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Title: Our Secret Constitution: How Lincoln Redefined American Democracy by George P. Fletcher ISBN: 0-19-514142-3 Publisher: Oxford University Press Pub. Date: 01 April, 2001 Format: Hardcover Volumes: 1 List Price(USD): $30.00 |
Average Customer Rating: 3.5 (8 reviews)
Rating: 4
Summary: Our Secret Constitution
Comment: (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: 3
Summary: Thought provoking theory marred by poor history
Comment: 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: 3
Summary: A great book, brought down by a political agenda
Comment: 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.
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Title: Lincoln's Constitution by Daniel A. Farber ISBN: 0226237931 Publisher: University of Chicago Press Pub. Date: 01 April, 2003 List Price(USD): $27.50 |
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Title: Abraham Lincoln and the Second American Revolution by James M. McPherson ISBN: 0195076060 Publisher: Oxford University Press Pub. Date: 01 May, 1992 List Price(USD): $13.95 |
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Title: Romantics at War: Glory and Guilt in the Age of Terrorism by George P. Fletcher ISBN: 0691006512 Publisher: Princeton University Press Pub. Date: 01 September, 2002 List Price(USD): $24.95 |
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Title: Ladies And Gentlemen Of The Jury: Greatest Closing Arguments In Modern Law by Michael S. Lief, H. Mitchell Caldwell, Ben Bycel, Harry M. Caldwell, Benjamin Bycel ISBN: 0684859483 Publisher: Scribner Book Company Pub. Date: 15 May, 2000 List Price(USD): $15.00 |
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Title: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig ISBN: 1594200068 Publisher: The Penguin Press HC Pub. Date: 25 March, 2004 List Price(USD): $24.95 |
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