Our Secret Constitution: How Lincoln Redefined American Democracy

(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 levelin

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..."

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.

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.