Our Secret Constitution: How Lincoln Redefined American Democracy

Rating:
Summary: Our Secret Constitution
Review: (excerpted from The Independent Review, Summer 2003)

George Fletcher's efforts can be viewed most profitably as an unmasking of U.S. constitutional development. Consider the title of his new work Our Secret Constitution. Within the U.S. political tradition, doesn't a "secret constitution" appear oxymoronic? If it is secret, who are the individuals privy to the secret? Moreover, in what manner and to what extent does the secret constitution displace popular control and consent over the public policy? And finally, what about issues of legitimacy and political obligation? Contrary to the claim that Supreme Court activism under the leadership of activists represents the policy preferences of the majority, the enforcement of a secret constitution that empowers a concealed cabal of decision makers at the expense of popular control is a major break from traditional U.S. constitutionalism. Not only does it permit the usurpation of national and state legislative prerogatives, but it bestows tremendous power on judges whose talents range from mediocre to dismal.

Concerns such as these, however, do not deter Fletcher. In his mind, the secret constitution is a classic example of the ends justifying the means. As he makes clear, egalitarianism is the desideratum of the secret constitution, and the courts are the most reliable conduits for the implementation of an egalitarian agenda. Not to be mistaken for the Fourteenth Amendment's mandate of equality before the law, his equality is an ideologically driven constitutional equality legitimating activist government and the politics of substantial redistribution.

Fletcher hits the mark when he credits Abraham Lincoln with redefining American democracy, thereby setting aside the traditional U.S. rule of law that valued liberty, order, and justice when it obstructed the quest for egalitarianism. He is far from accurate, however, when describing Lincoln's derailment of the traditional constitutional system as the honorable act of a decent man. Yes, Lincoln "redefined American democracy," as Fletcher's subtitle suggests and as his text reiterates again and again, but the origins of that redefinition notwithstanding, Fletcher understands its consequences for current public policy. He seeks to displace the type of liberty that accommodates an unequal distribution of wealth with a leveling type of equality as the foundation of American republicanism. His endgame is not the Fourteenth Amendment's equality before the law, but rather an economic equality that the framers of the Constitution would have found abhorrent.

The book is essential reading not because of its historical views or interpretations of the Constitution, federalism, and U.S. jurisprudence, which are deficient, but because it is a revealing prescriptive tract of the liberal/radical agenda to transform the U.S. rule of law as a bulwark of private property and personal liberty into an instrument of government redistribution and social leveling. Moreover, as recent developments dating back to the Warren Court make clear, time and the courts are on Fletcher's side.

Rating:
Summary: Our Secret Constitution
Review: (excerpted from The Independent Review, Summer 2003)

George Fletcher's efforts can be viewed most profitably as an unmasking of U.S. constitutional development. Consider the title of his new work Our Secret Constitution. Within the U.S. political tradition, doesn't a "secret constitution" appear oxymoronic? If it is secret, who are the individuals privy to the secret? Moreover, in what manner and to what extent does the secret constitution displace popular control and consent over the public policy? And finally, what about issues of legitimacy and political obligation? Contrary to the claim that Supreme Court activism under the leadership of activists represents the policy preferences of the majority, the enforcement of a secret constitution that empowers a concealed cabal of decision makers at the expense of popular control is a major break from traditional U.S. constitutionalism. Not only does it permit the usurpation of national and state legislative prerogatives, but it bestows tremendous power on judges whose talents range from mediocre to dismal.

Concerns such as these, however, do not deter Fletcher. In his mind, the secret constitution is a classic example of the ends justifying the means. As he makes clear, egalitarianism is the desideratum of the secret constitution, and the courts are the most reliable conduits for the implementation of an egalitarian agenda. Not to be mistaken for the Fourteenth Amendment's mandate of equality before the law, his equality is an ideologically driven constitutional equality legitimating activist government and the politics of substantial redistribution.

Fletcher hits the mark when he credits Abraham Lincoln with redefining American democracy, thereby setting aside the traditional U.S. rule of law that valued liberty, order, and justice when it obstructed the quest for egalitarianism. He is far from accurate, however, when describing Lincoln's derailment of the traditional constitutional system as the honorable act of a decent man. Yes, Lincoln "redefined American democracy," as Fletcher's subtitle suggests and as his text reiterates again and again, but the origins of that redefinition notwithstanding, Fletcher understands its consequences for current public policy. He seeks to displace the type of liberty that accommodates an unequal distribution of wealth with a leveling type of equality as the foundation of American republicanism. His endgame is not the Fourteenth Amendment's equality before the law, but rather an economic equality that the framers of the Constitution would have found abhorrent.

The book is essential reading not because of its historical views or interpretations of the Constitution, federalism, and U.S. jurisprudence, which are deficient, but because it is a revealing prescriptive tract of the liberal/radical agenda to transform the U.S. rule of law as a bulwark of private property and personal liberty into an instrument of government redistribution and social leveling. Moreover, as recent developments dating back to the Warren Court make clear, time and the courts are on Fletcher's side.

Rating:
Summary: The Real Constitution
Review: American worship our constitution, and like many devotees, we'd rather have faith that we know the object of our devotion than explore the truth of our knowledge. So, many believe that the U.S. Constitution is a coherent idea, somehow preserved as first coined and ensuring freedom, equality, and justice.

In George Fletcher's newest book, he tells the history of our constitution and demonstrates the importance of the U.S. Civil War, and particularly Lincoln's war rhetoric, in transforming both the constitution and the country. Its most compelling effect, Fletcher argues, was to transform the fundamental role of government from primarily securing freedom of the citizen to also promoting fairness and equality among citizens. The echoes of this transformation in the constitutional structures of the United States can be heard to this day in our arguments over religious tolerance, free speech, abortion, even the recent elections.

There is much to contend with in this book, which in the spirit of full disclosure, this reviewer read in draft form. Some will find Fletcher's definition of "constitution" to be too broad. Some will find his notion of equality as a cardinal American virtue to be unworkable or improper, regardless of its historical pedigree. Some will disagree with Fletcher's historiography. None will be able fairly to reject his arguments without conceding their significance.

Building, and in many cases greatly extending, the work of historians such as Eric Foner and constitutional scholars such as Bruce Ackerman, Fletcher, a Columbia Law Professor, has written a compelling and controversial argument.

Rating:
Summary: A great book, brought down by a political agenda
Review: Fletcher makes some interesting arguments about how America is conflicted by its drive towards equality and freedom, since the two ideals cannot coexist perfectly at the same time. His suggestion that the Gettysburg Address and the Civil War resulted in a second American Constitution focused on equality is a useful way of looking at the past (despite the flaws in the argument). BUT!!! One major flaw in this book is Fletcher's endless assertion that public schools should have equal funding and that criminals should not lose their right to vote. While there may or may not be validity to these claims, Fletcher does little to support these claims (since he never addresses the opposing arguments to these stances). Still, this books was definitely worth reading... if one can ignore the annoyingly in-your-face political agenda mixed with the historical arguments.

Rating:
Summary: Thought provoking theory marred by poor history
Review: George Fletcher presents an interesting thesis, that we have two constitutions. One created in 1787 the other in 1865. The new constitutional order was found to represent the principles of equality, nationalism, and democracy which Fletcher argues was best expressed in the Gettysburg address.

Now Fletcher makes a number of interesting points in his analysis. For example, he provides a wonderful explanation for Lincoln's extraconstitutional use of power during the Civil War; that his commitment to nationalism lead him to reject constitutional limitations when they didn't allow him to perserve the nation. Also Fletcher provides a brief discussion of the logical inconsistencies in the 10th amendment, that states created after 1787 couldn't delegate power to a federal government that essentially created them.

But the good points are overwhelmed by Fletcher's tendency towards historical simplicity. He seems to believe that the principles of his 2nd constitution sprung forth only as a result of the Civil War. But the principles of equaltiy, nationalism, and democracy existed since the begining of the republic. While these principles didn't dominate they were present and growing during the antebellum period. Particularly the principle of democracy spread rapidly during the period, this is evidenced by the fact that all white males had the right to vote by the 1820s and they voted for practically all state officials including judges. While its true that this isn't our idea of democracy and equaltiy but it is evidence of a developing trend that probably would have continued without the war. Also he ignores the instances where postbellum democratic trends were inequalitarian in nature, such as in Wyoming were women were given the right to vote in hopes that whites would be able to overpower immigrating blacks into the state.

While this is an interesting book and provokes thought and consideration it shouldn't be taken as the last word. The best aspect being that it gets people to consider the fact that the constitution is more than what is written on paper.

Rating:
Summary: Understanding a new dimension of the Constitution
Review: I recently read Our Secret Constitution by George Fletcher and it opened a whole new dimension of the Constitution to me. I am a lawyer and long time student of constitutional law. It never occurred to me that Lincoln's perception of nationhood was essentially a new concept to American's at the time of the War Between the States. Unfortunately, it is still not well understood and our country is still struggling with its true meaning.

Prof. Fletcher's book will enable its readers to become far better informed on this critical subject.

Rating:
Summary: Our Secret Constitution
Review: Revisionist Drivel. The author disregards in toto the intent, mindset, and historical context of the framers of the U.S. Constitution, then imputes whole new meanings to individual words and phrases of the Gettysburg Address, in order to support his preconceived notion as to its intent. He slings the word Democracy with abandon, while hardly bothering to mention that the Constitution founded a Representative Republic. Isn't it remotely possible that Lincoln was really just dedicating a cemetary, and not trying to change the focus and direction of the entire governmental structure, with a 3-minute speech?

Rating:
Summary: Liberty, Fraternity and... Equality?
Review: The author asks us to put aside our conventional assumptions and confront a 'subtle and unusual argument', that the Civil War called forth a new Constitutional order, in the Reconstruction Amendments. This new order is so radically different from that established in the original Constitution of 1787 that it amounts to a new Constitution altogether, a second American republic, dedicated to the proposition that all men are created equal. The book becomes then a fascinating discourse on Lincoln's Gettysburg address, in the incremental transformation created by the war from preserving the Union to abolishing slavery. The outcome is the passage from disguised elitism to the real birth of popular democracy in the redemptive experience of confronting the contradictions latent in the birth of the American nation.
"...we resolve that these dead shall not have died in vain..."

Rating:
Summary: A great book, brought down by a political agenda
Review: The blurbs on the back give this book away. Law teachers and lawyers think it is excellent. No historians are included in any of this praise. As an exercize in rethinking the constitution this is an enjoyable, thoughtful piece of work. But Fletcher has not read much about Abraham Lincoln's actions and ideas. He is especially off course in claiming that Lincoln ignored the constitution in the midst of war. Lincoln practiced law for a quarter of a century, gave major speeches on the meaning of the constitution, followed the constitutional requirements on suspending the privilege of the writ of habeas corpus--at least the leading constitutional lawyer in Congress, Reverdy Johnson, the patriarch of the American Bar, Horace Binney, and the profesor of constitutional law at Harvard thought. Fifty