In particular, Roosevelt, who is a professor of constitutional law at the University of Pennsylvania, says that we get the Declaration wrong. “The Declaration of Independence was not a statement about human rights in the abstract,” he writes. “It was not a declaration of concrete human rights, either.” Instead, the Declaration of Independence was about, well, independence:
It first explains the origin and nature of legitimate political authority. It then explains when the exercise of political authority ceases to be legitimate. And then it endeavors to show that the situation of the American colonists fits the criteria that justify rebellion.
According to Roosevelt, Jefferson’s assertion of equality was not an assertion of the need for equal treatment under the law, or a declaration of the rights of individuals to enjoy liberty and equality. Rather, it was a standard account of Enlightenment social contract theory, brought to bear for use in the Anglo-American conflict. In the Declaration’s political philosophy, “People start out equal,” Roosevelt writes, “endowed with natural rights but lacking the means to protect them. They create governments to secure those rights, and the government’s legitimate authority comes from their consent. If the government fails to do its job, the people may reject it and start anew.”
Jefferson’s equality, writes Roosevelt, “is a precise and limited concept.” It exists in the hypothetical state of nature, not the real world of political life. People may start out equal in the abstract, but do not stay that way when they enter into society.
There’s an obvious response to this: So what? What difference does it make what Jefferson meant when what matters is what later Americans heard? As written, the Declaration of Independence may not have been a statement of universal equality, but it became one in the struggles against slavery and race hierarchy, as activists and politicians used it for their own ends.
The problem, argues Roosevelt, is that tying our modern egalitarian commitments to the Declaration and the founding is to say, in no uncertain terms, that our values can survive, even thrive, in a world of profound inequality and injustice. “In asking modern Americans to see the founding as an Edenic movement, to see the founders as role models who stated our deepest ideals, we are asking them to accept that those ideals can coexist with slavery, with rape, with enslaving one’s own children because of the color of their skin.” We are saying, in short, that justice can always wait since we’ll eventually reach the destination of our ideals.
But if not the Declaration, then what? Where, and with whom, should we root our values?
Roosevelt’s answer lies in the Civil War and Reconstruction. It is Lincoln, after all, who claimed the Declaration for a “new birth of freedom” in his Gettysburg Address and gave it much of its modern meaning. But to do that, he and the United States had to overturn the old order. “Many people,” Roosevelt writes, “following Lincoln’s cue, think of Reconstruction as a process of better realizing founding ideals, through the process of change set out in the founders’ Constitution. We would do better to think of it as a revolution that destroyed Founding America.”
The results of that revolution — the 13th, 14th and 15th Amendments — transformed American society. They were intended, as Frederick Douglass wrote in 1872, “to give full freedom to every person without regard to race or color in the United States.”
“In order that this intention should be carried out and acted upon,” Douglass continued, “power for that purpose was given by conferring upon Congress the right to enforce the amendments by appropriate legislation.”