November 8, 2023

The Nation that Never Was: Reconstructing America’s Story
​
Kermit Roosevelt, III
​
Professor of Law, David Berger Professor for the Administration of Justice, University of Pennsylvania

Speaker: Kermit Roosevelt III / Introducer: George Bustin

​              Minutes of the Tenth Meeting of the 82nd Year

President John Cotton convened the tenth meeting of the Old Guard’s 82nd year on November 8, 2023. Julia Coale led the invocation. Katherine Trenner read the minutes of the previous meeting. There were 125 members in attendance. President Cotton asked for a moment of silence in memory of two members who recently passed away: James J. Ferry and Charles Ganoe.
 
David Long introduced his guest, Yvonne Marcuse, a candidate for membership. David Vilkomerson introduced his guest, the Hon. Phil Carchman, also a candidate for membership. Priscilla Roosevelt introduced her husband, Kermit, and Helena Bienstock introduced her husband, Peter.
 
George Bustin introduced the speaker, Kermit Roosevelt III, Professor for the Administration of Justice at the University of Pennsylvania’s School of Law, who received his bachelor’s degree from Harvard, his law degree from the Yale University Law School and clerked for Supreme Court Justice David Souter. Author of two novels in addition to several volumes on legal issues, his talk was based on his newest book, The Nation That Never Was: Reconstructing America’s Story.
 
Professor Roosevelt opened saying that America faces a particular problem today in that our standard national story, intended to inspire us, define our shared ideals,  tell us who we are, what we should fight for, and who the heroes and villains of our history are, isn’t working anymore, particularly for younger people, because they think it is inaccurate and that if you make it accurate, it is not inspiring. He then proceeded to explain why that story is inaccurate, but why making it accurate might eventually provide a more inspiring story for future generations.
 
The standard national story begins in 1776 with Thomas Jefferson’s “all men are created equal” in the preamble to the Declaration of Independence. It then asserts that from 1776 to 1783, our predecessors fought for that ideal in the Revolution, codified it in the Constitution in 1787, then further reinforced it with the Bill of Rights in 1791. In 1863, this was reaffirmed by Abraham Lincoln in his Gettysburg Address, and, a hundred years later in 1963, by Martin Luther King in his “I Have A Dream” speech. The story argues we have been the same America with the same values and living under the same Constitution as we struggled to make a more perfect union in pursuit of the principles laid out in 1776 and 1789. But if we look back with clear eyes, we see that is not true.
 
In 1776, Jefferson’s “all men are created equal” did not mean that government should treat all people equally, which was what Abraham Lincoln was saying in 1863 and Martin Luther King was saying in 1963. It was really rejecting the concept of hereditary monarchy and the divine right of kings to rule.  Jefferson had simply included boilerplate from conventional Enlightenment contract theory that meant that, in a state of nature with no government and no laws, no one has an obligation to obey anyone else. When a political authority is created, the rights of people who consent to form that government must be treated equally, but it certainly didn’t mean the same for those outside that consent. It was perfectly consistent to enslave persons “outside” the consent to create a government.
 
It would have made no sense for Jefferson to criticize slavery in the Declaration. Colonists were enslaving people. Jefferson enslaved his own children. What would have happened if he had written a passage criticizing slavery? Well, in fact his draft did criticize King George for introducing slavery to America and what happened? The Continental Congress stripped it out. But they left in “all men are created equal” because they did not read it as criticizing slavery, nor did anyone else.
 
It would have been equally surprising if the Revolution was a war aimed at ending slavery, as some historians have suggested. Actually, the British were undoing slavery in the colonies wherever they could. The Americans, in response, reacted with horror. A member of Parliament wrote to Benjamin Franklin suggesting the possibility that Parliament would consent to eliminate all the causes that triggered revolt in the colonies provided the colonies just gave the right to trial by jury to enslaved people as a first step toward abolition. Franklin wrote back: “By inciting slave rebellions, you have proven yourselves unworthy to rule us.” In the Treaty of Paris, which ended the Revolutionary War, the former colonists demanded that the British depart North America without carrying away any Negroes or other “property” of the inhabitants. The British signed the treaty, but broke it, and never returned any people they had freed.
 
Nor did the 1787 Constitution contain any provisions to protect one individual from another. It was fundamentally aimed at making the states pull their weight, something they were not doing under the Articles of Confederation. Protection of the rights of individuals was left to the states. Nonetheless, the founding Constitution did protect slavery through the interstate commerce clause by requiring free states to return fugitive slaves who had fled slave states. Though it defines slaves as “property,” it also provides that slave states may count three-fifths of their slaves as part of their population, thus providing outsize influence in the number of slave state electors in the Electoral College and giving them extra influence over the federal judiciary. Based on that Constitution, the Supreme Court decided in its Dred Scott decision, by a vote of seven to two—perhaps erroneously—that black people cannot be U.S. citizens and that Congress cannot ban slavery in the territories.
 
That America was defeated and overthrown by Civil War. During the war all the Confederate state constitutions remained almost identical to the 1787 Constitution. It was Lincoln who declared the founding system unjust and that it must be destroyed, and it was. After the war, the 13th amendment to the Constitution implemented the Emancipation Proclamation and abolished slavery. The former confederate states resisted ratification of the 14th amendment which granted birthright citizenship because they were unwilling to accept black citizenship (John Wilkes Booth’s motive for assassinating Lincoln). The Reconstruction Congress thereupon wiped out existing governments in ten of the eleven former Confederate states and placed them under miliary control. It then made new states with the same names and geography, but with a different political community because Congress now said the formerly enslaved are citizens. Former Confederates who engaged in the rebellion cannot participate. The new legislatures in these states that finally ratified the 14th amendment were not coerced. They were happy to ratify it because they were integrated, pro-equality legislatures. The old legislatures of Alabama, Florida, and Georgia sued saying that Congress has destroyed their states and made new ones, not by consent of the people, but by force. The Supreme Court refused to hear the case, saying it was a political, not legal question.
 
Thus, we are not the heirs of founding America. We are heirs of the people who destroyed it through regime change. We lived under the founding documents for eighty years. For more than a century and a half we have lived under a quite different constitution under which equality and citizenship is a birthright but imposed from above. This is our real story today.
 
Which story is better? It really depends upon what you want the story to do in the modern world.
 
We could prop up the standard story and defend it from alternative views. We could require, as in Florida, public school teachers to teach this narrowly circumscribed version and ban books such as Professor Roosevelt’s. But ultimately that is not going to work, because more and more the actual facts of our founding are becoming known. You cannot use censorship and law to undo what is essentially a cultural change.
 
But one does want any revised story to be uplifting and patriotic. The old story focused obsessively upon the injustices being done without addressing the injustices one inflicts on others. The new story is to focus upon injustice in the world, even if that is not your fault, and try to fix it.

Respectfully,
Ralph Widner

​