Our Secret Constitution: How Lincoln Redefined American Democracy

By George P. Fletcher | Go to book overview

CHAPTER 8
A MAXIM OF JUSTICE:
ITS BIRTH AND REBIRTH

“There is only one religion, though there are a hundred versions of it.”

—George Bernard Shaw

The United States is unique in tracing the principle of equality under law to the great religious principle of creation in God's image. German theorists have generated an independent commitment to equality under law by deriving the principle from the rule of law. The idea of law is hostile to arbitrary distinctions. The rule of law implies, therefore, the necessity of recognizing a constitutional requirement like the German provision: “All persons are equal before the Law.” 1 This alternative, rule-of-law rationale suffices for most purposes. And it may account for why the other English-speaking countries seem to have ignored the rhetoric of the key moments in the evolution of American thinking—the 1776 Declaration of Independence and the 1863 Gettysburg Address. 2

Our rhetoric in the years 1776 and 1863 has left us with a deep foundation for our commitment to equality. As Americans, we derive sustenance from our Great Maxim, “All men are created equal.” One would expect that these famous words would have had a distinguished career in the rhetoric of the Supreme Court. In fact, these words have been recited much less than one would expect—only twenty-three times in the history of the Court, and usually, as we shall see, in dissenting opinions. The

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Our Secret Constitution: How Lincoln Redefined American Democracy
Table of contents

Table of contents

  • Title Page *
  • Contents *
  • Preface ix
  • Introduction - The Argument for the Secret Constitution 1
  • Chapter 1 - Redemption Under Law 15
  • Chapter 2 - Radical Gettysburg 35
  • Chapter 3 - Nationhood 57
  • Chapter 4 - Loyalty and Betrayal 75
  • Chapter 5 - Equality 91
  • Chapter 6 - The Revolution That Never Was 113
  • Chapter 7 - Equality Without Vision 141
  • Chapter 8 - A Maxim of Justice: Its Birth and Rebirth 165
  • Chapter 9 - The Secret Constitution Resurgent 189
  • Chapter 10 - Government as Partner Against the Past 211
  • Chapter 11 - Neither Blue nor Gray 225
  • Afterword - Election Blues 2000 231
  • Notes 261
  • Index 285
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