OUR SECRET CONSTITUTION

A novel consideration of American history offers a fresh view of a foundational document.

Fletcher (Law/Columbia Univ.) argues that the Constitution cleaves into two ill-fitting parts, rather like the Old and New Testaments. The dividing point between them is the Civil War, which called forth a new constitutional order that was devoted less to “voluntary association, individual freedom, and republican elitism” (as the Constitution of 1787 was) than to “organic nationhood, equality of all persons, and popular democracy.” If the source of authority of the first Constitution was “We the people,” then the source for the second was “the nation as defined by history.” This so-called Secret Constitution, whose preamble is the Gettysburg Address, ushered in the program of reconstruction and federation-building that would yield the modern US; in doing so, it inaugurated the era of Big Government, an entity that actively worked to assure equality under the law and in actual practice. This recasting of the government’s role was never made explicit, the author suggests, largely because many state and even federal courts actively opposed the transformation. But even with that opposition, the old order of sovereignty gave way to a new one, in which the states were “enmeshed in the [federal] law and subordinate to it.” This tension between state and federal claims of supremacy endures, Fletcher notes, and nowhere more plainly than in what he considers to be the outmoded and antidemocratic institution of the Electoral College—which he savages in a brilliant closing chapter devoted to the 2000 presidential election.

Proponents of an activist central government will find intellectual comfort in these pages—but they will give anti-federalists fits.