Garry Wills and others have described the Gettysburg Address as a redefinition of American democracy. Fletcher (With Justice for Some) argues that this unprecedented document, along with the three Reconstruction amendments (i.e., the 13th, 14th and 15th) to the Constitution, form the core of a "second Constitution," based on "organic nationhood, equality of all persons, and popular democracy... principles radically opposed" to those of the first Constitution, which promulgated "peoplehood as a voluntary association, individual freedom, and republican élitism." Despite a superficial crudity in this abstract opposition, Fletcher—the Cardozo Professor of Jurisprudence at Columbia—develops a powerful case for this second Constitution, born from the need for redemption under law for the nation's crime of slavery and blood spilled in civil war. Drawing parallels to France's Napoleonic Code civil
in the aftermath of the Terror and to Germany's Basic Law following WWII and the Holocaust, Fletcher argues most persuasively that this second constitution is rooted in the idea of a religiously based higher law grounded in historical necessity. His argument that the second Constitution was driven underground, only to gradually reemerge, makes sense in terms of Supreme Court rulings and constitutional amendments cited, but slights substantial historical conflicts. Yet this hardly matters for his purpose in developing a novel perspective to expand our constitutional horizons and identify fundamental wrong turns—such as the post–13th Amendment focus on supervising and correcting state governments, rather than directly ensuring equal protection and democratic rights, or the failure to use "all men are created equal" as a guiding maxim of constitutional interpretation. With subtlety and coherence, Fletcher presents a lively critique of constitutional law. Agent, Angela Miller. (May)
