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George P. Fletcher

Our Secret Constitution: How Lincoln Redefined American Democracy 1st Edition

by George P. Fletcher (Author)

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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.

ISBN-10

0195141423
ISBN-13

978-0195141429
Edition

1st
Publisher

Oxford University Press
Publication date

May 17, 2001
Language

English
Dimensions

6.5 x 1 x 9.5 inches
Print length

304 pages
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Editorial Reviews

From Publishers 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.

From Library Journal

By carefully analyzing the words and deeds of Abraham Lincoln, Fletcher (law, Columbia Univ.) successfully portrays the birth of a new constitutional order that emerged from the blood and bullets of the Civil War. This new spirit of cohesion reflected Lincoln's zest for bringing together the interrelated elements of a political entity toward the goal of a common good and a higher order. The values of nationhood, equality, and democracy complement and support one another, and the Gettysburg Address brings these concepts together in a way that crystallizes the proposed new scheme of things. Juxtaposing themes also common to the Emancipation Proclamation, as well as two Inaugural Addresses, and an element of spirituality intrinsic to the Declaration of Independence, the author chronicles the ups and downs of Lincoln's attempt to establish a cornerstone for progress for the post-Civil War era. Fletcher probes the extent to which the universal principles so revered by Lincoln and so inherent in the 13th and 14th Amendments would emerge in the coming years and would indeed influence the outcome of struggles between the banal interests of state legislatures and the notion of a legal order of a higher magnitude, akin to the English common law, in shaping the nature of citizenship, the rights of minorities and women, and, most recently, the rights of voters to select a president. Fairly easy for general audiences to read, this book is recommended for public and academic libraries. Philip Y. Blue, New York State Supreme Court Criminal Branch Law Lib., New York
Copyright 2001 Reed Business Information, Inc.

From Booklist

Although neither a historian nor a political theorist, Fletcher attempts a legalistic revision of American history, claiming that Lincoln's Gettysburg Address was nothing less than a preamble to a second American Constitution, which, seated by the Thirteenth, Fourteenth, and Fifteenth amendments, reinvented American democracy. The address shifted democracy away from the three original principles of "We the People," individual freedom, and republican elitism, to the new principles of nationhood, equality, and democracy. Although the author's ideas are not as mind-altering as he would have us think (James McPherson, for instance, has already broken ground here with his Abraham Lincoln and the Second American Revolution, 1992), his approach, which posits a legalism stoked by religious fervor--although a legalism not of lawmakers and judges but stemming from the survival of historical ideas--is sure to get a wide hearing from the community of historians. Allen Weakland
Copyright © American Library Association. All rights reserved

Review

"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

About the Author

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.

Product details

Publisher ‏ : ‎ Oxford University Press; 1st edition (May 17, 2001)
Language ‏ : ‎ English
Hardcover ‏ : ‎ 304 pages
ISBN-10 ‏ : ‎ 0195141423
ISBN-13 ‏ : ‎ 978-0195141429
Item Weight ‏ : ‎ 1.3 pounds
Dimensions ‏ : ‎ 6.5 x 1 x 9.5 inches

Best Sellers Rank: #3,141,345 in Books (See Top 100 in Books)
- #977 in Constitutional Law (Books)
- #1,898 in Political History (Books)
- #3,721 in General Constitutional Law

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George P. Fletcher

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George P. Fletcher is considered to be one of today's leading legal scholars in the fields of torts and criminal law, in particular, comparative and international criminal law. Reflecting on the events in his personal and professional life during the past 70 years, the linguistic dimension clearly dominates and overshadows these activities. Growing up in the United States at a time when English was considered to be the only language needed, Fletcher mastered six additional languages. As a result of his fluency, he was thrust to the forefront of the international legal world. "My Life in Seven Languages", a lingustic memoir, probes Fletcher's legal experiences and family relationships that would not have otherwise been possible as a mono-linguist. George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia Law School.

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silver dollar

Praise for the Lincoln Cult

Reviewed in the United States 🇺🇸 on May 27, 2011

Verified Purchase

Received "Our Secret Constitution, How Lincoln Redefined American Democracy" by George P. Fletcher in the mail today. This book is a huge disappointment. I usually stay away from books that praise Lincoln and the Lincoln Cult. Fletcher states, "I have benefited greatly from the works of our talented Civil War and Reconstruction historians. It is hard to match Eric Foner in mastery of the period and his passion for racial justice, or Garry Wills in his learned and imaginative style, or James McPherson in his ability to synthesize the grand moments of post bellum America."

Fletcher is correct in that Lincoln created a "second constitution." But fails when he claims the second is far superior to the "first constitution." In truth the first protected "liberty at the expense of government," while Lincoln's constitution trashed liberty at the expense of We the People, and made slaves of all citizens. If you can't "leave," you ain't free!! Today Americans are prisoners of Lincoln's constitution and the huge bureaucratic centralized government that followed. To insure Lincoln's Constitution became the rule of law, Lincoln took up arms and murdered over 300,000 southerners.

In the end Fletcher trashes the Southern Point of View and the Founding Father's Constitution. An amazing feat to accomplish both in one book. Fletcher's adoration and praise for Eric Foner in the Introduction makes this book suspect and downright useless for historical purposes.

Claiming to view the war from a southern point of view Fletcher misleads many and guides most to the Lincoln Cult's point of view. Only the true Southerner will be able to see fact from fiction in this book. My opinion is Fletcher has written another Yankee revisionist version of the War for South Independence.

17 people found this helpful

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gccornell

how lincoln changed the constituion

Reviewed in the United States 🇺🇸 on August 30, 2013

Verified Purchase

very insiteful book about how lincolin changed the constitution in very possive ways and the out come of all that

One person found this helpful

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Joy Metcalf

Not a democracy

Reviewed in the United States 🇺🇸 on March 24, 2018

He blew it in the title. Apparently, the author has no clue that we were never supposed to have a democracy. It was supposed to be a constitutional republic. "So, Mr. Franklin, what do we have, a repiblic or a democracy?" "A republic, ma'am--if we can keep it." Unfortunately, we have not.

4 people found this helpful

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The Independent Review

Our Secret Constitution

Reviewed in the United States 🇺🇸 on September 2, 2003

(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.

8 people found this helpful

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Steve Sheppard

The Real Constitution

Reviewed in the United States 🇺🇸 on April 18, 2001

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.

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