I’ve often said that the Constitution was designed to prevent America from realizing its founding ideals as expressed in the Declaration of Independence. But that’s an incomplete story, as made clear in University of Pennsylvania constitutional law professor Kermit Roosevelt’s underappreciated book, The Nation That Never Was: Reconstructing America’s Story.
Kermit joined me on Weekend Reading Live this week to talk about his thesis: that the real “founding” we should look to as a model isn’t 1776 and the Declaration of Independence, but the Gettysburg Address and Reconstruction. Thomas Jefferson’s lofty language about equality and inalienable rights was not about how an independent American nation should treat those living there; it was a preamble to a list of grievances against the British crown. In other words, Jefferson was not writing as a “founder” of the American nation, but as a subject of the British nation — it was about his and the other signers’ rights. It would not have occurred to any of them that they were promising the world a new nation founded on those principles for all. It was never intended to address how that government, or any government, should treat “outsiders” (enslaved people, Native nations, immigrants).
Kermit emphasized that we don’t need to bash the founders; we just need to be honest about where they were coming from, and understand that “all men are created equal” only became a promise to everyone thanks to a strategic choice of the abolitionists. This frees us from trying to reconcile our ideals of American equality with the founders’ slaveholding and other flaws, and lets us be proud of a history that includes heroes like Charles Sumner, Thaddeus Stevens, and Harriet Tubman.
It also lets us see things like January 6th and the Roberts Court’s anti-Black voting rights rulings in their proper context: an effort to recreate the insiders’ herrenvolk democracy that the founders, especially the Southern ones, would recognize and endorse. And it lets us see why it’s a losing battle to try to argue for greater equality based solely on “what the founders intended.”
