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    • For Liberty and Equality

    By Jon B. Eisenberg | Dec. 2, 2012
    News

    Books,
    Law Office Management

    Dec. 2, 2012

    For Liberty and Equality

    Alexander Tsesis's new book, reviewed.

    Jon B. Eisenberg

    Email: jon@eisenbergappeals.com

    Jon is a retired appellate attorney and the author of California Practice Guide: Civil Appeals and Writs.

    According to law professor Alexander Tsesis, the history of the Declaration of Independence has been ironic indeed. What else could one expect when a document proclaims that "all Men are created equal" yet was penned by a man, Thomas Jefferson, who owned more than a hundred slaves?

    In For Liberty and Equality Tsesis, who teaches at Loyola University Chicago School of Law, explores the declaration's role in American history through the civil rights era. The dominant subject is, quite naturally, slavery, its abolition, and its aftermath. The dominant charge is hypocrisy. Tsesis has assembled some harsh historical criticism. For example, Quaker leader David Cooper wrote in 1783 that "unless we can [show] that the African race are not men, words can hardly express the amazement which naturally arises on reflecting, that the very people who make these pompous declarations are slaveholders." Decades later, abolitionist William Lloyd Garrison wrote: "I am sick of our unmeaning declamations in praise of liberty and equality, of our hypocritical cant about the inalienable rights of many."

    Yet others saw no inconsistency - so long as slaves were excluded from the definition of men. As presidential candidate Stephen Douglas put it in 1860: "The signers of the Declaration of Independence referred to white man, and to him alone, when they declared that all men were created equal." According to Tsesis, in 1848 Senator John Calhoun "mocked the Declaration of Independence's claim of equality of the 'human races' as being an error inherited from the writings of British philosophers John Locke and Algernon Sidney." A Virginia newspaper insisted in 1864 that "[m]en are not born to equal rights" and called the declaration "exuberantly false."

    Yet the document proclaims more than that men "are endowed by their Creator" with the "inalienable Rights" of "Life, Liberty and the pursuit of Happiness." It also asserts that "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government." Where some have read in the document a fundamental incompatibility with slavery, others have found opposition to governmental interference with property rights. Tsesis explains how Southern secessionists read the declaration as being "primarily concerned with the right to revolution rather than individual rights." The former Confederate president, Jefferson Davis, "continued to insist that the rebellion was a justified means of vindicating states' independence as created by the Declaration of Independence." Well after the Civil War, "a counternarrative ... contended that the Declaration's statements against overbearing government prohibited federal intrusion into state civil and political matters."

    The debate continues through Reconstruction, into the Jim Crow era, and up to the New Deal, when "[c]onservatives seized on the document's statements about tyrannical governance and natural rights to protest federal regulations that burdened property." And so forth into the civil rights era, when James L. Farmer Jr., national director of the Congress of Racial Equality, hailed the Civil Rights Act of 1964 "because it gave 'hope to Negroes that the American people and Government mean to redeem the promise of the Declaration of Independence and the Emancipation Proclamation.' " Yet just a few years later, H. Rap Brown "advised black youths to keep a copy of the Declaration in their pocket while they fought street battles, in order to give their destructive efforts a sense of purpose."

    Varying uses of the declaration persist to this day. In July, presidential candidate Mitt Romney told a Pennsylvania audience: "Let's stop and think about the system of government and what it tells us in its founding document, the Declaration of Independence. It does not say that the government gave us our rights. It said that God gave us our rights." If Romney's message is that government is not the solution, others might respond that he should read further, to the part of the declaration that states "to secure these rights, Governments are instituted among Men." As Tsesis put it in his closing message: "Protection of those rights is the essential purpose of government."

    The reader is left with the feeling that, whether the Declaration is a proclamation of human rights or against tyranny, it has historically promised more than it has delivered. "Maybe," says a professor quoted near the end of the book, "we ought to revoke the Declaration of Independence. Then we wouldn't have so much trouble living up to it."

    Jon B. Eisenberg, an appellate lawyer in Oakland, is principal author of California Practice Guide: Civil Appeals and Writs (The Rutter Group, 2012).

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