Our Secret Constitution: How Lincoln Redefined American Democracy.

• Author: Farber, Daniel A.

OUR SECRET CONSTITUTION: HOW LINCOLN REDEFINED AMERICAN DEMOCRACY. By George P. Fletcher. (1) Oxford University Press. 2001. Pp. ix, 292. $25.00

Exactly four years after the surrender ... Robert Anderson returned to raise his old flag over Fort Sumter. By then, the sounds of battle had given way to the stillness at Appomattox and the issues that inflamed the antebellum years had been settled. Slavery was dead; secession was dead; and six hundred thousand men were dead. That was the basic balance sheet of the sectional conflict.

David Potter (3)

Walk into any large bookstore, such as your local Borders or Barnes & Noble, and you will find a separate section devoted to the Civil War--not just books covering the entire war or books about Lincoln and other major leaders, but biographies of a dozen generals and chronicles of individual battles, and even entire volumes about portions of battles, such as the second day at Gettysburg. (4) Forty million people tuned in to watch a PBS series about the War. (5) Clearly, the Civil War still looms large in popular consciousness.

Not so in the law. In the past thirty years, only about twenty Supreme Court opinions have referred to "Abraham Lincoln" or "President Lincoln." (6) Seven times as many opinions referred to "James Madison" and "Alexander Hamilton." (7) Thomas Jefferson received about five times as many mentions as Lincoln. (8) These earlier figures do enjoy perennial public attention, but on nowhere near the scale of Lincoln and the Civil War. Thus, the late Eighteenth Century dominates our view of constitutional history and eclipses the Civil War in our legal culture, in a way that it fails to do in popular culture.

In his latest book, George Fletcher seeks to remedy that imbalance. He offers an important reappraisal of the constitutional significance of Lincoln and the Civil War. The Civil War, he contends, "called forth a new constitutional order." (p. 2) The principles of this new order, embodied in the Reconstruction Amendments, "are so radically different from our original Constitution, drafted in 1787, that they deserve to be recognized as a second American Constitution." (p. 2) According to Professor Fletcher, what he calls the first republic was based on the social compact, individual freedom, and republican elitism. In contrast, the second republic was based on "organic nationhood, equality of all persons, and popular democracy." (p. 2) This second constitution was repressed but never destroyed. "Even after the judges turned their backs on the new order, the second constitution, sanctified by the six hundred thousand who died in its gestation, remained a firm but minimally visible commitment of American political culture." (p. 7) Repressed into the legal subconscious (p. 1), the "Civil War constitution became our alternative charter, our Secret Constitution, waiting in the wings for a more propitious time to step out on the stage of open judicial debate." (p. 7) After the War, "in addition to embedding the states in the rule of law, the new constitutional order embarked on an affirmative program to ensure equality." (p. 25) The "heart of the new consensus is that the federal government, victorious in warfare, must continue its aggressive intervention in the lives of its citizens." (p. 25)

The Civil War was obviously a critical event in American history, and the Reconstruction Amendments were clearly a major change in the constitutional order. So much is a truism. Where Fletcher departs from the conventional wisdom, however, is in arguing that the critical constitutional moment took place at Gettysburg rather than in Congress and in declaring the upshot to be an entirely new constitutional regime rather than a transformation of the old one. The verdict on this bold recasting of constitutional history is mixed. Fletcher performs an important service by emphasizing the importance of the war in constitutional development.

Part I of this review provides a more detailed account of Fletcher's argument. As shown in Part II, however, the book does not present a solid evidentiary case for the Secret Constitution. This would be a serious flaw if the thesis were offered as a definitive account of our constitutional history. There are a number of indications, however, that Fletcher's purposes are more exploratory. He applauds the existence of multiple, inconsistent readings of the historical record. (p. 109) Some features of the book suggest that Fletcher's own thinking is in the process of evolving. On several occasions, he stakes out a strong position--spending pages, for example, arguing vehemently that a particular Supreme Court opinion is an abomination, (pp. 152-160) only to close with the afterthought that the decision "is hardly as heartless and indifferent to wealth discrimination and social justice as it appears at first blush." (p. 161) Similarly, although much of the book seems to be a lament that the Secret Constitution has failed to triumph over the old one, Fletcher ends with a call for a pragmatic accommodation between the two. (pp. 228-229) Indeed, the notes make it clear that in the course of writing the book, Fletcher has sharply modified some positions previously staked out in his earlier work. (pp. 279 n. 19, 282 n. 7)

Thus, the book seems to be part of a work in progress rather than a definitive account. Its real contribution may not lie in the details of the thesis but rather in its central insight. That insight is both valid and important. The constitutional regime did change in some fundamental ways in the course of the Civil War, even before any formal constitutional amendments. What happened at Gettysburg is as important for understanding the modern constitutional regime as the formal amendment process. As Part III of the review explains, the war experience transformed constitutional practices and understandings. Under the extreme pressure and heat of the Civil War, the old constitutional regime melted and recrystalized into its modern form. Just as limestone is transformed into marble deep inside the earth, so a constitutional metamorphosis took place between Sumter and Appomattox.

1. THE DUALITY THESIS

   Before we consider the evidence, a careful explanation of Fletcher's views is in order. Like some other recent writers, such as Bruce Ackerman, Fletcher views constitutional history as divided into distinct regimes. (p. 2) The "first Constitution" was based on individual freedom, republican elitism, and the concept of the social compact. It stood for the "maximum expression of individual freedom, at least against the federal government," carving out "a space for each person to stand alone, free of governmental interference." (p. 2-3) It also focused on rule by the "virtuous few." (p. 3) Under what Fletcher calls a reign of "ancien principles," the dominant value was liberty rather than equality. (p. 204) Government was the "interloper, the enemy, the potential violator of our freedom to do as we please." (p. 213)

   But the Civil War called forth a new constitutional order--one based on nationhood, equality, and populism. (p. 2) Voluntary consent, the basis of the original Constitution, "marks the people" while "[h]istory breeds the nation." (p. 2) The preamble to the new Constitution is found in the Gettysburg Address, which became a kind of "secular prayer" reminding us of our "collective commitment to nationhood, equality, and democracy." (p. 4) This crystallization of natural law principles began at Gettysburg and was memorialized in the Reconstruction Amendments. (p. 9) Unlike the adoption of the first Constitution in the cool deliberation of a constitutional convention, the second Constitution emerged from "the suffering of a redemptive war,"--"forged not by election but the cleansing action of a war." (p. 10) Unlike the first Constitution's historically unrooted social compact, the new order represented not only the present but the past--not just the legislators who voted for the Reconstruction Amendments but also the dead at Gettysburg and elsewhere, who "if the new order is realized, `shall not have died in vain.'" (p. 28) The new constitutional order announced at Gettysburg also stands in "radical contrast" to the old Constitution by defining citizenship, bringing "the principle of equality to the fore," and beginning the move toward universal suffrage. (p.29) In contrast, the original Constitution "slighted the problems of nationality and citizenship, it sidestepped the problem of equality, and it minimized the significance of popular democracy." (p. 29) The Civil War, then, initiated "a second American Republic." (p. 2)

   But this new order was suppressed by the courts almost from the moment of its birth. (p. 8) Although new judges replaced those of the Dred Scot era, they were still stamped with ante bellum values and ideas, rather than the new spirit of nationalism and equality. (p. 114) "It is or [was] almost as though the Civil War had accomplished only one objective, namely settling the issue of secession, while doing nothing to define the nation of the United States or to establish a principle of equality among all its citizens." (p. 128) In the Slaughterhouse Cases, for example, the Court missed the opportunity to make the Constitution a charter of economic equality. (p. 129) The Court invoked the concept of reasonableness to uphold the statute, a concept apparently antithetical to the "strict rule suggested by the Maxim `all men are created equal.'" (p. 174) Similarly, the post-war Court overlooked the application of the equal protection clause to gender discrimination. "Apparently, it lay beyond the imagination of the justices in the 1870s that someday equal protection would be extended to protect all those created in God's image." (p. 130) The Court also continued to give too much credence to the states. After the Civil War, Fletcher says, it would have made sense to view the Tenth Amendment as an anachronism...