This Tuesday, Americans will celebrate the Fourth of July. The holiday commemorates the signing of the Declaration of Independence on July 4, 1776.
We Americans are justifiably proud of what July 4 means. Ours was the first country in millennia to defeat a monarch and secure democracy. The Declaration of Independence was a genuinely revolutionary document, and not just because it sparked a war for freedom and self-determination, but because it promulgated for the first time, in writing, the unalienable rights of the individual to life, liberty and the pursuit of happiness.
The Declaration was a product of its time, the era of enlightenment. It was an age of reason, when western philosophy, reaching back to roots in antiquity, emphasized the pursuit of exploration, science, and logic as the foundations for understanding both the natural world and the human condition. In organizing civil society, the enlightenment became the driving force for replacing monarchy with democracy, feudalism with capitalism, and mysticism with science.
Above all, enlightenment thinking stressed human reasoning based on man as a rational being.
Eleven years after the signing of the Declaration of Independence, the US Constitution was adopted. A year later it was ratified, and in 1789 it became the operating foundation for US law. The US Constitution is therefore also a product of the enlightenment.
But as much as Americans celebrate the Fourth of July as the birthday of a nation and democracy, they also recognize that the occasion marks the beginning of a struggle, one that did not end with Cornwallis’ defeat in 1781.
As the preamble to the US Constitution reads, its aim was to form a more perfect union. At the time, that could have been read as the pressing need to replace the Articles of Confederation, which between 1781 and 1787 had the left the thirteen states weak and vulnerable to foreign conquest, with a stronger federal structure necessary to ensure the common defense of the fledgling United States. But over time, the term ‘form a more perfect union’ has come to represent the struggle for each generation to build on the unmet aspirations of the Declaration of Independence—to more fully realize the vision that all men are created equal and that they are free to pursue their unalienable rights.
Forming a more perfect union is not easy. It is a continuous push and pull to preserve what has been achieved and to improve what remains imperfect.
This year, the Fourth of July celebrations come awkwardly for many Americans. The deeply troubling events of January 6, 2021, are still fresh, as is a wave of decisions by the Supreme Court that, in the eyes of many, pose risks to the common welfare (second amendment decisions), have infringed democracy (campaign financing and voting rights decisions), have reduced individual rights (the Dobbs decision to remove federal abortion rights), and may reverse progress on achieving equality of opportunity (affirmative action).
The angst and disappointment that many Americans feel about the US Supreme Court is reflected in polls and surveys that indicate sizable majorities of Americans do not agree with the outcomes of key decisions regarding second amendment rights, campaign finance, or abortion. Unsurprisingly, the court’s favorability ratings have been declining in recent years.
Defenders of the Supreme Court might counter that it is not in the business of winning popularity contests. And that is quite correct, at least in a narrow sense. The job of the justices is justice—nothing more.
But that rebuttal rings hollow because it ignores the deeper concern that many Americans harbor about the Roberts Court, namely that it is failing to deliver on the dream of perfecting the union. Many of its decisions are seen as rolling back, not expanding, individual rights. Others are seen as promoting individual rights (e.g., gun rights) that jeopardize the common welfare.
It is easy to conclude that the Roberts Court is merely dominated by politically conservative justices. But while that may be partly correct, the focus on the political leanings of the court obscures the much larger point.
The Roberts Court is dominated by jurists who believe their duty is to be faithful to the intent of the constitution’s framers. Original intent is the guiding principle of the court’s conservative majority. Original intent elevates first and second amendment rights to the status of ‘fundamental rights’, which means, for example, that freedom of speech carries more weight than the rights of same sex couples which, of course, are nowhere to be found in an eighteenth-century document.
Original intent enables the Roberts Court to not only overturn federal abortion protections but to leave those decisions in the hands of the states. Original intent makes vast campaign donations a matter of free speech without regard to the consequences for democracy. Original intent elevates individual rights above the common good, justifying the overturning of a half-century of affirmative action.
In short, what many Americans find distressing about the Roberts Court is that decisions flow from narrow constitutional interpretations, without consideration for individual or societal consequences.
Take, for example, the Dobbs decision, which overturned Roe versus Wade. As a well-researched amicus brief to the Supreme Court demonstrated, eliminating federal protections for abortion and permitting states to decide on abortion legality was liable to create unequal health outcomes for women. Extensive empirical research shows that the likelihood that woman will seek prenatal care, including abortion services, falls significantly with the distance to healthcare providers. Women, above all poor, minority and young women, living in states where abortion is outlawed, are more likely to suffer adverse reproductive health outcomes, including deaths, than those in states where abortion services are offered.
In overturning Roe, the Roberts Court issued a ruling that the majority felt was justified in law but was taken without reflection for its consequences. The unfolding reality is one of separate but unequal health outcomes, with even greater divisions based on race, economic status, and age.
Some fear that ‘separate but unequal’ may also flow from the court’s latest decision on affirmative action. Data from universities in states (e.g., Michigan) where affirmative action admissions policies had been outlawed more than a decade ago suggest that removing those supports has a significant detrimental impact on minority university enrollment.
Narrow legal thinking—the consequences be what they may be—is the hallmark of the Roberts Court.
But dissatisfaction with the Roberts Court runs even deeper. The founders, recall, were men of the enlightenment, enthralled with the possibility that the reasoning man, left to his own devices, could form a more perfect union based on rational decision-making.
We now know better. Careful research in behavioral, economic, social, and political sciences helps us to understand that humans are not always—in some cases not even mostly—beings of reason. We have biases and prejudices, and they play meaningful roles in our lives. Some are conscious, many more guide our decisions without our being aware of them.
In that regard, Justice Jackson was on solid empirical ground when she criticized the majority for their belief in a colorblind society. Promoting individual freedoms does not always promote the common good, and quite often places the vulnerable at even greater disadvantage.
What, then, does this mean for our national holiday, for our understanding of who we are, and for what we celebrate?
Above all, it seems the spirit of 1776 is about shared purpose. It is about our continued search to find balance between our individual rights and pursuit of happiness, on the one hand, and our collective welfare on the other. It is about ensuring that all are not only created equal, but that all have equal rights, protections, and opportunities to realize their potential.
By looking backward and narrowly at the US Constitution, the Roberts Court operates in a fashion that is far less ambitious than the spirit of the country – in essence, it sacrifices the desire of Americans to pursue happiness in peace, health, and safety to the alter of a select few individual rights.
So, what do we celebrate on July 4? Our birthday as a nation, of course. But we also celebrate our struggle, that of the ongoing effort to create a more perfect union. For all.
