Our Secret Constitution: How Lincoln Redefined American Democracy

by George P. Fletcher

Overview

Americans hate and distrust their government. At the same time, Americans love and trust their government. These contradictory attitudes are resolved by Fletcher's novel interpretation of constitutional history. He argues that we have two constitutions—still living side by side—one that caters to freedom and fear, the other that satisfied our needs for security and social justice.
The first constitution came into force in 1789. It stresses freedom, voluntary association, and republican elitism. The second constitution begins with the Gettysburg Address and emphasizes equality, organic nationhood, and popular democracy. These radical differences between our two constitutions explain our ambivalence and self-contradictory attitudes toward government.
With September 11 the second constitution—which Fletcher calls the Secret Constitution—has become ascendant. When America is under threat, the nation cultivates its solidarity. It overcomes its fear and looks to government for protection and the pursuit of social justice. Lincoln's messages of a strong government and a nation that must "long endure" have never been more relevant to American politics.
"Fletcher's argument has intriguing implications beyond the sweeping subject of this profoundly thought-provoking book."—The Denver Post

Product Details

ISBN-13:	9780195156287
Publisher:	Oxford University Press
Publication date:	01/16/2003
Edition description:	New Edition
Pages:	304
Sales rank:	213,134
Product dimensions:	6.70(w) x 8.74(h) x 0.88(d)

About the Author

George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia University School of Law. His books include Loyalty: An Essay on the Morality of Relationships. He lives in New York City.

Table of Contents

Preface	ix
Introduction: The Argument for the Secret Constitution	1
1 Redemption Under Law	15
2 Radical Gettysburg	35
3 Nationhood	57
4 Loyalty and Betrayal	75
5 Equality	91
6 The Revolution That Never Was	113
7 Equality Without Vision	141
8 A Maxim of Justice: Its Birth and Rebirth	165
9 The Secret Constitution Resurgent	189
10 Government as Partner Against the Past	211
11 Neither Blue Nor Gray	225
Afterword: Election Blues 2000	231
Notes	261
Index	285

Editorial Reviews

"In his typically provocative style, George Fletcher brilliantly evokes the true lessons of the Second American Revolution—the Civil War, the Gettysburg Address, and the post-bellum commitment to equality. No one who cares about racial justice, constitutional justice, or American history can afford to miss this beautifully written and persuasive revision of our traditional understanding of the Constitution."—Alan M. Dershowitz, Harvard Law School

"This brilliant essay confronts our constitutional legacy, and vividly reveals the challenges involved in redeeming its promises for a new generation."—Bruce Ackerman, author of We the People

"A provocative meditation on the Constitution that emerged from the redemptive experience of the Civil War.... His discussions of voting rights, education, affirmative action, victims' rights, and the constitutional grounding of a positive government are insightful and thought-provoking."—Mark Tushnet, Georgetown University Law Center

"With subtlety and coherence, Fletcher presents a lively critique of constitutional law."—Publishers Weekly

"Fletcher's argument has intriguing implications beyond the sweeping subject of this profoundly thought-provoking book."—The Denver Post

From the Publisher

Garry Wills and others have described the Gettysburg Address as a redefinition of American democracy. Fletcher (With Justice for Some) argues that this unprecedented document, along with the three Reconstruction amendments (i.e., the 13th, 14th and 15th ) to the Constitution, form the core of a "second Constitution," based on "organic nationhood, equality of all persons, and popular democracy... principles radically opposed" to those of the first Constitution, which promulgated "peoplehood as a voluntary association, individual freedom, and republican litism." Despite a superficial crudity in this abstract opposition, Fletcher the Cardozo Professor of Jurisprudence at Columbia develops a powerful case for this second Constitution, born from the need for redemption under law for the nation's crime of slavery and blood spilled in civil war. Drawing parallels to France's Napoleonic Code civil in the aftermath of the Terror and to Germany's Basic Law following WWII and the Holocaust, Fletcher argues most persuasively that this second constitution is rooted in the idea of a religiously based higher law grounded in historical necessity. His argument that the second Constitution was driven underground, only to gradually reemerge, makes sense in terms of Supreme Court rulings and constitutional amendments cited, but slights substantial historical conflicts. Yet this hardly matters for his purpose in developing a novel perspective to expand our constitutional horizons and identify fundamental wrong turns such as the post-13th Amendment focus on supervising and correcting state governments, rather than directly ensuring equal protection and democratic rights, or the failure to use "all men are created equal" as a guiding maxim of constitutional interpretation. With subtlety and coherence, Fletcher presents a lively critique of constitutional law. Agent, Angela Miller. (May) Copyright 2001 Cahners Business Information.

Publishers Weekly - Publisher's Weekly

A novel consideration of American history offers a fresh view of a foundational document. Fletcher (Law/Columbia Univ.) argues that the Constitution cleaves into two ill-fitting parts, rather like the Old and New Testaments. The dividing point between them is the Civil War, which called forth a new constitutional order that was devoted less to "voluntary association, individual freedom, and republican elitism" (as the Constitution of 1787 was) than to "organic nationhood, equality of all persons, and popular democracy." If the source of authority of the first Constitution was "We the people," then the source for the second was "the nation as defined by history." This so-called Secret Constitution, whose preamble is the Gettysburg Address, ushered in the program of reconstruction and federation-building that would yield the modern US; in doing so, it inaugurated the era of Big Government, an entity that actively worked to assure equality under the law and in actual practice. This recasting of the government's role was never made explicit, the author suggests, largely because many state and even federal courts actively opposed the transformation. But even with that opposition, the old order of sovereignty gave way to a new one, in which the states were "enmeshed in the [federal] law and subordinate to it." This tension between state and federal claims of supremacy endures, Fletcher notes, and nowhere more plainly than in what he considers to be the outmoded and antidemocratic institution of the Electoral College-which he savages in a brilliant closing chapter devoted to the 2000 presidential election. Proponents of an activist central government will find intellectual comfort inthesepages-but they will give anti-federalists fits.

Kirkus Reviews