When was America born? You’ve probably heard the argument between the adherents of 1619 and 1776, but I suggest a different date: 1863. More specifically, Jan. 1, 1863, when Abraham Lincoln issued the Emancipation Proclamation.
How could that be the birth of America? On the conventional understanding, the United States had existed for almost a hundred years by that time, with 15 presidents preceding Lincoln.
My answer is that an America existed, to be sure, but not our America. Maybe, as Lincoln claimed in the Gettysburg Address later in 1863, the Declaration of Independence brought forth a new nation in 1776. (“Maybe” because what the Declaration said it was creating was “free and independent States.”) But it was not this nation.
Why not? Our America is defined by our Constitution and our adherence to certain principles, perhaps most notably equality. We believe that the government should not discriminate unjustly — it should not segregate people by race; it should not enslave them. Those principles are in our Constitution now. But pre-Civil War America did not follow those principles. They were not in its Constitution — slavery was. They were not in the Declaration of Independence — complaints about slave rebellions were.
What about “all men are created equal”? As it was understood in Jefferson’s time, that phrase meant only that in a world without governments, no one had an obligation to obey anyone else. The Declaration went on to develop a theory about where legitimate political authority came from, and when it could be rejected. It was about relationships within a political community and had nothing to say about how that community should treat “outsiders” — like the people enslaved by the men who signed the Declaration. According to the Supreme Court, under the Founders’ Constitution, those people could never become American citizens.
How did we start reading the Declaration differently, so that it condemned slavery? Simple: that was the work of abolitionists, not the Founders.
How did we switch from a Constitution that excluded Blacks, even if some states wanted to make them citizens, to one that gave citizenship to anyone born here, even if states wanted to exclude them? That story is more complicated, but it starts with the Emancipation Proclamation.
The story doesn’t go quite the way you might think.
We celebrate the proclamation today for making the abolition of slavery one of the Union goals in the Civil War. True, it applied only to rebel areas not under Union control, but when it declared that those people would be “forever free” it showed that there would be no going back.
The end of slavery is incredibly important — it’s a victory that would be codified in the 13th Amendment, in 1865. But it did not make Black people part of the political community, and it did not change our constitutional order.
More important, more transformative, was what the proclamation said about the formerly enslaved: that they would be “received into the armed service of the United States.” Military service has always been a path to citizenship, and for the formerly enslaved, it was again.
It is widespread Black citizenship that truly transforms America.
The defeated rebels did not want to accept Blacks as members of their political community. Only the Constitution could make them, and to do that it would have to be amended. The 14th Amendment, proposed in 1866, granted citizenship to everyone born in the United States — including at its heart those who had risked their lives to defend the nation. But the former Confederate states rejected it, and there was no way to get the required three-quarters of states to ratify. By 1867, the 14th Amendment appeared to be dead.
Congress’s solution was revolution from above. The Reconstruction Acts wiped out the recalcitrant state governments, put the states under military control, and required them to ratify in order to regain their seats in Congress. This shattering of the Founders’ Constitution — Reconstruction — is what made our America. We forced the Southern states to remain in the Union, and we remade their societies against their will. That is a rejection of the Declaration, which was about independence and the consent of the governed. It is a new nation.
We celebrate the 14th Amendment today, as we should. It is what protects our right to equality, what gave us landmark decisions like Brown v. Board of Education. But we must not forget that we only got the 14th Amendment because it was necessary to protect the rights of the new Black citizens. And what made Black citizenship inevitable was the military service first announced in the Emancipation Proclamation.
As we celebrate a New Year, with hope that the great American experiment may continue, we must remember how we first started on the path of liberty and equality. A small number of brave men and women risked their lives to fight for the rights we now hold dear — not Revolutionaries fighting the British in 1776, but Black Americans fighting Confederates in 1863. That is the moment a nation dedicated to equality was conceived.
Kermit Roosevelt III is a professor of constitutional law at the University of Pennsylvania Carey Law School and the great-great-grandson of President Theodore Roosevelt. He is author of “The Nation that Never Was: Reconstructing America’s Story.”