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Book Reviews
George P. Fletcher. Our Secret Constitution: How Lincoln Redefined American Democracy. Oxford and New York: Oxford University Press, 2001. 

Pp. xi, 292. Hardback, $25.00. ISBN 0195141423.

Reviewed by  Will Kaufman, University of Central Lancashire

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Posted 21 December 2004

In a detailed, often idiosyncratic argument that far exceeds the bounds of most A Level and Access requirements, George P. Fletcher explores the impact of the Civil War on the US Constitution. In a sense, the war produced a ‘second constitution’ that has differed from its 1787 progenitor in that it outlawed the slavery that it initially sought to protect, it exchanged a republican elitism for popular democracy, and it redefined nationhood as an inescapable, organic state rather than a voluntary association. Given that Fletcher is one of America’s most distinguished professors of jurisprudence, it follows that his argument is in fact an extended disquisition on the evolution of law. As he maintains, the Civil War began as a war for one thing (the preservation of the Union) and ended as another (the reconstitution of the United States); consequently, Abraham Lincoln looms large, particularly in his invocation of the principles of ‘higher law’ in the Gettysburg Address—principles that were translated into ‘black-letter law’ in the Constitutional amendments of the Reconstruction period (which outlawed slavery and established citizenship as a birthright). The legalistic rejection of the Reconstruction laws after 1870—when conniving lawyers, judges and politicians in the South colluded with their Northern counterparts in reversing the revolutionary tide—‘drove the new higher law principles under ground’ and ‘generated a Secret Constitution’ that eventually emerged to influence America’s philosophical, academic, judicial, and legislative landscapes. Its impact has been felt in movements for free speech, religious liberty, equality in the workplace, and affirmative action; it played a crucial role in bringing George W. Bush to power, through the intervention of the US Supreme Court in the Florida election debacle. Thus, Fletcher’s is a useful work for those attempting to explore further the connections between the Civil War and contemporary US society; but its appeal will be best reserved for students of constitutional law.

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