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"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
"Without the shedding of blood there is no remission of sins."
In the Western experience with evil, we choose repeatedly to put our faith in law and the legal culture to redeem ourselves from sin. Over and over again, we find states indulging in total war, terror, genocide, and the mass killing of their own people, and then turning to the legal culture in the hope that they can atone for the iniquity and live once again as a civilized nation. This view—that the law shall make us clean—should give us pause. Faith in the law has not been an unqualified virtue in the Christian West. One might expect individuals influenced by Jesus's Sermon on the Mount to turn first to love and charity as the means of atonement. But nations—organized, organic societies—must take a different path. A nation must proceed collectively to find redemption.
I write in this chapter of religious ideas and their value in understanding our legal experience. This, admittedly, isan unusual take in our rigorously secular academic world. The American university world has distanced itself from the sensibilities of ordinary Americans who take the Bible seriously as a source of wisdom and who live their lives with devotion to values of faith and redemption. In this interpretation of law as the path to national redemption, I seek to find a middle way between Jewish and Christian thinking. There is no doubt that the nations whose struggles I describe—France, Germany, and the United States—think of themselves as Christian nations. Yet, the very idea of redemption of the entire nation through law resonates more with the older tradition of the Jewish national mission under the Torah revealed at Mount Sinai. My account seeks to unite the divergent strains of all religions that trace their roots to the original idea in Exodus of a nation living under God and under law.
To understand the phenomenon of communal redemption, we must turn to the Bible as our source. The model of the Hebrews' deliverance from servitude and their ensuing acceptance of God's law at Mount Sinai have repeatedly appealed to dominant powers of the West and often to opposite sides of the same conflict. In the rhetoric of the abolitionists, slavery in the United States made the country into "a House of Bondage." Both blacks and whites identified with the same story of liberation from this domain of oppression. Nat Turner thought he was recreating the biblical story when he led a slave revolt in 1831. The slaves whom Harriet Tubman led to freedom in the North called her Moses. Abraham Lincoln readily saw himself in the image of Moses leading his people out of bondage into the realm of freedom.
The Hebrews fled Egypt in order, eventually, to accept the law revealed at Mount Sinai: Delivery from servitude requires more than violent revolt. The message of Exodus is not simply liberation from slavery but the domesticating of violent sensibilities under the rule of law. Jews celebrate this submission to God's law in the holiday of Shevuot, which commemorates the revelation of the Torah at Mount Sinai and is celebrated fifty days after the night of the Exodus. Christians have reinterpreted this event as the descent of the Holy Spirit, celebrated in the analogous spring holiday of Pentecost.
The idea that freedom exists only under law is often understood as a Central European or German approach to the individual in society. Americans tend to subscribe rather to the myth of a Lockian state of nature, where individuals exist prior to the organization of society under a social contract. The Declaration of Independence relies heavily on the principle that the "consent of the governed" is indispensable to the legitimacy of government. Yet, in actual American practice, the law—particularly constitutional law—serves the same function of sanctifying the social order as it does in the European experience. Before turning to the details of the American appeal to law after the surrender at Appomattox Courthouse in April 1865, let us examine first two significant European efforts to domesticate tendencies toward violence under the rule of law.
REDEMPTION BY LAW IN
FRANCE AND GERMANY
Think first about the way in which the French sought repose from postrevolutionary terror in their Code civil. The country passed through fifteen years of regicide, terror, and mass executions. Amidst voices clamoring for stability and security, Napoleon staged his coup d'état in late 1799. High on his agenda was revamping the legal system. In 1804, he charged a group of lawyers with the task of drafting a new civil code in language accessible to ordinary people. The committee produced the elegant Code civil, now a mainstay of French culture and a model for civil codification all over the world. The language is so refined that the novelist Henri Stendhal reportedly reviewed the style of ten code provisions every night before retiring. Today, when the Francophones in Quebec preach the distinctiveness of their culture, they never fail to mention their Code civil, modeled after Napoleon's effort to use the law as the means of restoring civilized order to France.
The Code civil has proved to be remarkably durable in French culture. Constitutions have come and gone and the French have endured recurrent changes of regime, including communes, dictatorships, and five distinct republics. Yet, through all this, the civil code has survived. It is the cultural monument that unites the French across history.
In its substantive content, the Code civil is strongly identified with the achievements of the 1789 Revolution against the ancien regime. The code sweeps away the vestiges of feudal influence in the law of property and in the law of evidence and proclaims a liberal legal order. The end of feudalism in the law of property meant that a single concept of ownership would replace the ancient system of embedded estates. The implication was that all land would be freely alienable, without being burdened by the residual control of lords higher in the feudal chain. The code thus provides the legal foundation for a market economy. The end of feudalism in the field of evidence means that the testimony of a nobleman is no longer worth more than the oath of a peasant. Thus the code institutionalizes the égalité of all citizens, as promised in the slogan of the Revolution.
Standing for these liberal values, incorporating the messages of revolution, and surviving all changes of political regimes, the Code civil functions like a constitution for the French. It is the bedrock of the legal culture. In their code, the French have found an enduring symbol of the rule of law, a conviction that the language, concepts, and rules of the legal order can hold back the impulses toward violence, terror, and reciprocal vengeance. Faith in the code has redeemed the nation from the nightmare of the guillotine.
The metaphor of redemption should not pass our lips lightly. In its original meaning, it has legal connotations; something on loan gets returned to its owner. The older Jewish law of homicide relied on the metaphor of the Goel haDam, "the redeemer of blood" to refer to the victim's next-of-kin who, under certain circumstances, could pursue the murderer and kill him. David Daube has interpreted this practice against the background assumption that at the time of a natural death, the life force—symbolized by blood—always returns to God. If the death occurs at the hand of another, the manslayer unnaturally acquires control over the victim's "blood." The Goel haDam, the redeemer-of blood, executes the manslayer in order to release the victim's blood, thus enabling it to return to its divine source. The notion that our life force belongs to God accounts for the views of virtually all secular liberal systems that no one can validly consent to his or her own killing at the hand of another.
It is tempting to extend this idea and to think of all humanity as enjoying a temporary privilege of life on earth. God somehow will redeem all of us at the end of history. In fact, the Jewish view, as it has evolved and matured, seems to have avoided this universalization of the idea that individual life stems from God. As the idea developed, the agent of redemption would be the Messiah, who would bring a reign of peace and harmony to life on earth. The redemption occurs in life as we know it. Orthodox Jewish culture takes the observance of God's commandments, living under the rule of revealed law as interpreted by the rabbis, as the way to hasten the Messiah's reign of harmony and order. The law, then, becomes the path toward redemption. Until the Prince of Peace comes to "fulfill the law," or until the Apocalypse at the end of days, the secular law of the nation is the only means we have to work toward the perfection of life on earth.
The place of "blood" in the religious tradition of redemption proves to be subtle and problematic. There are some strains in the Jewish tradition that link the letting of blood with returning the soul to God. The "redeemer of blood" reminds us of that connection, as does the popular view that the founding of Israel stood in some kind of organic relationship with the Holocaust. The connection between blood and salvation becomes much stronger, however, in the Christian interpretation of its Jewish legacy. The theme of blood spilling from the body becomes powerful in the crucifixion and reaches its apotheosis in the faith that a great battle, an Apocalypse, must precede the Second Coming of the Messiah. The spilling of blood in a great battle is understood instinctively as the suffering that must precede redemption. As John Brown was led to the gallows on the eve of the Civil War, having unsuccessfully sought to stimulate a slave revolt, he handed one of his guards a note, "I John Brown am now quite certain that the crimes of this guilty land will never be purged away but with blood."
But blood alone does not save a nation from its sins. The argument here is that indulgence in evil—slavery, mass killing, persecution—must first issue in the suffering of the people. To overcome their sense of self-inflicted brutality, they turn to the law as the path of secular redemption. They search for stability after having succumbed to their baser instincts. The law provides a source of hope that the civil order can resist the recurrent slippage into violence and brutality. The important point is that the rule of law—not charity, not prayer, not animal sacrifice—should provide the means of secular redemption.
For nations as a whole to seek redemption, they must find a discipline that operates on them as a group, as a community. Individual acts of devotion will not suffice. Needed is the discipline represented by the law—the expression of communal cooperation, par excellence. The compromises and obligations of life under the law hardly makes sense to individuals standing alone, preoccupied by their own values and their own needs. The law redeems not the individual but the community or the nation as a whole.
This view of the relationship between law and redemption finds expression in the Hebrew Bible, the Old Testament. It continues to inspire the law-based thinking of Judaism, Islam, the Catholic Church, and some Protestant theologians. The law given at Sinai, the law embedded in the covenant, is not the expression of individual aspiration but only of collective obligation. Seeking redemption or salvation through the church or through faith provides a way of cleansing ourselves of sin and, as it were, perfecting our individual creation.
Legal cultures, too, must seek to perfect themselves. They cannot exist simply as the product of will. When legal cultures lose sight of their natural end of bringing a reign of justice and harmony to human affairs, they decline into corruption and the arbitrariness of power. The German philosopher Gustav Radbruch defined the ideal of Law as the practice of establishing rules in the pursuit of justice. Communal life seeks, through law, to perfect itself. This secular idea parallels the eschatological aim of perfecting the creation of the world under God's reign.
Seeking redemption under the law cannot simply be a desire for one's parochial values to triumph in the courts. It matters which values are in play. And it matters how these values are debated in the legal culture. Debate about legal issues must be open and robust, and the very process of legal argument must communicate respect for the opposition. At the end of a legal argument, both sides must have the sense that they have been listened to, and that the dignity of the losing party is affirmed in the process of decision. Here, as well, we have much to learn from the model provided by the Jewish tradition of Talmudic debate. When a rabbi questioned how two of the greatest sages, Rabbis Hillel and Shammai, could persistently disagree, the response was: "These and these are the words of the living God." Although Rabbi Hillel's views are generally followed, Rabbi Shammai is treated, in defeat, with the greatest respect.
It is not surprising that when the established authority's respect for the political opposition is debased, the legal culture invariably suffers. This is most noticeably clear in dictatorial societies where legal debate is reduced to little more than efforts to placate the powers that be. Although the National Socialists purported to rely on legal forms and administrative regularity, their contempt for free and mutually respectful discourse led to a corruption of the legal culture. The Nazis' conception of law fluctuated between two unpalatable extremes. Sometimes the slogan was that law was what Hitler wanted and commanded (Recht is das, was der Führer will). At other times, utility to the German people was the ultimate source of legitimacy (Recht is das, was dem Volke nutzt). The National Socialist Party's manipulation of these slogans and their observance of legal forms served only to bring the culture to a deeper level of corruption.
It is an extraordinary feature of postwar German culture that a new generation of jurists managed to save, to redeem, their concept of law from its racist and Nazi associations. In the wake of their unforgettable crimes against humanity, the West Germans, too, sought redemption in the rule of law, in the Rechtsstaat that they have cultivated along with economic prosperity. Living by the law, and seeking justice within the law, redeems the humanistic side of German culture. It has suppressed the romantic will to break all restraints for the sake of glory in power.
The Germans, too, have a civil code that has united them, since 1900, through the transitions from Bismarck, to Weimar, to the Third Reich, to the present. Yet, under the National Socialists, the code, which contains the provisions on family law, became tainted with notions of racial purity. Jews and Aryans could not marry. Of course, this stain disappeared in the postwar reform, but the memory remains of a corrupted civil code. Not surprisingly, then, Germans have sought redemption by promoting both a new constitution, enacted in 1949, and the rule of law in a united Europe. More than any country seeking redemption under law, the Germans identified their new constitution, the Grundgesetz, as the focal point of state authority. The sanctity of the constitution—and not the personal head of state—became the interest protected under the reformed law of treason. When West Germans felt their infant postwar republic endangered by Communist subversion, they appointed an agency to protect the integrity of the government. The announced aim of the agency was to protect the constitution (Verfassungsschutz).
The preamble of this charter, called the Basic Law (Grundgesetz), repeatedly reminds Germans of the imperative to atone for the sins of the past:
Conscious of its responsibility before God and humanity, possessed of the will to serve the peace of the world as an equal member of a United Europe, the German nation [Volk] commits itself, by virtue of its inherent constitution-making authority, to the following Basic Law.
No other constitution, so far as I know, stresses its sense of "responsibility" and declares as one of its primary purposes "to serve the peace of the world." These gestures recall the descent of the German nation into the evils of aggressive war and crimes against humanity.
The first article of the Basic Law invokes the humanistic Kantian underpinnings of German culture: "Human dignity is inviolable. All state power is obligated to protect it and respect it." This provision provides the backdrop for interpreting all the basic rights guaranteed under the constitution. The protection of human dignity is the fundamental value suffusing the entire legal order. The highest virtue of the postwar German constitutional order, then, was precisely the greatest casualty of the Nazi regime. The path to redemption lay in reclaiming the liberal and humanistic values most systematically violated in their darkest hour. The point is carried forward in the second article: "Everyone has the right to flourishing of his or her personality ... Everyone has the right to life."
These are provisions that enabled Germans to redefine their identities. They would no longer be the people devoted to the Volk above all. They would become the nation of human dignity that served the cause of human flourishing and the sanctity of human life. For the postwar Germans, then, the law, and particularly the Basic Law became the means for suppressing evil impulses and returning to the promises of an earlier national self. This is what redemption means in a secular legal world.
The redemptive impulse leads national courts to place an emphasis on values that resonate against past sins. The German Constitutional Court has made a number of controversial decisions that make sense primarily as efforts to resolve the burden of memory. The court decided to uphold a law abolishing the twenty-year statute of limitations for concentration camp murders. It invoked the constitutional "right to life" to strike down a liberal abortion law that permitted abortion on demand in the first trimester. And, more recently, the court rejected an East German statutory justification for border guards who shot at their own citizens trying to flee the country for the West. All of these decisions brought to the fore fundamental values of protecting life and punishing those with contempt for life. Yet, the particular German emphasis on these values would probably not appeal in the same measure to other European courts.
The Germans themselves have coined a unique, hard-to-translate phrase to describe the controversies that have driven their system of justice for the last fifty years. They call it Bewältigung der Vergangenheit—"overcoming" or "coming to grips with" the past. Settling accounts with the past provides a critical perspective on the process of redemption from evil. We cannot avoid the past, for we are all prisoners of it. In real life, we cannot reenact the forty years of wandering in the desert that the Hebrews had to endure before they could shake off their ingrained ways and a new generation could seek redemption under the law. In the world of practical politics, we must act now, and criminal punishment often provides the mechanism for distancing ourselves from the past so that we can start anew.
Copyright © 2001 Board of Trustees of the University of Illinois. All rights reserved.
|Introduction: The Argument for the Secret Constitution||1|
|1||Redemption Under Law||15|
|4||Loyalty and Betrayal||75|
|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|