Kermit Roosevelt III
Kermit Roosevelt III challenges the conventional narrative about America’s founding ideals. He is a professor of constitutional law, the author of "The Nation That Never Was: Reconstructing America's Story", and the great-great-grandson of President Theodore Roosevelt. Find him at: www.kermitroosevelt.net
Transcript
Kermit Roosevelt III:
So really, a new American nation is formed when we ratify the 14th Amendment, and it's an incredible change that people have really sort of played down. Old America, the America of the founding, is destroyed. New America, reconstruction America, is created, and that's the America that we love. That's the America that is committed to liberty and equality.
Ted Roosevelt V:
Welcome to Good Citizen, a podcast from the Thedo Roosevelt Presidential Library. I'm Ted Roosevelt.
Today I am joined by Kermit Roosevelt III, a professor of constitutional law at the University of Pennsylvania, an award-winning author, and someone better known to me as my cousin Kim. In his latest book, The Nation That Never Was: Reconstructing America's Story, Kim offers a new and surprising perspective on our nation's history. He challenges established narratives about the founding fathers and suggests that we misunderstand the Declaration of Independence. Kim proposes, for instance, the Gettysburg Address, rather than the Declaration of Independence, embodies our national ideals and that the Civil War was the true American revolution. Honestly, it was a little bit shocking to me, even a little unsettling, but trust me, he's very persuasive. I'm excited for you to hear it.
Kim, thank you for joining us today. It's a real pleasure to have you on. It's a real pleasure to have a cousin on with me.
Kermit Roosevelt III:
Yeah, thanks for having me. Really happy to be here.
Ted Roosevelt V:
Kim, I want to talk about your book that recently came out, about a year and a half ago, The Nation That Never Was: Reconstructing America's Story. Just before we even get to what the book's about, I want to know what led you to write this, to examine America's myth at all.
Kermit Roosevelt III:
Well, it's a bunch of different things. Because I've been teaching constitutional law for about 20 years, and part of it was talking to my students about it and seeing what resonated with them about the way that we normally tell our story and what didn't. And seeing over the years, a bit of, I guess I would say a growing disenchantment with our founding centered story. I found that my students were less willing to accept this idea that the Constitution is a work of genius that's served us well for over 200 years, and that we should aspire to be like the founders of 1776 because people were starting to look at that historical period more honestly, and we were discovering things that made it harder to identify with those people.
And then sort of the crystallizing moment for me was when the Texas Law Review asked me to write a review of a pair of books by a former professor and mentor of mine, a Yale professor named Jack Balkin, who was writing about originalism and trying to come up with a version of it that is more appealing than this idea that important value choices were made for us back in 1787 and we have to follow those.
So that made me look back at the Declaration of Independence again more closely, and it has nothing to do with what we think the Declaration of Independence means now. It's not about the government treating people equally in society at all. It doesn't contain these promises about how the government is going to be organized. It's not pro-democracy, it's not even anti monarchy, it's not anti-slavery. Right? All of these American values---our belief in equality, our belief in universal liberty---they don't actually come from the 1776 declaration. And that raised the really interesting question: so where did they come from? How does America become a nation dedicated to these ideals?
Ted Roosevelt V:
Kim, this is what your book really digs into, this idea that we were a country founded on equality and freedom is in fact not what the Declaration of Independence is saying, that we should stop looking to that document for our founding principles. And this premise was a bit unsettling to me. I mean, I found myself in somewhat of an intellectual defensive crouch because challenging our founding story is unsettling. But you unpack this idea using originalism. You reference the writings of the time, the setting, the historical framework to understand what Thomas Jefferson was really saying.
Kermit Roosevelt III:
Right, well, so the originalism is kind of the whole point. Because obviously the declaration nowadays does mean the government should treat all people equally, right? The government should respect all people equally. It does mean that America is an anti-slavery nation, but that's not what it meant in 1776. In 1776, it's really about independence. They're trying to make an argument that the colonies are justified in rejecting the political authority of the British crown. But they're not saying anything about how governments should treat people once societies are formed or they're not saying that people should be treated equally. They do think government should protect the natural rights of the people who form it. This is not democratic, right, a monarchy could do that. And it's not actually anti-slavery either, because the whole theory is about duties that governments owe to the insiders, to the people who form the government.
Ted Roosevelt V:
And the reference "all men are created equal" is a comment about the divine right of monarchs, right?
Kermit Roosevelt III:
Right. So what "all men are created equal" is doing there, it means in a world in which there's no government and no laws, the state of nature---and this is not a real thing that ever existed, but basically all 18th century political philosophy starts by imagining the state of nature and then asking what would happen? What would relations be like in the state of nature?---Jefferson is saying in the state of nature, no one has an obligation to obey anyone else. So political authority isn't natural and it's not given by God either, right? That's the important point for the declaration. No one is chosen by God to be a king over other people. So political authority must come from somewhere else. And then Jefferson goes on to explain where it comes from, right? People have natural rights, but their natural rights aren't secure, so they form governments to protect those rights. Government is sort of a mutual self-defense pact.
Ted Roosevelt V:
And that's where a major misconception of the Declaration of Independence comes in. From our modern perspective, the phrase "all men are created equal" appears to be a comment about universal human rights. But you would argue that it is used as a justification to form a government that is not under the divine right of kings. The government is then free to make determinations about insiders with rights and outsiders without rights. Is that the correct framing?
Kermit Roosevelt III:
When they said "all men," they didn't mean Black people, they only meant white people. In fact, they only meant white English people. And what I'm saying is that's wrong. The people who are entitled to this equality is very broad. It's everyone. It's just that natural equality doesn't mean what you think it does. It doesn't mean as much as you think about your rights once a government is established, your rights in society. So let's suppose there are five of us in the state of nature and we're all sort of looking around suspiciously at each other because we know one of us might attack another person. Take your liberty, take your life, interfere with your pursuit of happiness, deprive you of these natural rights. So four of us say, "let's get together and we're going to form our little society and we're going to make some rules." And one of the rules is no one can attack anyone else and no one can take anyone else's property. And if any one of us violates those rules, the rest of us will enforce those against him.
But what about number five out there? So number five didn't agree to our rules, doesn't have to follow them as a matter of political philosophy, but also we don't have to respect their rights either, right? Because e didn't agree to that. We're still in the state of nature with respect to that person. And if we all decide it's a good idea to enslave that person, we can do that. And maybe it's morally wrong, but there's no contradiction with our philosophy. We've not committed ourselves not to enslave people.
Ted Roosevelt V:
Now, if the American ideal of equality and freedom doesn't derive from the Declaration of Independence, where does it come from?
Kermit Roosevelt III:
The American myth I think really starts with the Civil War, because that's where our ideals come from. So in the story that we tell now, we say we've got this war that created America, a war for liberty. Fast forward to the Civil War, it's absolutely a war for liberty. It's absolutely a war against slavery. It's absolutely the war that created America. We have this short document that states our ideals, it's the Declaration of Independence. Jump forward, you can replace it with the Gettysburg Address. Then we've got this longer document that takes these ideals and makes them into law, and it's very common for people to say the Constitution is trying to give legal effect to the values of the Declaration. That's actually not really true if you look at 1787, but it is true if you look at 1868 when we get the 14th Amendment. We are taking these ideals of equality stated in the Gettysburg Address and making them into law.
It really was a revolution. So there was an America out there, the America of the founding that had certain values, it had a certain political ideology, it had certain conceptions about the relationship between the states and the national government, and that America was really destroyed by Reconstruction and the 14th Amendment. Here's sort of the crucial point: we have the Civil War, the union wins, it's clear to everyone slavery is going to end. The 13th Amendment gets sent out to the former Confederate states and the other states, they ratify it. Slavery's over. But what else is going to change? Is there going to be more change? Are Black people going to be citizens? And the 14th Amendment says yes. The 14th Amendment in its first sentence reverses the Dred Scott decision, grants birthright citizenship, it says the formerly enslaved are citizens. And now they're going to hold constitutional conventions. They're going to write new constitutions, they're going to create new legislatures. So really a new American nation is formed when we ratify the 14th Amendment. And it's an incredible change that people have really sort of played down. So old America, the America of the founding, is destroyed. New America, Reconstruction America, is created, and that's the America that we love. That's the America that is committed to liberty and equality.
Ted Roosevelt V:
And yet even following the Civil War, obviously we did not find ourselves in a egalitarian utopia. There was a long period---and we still are not in an egalitarian utopia. But is the argument that it's at that point that the values are crystallized and ratified and understood broadly, and that is the reference point from which we should start, even though the initial execution or even the execution to date has been imperfect.
Kermit Roosevelt III:
It's at that point that the values enter the Constitution. And it's at that point that America really dedicates itself to those values, at least by word, because we fight the Civil War and we suffer enormous losses to end slavery. And then during the period of Reconstruction, you've got federal troops in the South and they're supporting multiracial democracies. And this is another thing that we don't teach very well: Reconstruction works. The multiracial democracies in the South, they establish public schools, they establish free hospitals, they support impoverished people, they provide public services on a scale never before seen in the South. Eventually the Northern will to maintain basically a military occupation and fight a counterinsurgency war against the former Confederates, that will goes away. The white supremacists take over, the multiracial democracies are overthrown. So the ideals do sort of go into eclipse.
But I think that's actually something that makes my story better too, because going back to the eerie parallels: the standard story tells you America's ideals are born in 1776, but there's this sort of terrible contradiction, which is our original sin, because we also have slavery. And that tells you something, I guess, about what it means to be a good American, right? If you want to be a good American, don't enslave people, but that's focusing on individual active wrongdoing. And it maybe makes you think, "if I'm not individually myself doing bad things, then I'm a good American. I've done all I need to do."
Shift it to the story about Reconstruction, and there is also this original sin. There is also this contradiction at the very beginning. We state our ideals, we lived them for a little bit, but then we stop. We stop because we allow the former Confederates to take back power. And if we say that that is our original sin, what's the problem? What went wrong? It's that we stood by. It's that we didn't fight for those ideals because the cost became too high. And if you say, what I need to do to be a good American is actually to stand up for these ideals, even when it's costly, even when it brings me into conflict with other people that I think of as my group---because it's conflict among white Americans that ends Reconstruction---if you think, "my duty is to fight for ideals, even if it pit me against people I thought were my friends," that's a better lesson.
Ted Roosevelt V:
I think that's a fascinating way to look at our history. It's like peeling back layers we didn't even know were there. And now you've come to these conclusions by contextualizing our founding documents, and it reminds me a lot of the justices on the Supreme Court--- I believe would describe themselves as originalists, at least the six majority?
Kermit Roosevelt III:
Fair that they would describe themselves that way.
Ted Roosevelt V:
Okay. Yeah. Okay, great. I'm talking to a subject matter expert. I want to make sure that I get it right. It is interesting to me that as you challenge the standard story, you rely on originalism to understand the standard story better. So there's an appropriate application of originalism, and my guess is that you are not comfortable with the originalism of the Supreme Court is using.
Kermit Roosevelt III:
Yes, that's right. So a lot of what I have been doing recently is historically informed. Understanding the is essential to understanding the present and to building the future, so history is great. Originalism is a little bit different, and I don't think that original understanding is the only thing you should look at in interpreting the Constitution, but I think it's very important. But the problem is when you get to a case where the original understanding of the constitution isn't recoverable or people had different understandings, or it just doesn't resolve this question because it's a new question, then originalism turns out not to give you the answer, and it doesn't constrain judges. And all of the evidence if you look at these decisions is that judges use the discretion that originalism gives them to advance their political ideology. So originalism was supposed to be a counter to judges who were imposing their values on America through the so-called Living Constitution. It doesn't work for that, right? It's not clear enough. It's not binding enough. So there is still this room for what people call judicial activism.
Ted Roosevelt V:
I'd like to stay with the Supreme Court now because it's extremely topical and it's another area where you have expertise. You clerked for Supreme Court Justice David Souter, you're often called to talk about the Supreme Court in the press, you were on President Biden's commission on the Supreme Court reform, and you came out with some pretty dramatic or even radical conclusions. Can you talk about those for a minute?
Kermit Roosevelt III:
Well, my main conclusion is that term limits would be a really good idea, and I don't think of that as radical. That used to be bipartisan conventional wisdom. The co-founder of the Federalist Society endorsed that back in, I think, 2000. It's become partisan now because it would have a somewhat partisan effect and that it would break the stranglehold that the Republican Party has on the Supreme Court, or at least hold out the possibility of doing that if Democrats keep winning elections. I think the case for it as a nonpartisan, good government reform is really overwhelming. The harder question maybe is whether you can do it by statute or whether it requires a Constitutional amendment. And there I went in thinking you needed a Constitutional amendment, I came out thinking Congress can do this with an ordinary law.
Basically what it comes down to is this: so the constitutional problem, people say, is the "good behavior clause," which says judges hold their office during good behavior, which most people interpret to being "life tenure." But the question is, what if you say, we're not removing you from office, you're still a Supreme Court Justice, but we're going to change your duties. A lot of people might say, gosh, then you're not a Supreme Court Justice anymore. But here's an interesting fact: Retired Justices who do this--- they don't participate with the other nine Justices in deciding all of the ordinary cases, they sit on courts of appeals, they do other stuff---they are still Supreme Court Justices. They still hold the office. So it seems like a pretty straightforward argument to me that if they're still holding the office, you haven't violated the good behavior clause.
Ted Roosevelt V:
In the instances in the past there's been a voluntary retirement, and what I think you're suggesting is some sort of mandatory retirement.
Kermit Roosevelt III:
Yes. Right. So that's exactly it. We're suggesting that you take this voluntary retirement system after 18 years.
Ted Roosevelt V:
I mean, the challenge with this is obviously it becomes political instantaneously in people's heads. You're trying to influence the Supreme Court in some way because you dislike the rulings that are coming down from the Supreme Court that's politically not aligned with your ideology, and that's really your motivation, Kim, you're not doing this for some higher good. You're doing it because there's a political motivation. How would you respond to that?
Kermit Roosevelt III:
Well, so I would respond to that by saying it's true I don't like the decisions that are coming down from the Supreme Court, and it's probably true that I would not be campaigning for this as vigorously if there were a six-three Democratic supermajority, despite the fact that the Democrats had lost seven of the last eight popular votes and five of the last eight electoral votes. But the case that I give you for it has nothing to do with the content of the rulings. The case that I'm giving you for it is, it matters who the judges are. So how should we decide how this third, co-equal branch of our government is going to be staffed? Well, we could do it the way we do now, which is sometimes it's random chance when someone dies, sometimes it's strategic behavior by the Justices themselves and they retire when a president is going to appoint someone they like to replace them, and it's partisan hardball. So if you've got a majority in the Senate, you can be like, we're not going to confirm anyone you put forward. And what happens then is you might get a president who gets no appointments in one term---Jimmy Carter---or you might get a president who gets three appointments in one term---Donald Trump. And it happens that that's a Democrat who gets zero and a Republican who gets three, but it could go the other way, and no one should be happy with a state of affairs where it's random chance, strategic behavior, and partisan hardball that determines who controls the Supreme Court. Who controls that court should have something to do with who the American people support. And the way to do that is say, each president gets equal influence on the composition of the Supreme Court. Each president gets to appoint two Justices per four year term, and that's what the 18 year term limit does for you.
Ted Roosevelt V:
Speaking of who the American people support, the Electoral College is having an increasing influence on the outcomes of presidential elections. The Senate also lately has taken a stronger role in picking Justices. Has that led to a Supreme Court that's less representative of the general public?
Kermit Roosevelt III:
Well, sort of. Basically what we're seeing is the consequence of the fact that the framers didn't foresee the party system. They thought about interest groups and they called them factions and they didn't like them, and they thought the solution is to make America big enough that no faction can control the national government. They did not think that there would be national level political parties fighting for control. And that sort of comes out very directly with the Supreme Court because if you don't have national political parties, then it doesn't really matter if one president gets no appointments and one president gets three because they're just picking the best justice that they can. So that's one thing.
Then the other thing is, yeah, with the Electoral College and the Senate, they also didn't think that the sort of anti-democratic features there---the way in which the Electoral College can go against the popular vote, the way in which 18% of the population can elect enough senators to control the Senate against the will of the other 82% of the population---they didn't think that that was going to lead to partisan imbalance, and it didn't used to be that way. So we used to have our small state bias in the electoral college, our even stronger small state bias in the Senate, and it was just like, well, that's sort of weird because it didn't have a partisan effect. But then Americans started sorting themselves and the low population states are now more rural, and they're older and they're whiter. So if there's a political party that has more appeal with the older, whiter population, that political party benefits now from this structural feature, which was absolutely not created to give a minority of Americans the ability to control the national government, but that's what it's doing now.
Ted Roosevelt V:
We ask everybody on this podcast the same question as a closing question, and the question is, what does it mean to you to be a good citizen?
Kermit Roosevelt III:
Well, that is a good question. I would say being a good citizen is understanding America's values and the best version of those values. One of the things that I try to emphasize with the story that I'm telling is American history is a story of failure and reinvention. It's a story of not getting things right and not doing the right thing and finding that the system that we live in isn't actually going to take us where we need to go. So understanding the values and how you can promote them within the system, and then understanding also, I think that the values are more important than the system. What I tell my students is, if you feel that the Constitution we have now is fundamentally flawed and is not going to take you where you need to go, and you feel we need radical change in the name of American values, then that doesn't make you unpatriotic. That makes you a good citizen.
Ted Roosevelt V:
I love that answer, and I will go back to where we started in that when I started your book. That idea is unsettling the first time you hear it, at least to me, the idea that the Constitution is not the beacon on the hill that we need to follow and that all answers lie in it, but in fact, it's available to be questioned and challenged and potentially changed.
Kim, thank you very much for being on this podcast. It was such a joy. I don't get to do this and interview cousins ever. I loved it. Thank you, thank you, thank you.
Kermit Roosevelt III:
Yeah, thanks so much. Really, really good to talk to you.
Ted Roosevelt V:
I am thrilled and grateful to have been able to have this discussion with Kim Roosevelt. His book is The Nation That Never Was: Reconstructing America's Story. It offers a powerful new understanding of the origin of American values, and I urge you to check it out. And thank you, listeners, for tuning in for another fascinating discussion. If you're enjoying the podcast, please share it with a friend or leave a review.
Good Citizen is produced by the Theodore Roosevelt Presidential Library in collaboration with the Future of StoryTelling and Charts & Leisure. You can learn more about TR's upcoming presidential library at trlibrary.com.