Will This Be the Last True Independence Day?

Reflections on the Declaration with Liberty in the Balance

It is July 4th and the 248th anniversary of the publication of the Declaration of Independence by the leaders of 13 colonies declaring their independence from Britain and the founding of a new nation, founded on in the words of Abraham Lincoln, “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal…”

It was a nation founded on a principle of the Enlightenment, the principle that all men are created equal, and as their Declaration of Independence noted that as such are “endowed by their creator with certain unalienable rights, among which are life, liberty, and the pursuit of happiness.” 

The writers of the Declaration wrote these words about King George III.

“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”

These words just as easily can be written about the former, and possibly future President Trump, and the Supreme Court decision which Justice Sotomayor in dissent wrote: “the President is now a king above the law.”

Theodore Parker, a Unitarian pastor and leader of the Abolitionist movement wrote:

“Our national ideal out-travels our experience, and all experience. We began our national career by setting all history at defiance – for that said, “A republic on a large scale cannot exist.” Our progress since that has shown that we were right in refusing to be limited by the past. The practical ideas of the nation are transcendent, not empirical. Human history could not justify the Declaration of Independence and its large statements of the new idea: the nation went beyond human history and appealed to human nature.”

Seventy-six years later the darkness of 1852 not long after the passage of the Compromise of 1850 which included an enhanced Fugitive Slave Act, it would be Frederick Douglass, the foremost Black abolitionist leader and himself an escaped slave would speak. The laws dictated that Northerners had to cooperate in the recapture and re-enslavement of blacks residing in their own states, regardless of their own state and local laws. While the Southern majority that crafted these laws always played the part of the aggrieved minority whose “states rights” were being threatened. But the reverse was true, with their majorities in the House and Senate which also included some Northern Congressmen and Senators, an always compliant White House, and a majority on the Supreme Court the Southerners used the threat of secession and civil war to enforce their mandates on the Free States.

On July 5th 1852 Douglass spoke these words these words to people who at the time were refused citizenship and who were enslaved:

“I have said that the Declaration of Independence is the ring-bolt to the chain of your nation’s destiny; so, indeed, I regard it. The principles contained in that instrument are saving principles. Stand by those principles, be true to them on all occasions, in all places, against all foes, and at whatever cost.”

Douglass understood this far better than many Americans in the South or the North. It would take a great and bloody war for most Americans to realize just how important the Declaration was to the destiny of the nation.  It would take far longer for the principle of an ever expanding understanding of liberty that included Blacks who were considered in law and statute as less than fully human.

One of the most notable of the apologists for White Supremacy was George Fitzhugh, a major Southern slaveholder and apologist for not only slavery but the inequality of poor whites and women. Fitzhugh spoke for many when he wrote against the principles of the Declaration, much the same as Donald Trump and the leaders of the MAGA movement including White Supremacists, Christian Nationalists, and neo-nazis speak against those principles. Fitzhugh wrote:

“We must combat the doctrines of natural liberty and human equality, and the social contract as taught by Locke and the American sages of 1776. Under the spell of Locke and the Enlightenment, Jefferson and other misguided patriots ruined the splendid political edifice they erected by espousing dangerous abstractions – the crazy notions of liberty and equality that they wrote into the Declaration of Independence and the Virginia Bill of Rights. No wonder the abolitionists loved to quote the Declaration of Independence! Its precepts are wholly at war with slavery and equally at war with all government, all subordination, all order. It is full if mendacity and error. Consider its verbose, newborn, false and unmeaning preamble…. There is, finally, no such thing as inalienable rights. Life and liberty are not inalienable…. Jefferson in sum, was the architect of ruin, the inaugurator of anarchy. As his Declaration of Independence Stands, it deserves the appropriate epithets which Major Lee somewhere applies to the thought of Mr. Jefferson, it is “exuberantly false, and absurdly fallacious.

Fitzhugh also wrote:

“We conclude that about nineteen out of twenty individuals have “a natural and inalienable right” to be taken care of and protected, to have guardians, trustees, husbands or masters; in other words they have a natural and inalienable right to be slaves. The one in twenty are clearly born or educated in some way fitted for command and liberty.

His words are echoed in the writings of many Trump allies, especially the White and Christian Nationalists.

A greater contrast of views regarding the Declaration is hard to be found. Abraham Lincoln would say about the contrasting views of liberty at a speech in Baltimore on April 18th 1864:

“The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name, liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names–liberty and tyranny.” 

Unfortunately these starkly contrasting views of liberty are still on display today. The while President, Trump called Mexican and Central American refugees an “infestation” using a word that would to describe rats, insects or other disease carrying species. He has continued to describe immigrants and minorities as “vermin” a word often used by Hitler’s Nazis to describe Jews, Sinti and Roma, and Slavs. Members of his administration, Republican Congressmen and State Representatives, and members of various “conservative” media outlets, including their allies in the Alt-Right use the same language as Fitzhugh to declare for the superiority of the White race, to dehumanize Blacks, Mexicans, Arabs, and various dark skinned Asians and argue that darker skinned people are less than human and not entitled to liberty, equality and justice. That constant barrage quite literally amounted to state sponsored propaganda demonized minorities, women, gays, the media, long term allies and alliances, including NATO, and any potential political opponent. In a future Trump administration, or for that matter any administration willing to destroy the Constitution and trample the law, this is only the tip of iceberg following the Supreme Court’s ruling in Trump v. United States.

Our Republic, its institutions and our freedom hinge on the Declaration, which Frederick Douglass called “the ring-bolt to the chains of our nation’s destiny,” and its principles “saving principles.” We must be dedicated to the proposition that “all men are created equal” or submit to tyranny.

The proposition in the Declaration that all men are created equal is essential to understanding or appreciating liberty. If we view others as below us, as even less than human then we cannot say that we believe in liberty. If we decide to limit the right of citizens to speak out because of their color, their national origin, their race, their religion, their gender, or sexual identity then we are not for liberty, we are no better than George Fitzhugh or others, even the Nazis, who enslaved, imprisoned, and exterminated others in the name of their power, and their right.

Dr. Allen Guelzo, Professor of Civil War Studies at Gettysburg College wrote of Lincoln’s Gettysburg Address in the New York Times:

“The genius of the address thus lay not in its language or in its brevity (virtues though these were), but in the new birth it gave to those who had become discouraged and wearied by democracy’s follies, and in the reminder that democracy’s survival rested ultimately in the hands of citizens who saw something in democracy worth dying for. We could use that reminder again today.”

Dr. Guelzo is quite correct. Many people in this country and around the world are having grave doubts about our democracy. I wonder myself, but, unlike four or five years ago, when I was sure that we would weather the storm, I am no longer as optimistic as I was.

Admittedly, that is an act of faith based on our historical resiliency, and ability to overcome the stupidity of politicians, pundits and preacher, including the hate filled message of Donald Trump and his White Supremacist supporters, especially supposedly “conservative ” Christians. That doesn’t mean that I am not afraid for our future, or that despite my belief that our institutions will hold. Historian, Timothy Snyder correctly noted:

“The European history of the twentieth century shows us that societies can break, democracies can fall, ethics can collapse, and ordinary men can find themselves standing over death pits with guns in their hands. It would serve us well today to understand why.”

So we must ask ourselves if we are up to defending our democracy against a former president who has promised mass arrests, deportations, trials of political opponents, the use of the military to enforce his decrees, and promised that he would transform the Justice Department and other Federal law enforcement agencies into his personal security apparatus.

Until Tuesday, Trump and MAGA had the force of law to restrain him, but then the Supreme Court Majority gave him absolute immunity for prosecution for official acts, even if they would be considered unconstitutional or illegal, and extended that immunity to acts that might be considered in a gray area, without the Congress or Justice Department being able to question his motives when considering whether an act might be illegal. Since motive along with means and opportunity is always a part of criminal prosecution, the Court’s ruling removed a key element of the rule of law.

Justice Jackson wrote in her dissent:

“The majority’s multilayered, multifaceted threshold parsing of the character of a President’s criminal conduct differs from the individual accountability model in several crucial respects. For one thing, it makes it next to impossi­ble to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts. For every allegation, courts must run this gauntlet first—no matter how well documented or heinous the crim­inal act might be.

Thus, even a hypothetical President who admits to hav­ing ordered the assassinations of his political rivals or crit­ics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably in­stigates an unsuccessful coup, id., at 41–43, has a fair shot at getting immunity under the majority’s new Presidential accountability model. That is because whether a Presi­dent’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those charac­teristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive). In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capac­ity, such that the answer to the immunity question will al­ways and inevitably be: It depends.”

Justice Sotomayor in her dissent that relied far more on the Constitution, legal precedent and history than the opinion of the Robert’s majority, wrote:

The majority makes three moves that, in effect, com­pletely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.” Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence con­cerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.

She continued:

“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is “at least . . . pre­sumptive,” and quite possibly “absolute.” Ante, at 14. Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least pre­sumptively) cannot touch him.”

“In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled under­standings of the Constitution are of little use to the majority in this case, and so it ignores them.”

“Not content simply to invent an expansive criminal im­munity for former Presidents, the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narra­tive of even wholly private crimes committed while in office. They must play no role in proceedings regarding private criminal acts.”

“Let the President violate the law, let him exploit the trap­pings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The rela­tionship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

A KING ABOVE THE LAW. This is exactly what the writers of the Declaration considered King George III, and what the Robert’s Supreme Court has made the President.

Justice Sotomayor concluded her dissent with these words:

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occu­pant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not pro­vide a backstop.

With fear for our democracy, I dissent.”

We are at a precise. President Biden does not appear to be able to withstand the rigors of a presidential campaign, or the demands of his office. I am a Biden supporter. I think that in terms of his service to the country as a Senator, Vice President, and President make him a great man. But all great men must realize when their continuance in office with obvious physical and mental deterioration is harmful to the nation, especially in a time of crisis. His family and closest advisors must tell him the truth and tell him to resign for the good of the country. That does come with some risk, but is that risk worse than allowing him to continually be exposed to embarrassing moments which further diminish his chances of winning the election and leading the nation?

In light of all of these facts, we have to ask if we as Americans, not just Republicans or Democrats are willing to stand up for our democracy and the rule of law? Do we want any president of any party to be above the law and able to act with impunity as a despot or tyrant? History shows that the results of any people who surrender their rights and liberties to a tyrant are too terrible to repeat. Do we value liberty enough to fight and if needed die for it?

The eminent American jurist, Leaned Hand, wrote these words, which for me are like the Declaration, the Preamble of the Constitution, the Gettysburg Address, Lincoln’s Second Inaugural Address, and Dr. Martin Luther King Jr.’s I Have a Dream speech are secular scripture that are sacred to my understanding of being an American, and something that I will never yield. Judge Hand said:

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. The spirit of Liberty is the spirit which is not too sure that it is right; the spirit of Liberty is the spirit which seeks to understand the minds of other men and women; the spirit of Liberty is that which weighs their interests alongside its own without bias.”

With that my friends I wish you a happy Independence Day. I pray that it is not our last true Independence Day.