America's Unwritten Constitution: The Precedents and Principles We Live By (42 page)

For starters, these texts form a symbolic network, a system. They connect not merely to the written Constitution but to each other. Thus, Lincoln’s 1863 Gettysburg Address explicitly invoked and interpreted the Declaration of Independence right out of the gate: “Four score and seven years ago”—that is, in 1776, the year of the Declaration—“our fathers brought forth upon this continent a new nation conceived in liberty and dedicated to the proposition
that all men are created equal
.” In turn, the 1963 Dream Speech, delivered in front of America’s memorial to Lincoln, echoed the
Gettysburg Address right out of the gate: “Five score years ago, a great American in whose symbolic shadow we stand today.…” Then, as had the Gettysburg Address itself, the Dream Speech explicitly brought the Declaration into view and quoted some of its grandest language: “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.”

Moments later, as King warmed to his task and began to describe his celebrated dream, he again conjured up the 1776 Declaration and the 1863 Address: “I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident: that all men are created equal.’”
Brown
, too, found its way into the Dream Speech, alongside an elegant invocation of the Fourteenth Amendment’s guarantee of birthright citizenship: “[T]he Negro is still sadly crippled by the manacles of segregation and the chains of discrimination.…There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights.…We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating ‘For Whites Only.’”

Less obviously, the Dream Speech also gestured toward one of the epic themes of the Northwest Ordinance and the
Federalist
essays—namely, that America would stretch westward in an expansion process that would promote freedom. (The Ordinance itself had promised that all western lands covered by its terms would be free soil.) Whether or not King had either of these texts consciously in mind, these canonical works inflected his overall vision precisely because they are part of the general American constitutional narrative—the American dream—that King was claiming as his birthright. In precisely the spirit of
The Federalist
and the Ordinance, King took his audience on an imagined tour across the land from sea to shining sea. “So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania! Let freedom ring
from the snowcapped Rockies of Colorado! Let freedom ring from the curvaceous slopes of California! But not only that; let freedom ring from Stone Mountain of Georgia! Let freedom ring from Lookout Mountain of Tennessee! Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.”

To see from a different angle how America’s symbolic canon forms a remarkably tight meshwork of logical and referential interconnection, note that all six of our texts directly link to Jefferson and/or Lincoln. Jefferson served as the lead author of the Declaration and also composed the first draft of what ultimately became the Northwest Ordinance. Jefferson’s best friend, political lieutenant, and handpicked successor, James Madison, authored large chunks of
The Federalist
. Lincoln grew up in federal territory first governed by the Northwest Ordinance, wrote and delivered the Gettysburg Address, and inspired King, who chose to speak in Lincoln’s “symbolic shadow.” In
Brown
, a chief justice whose party had been cofounded by Lincoln delivered a unanimous opinion on behalf of fellow justices whose party had been cofounded by Jefferson.

The ubiquity of Jefferson and Lincoln should hardly surprise us, for America’s modern Constitution is a two-party Constitution, and Jefferson and Lincoln are the patron saints of America’s two parties. The historical processes by which our six texts came to enter the symbolic constitutional canon were themselves shaped by partisan politics.

Thus, Jefferson’s allies in the early republic glorified the text of the Declaration as a way of advancing the popular appeal and political authority of the man from Monticello.
The Federalist
received plaudits in the 1790s and thereafter in part because both Hamiltonian Federalists and Madisonian Republicans could claim credit for the project. (By contrast, James Wilson’s public defense of the Constitution, although hugely influential in 1787–1788, faded from memory in later years, in part because Wilson was too tightly linked to a party—the Federalists—that disappeared from the scene after Jefferson’s and Madison’s triumphs in presidential politics.) When Lincoln sought election in 1860, he and his party had strong incentives to find venerable antecedents for the biggest plank in their platform—a ban on slavery in federal territory. The Northwest Ordinance fit this political need perfectly. In 1863–1864, as Lincoln sought reelection,
Republicans’ political prospects depended on persuading voters that for all its death and destruction, the Civil War had been worth fighting, because the very survival of republican self-government on the world stage was at stake. The Gettysburg Address elegantly made this case. A century after Lincoln,
Brown
and the Dream Speech won praise from persons of goodwill from both political parties in the 1950s and 1960s at the very moment that leaders of both parties were wooing black voters.
⁴

Later in this book we shall explore in detail how America’s two dominant political parties infuse our daily system of governance. For now let’s simply note that these two parties have influenced which texts sit atop the symbolic Constitution, much as these very same parties have influenced which presidents sit atop Mount Rushmore.

PROMINENT REFERENCES TO GOD
or religion appear in five of our six representative texts. Only
Brown
, which came from a Court that would later become famous for its strict antiestablishmentarianism, was scrupulously secular from start to finish. Thus, the Declaration famously opened with references to “Nature’s God” and the “Creator” and closed with an appeal to “the Supreme Judge of the World” and “divine Providence.” Picking up where the Declaration left off, Publius thrice referred to “Providence” early on—in John Jay’s
Federalist
No. 2, to be precise—and later echoed the Declaration’s reference to “Nature’s God” in Madison’s
Federalist
No. 43. The Northwest Ordinance declared that “[r]eligion, morality, and knowledge [are] necessary to good government and the happiness of mankind.” Lincoln’s closing sentence referred to “this nation, under God”—words that would find their way, with minor tweaking, into the twentieth-century Pledge of Allegiance. And religious references pervaded the Reverend King’s remarks, from his profuse biblical allusions and paraphrases to his thunderous conclusion: “[W]hen we allow freedom [to] ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children—black men and white men, Jews and Gentiles, Protestants and Catholics—will be able to join hands and sing in the words of the old Negro spiritual, ‘Free at last! Free at last! Thank God Almighty, we are free at last!’”

How, it might be asked, can any openly religious text form any part
of America’s constitutional order? The answer to this question begins by stressing that although America’s Constitution is not itself a religious document, neither is it an antireligious document. Even as the First Amendment says that the federal government should stay out of the religion business—and as the Fourteenth incorporates the principles of religious liberty and equality against state governments—the Constitution also explicitly affirms the right of Americans to freely exercise religion. Two of our six works came from nongovernmental sources. There was nothing un-American or unconstitutional when Jay and King as private persons professed their faith even as they entered the public square.

Indeed, individuals are entitled to be religious, even if they also hold office. Beginning with Washington, many presidents have chosen to introduce religious elements, such as the Bible, at their inaugural ceremonies. In a similar vein, two of our six classic texts came from public servants speaking in unusually personal contexts. Lincoln was at Gettysburg to dedicate a cemetery. A religious reference in this setting was not out of place. The signers of the Declaration penned their names not just as representatives of America but also as individual human beings dangerously pledging their lives, their fortunes, and their sacred honor to the patriot cause. Had America lost its bid for independence, these men would have been hanged for treason. Surely, they had reason to beseech God’s blessing at this terrible hour of moral choice and mortal peril. Proverbially, there are no atheists in foxholes.
⁵

As for the positive references to religion and the governmental support for religion in the Northwest Ordinance, we must remember that this Ordinance originated in the Confederation Congress, which was of course not bound by the First Amendment. When the First Congress adopted the Ordinance, with a few minor tweaks, as its own, it did so before the First Amendment had even been proposed, much less ratified. Also, the First Amendment nonestablishment principle can be read in its strictest sense as applying when Congress seeks to adopt religious policy applicable in the several states. To the extent that the First Amendment resembles the Tenth Amendment, marking a domain where state policy should prevail and the federal government should refrain from legislating, the First (like the Tenth) has no proper bite in the territories: Federal power is plenary
precisely because no competing state regulations exist. When legislating for the territories, Congress might thus be thought to have the same broad powers to promote morality and religion as state legislatures generally possessed in 1789. But unlike some contemporaneous state legislatures, Congress wisely avoided sectarian favoritism, promoting religion in general and not any specific denomination in particular.
⁶

EVEN BEFORE GEORGE WASHINGTON
took his first oath of office, the Declaration of Independence had begun to tightly intertwine with the Constitution in both the popular and the legal mind. The two documents had both emerged from the same iconic building in Philadelphia—today known as Independence Hall—and six of the thirty-nine men who signed their names on the parchment Constitution on September 17, 1787, were especially notable at that precise moment because they had previously signed the parchment Declaration: Pennsylvania’s Benjamin Franklin, James Wilson, Robert Morris, and George Clymer; Connecticut’s Roger Sherman; and Delaware’s George Read. The largest celebration of the Constitution’s ratification—a festive affair involving some twenty thousand enthusiasts—fittingly occurred in Philadelphia itself on the Declaration’s twelfth anniversary, July 4, 1788.
^*

The Constitution’s enactment was widely understood as an implementation and extension of the Declaration’s ringing language that the American people would enjoy an “unalienable” right to “alter or abolish” their governments in certain situations and to establish new governmental forms to secure society’s “Safety and Happiness.” Publius thrice invoked the Declaration on this precise point—once in Madison’s
Federalist
No. 40, with
an explicit footnote reference (rare for Publius) to the Declaration; shortly thereafter in Madison’s
Federalist
No. 43, referring to the people’s right under “the law of nature and of nature’s God” to secure their own “safety and happiness”; and yet again in Hamilton’s
Federalist
No. 78, which echoed and extended the Declaration by affirming “the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.”

When Americans began altering their Constitution shortly after ratifying it, several of the provisions of the Bill of Rights reaffirmed rights, freedoms, and privileges that Americans had previously claimed for themselves in the Declaration, such as the right to petition, the freedom from peacetime troop-quartering, and the historical privilege of trial by a local jury.

In the mid-1860s, history repeated itself with a twist, as textual amendments again echoed the Declaration. If children of God really did have unalienable rights given by their Creator; and if these rights logically preceded all government, which was legitimate only if it truly protected these rights; and if all men truly were created equal—then surely slavery must end and even states must be made to honor all fundamental rights, many of which were cataloged in the Declaration itself. Or so thought the party of Lincoln. Whether or not the slaveholder Jefferson himself would have agreed with each of these points as an accurate interpretation of his own intentions, Lincoln’s Republicans reglossed the Declaration and incorporated their gloss into the very text of the Fourteenth Amendment: Precisely because “all men are created equal,” all persons born in America would be legally equal—and thus equally citizens—at birth, and no government could heap legal disabilities upon a person simply because of his or her birth status.

This quick summary of some of the most obvious interconnections between the Declaration and the Constitution only skims the surface. Entire books have been written on the linkages between these two iconic texts. Lest anyone doubt the special constitutional status of America’s Declaration in lawyerly discourse over the centuries, a computer check of
United States Reports
should dispel all skepticism. Beginning in the 1790s and continuing into the twenty-first century, justices and advocates have expressly invoked the Declaration on hundreds of occasions across an astonishingly wide range of issues.