United States Constitutions - Federal & State, Presidents of the United States - Biography, Constitutional History, United States History - Politics & Government, U.S. Politics & Government - 19th Century, 19th Century American History - Politics & Govern

Our Secret Constitution

Name: Our Secret Constitution
Author: George P. Fletcher
ISBN: 9780195141429

by George P. Fletcher

Write a review

Overview

In this perspective-altering new book, George P. Fletcher asserts that the Civil War was the most significant event in American legal history, an event that not only abolished slavery and changed the laws of the land but also created a new set of principles that continues to guide our thinking today.
Much as historians and lawmakers strive to maintain a continuity with the Constitution of 1787, Fletcher shows that the Civil War presented a rupture not only between North and South but between two visions of the United States. The first Constitution was based on the principles of peoplehood as a voluntary association, individual freedom, and republican elitism. The government chosen by "We the People" sought, above all, to protect the rights of individuals and to limit the leadership of the nation to a select few. It was a Constitution, moreover, that accommodated the most undemocratic institution imaginable: slavery. The second Constitution, forged on the killing fields of Vicksburg and Antietam, articulated in Lincoln's visionary Gettysburg Address, and enacted in the Thirteenth, Fourteenth, and Fifteenth Amendments, reinvented the United States according to the principles of organic nationhood, equality of all persons, and popular democracy. Fletcher shows how these higher principles, though suppressed for decades, shape our sensibilities today in our efforts to expand the range of those protected as equal under the law, to promote equality in the workplace, to safeguard the interests of those who are at a competitive disadvantage, to rethink the limits of free speech and of religious liberty, and to amend the Constitution in the spirit of popular democracy.
Written with passion, clarity, and sweeping historical knowledge, Our Secret Constitution will fundamentally change the way we view our past and bring new clarity to the issues we confront today.

About the Author, George P. 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.

Reviews

There are no reviews yet. Log in to write one.

Editorials

Publishers Weekly - Publisher's Weekly

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.

Kirkus Reviews

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.