This essay is based loosely on some remarks I delivered at a flag raising ceremony in Arlington, Virginia on July 4, 2018.
What does it mean, “to be an American”? What defines us as a people? Some believe it is our fierce independence and dogged questioning of every new proposition, character traits often confounding to others. Baron von Steuben, a Prussian general who was enlisted by General Washington to train the raw recruits of the Continental Army, quickly encountered these vexing qualities.
Upon arriving at Valley Forge he discovered that his new charges were much different than the European soldiers he was used to commanding—men who were bred to deference and accustomed to obeying their superiors. In a letter to an old Prussian comrade after the war, von Steuben explained how he had to modify his regular approach: “You … tell your soldier, ‘Do this,’ and he does it; but I am obliged to say [to an American], ‘This is the reason why you ought to do that,’ and then he does it.” This should not have come as a complete surprise to the General since these were the same folks who had recently asked: “Why should we have to pay a tax on tea we didn’t consent to and, why don’t we have the right to elect representatives to Parliament?”
Our independent streak and tenacity often find expression in grand schemes embarked upon with great determination, such as the Louisiana Purchase, the Transcontinental Railroad, the Panama Canal, and the Apollo Program. But the zeal with which we pursue our ambitions is not always well received by others. As Winston Churchill wryly noted after working closely with Americans during the Second World War: “Their national psychology is such that the bigger the Idea the more whole heartedly and obstinately do they throw themselves into making it a success. It is an admirable characteristic provided the Idea is good.”
Without a doubt, the man with the most perceptive and enduring insights regarding our distinctive qualities was the French diplomat and political scientist, Alexis de Tocqueville. During his lengthy sojourn in the U.S. in the early 1830s, Americans perplexed and inspired him in equal measure.
He was put off by their ceaseless pursuit of wealth, but particularly impressed by the numerous instances where people made “great and sincere sacrifices for the common good.” By way of example, he noted that the United States had virtually no fire departments and yet house fires were extinguished faster than in Europe because eager neighbors rushed in. While he didn’t minimize our shortcomings, he believed that “the great privilege of the Americans is … to enjoy the faculty of committing errors that can be corrected.”
Tocqueville also discerned the foundational importance of language in the success of our system of government, noting that: “The genius of democratic peoples is revealed not only in the large number of new words they introduce but also by the nature of the ideas those new words represent.” And no one articulated those ideas to greater purpose and effect than Thomas Jefferson:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, …”
These propositions were radical and revolutionary on many levels. In 1776, there were no governments dependent upon the consent of the governed. And never before had a foundational text declared that all men are equal and no man’s life, liberty or happiness should be constrained by class or birth.
But when Jefferson used the words “men” and “mankind” in the Declaration of Independence, who was included? Women?
In the spring that year, Abigail Adams, aware that the Continental Congress in Philadelphia was working on a proposed political structure for the new nation, was worried that her sex would be forgotten. So, in a letter to her husband John, one of the delegates, she urged him to “remember the ladies.” She implored Adams to draft laws that were “more generous and favorable” to women than his predecessors had, and highlighted the obvious inconsistency of male patriots fighting against British tyranny if they should disregard the rights of half the population. John Adams and his colleagues, however, did not heed Abigail’s counsel.
What about enslaved African Americans? Sadly, Jefferson himself a slaveholder, along with Washington, Madison, and other Founding Fathers, did not allow that constituency to declare its independence. The patriots sought to safeguard not only their liberty but also their property. And for many, that property included thousands of people held in bondage. One of Jefferson’s fellow Virginia slaveholders, Richard Henry Lee, lacking any sense of shame, went so far as to protest English levies on the colonies by forcing his “property” to parade around a courthouse while carrying banners that denounced Parliament’s taxes as “chains of slavery.”
And Native Americans? Was this revolution also initiated to protect their rights? That clearly was not Jefferson’s intent since one of the patriots’ grievances against England was its refusal to allow the colonies to expand westward onto Indian lands. The lion’s share of my 40-year legal career has been devoted to representing Indian tribes in the Eastern United States who have had their lands expropriated by State governments and private citizens, and their treaties abrogated by the United States. Their mistreatment is an indelible stain on our country.
So what are we to make of Jefferson, Washington and others who fell short of the ideals they expressed in the Declaration of Independence? Some are inclined to label them hypocrites and diminish their contribution to the birth of our nation.
If ever there were a man who had grounds for harboring such sentiments it would have been Abraham Lincoln, who was saddled with the task of correcting our country’s gravest error—an undertaking that would ultimately claim his life and the lives of approximately 700,000 other Americans. But this was not Lincoln’s mindset. Instead, he saw in the Declaration of Independence the “sustaining power to inspire beyond the influences of time and place.” Shortly before the commencement of the Civil War, he wrote:
All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times.
Lincoln understood that slavery, while a vile and reprehensible practice, was not remarkable. It had been a part of the human condition for millennia. What was remarkable was, first, a founding document that gave expression to the most noble of all Enlightenment precepts—that all men at all times should be treated the same—and, second, a Constitution, when correctly read, becomes the vehicle by which the promises of the Declaration of Independence can be realized.
Some have recently argued that our nation’s founding is all about racism, that its seminal event occurred in 1619 when slaves were first introduced in North America. But as Sean Wilentz, author of No Property in Man: Slavery and Antislavery at the Nation’s Founding, rightly notes, these interpretations “fail to appreciate both the magnitude of the unforeseen antislavery rupture with the past and America’s crucial role in that rupture. They overlook how organized antislavery politics originated not in the Old World but in the rebellious British North American colonies.” Whatever its deficiencies, the American Revolution represented a decisive rejection of the doctrines of rooted power and autocratic rule in favor of fraternity and democracy, something that had not been attempted since ancient times.
It was Jefferson who set the standard by which we continually measure ourselves. And yet we now employ that same standard to assail his character. We proceed under the fanciful notion that somehow we could have arrived at this day without his numerous contributions to our culture and political economy. In response to this proposition, one author astutely observed: “That we still quote his words back to him, as a challenge to ourselves and a rebuke to him, suggests that we could not.”
The esteemed historian of American history, Gordon Wood, asserts: “To be an American is not to be someone, but to believe in something. And that something is what Jefferson declared.” Our country was founded on the ideals he and other patriots espoused. The fact that we haven’t fully lived up to them is not surprising. That we have them at all and have succeeded in advancing them over the past 240 years is admirable and gives reason to hope that the better angels of our nature will ultimately prevail.
As citizens and as a nation, we expose ourselves to considerable criticism, both internal and external, because our principles are exalted and we do not conceal our mistakes. Such critiques can be productive and invite necessary self-examination and correction. But if pursued to extreme and at the expense of the liberal values upon which our society is built, they can lead to self-immolation, in which event the whole enterprise is lost. Let us, this Independence Day, pledge to not allow that to happen by renewing our commitment to our nation’s founding principles and giving expression to that commitment in the way we treat our fellow man. We can do better. And we must.
 Lockhart, Paul. The Drillmaster of Valley Forge, Harper Collins, 2008, p. 104.
 Churchill, Winston. The Second World War, Vol. V, Closing the Ring. The Folio Society, 2002, p. 446.
 De Tocqueville, Alexis. Democracy in America, Gerald E. Bevan, translator. Penguin, 2003, pp. 594-95.
 Tartakovsky, Joseph. The Lives of the Constitution. Encounter Books, 2018, p. 97.
 De Tocqueville, Alexis Democracy in America, Arthur Goldhammer, translator. Library of America,
2004 p. 238.
 Democracy in America, Library of America, p. 548.
 My Dearest Friend: Letters of Abigail and John Adams. Edited by Margaret A. Hogan and C. James
Taylor. (Harvard University Press, 2007, pp. 108-111
 Taylor, Alan. The Internal Enemy. W.W. Norton & Co., 2013, p. 14.
 A royal proclamation issued by King George III on October 7, 1763, known as the Proclamation of 1763, banned colonial settlement west of the Appalachian Mountains. This, and similar policies, prompted Jefferson to accuse the King in the Declaration of Independence of “raising the conditions of Appropriations of Lands.”
 McCullough, David. The American Spirit. Simon & Schuster, 2017, pp. 28-29.
 Lincoln, Abraham. Letter to Henry L. Pierce April 6, 1859, published in Lincoln: Speeches, Letters, Miscellaneous Writings, Presidential Messages and Proclamations. Library of America, 1989, pp. 18-19.
 “The 1619 Project.” The New York Times Magazine, April 14, 2019.
 Wilentz, Sean. “American Slavery and ‘the Relentless Unforeseen’.” The New York Review of Books, November 19, 2019.
 Wood, Gordon S. The Radicalism of the American Revolution. Knopf, 1991; Gopnik, Adam. “We Could Have Been Canada.” The New Yorker, May 15, 2017.
 Crawford, Alan Pell. ‘Thomas Jefferson’s Education’ and ‘Educated In Tyranny’ Review: The Dream of a Better Society.” The Wall Street Journal, Review Section, September 28, 2019.