity and achievement gaps that affirmative action attempted to remedy As a great scholar once wrote, history is an argument without end.