Our Secret Constitution: How Lincoln Redefined American Democracy

By George P. Fletcher | Go to book overview

CHAPTER 9
THE SECRET
CONSTITUTION RESURGENT

“The great cycle of the ages is renewed …returns the Golden Age: a new generation now descends from Heaven.”

—Virgil

In recent years, the Secret Constitution has come to assert itself in the opinions, particularly the dissenting opinions, of the Supreme Court. If we are to understand the impact of our implicit postbellum commitment to the ideas of nationhood, democracy, and equality, we cannot limit ourselves to the jurisprudence of the nine justices who happen to sit on the Court in Washington. The Secret Constitution has, in fact, a much deeper grounding in American political and legal culture, and it has come to express itself in diverse arenas. It spontaneously percolates through civil society. It shapes the process of constitutional amendment; indeed, virtually every constitutional amendment enacted since the Civil War expresses, in one way or another, the values of the Secret Constitution. This is true as well of the two leading proposed constitutional amendments that have gained a large political following in the last decade: the proposal to protect the flag against “desecration” and the movement to protect victims of crime. The values of the Secret Constitution have also found their way into subconstitutional federal legislation based, as a technical matter, on the Interstate Commerce Clause, granting Congress authority to regulate commerce “among the states.” 1 The earlier defeat in the Supreme

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