Few speeches are more recognizable than the Gettysburg Address. President Abraham Lincoln’s soaring 272-word speech at the November 1863 dedication of the Soldiers’ National Cemetery stands alone among orations in American history for its clarion statement of American purpose: “that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”
In the beginning of his speech, Lincoln took care to connect the core ideals on which the United States was founded, and for which the Civil War was being fought, not to the Constitution but to the more aspirational Declaration of Independence — penned by Thomas Jefferson over a decade before the Constitution was ratified. “Four score and seven years ago” wasn’t just a clever turn of phrase — it was a subtle but significant elevation of 1776 at the expense of 1787.
Lincoln took care to connect the core ideals on which the United States was founded, and for which the Civil War was being fought, not to the Constitution but to the more aspirational Declaration of Independence.
As Lincoln would have it, Union soldiers weren’t fighting for the separation of powers, the Bill of Rights, or even the supremacy of the federal government (although that theme had often been invoked in the earlier years of the war). Instead, Lincoln suggested they were fighting for liberty from tyrannical government and the equality of all men (and, belatedly, women). This, despite the fact that no provision of the original Constitution reflected such principles (and several were expressly antithetical to them). Our “founding,” in Lincoln’s view, was not when we agreed to the legal system under which we currently operate; it was when we agreed to a more fundamental commitment to everyone’s right to “life, liberty, and the pursuit of happiness.”
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Even as we go to parades, host barbecues and watch fireworks, we tend to neglect the significance of the fact that our national birthday is July 4, not September 17 (the day in 1787 on which the Constitution was signed) or June 21 (the day in 1788 on which it entered into effect), or April 30 (the day in 1789 on which George Washington was sworn in as our first president). What this choice of birthday suggests is that, whereas we are governed by the Constitution, our national ethos is more than just the sum of the rules of our legal system — which, too many times in American history, have indulged, if not directly perpetuated, inequality and oppression.
We aspire to more because that was our justification for breaking away from the British in the first place. And so, ever since 1870, July 4, and not any other date, has been recognized by Congress as the day on which we celebrate America’s birthday — defining our core national identity as one of egalitarianism, first and foremost.
We aspire to more because that was our justification for breaking away from the British in the first place.
Although there is nothing especially meaningful about this particular birthday (our 242nd, if you’re counting), I’m reminded of this history as we await President Donald Trump’s announcement of his nominee to replace Supreme Court Justice Anthony Kennedy. If the nominee is confirmed, it will lead to a solidification of a solid five-justice majority of “originalists,” i.e., judges who believe that we should interpret the Constitution largely (if not exclusively) through the original words and understandings embraced by the Founders. Although it’s been almost a half-century since a majority of sitting justices were appointed by Democratic presidents, it’s been over 80 years since there was such a clear, unshakeable conservative majority on the court, and perhaps never one so outwardly committed to originalism.
Forests have been felled over the appropriateness of originalism as a methodology of constitutional interpretation. As Chief Justice John Marshall famously wrote in his 1819 ruling in McCulloch v. Maryland, the Constitution was never meant to have “the prolixity of a legal code,” but was instead meant to be “expounde[d]” by judges according to its “great outlines” and “important objects.”
One of the common normative defenses of originalism is that it leads to more predictable, objective results than what is often described as “living constitutionalism,” i.e., the idea that the meaning of at least some of the Constitution’s provisions necessarily evolves in tandem with the evolution of our society. By that reasoning, originalism is grounded in the Constitution’s text, whereas living constitutionalism has no polestar other than the (current) judge’s (current) beliefs.
One of the strongest defenses of living constitutionalism is that the Constitution itself, like the country, is aspirational — and that we ought to interpret it with at least some reference to our national identity.
But one of the strongest defenses of living constitutionalism is that the Constitution itself, like the country, is aspirational — and that we ought to interpret it with at least some reference to our national identity. Marshall himself, in his 1819 ruling upholding the constitutionality of Congress’s power to charter a national bank, reached that decision at least in part based upon a vision of a future, bicoastal economic powerhouse that had little factual basis in Marshall’s contemporary reality and little legal basis in the Constitution’s text.
In the process, Marshall explained, again without reference to the Constitution’s literal words, that “[t]he government of the Union … is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”
Forty-four years later, Lincoln borrowed from Marshall in the closing line of the Gettysburg Address, exhorting listeners to do their part to ensure “that government of the people, by the people, for the people, shall not perish from the earth.” As we, and the next Supreme Court justice, celebrate America’s birthday this year, let us also remember why we celebrate July Fourth in the first place. Because what defines America’s greatness (and its shortcomings) is far more than just the sum of the Constitution’s text.
Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).