Our Secret Constitution

Our Secret Constitution : How Lincoln Redefined American Democracy

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Description

This study points to the Civil War as the most significant event in American legal history. The basic principles of the postbellum legal order, believes the author, are so radically different from the Constitution of 1787 that they should be recognized as a second American Constitution, establishing a Second Republic. The first Constitution was based on the principles of peoplehood as a voluntary association, individual freedom, and a republican elitism. The guiding premises of the second Constitution - as articulated in Lincoln's visionary address at Gettysburg and enacted in the 13th, 14th, and 15th Amendments - were in contrast, organic nationhood, equality of all persons, and popular democracy. Thus, although we may yearn for continuity with 1787, in fact our values, commitments, and aspirations for America have radically changed. By finally recognizing our radical discontinuity with the first Republic, says Fletcher, we can put an end to debilitating arguments about the Founders' intent and consciously and energetically pursue the full implications of our true beliefs about what America should and can become.show more

Product details

  • Hardback | 304 pages
  • 161.3 x 240.3 x 29.5mm | 576.07g
  • Oxford University Press Inc
  • New York, United States
  • English
  • 0195141423
  • 9780195141429

Review Text

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 in these pages - but they will give anti-federalists fits.. (Kirkus Reviews)show more

Review quote

"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 Weeklyshow more

About George Philip Fletcher

George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia University School of Law. His books include A Crime of Self-Defense: Bernhard Goetz and the Law on Trial and With Justice for Some: Victim's Rights in Criminal Trials. He lives in New York City.show more

Rating details

19 ratings
3.31 out of 5 stars
5 21% (4)
4 21% (4)
3 37% (7)
2 11% (2)
1 11% (2)
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