This study points to the Civil War as the most significant event in American legal history. The basic principles of the postbellum legal order, believes the author, are so radically different from the Constitution of 1787 that they should be recognized as a second American Constitution, establishing a Second Republic. The first Constitution was based on the principles of peoplehood as a voluntary association, individual freedom, and a republican elitism. The guiding premises of the second Constitution - as articulated in ...
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This study points to the Civil War as the most significant event in American legal history. The basic principles of the postbellum legal order, believes the author, are so radically different from the Constitution of 1787 that they should be recognized as a second American Constitution, establishing a Second Republic. The first Constitution was based on the principles of peoplehood as a voluntary association, individual freedom, and a republican elitism. The guiding premises of the second Constitution - as articulated in Lincoln's visionary address at Gettysburg and enacted in the 13th, 14th, and 15th Amendments - were in contrast, organic nationhood, equality of all persons, and popular democracy. Thus, although we may yearn for continuity with 1787, in fact our values, commitments, and aspirations for America have radically changed. By finally recognizing our radical discontinuity with the first Republic, says Fletcher, we can put an end to debilitating arguments about the Founders' intent and consciously and energetically pursue the full implications of our true beliefs about what America should and can become.
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