How American Politicians, And The Supreme Court, Have Invoked It

Thursday, Jul. 04, 2002

The Declaration of Independence does not create individual rights, as the Constitution does. Indeed, it technically has no legal effect. But that has not stopped American presidents and civil rights leaders from invoking it throughout our history - and what the Declaration lacks in legal force, it makes up in persuasive force. On this Independence Day, we should look back to see how the Declaration that first proclaimed our freedom has changed over the course of our nation's existence.

The Declaration's most famous sentence is, of course, this one: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

But what does it mean to invoke "liberty" or "the pursuit of happiness," or to say that "all men are created equal"? Over our history, different speakers have argued for different meanings of these words, and there can be little question that, for all of us, they have dramatically changed in meaning since 1776.

As voluble as their meanings may be, however, these words remain durable. That may, in part, be because, while most other nations also have foundation myths and national heroes, our Founders were not only war heroes or colonial liberators. In addition, they invented the core truths that underlie our politics - truths expressed in the Declaration and the Constitution.

The Political Uses of the Declaration Through Our History

Many of those who voted for independence - including the man who wrote the Declaration itself, Thomas Jefferson - owned slaves. Thus, they surely did not mean to encompass African-American slaves when they wrote in the Declaration that all men were created equal (nor did they mean to encompass women, of course).

Later, however, Lincoln used those same words from the Declaration when he campaigned to curtail slavery in the years before the Civil War. "All men are created equal" meant that all men were created equal, he argued.

Later, in the late 1950s and early 1960s, Martin Luther King frequently invoked Lincoln's words on equality, themselves drawn from the Declaration, as he called on the nation to fulfill the quest to make all men equal.

It would be harder for us to think equality was a quintessential American value if it had not been part of the Declaration, and then redeployed at key moments in our history - if we had not heard the Declaration's words invoked by Lincoln, and then by King. After all, the Constitution itself does not promise equality - only the equal protection of the law, which can be very different.

How the Supreme Court Has Invoked the Declaration

For nearly two centuries the Supreme Court has invoked the Declaration of Independence. Much of that time, it has used the Declaration to define the meaning of racial equality.

When the slave ship Amistad ran aground near New York in 1837, antislavery activists seized the opportunity and tried to incorporate their understanding that "all men" included slaves who should be free unless they lived in slave states. The Court rejected the federal government's argument that the slaves should be returned to their owners, by asking rhetorical questions such as this:

Did the people of the United States, whose government is based on the great principles of the revolution, proclaimed in the Declaration of Independence, confer upon the federal, executive or judicial tribunals, the power of making our nation accessories to such atrocious violations of human rights?

As the conflict over slavery grew in the 1840s and 1850s, Chief Justice Taney decided to de-rail the antislavery forces by declaring that the founders had never included slaves as anything but property. They were never part of "the people" he asserted in the Dred Scott Case.

When the Declaration was written, Taney argued, all European nations had conceived Africans as "beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations." This opinion was, of course, so divisive, and offensive to many Americans, that Lincoln and other Republicans received an enormous boost in their campaigns to end slavery.

Jefferson's words have appeared frequently in more recent judgments of the Supreme Court. When the Little Rock School Board integrated Central High School in 1957, white opponents of desegregation asked the Supreme Court to declare their riot legitimate protest.

The Court rejected the argument, implying that the Declaration of Independence had ushered in a government of laws that had no place for unlawful rebellions. The Court commended the board for trying to comply with its order to desegregate with "all deliberate speed."

He also cited the Declaration in arguing that the state should not stop the family of a woman in a coma from turning off life support because, in Nancy Cruzan's case, life and liberty were not synonymous. Jefferson's words still sway the high court.

The Declaration's Legacy

The continued historical and Supreme Court uses of the Declaration's language go to show that the rhetoric of the American Revolution remains very powerful in our national discourse.

Some of our most powerful words come from the great national moments like 1776. They are so powerful that we want to keep using them and adapting them to changed historical circumstances. Fortunately, they work well: Our history gives us a moral language with which to clothe our most serious debates.

Jefferson, Madison and the other founders invented American politics, and that myth gives us ideals to espouse, even if we constantly argue about their meaning. On this Independence Day, it is worth reflecting that while the Declaration's legacy is constantly changing, it is a thriving legacy nonetheless.

Ian Mylchreest is a journalist living in Las Vegas, and is associate editor of H-Law, the legal and constitutional history discussion list. He has taught American history at colleges in the U.S. and Australia. He was chief editor at Channel E through the boom, and a senior editor at Penton Media.

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