By Mike Dorf
On a recent day trip to Seneca Falls, Professor Colb and I took our daughters to see the memorial to the Declaration of Sentiments, issued in July 1848 and commonly considered a watershed in the movement to win suffrage for women. I had read the Declaration before, but reading it in stone (literally), I was struck by a number of points that seem worth noting as we celebrate Independence Day.
(1) The link between the movement for women's suffrage and for the abolition of slavery is difficult to miss. The lead organizers--Lucretia Mott, Elizabeth Cady Stanton and Mary M'Clintock--were all well-known abolitionists and saw their struggle as a logical outgrowth of abolitionism. The list of men who signed is equally striking for its inclusion of abolitionists, especially Frederick Douglass. Thinking about these links from the perspective of constitutional law underscores just how much of a betrayal Section 2 of the Fourteenth Amendment would have been to abolitionists who were also suffragists; after Section 1 required the equal protection of "person[s]"--language that, on its face, applies to women--Section 2 made clear that states remained at liberty to deny women the vote, for the first time introducing a gender line into the Constitution.
(2) Stylistically, it is remarkable how easy it must have been to adapt the original Declaration of Independence to the cause of gender equality. "All men are created equal" readily becomes "all men and women are created equal"; a "long train of abuses" can be readily catalogued; and use of the pronoun "he" to refer to George III naturally becomes transformed to refer to men generally.
(3) The adaptability of the Declaration of Independence to the cause of gender equality is not especially surprising when you think about it. After all, the Declaration is chiefly about the denial to the colonists of a voice in their government--although Jefferson's bill of particulars includes various abuses that go beyond mere exclusion. Taxation with representation is acceptable; "transporting us beyond Seas to be tried for pretended offences" would be unacceptable even if agreed upon by the most perfectly representative body. But the Declaration of Sentiments also contains substantive complaints about the treatment of women that, if continued once women got the vote, would remain highly objectionable. The inclusion of substantive grievances relating to the social and private realms, not just suffrage, shows that the mid-nineteenth century women's movement was fully an equality movement. (It does not necessarily follow, however, that the Nineteenth Amendment should be understood as having adopted the full agenda of Seneca Falls, even though, as Reva Siegel has argued, that is how its proponents and many of its opponents saw it.)
(4) The Declaration of Independence was issued in the midst of a revolution. In pledging to each other their "Lives . . . Fortunes and [their] sacred Honor," its signers knew they were taking an enormous risk. If the British won the war, Hancock, Jefferson, Adams, and the lot of them could expect the gallows. Signing the Declaration of Sentiments did not require exactly the same sort of nerve but it required courage nonetheless. The signers knew they would marginalize themselves. They wrote: "In entering upon the great work before us, we anticipate no small amount of misconception, misrepresentation, and ridicule; but we shall use every instrumentality within our power to effect our object."
Activists for almost any justice movement reading those words today can only find encouragement. The signers of the Declaration of Sentiments probably did not think it would take over 70 years to achieve suffrage, or that the "great work" of constructing a society based on gender equality would remain unfinished 165 years later, but they probably also would have thought that their sacrifices were nonetheless worthwhile if they could see how much progress they launched.
(5) Speaking of other justice movements, here I'll mention two. In light of last week's Supreme Court rulings, the LGBT rights movement comes to mind. Here we can see that the arc of history is bending faster than it did on gender--at least so far. From the Stonewall riot to the SCOTUS ruling in Windsor was almost exactly 44 years. (Various commentators have noted that Windsor was handed down ten years to the day after Lawrence v. Texas. It also was just two days shy of the Stonewall anniversary.) That's remarkable progress in a relatively short period--although, contrary to the suggestion by CJ Roberts during the oral argument, this progress should not be taken to mean that LGBT Americans don't need protection from discrimination. The larger point here should be celebratory: Judged by the standard of other, quite successful, movements, the LGBT rights movement is doing quite well.
(6) The other justice movement I'll mention is one which I consider myself part of: the animal rights movement. Fittingly enough, I'm currently attending the annual summer conference of the North American Vegetarian Society (which is actually vegan but for historical reasons uses the term "vegetarian"--and eggs and cheese aren't vegetables, so who's to say they're wrong?). Here are subtopics:
(a) Progress here appears slower. Since ancient times, there have been thinkers who condemned the use of animals for food and clothing as unjust; yet we use and kill more animals today than ever before. But there were also ancient precursors to other justice movements too, so we should probably not count the animal rights movement as "starting" in ancient times. Indeed, the whole notion of a start-date for any movement is artificial. One marker of a movement's impact is that it gets noticed--including unfavorably. So, looking at the Declaration of Sentiments and thinking about the animal rights movement, my general reaction is positive. Misconception: check. Misrepresenation: check. Ridicule: check and mate. Far worse for a movement than these reactions is to be ignored.
(b) I am also struck here by the costs and benefits of the Declaration template. The very opening line--"When in the Course of human events"--provides a wonderful opportunity to make a point about species. So too does "all men are created equal", but it also immediately presents a problem. Animal rights activists do not in fact demand equal rights for non-human animals. We don't ask for political rights in particular, thus rendering much of the Declaration irrelevant to our cause. Still, the form of the Declaration remains attractive: a statement of general principles followed by a list of particular abuses. That form could be readily adapted to just about any movement, including the animal rights movement.
Still, much as I would enjoy the wordplay of a "Declaration of Sentience", I do think it worth resisting the Seneca Falls approach of close modeling, precisely because it so clearly invites the response that the movements are disanalogous; no sane person would seek voting rights for cows and chickens. That's not an argument against all animal rights, of course. No sane person would seek voting rights for human infants either; yet no one argues that therefore it's morally permissible to eat human infants. Still, introducing the topic of political rights invites this line of fallacious argument. It's one thing to anticipate misconception and misrepresentation; there's no reason to court it.
Accordingly, to the extent that one finds declarations useful, it seems to me that something along the lines of last year's Cambridge Declaration on Consciousness is likely to do more good than a document closely modeled on the Declaration of Independence or the Declaration of Sentiments.
Enjoy the fireworks!