Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Winter 2001; Volume 7, Number 4

Inadvertent Ammunition

Our Secret Constitution: How Lincoln Redefined American Democracy by George P. Fletcher (Oxford University Press, 2001, xi + 292 pgs.)

Professor Fletcher’s book brings to mind a remark by Yvor Winters, in a review of C.S. Lewis’s English Literature in the Sixteenth Century. Winters praised Lewis for his grasp of the facts, but he said that he disliked whatever writers Lewis liked, and vice versa. Fletcher agrees with M.E. Bradford and other defenders of tradition that Lincoln destroyed the Old Republic, but he is happy about it. Those of us who side with Bradford will find in this very useful volume a familiar picture, but reflected in a distorting mirror.

As Fletcher sees matters, the American Founding Fathers had the wrong idea. Foolishly, the authors of the Constitution thought that the people had the right to choose their government, as if a nation were a club that one may join or leave at will. Even worse, they thought that the states retained sovereign powers. Did they not see that the states needed to be submerged into a new organic union?

Whatever can have been the matter with dolts like these? They believed that the government needed to be strictly limited. What nonsense! We need a strong centralized authority—of course to protest the weak. Fortunately, we were blessed in 1861 with a heroic Leader, Abraham Lincoln, who realized the folly of the old ways. He saw that America had to be remodeled along the lines of the progressive European nations.

Our Leader faced a problem. The Southern states had the gall to believe that America remained bound by the antiquated Constitution; and, exercising their rights under a plausible interpretation of it, they seceded from the union in fear of what the Leader had in store. So great a Leader surely could not accept dissolution of the organic nation. The South would have to be dealt with.

But did not the Constitution bar the Leader’s path? Even if antiquated, was it not still legally binding? Yes, in a way; but our Leader rightly did not pay much attention to this scrap of paper. Why should he accept the commands of men long dead? He had work to do!

Manifesting his supreme wisdom, our Leader used to his own ends the Southern threat to the organic union. Though our country was "conceived in liberty," a sin stained us. Slavery had always threatened to undercut the nobility of the organic nation; but now a remedy was at hand. Through a war to compel the recalcitrant states to obey the commands of the Leader, we could purge ourselves from sin.

To end slavery peacefully would not have been enough. To cease from sin does not suffice for atonement and redemption. The redemptive suffering that war offered had to be borne, if our nation was to emerge to "a new birth of freedom." Our Leader was equal to the task, and his speeches show that he fully grasped his divine mission.

After the Leader’s death, the Reconstruction Amendments promised to carry on his plans for a centralized government that would protect the weak. But a reactionary Supreme Court rudely interrupted these plans, by giving the amendments a narrow construal. The Court, incredibly, thought the old Constitution still binding and spurned the New Order. But all was not lost. The Reconstruction Amendments remained in the nation’s conscience. Legal emasculation proved powerless ultimately to destroy the "secret constitution." It emerged from eclipse in the twentieth century, and many of the Leader’s dreams for us have been fulfilled.

Readers may long since have concluded that I am attempting to parody Professor Fletcher’s précis of the New Wisdom, but of course I am incapable of such irreverence. What I have hitherto presented is exactly what our author claims. His distaste for the Constitution emerges early in the book:

"The preamble to the 1787 national charter begins with the words ‘We the People.’ The people come together, at least as imagined by their self-appointed representatives in Philadelphia, to form ‘a more perfect Union.’ The emphasis is on voluntary association. We the people choose our form of government. . . . Choice marks the people. History breeds the nation. . . . The 1787 Constitution stands, therefore, for the choice of the people. The Civil War Constitution builds on a recognition of organic nationhood as the legacy of the American experience" (pp. 2–3; the context makes clear that Fletcher intends to contrast the 1787 document unfavorably with its alleged successor.)

Has not Fletcher here erected an unreal antithesis? No doubt he is correct that people in a nation feel bound to one another by close ties. But why does this imply anything about the form of government that a nation should establish? Why, specifically, do the close, "organic" bonds that unite a people require them to have a strongly centralized government, rather than a loose association of states? The ties that so much concern our author no doubt help to explain why the states wished to form a union, but they do not determine the nature of that union.

Fletcher might admit all this. His contention, he could reply, is not that close ties make a centralized state inevitable; it is rather that an organic state is desirable. In particular, only a powerful central authority can protect the weak by its service to the supreme political value, equality.

But what about liberty, you will no doubt object? Why think that the organic state will act to protect the weak, Fletcher’s professed goal? Our author dismisses fears about liberty with a wave of the hand. "True" freedom is not freedom from government. "The postbellum constitution emphasized not freedom from government but equality under law. The state would have to do more than just leave us alone. It would have to ensure the equal protection of the laws for all" (p. 3). Rights against the central government permit the strong to oppress the weak.

Fletcher’s comment does not respond at all to the objection. Even if he is right (which I do not for a moment believe) that only Leviathan can secure equal protection under law, he does not show that it will act to do so. His paragon Lincoln, after all, managed to bring about a war that resulted in more than a few deaths: was this equal protection under law? His incredible answer to this query has already been suggested, but we will shortly confront it more directly.

Before we do so, let us give Professor Fletcher a chance to present his case in its best light. He thinks equality more essential than liberty: what then is his argument for equality? With commendable honesty, Fletcher admits that most defenses of equality do not succeed: "Modern philosophical approaches toward equality all suffer from the same flaw. They are strongly committed, vaguely, to some position on the spectrum [of equality] but they offer no reason why they are so intensely committed to this value . . . equality is one of those values that has become so deeply held that it is neither questioned nor justified" (pp. 95–96).

Professor Fletcher, it transpires, believes that he has something better to offer. Equality rests on religious foundations: "the central idea that generates the concept of universal humanity or universal brotherhood is that we are made in the image of God" (p. 103). Exactly how the Biblical doctrine translates into political imperatives our author does not vouchsafe to tell us. I confess that I do not think very helpful Fletcher’s suggestion, "[t]he basic ideas of Genesis receive their best secular rendition in the philosophy of Immanuel Kant, who takes the idea of creation in the image of God and bequeaths to us the idea of universal humanity" (p. 104).

Fletcher, it is evident, confuses the statement of a view in magniloquent language with its philosophical defense. When he tells us, "Each generation must struggle to assay how far they are willing to go in the name of egalitarian justice" (p. 104), it becomes clear that he has nothing useful to provide to support or delimit his proposed substitute for liberty.

No doubt it is just as well that our author does not develop at greater length his views on the religious basis of equality. What he says about religion and politics in another context is positively frightening. The killing and bloodshed of the Civil War, in his view, were necessary redemptive sacrifices the people of the United States paid for the sin of slavery. "The spilling of blood in a great battle is understood instinctively as the suffering that must precede redemption. . . . But blood alone does not save a nation from its sins. The argument here is that indulgence in evil—slavery, mass killing, persecution—must first issue in the suffering of the people" (p. 19).

Here we see the author’s answer to the query posed earlier. As long as the organic state endeavors to secure equality, sacrifices of liberty do not weigh in the balance. Indeed, we must seek them out as means of redemption. "The important point is that the rule of law—not charity, not prayer, not animal sacrifice—should provide the means of secular redemption. . . . The law redeems not the individual but the community or the nation as a whole" (p. 19). A skeptic might remark that under Lincoln and his Reconstruction successors, there was much pseudo_religious rhetoric, even more suffering and death, but very little redemption.

I shall forego the pleasure of comment on Professor Fletcher’s Epic of Equality—his account of the onset, eclipse, and ultimate triumph of the Reconstruction Amendments. Rather, I shall confine myself to a brief account of this distinguished legal scholar’s ideas on constitutional interpretation.

Readers will not be surprised to learn that Fletcher thinks original intent of little importance. He rightly notes that it is often difficult to establish a clear original meaning when a number of people have drafted a document. Why bother? "Why should we care what the founders actually thought? . . . I never cease to be amazed that legal scholars . . . continue to be confused about the relevance of the framers’ original intent" (pp. 30, 32).

One might think this view understandable, given Fletcher’s less than complete enthusiasm for the Constitution. But he extends his view to the beloved Secret Constitution as well. Did the authors of the Fourteenth Amendment intend to establish integrated schools? A "vast literature has grown up around the question . . . but the dispute seems to be entirely irrelevant" (p. 31). The Supreme Court quite properly used the Fourteenth Amendment in Brown v. Board of Education to end segregation, since the views of the amendment’s authors do not matter. Doubts about whether the amendment was legally ratified should also be put aside. Who cares?


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