By John Krull
INDIANAPOLIS – Somehow, it is fitting that we Americans are having, as we approach the Fourth of July holiday, another national discussion about our bedrock principles.
John Krull, publisher, TheStatehouseFile.com
Like so many of our debates, this one resembles a family quarrel. And, like many family arguments, this one, in different forms, has gone on for a long time.
In the angry dissent Chief Justice John Roberts wrote condemning the U.S. Supreme Court’s decision to legalize same-sex marriage in all 50 states we hear echoes of disputes that have been part of American history from the beginning of the republic.
Roberts argued that the court had denied gay Americans the chance to win public approval for their unions by moving precipitously.
“It (the issue) is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples,” Roberts wrote. “It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes under the law.”
Many others noticed holes in Roberts’ argument – perhaps most notably Richard Posner, the famed “writing judge” appointed to the federal appeals bench by President Reagan. Posner attacked Roberts’ opinion by pointing out that its premise could have been applied to many other restrictions of freedom, such as slavery, segregation and bans on interracial marriage.
The debate between the two learned judges was nothing new. We Americans have been having this fight for a long time.
What Roberts argued was in some ways Thomas Jefferson’s contention that the will of the people should be the ultimate arbiter of governing principle, constitutional or otherwise, while Posner echoed another Supreme Court chief justice, John Marshall.
More than two centuries ago, Jefferson and Marshall tussled with each other about whether elected officials or appointed justices should be the primary interpreters and defenders of constitutional principle. Their fight was both remarkably elevated and, at times, astonishingly petty as each sought ways to humble, if not humiliate, the other.
That should not be surprising. Jefferson and Marshall were both Virginians and cousins by blood – two brilliant, lanky, red-haired and temperamental men linked not just by a moment in history but by a mutual detestation and wariness mingled with disquieting respect for the other’s gifts.
Though each man is long dead, their jousting continues to this day.
If anything, the stakes grew higher some 60 years after Jefferson and Marshall crossed swords, when a national cataclysm called the Civil War ripped the nation asunder. The carnage was horrific. By war’s end, nearly 25 percent of a generation of American men had died, often at the hands of kinsmen, one-time neighbors or erstwhile fellow citizens.
The need to make sense of the horror was profound.
In his masterful book, “Lincoln at Gettysburg,” Garry Wills argues persuasively that, with one short speech, Abraham Lincoln changed the way we Americans view our founding documents.
By arguing that America’s creation brought forth “a new birth of freedom” consecrated by the blood of the fallen in the nation’s most costly war, Lincoln accomplished two things. He made clear the American Revolution was less an established fact than an ongoing struggle and that our promises of freedom set forth not limits but demands for continued exploration and extension.
And he guaranteed that we Americans would continue to argue through the ages about our most fundamental questions:
What is freedom? What constitutes equality? How do we establish justice?
Our quarrels are often brutal because, like Jefferson and Marshall, we are part of a family both linked and divided by the principles we share even as we disagree about how those principles should be applied.
When we celebrate our independence, we pay tribute not just to our endurance as a nation, but to the ongoing discussion we have about how we can best honor the American spirit.
That is fitting.
The speech in which Lincoln spoke of “a new birth of freedom” commemorated a battle, perhaps the most important one in American history, the savage bloodletting at Gettysburg.
Much of the nation first learned the Union had prevailed in that fight on a summer day in 1863.
It was the Fourth of July.
John Krull is director of Franklin College’s Pulliam School of Journalism, host of “No Limits” WFYI 90.1 WFYI public radio and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students.