[BLANK_AUDIO] Welcome back. The United States of America is a vast and varied place, a place of many languages. Faiths, ethnic backgrounds and within this land the, the United States Constitution, the written constitution stands as a, as a uniquely unifying symbol. It's our Queen Elizabeth. Our Taj Mahal. Our Marseillaise. But it's not the only text that, that unifies us. That, that, that is a prominent signal and symbol of, of what it means to, to be an American. It's not the only basic statement of the American creed. What I'd like to talk about in today's lecture and, and the next one, are a set of other texts that help constitute us. That help to bind us together as, as a, as a nation with a constitutional culture. So I'm going to talk about. Six exemplary illustrative but not exhaustive examples of these additional iconic texts. These that, that together help form a symbolic constitution that supplements the written Constitution that we keep coming talking about but also, going beyond. So I want to just play a little game with you all. I want you to try to think about which texts about and we're talking about texts here, not mere symbols. We're not talking about flags, or uniforms. But, but, but, but written text that set forth propositions, ideas rules and principles that are of almost the same status as, as the Constitution. Text that in some ways are, are connected to the Constitution. That are meditations on or reflections of, embodiments of deep constitutional principles. These texts they can come from private persons. They can come from government different branches of, of government. They can be from the founding era. They can could be from, from later centuries. But try to just think about if you had to nominate the most important texts that that you unify us all Republican and Democrat and liberal and conservative, we would all claim these. That people of all faiths. So, not the Bible because that's, that, that's claimed by all faiths and that's not quite a distinctive statement of what it means to be an American, but there are these other texts. So just, I'm going to give you about ten seconds. Just to try to think about what you might nominate for inclusion on this, as if, I can think of 20 or, off the top of my head in this chapter that I'm going to be sharing with you today, and in the following lecture, I'm going to give you six illustrations and as I said, they're only exemplary. But, I'm going to give you a few seconds now just to think about what you would nominate for inclusion in this special pantheon, of specially important, iconic, constitutional text of some sort that help constitute us, bind us together as a nation, that these are the things that Americans believe. Okay. Now and this, this is an experiment. It could fail disastrously, but I'm going to give you my list, and let's see how it corresponds to your list. The six that I highlight are the Declaration of Independence and the Federalist Papers. The Gettysburg Address. Brown versus Board of Education, the case. Martin Luther King's I Have a Dream speech. the, and, when they go around the co, there's one more. It's the Northwest Ordinance. And when I go around the country and play this game with audiences, I almost always get when people just sort of toss out their, their candidates. In the first minute or so, I usually get. The first five, the Federalist papers, the Declaration of Independence, something from Lincoln. Some people say the Emancipation Proclamation or the, the second inaugural address or the first inaugural address but something from Lincoln. Often they say the Gettysburg Address. So Federalist Papers, the Declaration of Independence, the Gettysburg Address. When I say well, pick a case, you know, people will say Marbury or McCulloch, but most of them will say Brown. Those are the three big cases, sort of the Mt. Rushmore cases, and I say well pick something from a private citizen not just a government o, official. So we have something from President Abe Lincoln. We have something from a court, Brown. Pick something from just an ordinary American and people will say, you got to have a dream speech or they'll say the Federalist papers, which, of course, also came from private pens. So, when I play this game in the North and the South and the East and the West, when I play this grame, game at,uh, before liberal audiences and conservative audiences. What's amazing is that I almost always get the same nominations. So you can test that against your own intuitions. Remember I gave you time to, to think about your list, but if I am right, that if basically wherever we play this game people come up with the same. answers. And you can see, actually, some, me playing this game on YouTube if you want to just, you know, click on YouTube. I played it in Scranton, Pennsylvania before one kind of audience. I played it in Malibu, California. Pepperdine University, a more conservative law school. Played this game, and and I, and I've done it maybe half a dozen times elsewhere that haven't been captured on YouTube, but I always get the same nominations. So if that's true, here's something really amazing, and this, the first of the three big points I want to make today. We do have a symbolic constitution. It exists and the proof of that, the existence proof is that people North and South, East and West, liberal and conservative, all converge on the declaration of Independence and the Gettysburg Address, and the I Have a Dream Speech, and Brown, and the Federalist papers. They may offer some ones that are sort of similar to, to, to this. They, they might say, as I said the Emancipation Proclamation. They might of picked another iconic case, McCulloch, or, or Marbury. But, we do have a, a set of texts that, that help bind us together. That constitute us. That define the American creed. This is what we Americans believe in. Some people propose novels but, but there's a little bit more range on, novels with the great American novelists. Huck Finn, is it The Great Gatsby see some people on the conservative side might like Ayn Rand. You know others might prefer John Steinbeck or Upton Sinclair, so and, and novels aren't quite propositional statements the way some of these other texts really say, here's what the American creed is all about. Here's what we the people of America believe, what we are committed to. so. First claim. These texts exist as having special normative force. Special authority in our constitution culture. In the next lecture I'm going to talk a little bit about what that constitutional authority is just to anticipate. I do not claim these texts are exactly the same as the written constitution. They're not. When the written constitution is clear, it trumps, but sometimes it's not so clear, and where the written constitution is not so clear, my claim is that these adjoining texts help clarify the meaning of the written text. And they, they help us identify which particular reading of the written constitution. Where the written constitution is ambiguous will ultimately prev, prevail. Which, which version of the written constitution's possible interpretations we're going to embrace. That these texts help us make those decisions. Whether consciously or unconsciously, these are the adjoining texts that, that anchor and support, that supplement, that buttress the written Constitution. So there is a thing called an symbolic constitution. It's one of many elements of our unwritten constitution. It's not, it's not like just how ordinary Americans live their lives unselfconsciously. We, you know, play the fiddle and we have pet dogs, and, you know, that was an earlier chapter. No. These are texts that we all read together and embrace that have propositions. So it's a different kind of unwritten constitution. Say then. The lived constitution. But both of the lived constitution and this one are elements of our national identity. Who we are as a people. Sometimes we just do things unselfconsciously. We live our lives. But this is more part of our own more reflective understanding of our American identity, our constitutional identity. So the first point is, there is such a thing as an, as a symbolic constitution. It's composed of certain key texts and that there is actually quite, there's a canon so to speak, canon, a sort of a, a body. Of, of particular works that are of special significance. And that there's great convergence about which things actually are at the center of the canon. And there's a little less focus on the Northwest Ordinance. I'll defend that nomination of mine. But the other five, basically almost wherever I go. On the Northwest Ordinance, if I'm in the Midwest, a lot of people undersand it. If, if they're not from the Midwest, they may not. Appreciate its significance. But, if, if you're from Indiana or Illinois or Ohio or Wisconsin or Minnesota, Michigan then the Northwest ordinance takes on perhaps special significance to you. You recognize that more often than not. So here is a second point about this unwritten constitution of specially im, important symbolic texts. They are connected to each other in all sorts of interesting ways. They form a system, a network. So the Gettysburg Address begins by alluding to the Declaration of Independence. Four score and seven years ago. Do the math. Lincoln is saying that at Gettysburg 1863, four score and seven is 87. You subtract 87 from 1863 and you do the math, 1776, not the Constitution, the Declaration of Independence. Four score and seven years ago, our fathers brought forth, upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal. A direct quote from the Declaration of Independence. So, right out of the gate, Lincoln is alluding to the Declaration of Independence. There they are connected. Martin King where is he speaking when he give that I Have a Dream speech? In front of the Lincoln Memorial. He connecting and, and he's doing it and here's how he begins. Five score years ago, a great American in whom symbolic shadow we stand today because he, he's speaking this in 1963. Exactly 100 years after the, the Gettysburg Address. And then later on, so he's, he right outta the gate is alluding to the Gettysburg Address and to Lincoln, in whose shadow he's giving this speech. And then he soon comes enough to soon enough comes to the Declaration of Independence. i, i, itself. And, and invokes the Declaration of Independence, life, liberty and the pursuit of happiness and the idea that all men are created equal. Let's take the the Northwest Ordinance. Not only are these, these texts actually connected. Interestingly, they're almost all connected to two men. Thomas Jefferson and Abe Lincoln. Thomas Jefferson writes the Declaration of Independence. The first draft he's the lead author. He's also the lead author of the first draft of the Northwest Ordinance. His political ally and partner his, his tag team ticket in partner is, is James Madison. Together they will later. Found the what they call the Republican Party, that's now the, the Democrat Party. And who succeed, who's Jefferson's Secretary of State and successor? It's James Madison. They're this tag team, Madison and Jefferson. Well, Jefferson's tag team partner, Madison, is a coauthor of the Federalist Papers. So Jefferson's connected to the Declaration of Independence. He's the author of the first draft of the Northwest Ordinance. His, you know, political ally is the coauthor of the Federalist Papers. Lincoln of course is the most famous inhabitant of the Northwest, that, that Northwest territory. He grows up in the Northwest and, and he gives the Gettysburg Address of course. And and Dr. King is going to you know, echo Lincoln himself and speak in, literally in Lincoln's shadow at the Lincoln Memorial. Brown vs Board of Education is authored by Earl Warren a Republican, party of Lincoln. All the other members of the Brown court are, are Democrats, party of Jefferson, and here in fact we get close to the nub of the thing. One of the reasons that Jefferson and, and, and Lincoln are so important is that they are the patron saints, they are the founders basically of our two great political parties. And that's why they're up there on Mount Rushmore. The process ours is a two-party system. That's part of our unwritten and written Constitution, I'm going to argue in a later chapter. Two-party system is deeply intertwined in, into the American constitutional system. That, I know that's different than what some of you have been taught, but I'm going to try to make that case in a few weeks a later lecture. And and the very processes by which certain folks have come to be heroes in American history are partisan processes. If you're a member of one party Jefferson's your guy. And you're going to actually promote the Declaration of Independence as important. Because you like Jefferson. So that was actually a political process that helped raise the visibility of the Declaration of Independence When Jefferson sought about to become President. It was sort of part of his cam, his campaign. Vote for Jefferson, he's the Declaration of Independence guy and so part of that is propping up the Declaration of Independence. If you're a Republican in the 1860s. You know, you want to convince people this war has been worth it, because there've been so many people killed, the Gettysburg Address is kind of your platform. It makes the case that all this has been worth it, the gov, what was at stake was nothing less than the fate of republican government, of government of the people, by the people, for the people, on the Earth. If that's what the stakes were, that this is worth it. So the Gettysburg Address is something that you're going to sort of latch onto and, and promote. When time comes to put to decide who's going to be up there on Mount Rushmore, one party wants Jefferson up there, the other party wants Lincoln up there. George Washington you see is, towers above. parties. He's a pre-party person but those three big figures, Mount Rushmore is part of America's symbolic constitution. It's an icon. It's like our Eiffel Tower or our Taj Mahal, our Marseillaise, our, our Queen Elizabeth. So, just talk about the Mount Rushmore Presidents, to talk about the, the folks who are at, at the top. Of the American in, in the center of the American pantheon. And parties have been a big part of that. That's why it's Jefferson and Lincoln along side Washington as sort of. The big three. So the first point is that these There is a symbolic constitution and there's wide spread agreements. In all parts of the country. All ideologies. Everyone claims the Declaration of Independence Everyone claims that they believe in Brown v. Board of Education. There's different interpretations of what Brown means. But everyone says, oh but we've believe in Brown, liberals and conservatives. Republicans and Democrats everyone says, yeah we're with Lincoln. And the Gettysburg Address that, that speaks for us. So their first point is that it exists and everyone claims it. And the second point is that these, these texts actually interestingly connect up to each other in all sorts of ways they form a system. A mesh work. Of, of meaning, it's not random at all. And my third point today is that they, these texts connect up to the written Constitution in various subtle ways and the American people. The American people have ratified each of these texts and made each of these texts a some a text of a special constitutional significance So, I'm going to tell you little bit about how in effect, these texts connect to the written constitution. And then in the next lecture, I'll give you some specific examples of, of what follows from the fact that we have this. Symbolic constitution that's interconnected and that connects to the written constitution. So, so what? What does that mean? How, how is that going to be useful for me in understanding the Constitution in making or evaluating constitutional arguments? That's the next lecture. But, but just, to show you the connections, of course. So, we have the Declaration of Independence is drafted in Independence Hall. The very same room where later on people are going to purpose the Constitution. So connections between these two iconic documents from the very beginning they, they both emerge from that, that, that hall in Philadelphia that we now call Independence Hall. They sit side by side with each other in the National Archives. The parchment versions of these documents. So, they've, they've been linked from the very beginning and the Constitution claims to really be the fulfillment of the Declaration of Independence. The Declaration of Independence said, you know, King George has violated all these rights, and the government exists to secure certain rights and when government no longer secures these rights. It's the right of the people to alter and abolish government and reform it, in order to preserve their rights and so the Constitution says, we are altering and abolishing. The Constitution says, we, the people of the United States are altering or abolishing, and abolishing, to some extent, the Articles of Confederation, and we're changing our state constitutions in order to preserve our rights and, and, and, and pursue our happiness and though, so the Constitution claims to be a fulfillment. Of the Declaration of Independence. And the Federalist Papers are of course a meditation on the written constitution. They're and they're a reminder. So you say well there are other meditations. Why is this so significant? Well I'll give you a political explanation. You, et, both Hamilton, who's a Federalist and Madison, who's a who is a Republican are connected with this. So both political parties early on, before we have Democrats and Republicans, we have Federalist and the Jeffersonians. And Madison's a Jeffersonian and Hamilton is a Federalist. So both parties can kind of claim credit for the Federalist Papers. Other so, defenses of the Constitution, for example James Wilson, who, was one of six people, along with Ben Franklin and a few others, to have signed both the Declaration of Independence and the Constitution. He's a very, iconic figure, founder of the University of Pennsylvania Law School, one of the first justices on the Supreme Court. He writes the words We the People. He's a very important figure, but he's connected with the Federalist party a little too much, so you hear less about him than you hear about the Federalist Papers, because both parties can claim the Federalist Papers. Both the Hamiltonians and the Jeffersonians. And it's a deep mediation on the Constitution. It's systematic. It's holistic. It offers an account of the, the whole document. and, in that way it's much better than many of the other commentaries which are kind of partial. It's written down. And the Supreme Court, for example, has cited the Federalist in no fewer than 300 cases. 100 just in the decade of the 1990s alone. And that's just the number of cases, not the number of cites. In one particular case for example I believe it's from the 1990s, a case called Prince the court of the justices on, on the court I think cited to the, the Federalist in this one single case I think. More than 60 times and again, over 300 cases all total, 100 just in the 1990s, it's of special constitutional significance. And, and, this goes all the way back to the days of John Marshall, who very early on identified the Federalist Papers as, as having particular importance in trying to understand the meaning of the Constitution. The Northwest Ordinance. It has some very famous language in it, that slavery nor involuntary servitude, neither slavery nor involuntary servitude shall exist except as a punishment for a crime. Now, you've heard that language before because that's word-for-word what later will become the 13th Amendment. The anti-slavery amendment. Lincoln's amendment. Lincoln's from the Northwest. And he believes in, in an end to slavery. And finally when he wins re-election, and his party wins re-election, they propose a 13th Amendment to end slavery. And what language did they use to codify this end to slavery? Language of the Northwest Ordinance. A lot of the people who give you the the Union vision, the Republican vision, are from the Northwest. From Ohio and Illinois. People like Ulysses S. Grant and, and William Tecumseh Sherman and, and, and Abe Lincoln. That's the backbone of the Republican party, these Northwesterners. John Bingham, from Ohio. And, in the 13th Amendment, there's actually an inscribing of the Northwest Ordinance's vision into the written Constitution itself. The 14th Amendment comes along and says everyone is born an equal citizen. Well what is that? That's the textualization of Lincoln's idea that the central proposition is that we're all created equal. He in turn is borrowing from Jefferson, and so with the 14th Amendment we have a kind of textual codification of Lincoln's loss on Jefferson. Jefferson himself, of course, was a slaveholder. Died a slaveholder. I don't know, it's kind of complicated. What he really thought those words, all men are created equal, meant. But we know what Lincoln thought it meant. And he thought deep down it meant that slavery must end. That he really, that all men really, and women, really were created equal and the 14th Amendment textualizes that idea. The first sentence of the 14th Amendment which uses the word born. Everyone born in the United States is born a citizen. And therefore an equal citizen. We see that new birth of freedom that Lincoln talked about in the Gettysburg Address. Now actually textualized in the idea of equality at birth. Birth equality Which is Lincoln's gloss on Jefferson. That's now in the text of the Constitution. The 13th and the 14th and the 15th Amendments are actually can textual ratifications of Lincoln's vision, even though they're all eventually ratified after Lincoln has been assassinated. The 13th is proposed when Lincoln is still alive, but, but ratified after. So these, these Brown versus Board of Education is of course this absolutely central text. It's the mediation on the meaning of the word equal in the Constitution as is the I Have a Dream speech. So each of these texts is connected in a very direct way to the actual Constitution. And when and shortly after the I Have A Dream speech, we get voting, a civil rights act, and an voting rights act, and voting rights amendments that protect the right to vote. We have a, an anti-poll tax amendment, and a, and a young adult voting amendment, the 24th and the 26th. These are textual codifications of a vision that That Dr. King puts forth. We, we may, we, we ratify his vision, we the people, when we make when we have a national holiday in his name, just as we ratify the Declaration of Independence when we have a national holiday to commemorate July 4th. Independence itself was actually declared on July 2nd, 1776. What happened on July 4 was the adoption of this text. This Declaration of Independence that Jefferson lead authored and, and that's the day we celebrate. We celebrate this particular text not just the fact of independence but the reasons why. The constitutive, the constitutional statement of what Americans actually believe in. We hold these truths to be self evident. So just to conclude this lecture, there is a symbolic constitution. It consists of specially important constitutive iconic texts that everyone embraces and pretty much people converge. It exists that, that on what are the central elements of that. And all of these texts actually are part of the system. They talk to each other. They connect to each other. And each of them is connected in some very approximate way to the words of the written constitution itself and to the larger American culture. Now, in the next lecture, I'm going to go through some of these individual elements, these, these six special texts, and, and tell you a little bit about, well, what might it mean that these actually form an unwritten symbolic constitution that supplements the written one? So we'll do that, and of course I'll have to tell you about the picture. So stay tuned. [MUSIC]
