The Declaration Is Our Inheritance

The Declaration of Independence announced more than a separation from Britain. It made a claim about government itself: that people hold rights government did not grant and cannot take away, and that legitimate power rests on the consent of the governed. Those ideas were unprecedented in 1776. Two hundred fifty years later, they are still unfinished business.

Judge Douglas Ginsburg joins Katie Crawford-Lackey to consider what the Declaration has meant at home and abroad. He served on the U.S. Court of Appeals for the D.C. Circuit, including a term as chief judge, and hosted the PBS series A More or Less Perfect Union and We Hold These Truths.

They trace the document's reach: more than a hundred national founding texts that reference it, the French Declaration of the Rights of Man, drafted by Lafayette with Jefferson at his elbow, Ho Chi Minh quoting it word for word. And they trace its use here — Seneca Falls, Frederick Douglass, Martin Luther King Jr. calling it a promissory note come due.

Ginsburg also takes up the harder questions. How a document proclaiming equality emerged from a society built on slavery. Why "life, liberty, and the pursuit of happiness" replaced "property." Whether the Declaration carries legal weight today, and what it would mean for courts to start from a presumption of liberty rather than a presumption that the government is right.

The Declaration, he argues, is a yardstick, not a finish line. Every generation has to pick it up again.

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announcer 0:01

Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American. Hosted by Dr. Katie Crawford Lackey and featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals, and legal practitioners, we examine the rights and responsibilities of citizenship. Consider the Constitution is brought to you by the Robert H. Smith Center for the Constitution at James Madison's Montpelier.

Katie Crawford-Lackey 0:38

Hello and welcome back to Consider the Constitution. I'm your host, Dr. Katie Crawford Lackey, with James Madison's Montpelier. Today, we're taking a step back before the Constitution and the Bill of Rights to the document that announced the American experiment in government and liberty to the world, the Declaration of Independence. The Declaration is often remembered as a statement of independence and a declaration of grievances against a distant king. But it also makes a much broader claim about government itself, that all people are created equal, that they possess certain rights, and that the legitimate government rests on the consent of the governed. Those ideas have shaped American political life for 250 years, even as the nation has struggled to live up to the principles the Declaration articulated. They were put out into a society that fell profoundly short of the promises, yet the language of the Declaration would go on to inspire generations of Americans and people around the world seeking greater freedom and self-government. And there are few people better positioned to help us think about those ideas than our guest today, Judge Douglas Ginsburg, who has spent much of his career thinking about the relationship between government and individual liberty. From his service in the U.S. Department of Justice and the Office of Management and Budget to his decades on the U.S. Court of Appeals for the DC Circuit, where he also served as chief judge. He has also brought these questions to a much broader audience, hosting the PBS documentary series, A More or Less Perfect Union, which explored the history and meaning of the Constitution. And we hold these truths, which examine the Declaration of Independence and its influence around the world. So today we get to explore the Declaration with someone who has spent years asking what these founding documents mean, how they've come to shape our understanding of liberty, and what they continue to mean today. Judge Ginsburg, it is a true honor to welcome you to consider the Constitution.

Judge Douglas Ginsburg 3:05

Thank you, Katie. It's a delight to be here with you.

Katie Crawford-Lackey 3:08

So I want to begin our conversation today with the Declaration itself and how we should understand its significance today. So is the Declaration mainly a historical statement? Is it a political argument? Or does it have a continuing significance for how we understand American government in the 21st century?

Judge Douglas Ginsburg 3:31

Well, in a way, it's all of those things. The ideas expressed in the Declaration were sprung on a world that had never really even considered those ideas before. The idea of government by the consent of the people, the idea that all men, meaning mankind, are born free and equal, that we have natural rights that predate and do not come from government, but on the contrary, it cannot be invaded by government. The natural rights part was in the existing philosophical literature, of course, but the idea that it would be part of a political statement, that it would be a founding principle of a nation was completely unprecedented. And imagine not just kings, but everyone living in a world where the divine right of monarchs was an accepted understanding and being told everything you've ever thought was wrong. So who's right? Are those crazy Americans right? Probably not. Well, of course, it took a long time to prove the contrary. But the appeal of these ideas was absolutely overwhelming and has swept the world. So there are now well over 100 countries, Professor Armitish at Harvard says 120, whose founding documents make reference to our Declaration of Independence. And sometimes it's quite surprising. It may run from an allusion to the declaration all the way to an extensive quotation. So to give you uh one maybe extreme example, on the day after Japan surrendered in World War II, Ho Chi Minh released his Declaration of Independence for Vietnam, independence from France. And it begins exactly quoting the entire passage from our declaration about self-evident rights, the pursuit of happiness, life, liberty, all of it. Now, did Ho Chi Minh mean to be a communist dictator when he wrote that? Or did he simply appreciate the universal appeal of liberty and equality, which had been proven because by that point there were scores of countries that had already relied upon referenced our declaration, starting with France in 1789 and the Declaration of the Rights of Man and of the Citizen, the first draft of which was written by Lafayette with Thomas Jefferson, our emissary, at his elbow. And when I had the privilege of inspecting the document at the Archif National in Paris, I could see unable, imprescriptible, these words that invoked the ideas of unalienable rights and rights that could not be taken away. And to my shock, when I turned over the page, it's all out in one piece of vellum. The king had signed it. I had not known that. In fact, this was all part of making a movie. You mentioned We Hold These Truths. I just think of it as Declaration Movie.com because that's where it is. But in the course of that, there's almost nothing in that 57 minutes made for public television that I knew when I started to make it. It was a revelation that this worldwide appeal, for one thing, but also the career that the Declaration has had at home as an aspirational document, as the yardstick by which we measure our evolution toward the ideals expressed in the Declaration. No country has fully accomplished that and ever will. The pursuit of happiness will always have to be improved and bolstered. It will have to be understood by each new generation. And that makes this the central document of Western civilization for the last 250 years. Extraordinary.

Katie Crawford-Lackey 7:36

A wonderful example is this Seneca Falls Convention, 1848. These women are collectively organizing. They're trying to articulate their equality to men. And they draft the Declaration of Sentiments, which is essentially the language from this original declaration of independence, but they changed the wording to women. So it's this, as you said, a global influence. And then it also has over time, over generations, the language has this influence on people here in the United States. And one of these kind of powerful phrases I want to point to. So the declaration says that the governments derive their just powers from the consent of the governed. Now, from your perspective as a federal judge in particular, what does that idea of consent tell us about the American understanding of a legitimate government?

Judge Douglas Ginsburg 8:35

The legitimate government is one in which there are free and fair elections, and in which the government can be and frequently is made responsive to the people who can amend their constitution, who can alter the uh terms on which they agree to be governed. And obviously, our constitution contemplates amendments, and we have 27 of them, ten of which you're intimate with because of your programming on the Bill of Rights, which I've listened to. So clearly those are minimum criteria, and uh maybe they're even sufficient criteria. And now about three-quarters of the world's population live in places where they have a government by consent. Not perfect, but the idea has captured the imagination of the world. And those places that don't offer a government by consent are on the defense of constantly to account to their own people as to why that is. So the women of Seneca Falls, in their declaration, talked about all men and women being born equal, but the declaration had a great deal of influence beyond even that because Frederick Douglass was in the audience at the Seneca Falls Convention. He was there for his newspaper, The North Star. He was probably the only African American there. Most of the women there and men were Quakers, by the way. And for whatever reason, in 1851, when he gives his what may be his greatest speech, he writes and says, What to us is your Fourth of July? Now he was the greatest orator of the century after Abraham Lincoln, and his successor in that role, Martin Luther King, does the same thing in 1963 at the great speech he gives, a speech well known for his talking about the color of his children not sealing their fate but the constitution of their character. He refers to the declaration as a promissory note, long overdue. Four or five words that capture the idea and the tardiness, the failure for so long to make it fully operational.

Katie Crawford-Lackey 10:37

In this vein of thought about the language of the Declaration, one of the interesting aspects about the Declaration was that it was more expansive than the society in which it was produced. So the people declaring that all men are created equal while living in a society that permitted slavery, that excluded women and others from political participation. So this idea of who is a civic participant is limited. How do we, you know, looking back, understand and reconcile that tension?

Judge Douglas Ginsburg 11:14

Well, it's been a subject of concern ever since the document was drafted. Let me take you back a little bit to Seneca Falls. The idea that the declaration excluded women, I think, is actually a misreading, because the word men there refers to mankind. And another bit of evidence is that one of the grievances that Jefferson had drafted against the king was a lengthy one in which he accused the king of having imposed slaves upon Americans and refers to them as people being sold. But he uses the word men, but obviously men, women, and children were sold. It was clear that that was not specific to men. And likewise, in the parts that did get into the final draft, men should be understood as mankind. But that still leaves the slavery question. And I should add, people who did not have property and were not eligible to vote in most of the original colonies and in the first states when they were formed, when the Constitution came along. But the expansion of the franchise from 1776 to the present is one of continual expansion, continual inclusion, to making sure that African Americans, former slaves, and so on were in fact going to be citizens that the Supreme Court has said they never were and never could be, that was reversed by the 14th Amendment. Then the women's suffrage movement amended in 1920, the lowering of the voting age in the uh 1970s or 80s, I guess it was, to the age of 18, ever more inclusive. And that's part of the aspirational nature of the document. So at the time, however, this was a compromise. That is to say, the continuing tolerance of slavery. The slave trade was going to end. The Constitution would later put an end date on the slave trade. But none of that's in the declaration. And so you have this anomaly of all men being free and equal, and yet drafted by someone who actually owns slaves. Now, he himself, Jefferson, was very much of two minds about this. He once wrote that having slavery was like holding a wolf by its ears, afraid to let it go and unable to keep it. And he actually anticipated that it would come to a civil war. It was a price that had to be paid in order to have one country declaring its independence, one all thirteen colonies. There was simply no way in which some of the slave states would have consented otherwise. Now, the compromise was to change the original formulation of life, liberty, and property to life, liberty, and the pursuit of happiness, because the Northerners were afraid that putting property in would give the Southerners a claim that they had a constitutional right to own slaves. It was an unfortunate but absolutely essential compromise. It's not the only one in the Declaration, and there are many in the Constitution as well, in order to create a single nation and then hope for the best. And of course, it took a long time, and a lot of blood, 600,000 dead.

Katie Crawford-Lackey 14:24

And Judge Ginsburg, you've spent much of your career thinking about the Constitution, the structure of government, you know, the relationship between individual liberty and government power. How do you understand the relationship between the declaration's promises and the constitution that followed 11 years later? You know, you reference the constitution, and what does that arc look like?

Judge Douglas Ginsburg 14:50

I like to think of it this way: the Declaration, as the founding document, laid the foundation, the Constitution, at first the Articles of Confederation, which failed, and then the Constitution, the structure of government that was built on that foundation. Now, does that mean that the Declaration has a role to play in our legal system? I learned, somewhat to my surprise, that there are a number of different authors, uh, some of them are scholars, who claim that the Declaration in fact is a source of legal right and constraint, but I think their evidence is extremely flimsy. For instance, one example is that the Constitution ends by referring to its being signed in the 1787th year of our Lord and the 11th year of the United States. But that was a formula that was done with many documents from the beginning in other countries as well. It's a sort of almost diplomatic protocol. Well, of course, it's the 11th year of the United States' independence, but it wasn't the 11th year of the Declarations having some kind of ruling significance. So I don't think we can look to it for any significant role in our legal system, although I very much wish we could do what Randy Barnett, professor at Georgetown, has suggested, which is to say treat the declaration as creating a presumption of liberty. Yes, the government can prevail if it can show that there's a need to do whatever it is that's being challenged, but the presumption should be that of liberty. Now, in a criminal context, we observe that to the hilt, with great standard of proof beyond a reasonable doubt, with all sorts of protections, with a right to counsel, and so on and so forth, many of them in the Constitution, in fact, in the Bill of Rights. Right to a jury trial, another important one. Make it a civil matter. Let's say that some administrative agency claims that you violated a regulation of the Clean Water Act or something like that. And there's a $5,000 a day fine until you get that corrected. Well, all that uh protection goes out the window. There's a presumption that the government is correct, and it gets a presumption of regularity, that it's done things in the appropriate way. And it's up to you as the challenger to show that it didn't. Your rights have been impinged upon, or your welfare has been impinged upon by the government, and yet you have the burden of showing that the government made a mistake, you know, legal or factual or otherwise a mistaken decision. That is part of the legal system that I in which I operate and have done for 40 years as a judge, but it galls me every time that the citizens coming before the court have the burden of proof in this. So, in any event, uh like Randy Barnett's suggest, a presumption of liberty. Let the government prove its case. Let them show that what they've done is correct, in any event. So I don't think we can derive specific decisions based on the declaration, fortunately, let's say. Now I will tell you this. In the early decades of the Republic, natural law embodied in the declaration, talking about the laws of nature and nature's god. Natural law was a very important part of legal arguments in the early days of the Republic. There was very little case law. There was some common law that we have Blackstone's commentaries from England. We had some decisions of colonial courts, but with a dearth of precedents and a dearth of sources, it was quite common for lawyers and judges to rely on natural law. And the Declaration does it itself. So that faded. I think Professor Stuart Banner, in his book, The Decline of Natural Law in America, uh, correctly attributes it to the growth of legal publishing and the availability of a whole seize of precedents being decided every year, so that now lawyers could point to case law and say, well, here's what the law requires, and argue about that and whether that precedent was correctly decided. And so by the 1850s, a natural law argument was scarce and a loser. But until then, it was declining, but it was played a role in our founding legal system.

unknown 19:10

Trevor Burrus, Jr.

Katie Crawford-Lackey 19:10

And the theme of our conversation today has touched on the declaration's meaning far beyond the United States and how the ideas have been invoked by people seeking independence and greater liberty worldwide throughout time. Why did this particular document have such extraordinary international resonance?

Judge Douglas Ginsburg 19:35

Well, I think the appeal of the declaration is understandable when you consider the conditions of people living in countries before they attained consent of the governed. So somebody who is a serf tied to the land in Russia or some other country, somebody who has no political representation in their national capital, hearing about the idea of natural rights, life, liberty, and the pursuit of happiness, and most important, liberty and equality, that appeal is certainly understandable, indeed irresistible. And once a country, the United States, has demonstrated that it's not just some air fairy high-in-the-sky idea, but it created a working government that was successful, the idea then became just absolutely compelling all around the world.

Katie Crawford-Lackey 20:38

So as we wrap up the conversation today in watching We Hold These Truths, it was really enlightening to hear about this profound influence that the Declaration had. And one of the big ideas I came away with was this kind of thought that the Declaration is our inheritance. I'm wondering if you want to speak to that, particularly as we sit here today, we're in the 2020s. And as we look ahead to the future and what future generations are going to create and lead and what our role will be in America. What does that mean? The declaration is our inheritance.

Judge Douglas Ginsburg 21:22

Well, I think it certainly means that we need to keep it in mind as we live our civic lives, that these are the aspirations that motivated our forebears. These are the aspirations that have brought tens of billions of people to our shores, seeking these rights, seeking this protection from arbitrary government that operates every day. Every day. Go to a naturalization ceremony and see it in action. See all these people who come together from everywhere to become American citizens. And of course, everybody here has some forebear who did just that, except, of course, the Native Americans, but literally everyone else has some forebear who came here for those reasons or for something like that. So there's that for certain. And in the semi-quincentennial year of this 250th year, our declaration, I think it's just been really great to see how much attention it has received and how much celebration of it there is. And thoughtful, not just celebratory, but thoughtful consideration. As an example, the movie We Hold These Truths appeared on public television on July 4th for the last three years. But three and a half million people have downloaded it from YouTube, and two million of them just this last eight months since the first of this year of 2026. So it's it's in the air, it's back in people's consciousness. It's something that we need to refresh from not just from time to time, but trying to keep it front and center all the time. We have a great civic educational deficit in this country. And one way to redress it is to start with the declaration.

Katie Crawford-Lackey 23:02

Well, thank you, Judge Ginsberg, for joining me today. I appreciate this conversation because it taught me a lot about the declaration, not just some of the key phrases that are important, but also what it means to Americans then and now, as well as how some of these concepts, these ideas transcend time and place. They connect us again across the centuries and across the ocean. So we're this kind of collective endeavor for liberty, justice, this pursuit of happiness. So I very much appreciate you sharing your thoughts on this.

Judge Douglas Ginsburg 23:41

Thank you, Katie. I welcome every opportunity to do just that because I think our fellow citizens need to be reminded from times and so as do I. Thank you.

Katie Crawford-Lackey 23:51

Thank you. And thank you to all of our listeners. Please subscribe and share the show with family and friends. And tune in again in two weeks as we consider the Constitution.