in large part around the reconstruction and an ongoing battle to decide what the amendments that follow the civil war mean. many of the contests that -- that our candidates for legacies find one of their principle forums in the courts and in social movements that are claiming to, to, articulate the true meaning of -- with many different views, about what the true meaning might be of the reconstruction amendments. the 13th, and the 14th, giving citizens, privileges and immunities, guaranteeing all persons due process of the laws and equal protection of the laws and giving the congress power to enforce it. and the 15th amendment, banning discrimination in voting. these are the three transformative constitutional amendments of our legal and constitutional history. and much of -- what has gone on

since then in the law and in constitutional law and the supreme court, a series of argument as the bout those, those, amendments. this is played out in areas like affirmative action, race discrimination. brown v. board of edge investigation and its progeny are the product of this. but it goes way beyond that. the number of different features of american law that are shaped and cannot be understood otherwise except through the amendments. it knows know bounds. gun rights. your handgun rights which you now have, didn't a couple years ago now, you do, are run through the 14th amendment. there is no connecticut handgun second right, to incorporate against states rights that were only before the civil war held by, by, individuals as against the federal government. most criminal procedure law is the result of the 14th amendment. the list goes on and on. so this is a huge legacy of the civil war. it is one that is fought out all the time.

just, seven years ago, nine years ago, justice o'connor, former justice, said she hoped in about 25 years questions of affirmative action in hyperedig education, may be able to be race blind as far as constitutional amendment. what i think she meant, in 25 years from then the battle over the civil war would at last be over. turns out the supreme court is probably going to end that next year. >> it's not about health care. don't make it about health care. >> second legacy. draws on an observation gary made. the beginning of sustained moral and legal and military deliberations on what it means to be a great power. we see in the lincoln administration for the first time in american history that i am aware of, a sustained,

thinking and deliberation and debate about what it means to exercise the huge power that comes with an industrialized military force and ranges from lincoln's extraordinary just war deliberations in, stom where om the fall of 1862 to elaboration of code of rules of engagement, pu purport to be international law, and with us from the international law of hague and geneva conventions. and last in the construction of military commissions which try thousand and thousand of peopled are are right now being argued about in federal courts in washington, d.c. virtual leave every week. in the coming weeks, the federal district court -- for the federal court off pee appeals w decide a case in which the parties are arguing about the legacy of the civil war. and the question -- about -- and their question, central question, is whether or not the expansions that lincoln and his administration made in the

military authority to -- take over territory that had once been the territory of the civil courts ought to be an authority for military commissions. the legacy of the civil war and questions about the united states as a mill staitary power moral, legal questions, strategy and is really palpable as part of the conversation i think. >> wow. you know, i don't need to define a legacy at all. we just did. since i forgot to. anyway. i'm going to go in the order that these were raised. and get us all to weigh in on this. andy. your point about how does one understand how americans find compromise, find a middle ground. you reminded me immediately, one of the things, that he wrote about 50 years ago now, in "legacy of the civil war" was

that he believed the civil war gave us prague ma -- pragmatism. his point, the area of terrible, bloody extremes, horrifying extremes brought about an america, and many people have written about this, brought about in the next generation, at least, or that generation, a philosophical, outlook we have come to call pragmatism. a la william james and others. its that gone? can that kind of thing -- true three be defeated? i mean we think we are living -- our current word is polarization. a nice word isn't it, for political deadlock. political hatred. political civil war. but is pragmatism dying now? i mean in the political arena.

it may not be among reflective college professors. i don't want to take us away from our topic, but, it's my hope that we are -- sort of lumbering -- unwittingly, unconsciously, half blindly, into, into some kind of -- middle, middle ground that -- that we will find whether we are -- exactly looking for it or not. that's probably an expression of completely groundless faith. look, you raise so many questions, you know -- for me -- one of the features of the civil war is that -- we are mesmerized by it because we can, we can't imagine -- death and terror and destruction on such a scale, at least not on the, on the homeland territory. now, in fact, it turns out to have been a preview, pretty good preview, of the 20th century. some of the ways that have been

mentioned. invention of total war, an ideology based on, on racial hierarchy, versus an ideology, at least in theory based on individual dignity. we saw that war being fought out again in the 20 th century. in some ways, one connecticut seeably make t -- couldn't conceivably. so you know i think one thing, one can gain from a study of the civil war is a sense of what the takes can be. i mean we are in a moment now where the stakes seem very high to a lot of people. we are waiting to see whether the supreme court is going to strike down what i think is a middle way compromise on health care, right. on the one hand, there is a large faction in our country that believes a single payer

system, run by the government is the way to go. then on the other side a faction fat believes the private market is the way to go. and what we have is an effort to find some middle ground. it looks like it will come apart. now the cost of that, in my view will be quite high. but it won't be on a scale of the, of the cost of the civil war. studying a world historical event as a number of people at this table have accurately described it, and seeing -- from a, from one perspective, what is the cost when they, when the political process doesn't work, is, a sort of sobering reminder to us of how suddenly, catastrophe can sneak up on us. now, just quickly saying. that is not to deny all of the positive statements that have been made about the legacies of the civil war. i mean. without it. it wouldn't beep the suns. there wouldn't be a united states with free black people in

it, as a very significant part of the culture. wouldn't be all of the other things, we talk for granted. it doesn't look like a catastrophe. it looks like a great leap forward. for those in the middle of it. it didn't feel so good. would be my suspicion. >> gary, on this issue. in your book, "union war" you make a forceful case. for the fact that -- millions of northerners fought this war to save the union. the united states. in fact, i have never read a book on the civil war where the term united states was used as much. quite, i know you well. it's quite explicit on your part. are you in any way as a thoughtful historian that has the to live in the present. concerned there is a death of pragmatism, the belief in union, the belief in this, cohesion, the ultimate aim of a cohesive

republic is endangered based on your study of what union meant in the 19th century. do we have a language of union anymore. >> i an not sure we do have that language anymore. another thing we don't have. this plays off, what? you were saying. i've don't there inning we have much of a sense of the civil war or anything else, in our history. and i think, an indication of that is the hysterical treatment of everything that happens now. it's the worst. there has never been anything like this. we have never been as divided as we are now. never been a problem with in graduation like there is now. the only way you can believe that is if your historical memory goes back to last thursday. because if it goes back very far at all you know, very well, that we have been through far more traumatic things than we are going through now. i think it would be very helpful for to us have that historical context in mind. i think it would equip us better to deal with what -- we have in front of us now.

instead of having the armageddon like swluview of what is going . the free states were 98.8% white. according to the 1860 census. that is something that we need to remind ourselves when we think of the past. the past is a ditch rent country in many ways. demographically it was. when you are talking, they're almost all white. and most of them, alas, did not care much about black people. most of them embraced emancipation as a tool to preserve the union. i believe. i think the evidence is very strong on that. but they had a collective sense of what the union meant. i don't think that we have -- perhaps that strong a sense now. and i don't think, i don't think we should all have a polyana notion of what the united states is and stands for. i think it helps to have some common sense of what the project is about. i'm not sure we have that. we don't have it when we listen to candidates some times.

>> rick santorum, declared this elect, the most important since 1860. >> gettysburg. >> there was a battle there. >> sure. uh-huh. >> one thing that just occurred to me listening to this. i don't know, if people, here with much more historical knowledge than me. being some one that does quite a bit of political analysis, i agree with the notion of, a really brief historical memory. i think newt gingrich said that. about 1860, lends it this kind of intellectual veneer. everything we says. when newt says it it really means something. but i wonder if -- if part of this is not the price of seating the historical memory to a certain section of the country. one of the things i noticed when i started making my journey into the civil war, outside of people who are actually historians or writers, the civil war belongs, the public memory to a certain group of people. when you do that, the rest of the country says that's for them. that's not for us.

so i wonder about the implications of that. >> which is who? who does it belong to? >> who? white southerners with confederate sensibilities. that's been my experience. i don't think that is in fact true. but -- whenever you viz sit the battle parks that's really the impression you get. it's not for you. it is for a group of people. at firest i thought that was me as anch a african-american. it is quite bigger than that. if you decide the historical memory is not for you, how do you call upon it when you think of your current politics? >> i also, i read something you wrote about this that really struck me, resonated with me. it has the to do with the problem i have had feeling invested in the idea of compromise in 1860 at all. extremely difficult to teach. how are you supposed to think that in 1860.

>> who are you roading f irooti? >> the upper ground unionist s who would have sold people into slavery. it's hard to back them. they're the one whose are bargaining with seward over, shutting down the show. so that -- there is no threat to slavery. everything is going to, he is going to give away the store. lincoln won't let him. compro is my isn't possible. you have to feel, how could you morally back compromise in that particular context. and you wrote about this a little bit when you were talking about how an african-american narrative of the civil war just kind of ruptures the story. this is one of the main ways it ruptures the story. i can't feel comfortable with that story myself. they're not my guys. i don't really want them to win. compromise is not the solution in this case. there is no way that anybody

understood a scenario in which slavery would have been eradicated, uncompensated in total. unless the scenario. war, state sponsored emancipation. they only ever do it. doesn't matter what country it is, almost all emancipations come when they want soldiers for the army. so it is a military emancipation policy. it is a military emancipation policy in the union and a military enlistment policy in the confederacy. i find the idea of the middle ground and political comb appropriate is my, deeply troubling. it is very hard to write a narrative around that -- without disturbing that assumption. once you disturb it, it is hard even to teach. that period for that reason. >> do you think it is generational at all? think back, give it, david donald generation. great civil war historian. started writing in the '40s. and was part of the generation that, that -- -- was wishing --

there had been more of a compromise culture. >> if only the politicians hadn't been so bumbling. >> yeah, david, trained by james randall. one of the needless war school leaders. >> blundering generation. >> blundering generation. yeah. >> but its os our generation. always a troubling phrase to use around anybody. let's just say people -- that we have been, have we grown up -- appreciating conflict? that its understanding historical change as conflict. >> i certainly do. that's a yes on my part. >> okay. okay. andy? >> you know -- one can't disagree. this is -- i find myself in a -- difficult paradox when weep get into this topic. i guess it is the place that i choose to be. we make compro is mys all the time, right. we are compromising with all kinds of unconscionable behavior

because of the clothes we wear, because we walk down the street as free people in a country where millions of people are incarcerated, in many cases, way beyond what i tthing any ration moral analysis would lead to us conclude they ought to me. and there are people in this country who speak with just the same passion that stephanie spoke with. about other issues on which they feel that any kind of compromise is off to give away the moral ground completely now. we may not agree with them. on certain issues, such as abortion, i don't mean to prestum whpr presume what people think about that in this room. we have to recognize there are people in this country and there are fellow citizens, and they have the same free speech rights that we have, who believe that there are issues right now that we are blind to and that we are selling our souls by, not acting against. they may not, they may not be international issues, rather than national ones.

but, you know -- i think we need to take the view seriously. it might help us to feel a little bit more how complicated it was to be an american in, in, not by 1860, but in the decade that led up to the situation of 1860. >> even by 1860, there are hard truths we need to come to terms with, with the civil war era. one is, nobody is talking about a compromise relating to the institution of slavery itself. the place they're trying to compromise is on the extension of slavery. where the argument is. no one is arguing, beyond what would have been considered the abolitionist fringe is arguing for emancipation in 1860. what the civil war is an example of, how wars rage out of control. bring consequences no one could have anticipationed. end of slavery in four years. no one could have anticipated that. absolutely no one. the only reason it happens is because -- three million men take up arms and that makes many

things possible. >> seems we have stumbled on, the general guidance, another, another legacy. which is, whiven ch is that the civil war experience frames both powerful impulse towards moral modesty about our passions and about our views and objectives and political end. that's the lesson of, of robert penn warren's pragmatism. wilson's lesson from the war. i was teaching this morning, injured three times during the war, shot in the chest, shot in the neck. and comes out of that experience. went into the war as one of the maybe, relatively few, abolitionists, officers, and comes out of the war convinced his moral passions, moral passions of the colleagues were foolish mistakes. so, it frames our moral modesty. >> the passion itself was the problem. >> that's right. it frames the passionate social

projects that people have engaged in ever since. so the civil rights movement, borrows on the language of the abolitionists. the woman's right movement, borrows and we have all the social movements that organize themselves social movements that form themselves around abolitionists, as the one great relatively pure example of extraordinary social reform in our country. but also we're called on to be modest at the same time by the same events. >> i want to make a quick argument for why slavery is just a little different. if you look at a state like south carolina or mississippi, were you talking about the majority of the people who live there enslaved. i'm going to go here. i think slayry very is a partic kind of violence when you talk about the selling of people, selling of children, the division of families. i think that's a little different than peta, and i guess

i'm being presentist right now, but when i don't think we should ever lose sight of the fact that there are a great number of people who have absolutely no power, and also i think we belong in that debate. >> it's an irrefutable point, and i talk on this topic, and it's kind of fascinating to me that we've come so quickly to this topic. nothing i'm saying should be misunderstood. i think at least by me or as any kind of defense of or sympathy for slaveholding or any kind of reduction in our sense of the heinousness of the crime of slavery. but -- and it's very difficult to go here, but, you know, i once heard someone speak about

comparative clima comparative climatology. we have one of the greatest histories of slavery sitting in the front row which makes me even more nervous. slavery is clearly one of the great crimes in the history of humani humanity. but there have been other great crimes. the holocaust. we didn't intervene in time to stop the holocaust. what we know about stalin retrospective, we didn't intervene. that was the policy of the 1940s and the 1950s, it was a containment policy of the we chose, maybe because we didn't have the power, we chose not to intervene in horrors -- higher scale, lower scale -- but horrors that were being perpetrated on millions of

people. we chose wanot to intervene because we believed they would eventually beie rad indicat era. that's what lincoln believed. that's not how it turned out. he was wrong sort of, but he was right sort of because the containment policy drove the country to civil war and that unleashed the power that brought slavery to an end. i'm just a little uneasy about saying in retrospect it was clear that military action was the only option and that all the times we've refrained from it ever since have been okay. >> and the fact that american slavery was indeed in the end bludgeoned out of existence by great violence, of course, as with all these legacielegacies. let me move, though, to a combination of stephanie and gary's ideas. the story. this beguiling, powerful,

infamous story that caught you as a kid, caught me as a kid. and why doesn't the confederate army just go away? it's been four years, they have a flag. just go away. what is it that makes the civil war story, the nar tiratives th we draw from it so powerful, troubling, and why is defeat so interesting? >> well, i think you and i learned something -- >> i know you raised it and didn't want to have to answer it, but now you do. >> i think you and i learned something about this when we were in jerusalem last summer about what is it like even if you think you don't have a sentimental or romantic approach to the civil war. by being an american historian of the civil war, you can be sure you do, and we were told that repeatedly in the jerusalem. we thought we were the outli ou.

it turns out to other stories of the civil war, we look crazily in love with our civil war even as we document its costs, its limitations. the spanish civil war, the civil war in yugoslavia -- >> in ireland. >> in ireland they look at us -- who else not only commemorates but celebrates their civil war, and, in fact, reenacts it. >> who puts robert e. lee on five postage stamps? >> no. >> since he died, united states postage stamps. there is no other loser in a l civil war that ended up on five postage stamps. >> even one. >> even one. >> there are so many echoes of the civil war and political quarrels in our own time. you know, rick perry threatening cessation, all kinds of

nullification threats. sometimes you feel like you're hearing old threats of the same debates. >> norman mailer wanted new york city to succeed. >> so did the mayor of new york. >> so did the norwegian immigrants in the upper peninsula of michigan, too. >> i think what i think, on the one hand i'm struck by these and troubled by these eerie residences, and other times they seem like thin reflections. i think part of it is this romantic story, the confederate appeal is the story of a principled struggle against tyranny, especially the tyranny of the federal government that can be that was jefferson davis' reprieve of the real struggle. it's been available since the 1870s, it fits many different types of causes, and i think you

get thinner and thinner and thinner versions of it all the time. they're still troubling, but they seem to me very watered down versions of what was being quarrelled over in 1860. and i want to try to remind myself to remember both things, that you can't take it for granted, you have to fight back against it when you see it deployed again. because the confederate story feels a little bit like some vampire story. scholars keep driving a stake through its heart and saying, no, this is really about slavery, and it doesn't matter. it just keeps coming up as not about slavery. >> listen to what you said: scholars keep driving a stake through the heart. scholars. who cares about scholars? i think the school of interpretation took a brilliant turn very quickly, and that was disassociate this struggle from the institution of slavery.

they weren't idiots, they knew they were out of step with the rest of the western world, so let's play down slavery, let's talk about high constitutional issues about whether the central government is powerful or the states, but that's not the key thing. the key thing is they picked the best person to focus on, and that's r.e. lee. you can talk about him without talking about slavery. you can talk about chance lo chancelorsville. you don't talk about the underdog waging a gallant fight over constitutional issues, and it doesn't have anything to do with slavery as long as you pretend robert e. lee didn't like slavery, anyway. they are brilliant about that, absolutely brilliant. they never lost sight of what the war was about, but once that generation was fading, it became more and more and more easy to do that, and when the two most important films in our history in terms of their social impact, both give a straight lost cause

take on things. birth of "birth of a nation" and "gone with the wind" nothing else even close to the impact. "gone with the wind" is a closer understanding of the civil war than anything any of us have done. it's true. and ted turner loves it, it's still on all the time. >> your cynicism has not risen too hard. and not to mention by 1900, there were 9 million black people, growing and growing and growing. race is at the heart of how this story played out, to say the least. >> you know, it's good to be realistic about how much scholars can change things, and i don't know much about -- i know nothing about grade school and high school textbooks, but i wonder how many students of american history are asked to read alexan