The real U.S. Constitution was a secret for a century

The Argument

There is still hot contention about the meaning and intent of the concept of equality in the 1700s.


November 11, 2001|By Joseph R. L. Sterne | Joseph R. L. Sterne,Special to the Sun

In American political scripture, no words matter more than five embedded in the Declaration of Independence: "All men are created equal." This simple phrase was written by a slaveholder, Thomas Jefferson, and approved in 1776 by an assemblage of revolutionary patriots, half of whom "owned" fellow human beings of African heritage or birth.

Did they mean, literally, what they had transcribed? If so, the slaveholders among them must be judged by history as highly conflicted or blatantly hypocritical. Or, as men of their time and place and circumstance, did they merely imply that American white men were entitled to all the rights of British white men?

It is not an idle argument. It is a dispute as old as the country and as new as two important books on the subject. These same slaveholders had just rejected a paragraph condemning slavery that came from the facile pen of Jefferson. Over a dozen years later, having won the War for Independence, they helped draft a Constitution that accepted though never mentioned slavery as the price of forging "a more perfect Union."

The Declaration's five-word credo, while glossed over in its early days, became the battle cry of abolitionists whose leader, William Lloyd Garrison, famously described the Constitution as a "covenant with death" and "an agreement with hell." It became a central issue in the 1858 debates between Abraham Lincoln and Stephen A. Douglas, debates that were a prelude to the Civil War.

Five years later, on the blood-drenched fields of Gettysburg, the wartime president stood and in his high-pitched voice began his immortal address: "Four score and seven years ago our forefathers brought forth upon this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."

Note the lack of any caveats as Lincoln pronounced the Declaration's five great words. He took them literally. Note, too, his arithmetic. Four score and seven equals 87. Eighty-seven subtracted from 1863 equals 1776. Lincoln was leaping past the 1787 Constitution, which he ignored entirely, to the Declaration of Independence.

In his 1992 Pulitzer Prize-winning book, Lincoln at Gettysburg (Touchstone Books, $14, paperback) historian-journalist Garry Wills asserted that this nation is grounded on three seminal documents: the Declaration, the Constitution and the Gettysburg Address.

Let me quote Wills: "Lincoln [was there] not only to sweeten the air of Gettysburg, but to clear the infected atmosphere of American history itself, tainted with official sins and inherited guilt. He would cleanse the Constitution -- not ... by burning an instrument that countenanced slavery. He altered the document from within, by appeal from its letter to the spirit, subtly changing the recalcitrant stuff of that legal compromise ... The crowd departed with a new thing in its ideological luggage, that new constitution Lincoln had substituted for the one they brought there with him."

Wills thoroughly approved this tactic. Not so some modern-day conservative, "original intent" advocates who saw a similar revolutionary motive in Lincoln's part -- and disapproved thoroughly. Said Robert Bork, the rejected Reagan nominee for the Supreme Court (as quoted by Wills): "We should not allow [Lincoln] -- not at least without some probing inquiry -- to 'steal' the game, that is, to accept his interpretation of the Declaration."

In a new book, Our Secret Constitution: How Lincoln Redefined American Democracy (Oxford University Press, 292 pages, $25), Columbia University law professor George P. Fletcher picks up the Wills thesis, endorses it and applies it to the jurisprudence that came with Reconstruction and all that followed. Lincoln lived to see the 13th Amendment freeing the slaves passed by Congress. His martyrdom and the follow-on Radical Republican battle with President Andrew Johnson produced the 14th Amendment, which subordinated state action to the national will, and the 15th Amendment, which was intended to enfranchise black Americans.

This, then, was the "new constitution" Wills invoked and Fletcher calls "Our Secret Constitution." He contends it remained "secret" for almost a century as the Republican Party ignored its Lincoln legacy and a reactionary Supreme Court approved a form of slavery and segregation in the South.

But along came the New Deal and the black shift of allegiance to the Democratic Party. Along came World War II with the huge demographic influx of African Americans to the North. Along came Brown vs. Board of Education in 1954, banning the "separate but equal" concept. And along came the 1960s with passage of the great civil rights laws that resurrected the spirit of the Reconstruction Amendments and made the Constitution conform more literally than ever to the Great Maxim of the Declaration of Independence.

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