an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Mount Vernon Statement and the Declaration's missing word
The recently published Mount Vernon Statement offers a conservative vision of fidelity to the Declaration of Independence and to the Constitution. Much of the statement is unexceptional: it speaks of personal liberty, religious freedom, separation of powers, checks and balances, limited government, economic opportunity, and the rule of law. Indeed, the Mount Vernon Statement offers a powerful rebuttal to the War on Terror policies of the last Administration, which failed to respect individual liberty, limited government, religious freedom, checks and balances, or the rule of law. Given the provenance of the statement one wonders whether this was actually the authors' intended purpose or an embarrassing oversight. But if the conservative movement is ready to return to basic constitutional principles, I am happy to stand with them.
Even so, I noticed that one key word is missing from the text.
That word is equality.
It is hard to speak of fidelity to the Declaration and to the Constitution without once mentioning equality as a central value behind the Declaration and the Constitution. The Declaration's most famous passage announces the self-evident truth is that all men are created equal. The framers of the Reconstruction Amendments specifically added an Equal Protection Clause to the Fourteenth Amendment to enshrine this value in our Constitution and to wipe out the legacy of a system that justified the enslavement of human beings in the name of limited government and states' rights.
From the Mount Vernon statement one would never know that a "new birth of freedom" occurred following a devastating Civil War, fought over the right of states to keep people in chains. This was a struggle over the very meaning of the nation which ultimately led to our country's Second Founding and the creation of three new Amendments that dramatically changed the nature of our Union. The central point of that Second Founding was to make the Declaration's promise of equality a central feature of our Constitution.
We cannot talk about fidelity to the Declaration and the Constitution without noting these facts. We cannot talk about the Founding without also talking about-- and honoring-- the Second Founding. We cannot talk about the values of Mount Vernon without also talking about the values of Gettysburg. For the man who lived at Mount Vernon owned slaves; but the man who spoke at Gettysburg worked to free slaves.
Without equality, we have the Constitution of 1787, a Constitution written to accommodate slaveholders and protect inequality. That is not the Constitution we live under today, and we are a better nation because of it.