Our Secret Constitution: How Lincoln Redefined American Democracy
George P. Fletcher
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Americans hate and distrust their government. At the same time, Americans love and trust their government. These contradictory attitudes are resolved by Fletcher's novel interpretation of constitutional history. He argues that we have two constitutions--still living side by side--one that caters to freedom and fear, the other that satisfied our needs for security and social justice.
The first constitution came into force in 1789. It stresses freedom, voluntary association, and republican elitism. The second constitution begins with the Gettysburg Address and emphasizes equality, organic nationhood, and popular democracy. These radical differences between our two constitutions explain our ambivalence and self-contradictory attitudes toward government.
With September 11 the second constitution--which Fletcher calls the Secret Constitution--has become ascendant. When America is under threat, the nation cultivates its solidarity. It overcomes its fear and looks to government for protection and the pursuit of social justice. Lincoln's messages of a strong government and a nation that must "long endure" have never been more relevant to American politics.
"Fletcher's argument has intriguing implications beyond the sweeping subject of this profoundly thought-provoking book."--The Denver Post
achievement came in the Civil War. His personal associations brought him to the attention of General Henry Hallecfc, the Army Chief of Staff, who asked him to draft rules of engagement for the Union troops in the field. Lieber brought to bear his Kantian sensibility in drafting 157 articles of Instructions. This proved to be a turning point in the history of the law of war. His draft code was used by the Union forces and it became the foundation, at the end of the century, for the first Hague
disqualifying the supposedly disloyal from the ministry and the bar. This was 1866. The ratification of the Thirteenth Amendment in 1865 had sealed the demise of slavery. But the new constitutional order had not yet entered into force. The "due process" and "equal protection" clauses of the Fourteenth Amendment, still two years in the future, would have provided a suitable framework for analyzing the issues. But all the Court had at its disposal were several provisions in the 1787 Constitution
according to Chambrun, a horse of another color. "Johnson is a partisan of those who favor banishment or even the death penalty for the guiltiest among the rebels."22 Chambrun quotes Johnson as saying, "I'll teach them that treason is a crime, perhaps the greatest of all crimes."23 The analysis of Jefferson Davis's treason is hampered by the absence at the time of an established law of war detailing war crimes and crimes against humanity—the kind of offenses applied in the Nuremberg trials.
equality—"All men are born and remain equal under the law."1 In its original context, the famous five words "all men are created equal" had a limited function. They undermined the pretension of King George III to rule under the divine right of kings. If all men were of equal stature under God, then no one could claim to have been anointed as ruler by supernatural authority. At the same time, however, the famous maxim could also be understood as referring to "men" as collective entities: "all
with the task of drafting a new civil code in language accessible to ordinary people. The committee produced the elegant Code civil, now a mainstay of French culture and a model for civil codification all over the world. The language is so refined that the novelist Henri Stendhal reportedly reviewed the style of ten code provisions every night before retiring. Today, when the Francophones in Quebec preach the distinctiveness of their culture, they never fail to mention their Code civil, modeled