Other nations celebrate national holidays without rancor, as did we until something snapped. How did it become horrible and exhausting to take pride in one’s country, to celebrate its founding and singular dedication to freedom beyond every other nation that’s ever existed?*
First, a little history. The original Constitution of 1787 was, for all its genius, a deeply self-contradictory document — a charter by and for a free people who enslaved hundreds of thousands of others. In 1776, America’s founders declared that human equality was not only a self-evident truth, but a fundamental premise of their new nation; barely a decade later, they officially rejected that premise, writing inequality and subjugation directly into the Constitution.**
There was no “original Constitution,” but the Articles of Confederation. It was hardly genius, but a stop-gap measure that failed miserably because it failed to provide for a federal government capable of binding together the 13 colonies and fulfilling its function. And the language relied upon came not from the Articles of Confederation, nor even the later-ratified Constitution, but the Declaration of Independence, that “we hold these truths to be self-evident, that all men are created equal.”
Either no one at the paper stayed awake during American history in high school or they’re trying to fudge some details in the expectation that readers slept as well. By “all men,” they meant all free men, for those were different times. More to the point, they were distinguishing colonists from Brits, as the Declaration was directed to George III, not woke NYT editors and their unduly passionate readers.
Another truth soon became self-evident: If America was to survive, it would have to be reborn. That rebirth was embodied — after 80 years and a brutal civil war — in the 13th, 14th and 15th Amendments, which together represented a radical recommitment to our first and highest principles. They outlawed slavery, made the newly freed slaves American citizens and guaranteed their right to vote.
That, too, is a bit of historical gloss. Had the South not seceded, there would have been no Civil War. Sequence matters. But the point that these amendments were a radical, and necessary, correction to America remains, even if how we got there is a bit of radical historical revisionism.
The 14th Amendment, in particular, “hit the reset button on American democracy,” as Sherrilyn Ifill, director of the NAACP Legal Defense and Educational Fund, put it recently. It extended the protections in the Bill of Rights, which applied only against the federal government, to cover people in their dealings with the states. Its best known and most litigated provision, Section 1, went even further, guaranteeing for the first time the basic equality of all people, no matter their skin color, station in life or citizenship.
Not to pick nits, but that’s not remotely accurate. Section 1 of the 14th Amendment doesn’t “guarantee equality for all people.” It guarantees due process and equal protection of the laws.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Characterizing the 14th Amendment as “hitting the reset button” is the sort of trite and trendy characterization that confuses the issue. The Equal Protection Clause was a monumental shift in America. It began the correction of America’s “original sin,” slavery. And that correction continues to this day, and will likely continue well beyond my lifetime, as it should until every human being in America enjoys equal protection of the laws.
What that means, “equal protection,” is the core issue raised by this reboot, this Other Independence Day, that denies any virtue of our existence beforehand. My view was expressed in my Bastardized Herzberg Theory, but others who believe that if outcomes don’t match ideology, then equal protection has been denied, vehemently disagree.
And because everything about the United States, our traditions, our history, our small-town parades and fusion cuisine, is tainted by our original sin, it must be rejected, hated, as built upon a foundation of racism. And anyone who refuses to hate us enough is complicit, even if your ancestors came over last week and you’re poor as dirt.
The Equal Protection Clause was, and is, a critical correction of a society that accepted slavery. But there is a question whether it is a more important piece of our Constitution, the most important piece, that when any conflict, real or rhetorical, arises, it trumps all other rights. Of all the tacit foundations for social justice ideology, this is the one upon which everything relies.
Equal protection of the laws has morphed into guaranteeing equality. And guaranteeing equality has become the foremost right guaranteed by the Constitution. Perhaps now one can appreciate the “reset” analogy, that it was reset to create a super constitutional right that was foremost among all others. Of course, if one doesn’t view Equal Protection as guaranteeing equality, but as guaranteeing that no person shall be put at a detriment by law, but left to his own devices to achieve greatness, then there is no conflict.
The Constitution, for all its imperfections, reflects a brilliance that seems impossible to replicate today. Some will tell me that I “fetishize” the Constitution, that my appreciation is slavish and wrong as it fails to achieve the overarching goal of compelling the majority of Americans to acquiesce to their values.
Today is the Fourth of July. Honoring my country, its traditions, its freedom, even if there remains more freedom to be tapped, is what I choose to do because I could not be more fortunate and privileged than to be an American. Nor could you, no matter who you are. It’s not that there aren’t huge and important battles to be fought ahead of us to make America better, as there always will be, but for all who tell yourselves about how horrible America was and is, today is still a day to celebrate for our Independence. The original Independence.
*This link goes to a New York Times editorial, the headline of which reads “America Started Over Once. Can We Do It Again?” The link url, however, reads “trump-supreme-court-nominee.” Apparently, no one thought to change the url, reflecting its real message, when trying to bury its lede.
**Yes, they fail to show any grasp of the Three Fifths Compromise, but what else is new?