one of their principle forums in the courts and in social movements that are claiming to articulate the true meaning with many different views of what that might be. 13th amendment, abolishing slavery and involuntary servitude and giving congress the authority to enforce t the 14th amendments, giving citizens privileges and immunities and giving the congress power to enforce. the 15th amendment, banning discrimination in voting. these are the constitutional amendments of our history. much of what's gone on since then in the law and constitutional law in the supreme court are a series of arguments about those amendments. this is played out in areas like affirmative action, race discrimination, brown versus board of education and its

prodigny are the product of this. it goes way beyond that. the number of different features of american law that are shaped and cannot be understood otherwise, except through these amendments. it knows no bounds. your handgun rights which you now have, you didn't a couple of years ago but now you do, are run through the 14th amendments. there are no connecticut handgun second amendment right absent the 14th amendments. rights that were only before the civil war held by individuals as against the federal government. most criminal procedural law is the result of the 14th amendment. the list goes on and on. this is a huge legacy of the civil war, one that's fought out all the time. just seven years ago, nine years ago, justice o'connor, former justice o'connor said she hoped that maybe in about 25 years questions of affirmative action in higher education admission policies might be able to be race blind as a matter of constitutional mandate. i think when she said that, what she meant was maybe in 25 years from then the battle over the

civil war would at last be over. it turns out the supreme court is probably going to end that next year. they just granted certificate shi ory. secondly, 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 many i am aware of, sustained thinking and deliberation and debate about what it means to exercise the huge power that comes with an industrialized military force. this ranges from lincoln's extraordinary just war deliberations in the fall, elaboration of a code of rules of engagement that purport to be international law, which are

still with us today in the international law that we have from the hey conventions and the geneva conventions. and are right now being argued about in federal courts in washington, d.c. virtually every week. in the coming weeks, the federal district court for the federal court of appeals for the district of columbia will decide a case in which the parties are right now arguing about the legacy of the civil war and the question about -- and their 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 exclusively the territory of the civil courts ought to be an authority for military commissions for the 21st century. so the legacy of the civil war and these questions about the united states as a military power, moral questions, legal

questions, and military strategy and tactics question is really palpable as an important part of the conversation, i think. >> i don't need to define a legacy at all. i think we just did since i forgot to. i am 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 robert penn warren wrote about 50 years ago in his little book, legacy of the civil war, was that he believed the civil war gave us pragmatism. pragmatism may be a little older than the civil war, his whole point was that this era of such terrible bloody extremes, horrifying extremes, brought about in america and louie minnon has written about this. brought about in the next generation, a philosophical outlook or temperament we have come to call pragmatism, ala

william james and others. is that gone? can that kind of thing truly be defeated? we think our current word is polarization. it is a nice word, isn't it, for political deadlock, political hatred, political civil war. is pragmatism dying now? in the political arena? it may not be among reflective college professors. >> i don't want to take us away from our topic. it is my hope that we are lumbering unwittingly, unconsciously half blindly into

some kind of middle ground that we'll find whether we are exactly looking for it or not. that's probably an expression of completely groundless faith. look, you raised so many questions. for me, one of the features of the civil war is that we're mesmerized by it because we can -- we can't imagine death and terror and destruction on such a scale, at least not on the homeland territory. now, in fact, it turns out to have been a preview, a pretty good preview of the 20th century in some of the ways that have been mentioned. the invention of total war or an ideology based on racial hierarchy versus an ideology in theory versus racial dignity. we saw that fought out in the 20th century. in some ways, one could conceivably make the argument that all of these catastrophes

were as a result of the failure of a pragmatic spirit of compromise. the republic collapsed and we all know what happened after that. so i think one thing that one can gain from a study of the civil war is a sense of what the stakes can be. we are in a moment 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. on the other hand, there is a faction that believes the private market is the way to go. what we have is an effort to find some middle ground. it looks like it is going to come apart. the cost of that in my view will be quite high. it won't be on a scale of the cost of the civil war. so studying a world historical

event as a number of people at this table have accurately described it and seeing from one perspective what is the cost when the political process doesn't work is a sort of sobering reminder to us of how suddenly catastrophe can sort of sneak up on us. that is not to deny all the positive statements that have been made about the legacies of the civil war. i mean, without it, it wouldn't be the united states. there wouldn't be a united states with free black people in it as a very significant part of the culture. it wouldn't be all of the other things we take for granted. so, in retrospect, 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've never read a book on the civil war where the term united states was used as much. i know you well. it is quite explicit on your part. are you in any way as a thoughtful historian that has to live in the present concerned that there is a death of pragmatism? the ultimate aim that 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 am not so sure. another thing we don't have. this plays off what you were saying. i don't think we have much of a sense of the civil war or

anything else in our history. i think an indication of that is the sort of hysterical treatment of everything that happens now. it is the worst. there has never been anything like this. we have never been as divided as we are now. there has never been a problem with immigration if you are now. the only way you can believe that is if your historical memory goes back to last thursday. if it goes back very far, you know we have been through far more traumatic things than we are going through now. it would be helpful to have the historical con text in mind and equip us better to deal with what we have in front of us now instead of having this armageddonlike view of what's going on. i think the loyal white population, the free states were 98.8% white according to the 1860 census. that's something we need to remind ourselves of when we think about the past. the past is a different country in many ways. demographically, it was.

they are almost all white. 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. they had a collective sense of what the union meant. i don't think that we have perhaps that strong a sense now. i don't think we should all have a poly anna 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 when we listen to candidates. >> rick santorum declared this the most important since 1860 in gettysburg. >> there was a battle there. >> sure, ta-nehisi. >> one thing that just occurred to me. there are people with much more historical knowledge. being someone who does quite a

bit of political analysis, i agree with the notion of a really brief historical memory. i think it was newt gingrich who said that, about 1860, which lends this kind of intellectual veneer. somehow when newt says it, it really means something. i wonder if part of this is not the price of seeding the historical memory to a certain section of the country. one of the things i noticed when again i started making my journey back 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, okay, that's for them. that's not for us. i wonder about the implications of that. >> who does it belong to? >> pretty much belongs to white southerners with con federal sensibilities. that's been my experience. i don't think that is, in fact, true. whenever you visit the battle parks, that's the expression you get. it is really not for you.

it is for another group of people. i thought it was just me as an african-american. the more i think about it, i think it is quite bigger than that. i wonder if you decide the historical memory isn't for you, how are you able to call upon it when you think about politics? >> steph? >> i read something you wrote about this that really struck me, that resonated with me. it has to do the with the problem i have feeling vested in the compromise of 1860. it is extremely difficult to teach. you are supposed to think compromise is the desirable outcome. >> right. >> how are you supposed to think that in 18 6/0 -- >> who were you rooting to for in 1860? >> you talked about the middle ground. the middle ground was upper south unionists who would have sold people into slavery into the indefinite future just like the people who joined the confederacy. it is hard to back them. they are bargaining with seward over shutting down the show so that there is no threat to

slavery e is going to give away the store. lincoln won't let him. so compromise is impossible. you have to feel that how could you normally back compromise in that particular context. you wrote about this a little bit when you were talking about how an african-american narrative ruptures the story. i can't really feel very comfortable with that story myself. they are not my guys. i don't really want them to win. compromise is not the solution in this case. there is no way that it anybody understood a scenario in 1860 or 1861 by which slavery would have been eradicated and totaled except the scenario we had, war and state-sponsored emancipation. they only ever do it, doesn't matter what country it is, almost all come when they want soldiers for the army. it is a military emancipation policy in the union and a military he enlistment policy in

the confederacy i find the whole idea of the middle ground and a political compromise in 1860 deeply troubling.. i find the whole idea of the middle ground and a political compromise in 1860 deeply troublinidea of the midd political compromise in 1860 deeply troubling.middle ground political compromise in 1860 deeply troubling. political compromise in 1860 deeply troublindeeply 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 that's generational at all? just think back to the david donald generation, great civil war historian started writing in the '40s and was part of that generation that was wishing there had been more after a compromised culture. >> if only the politicians hadn't been so bumbling. >> david was trained by james randall. who was one of the needless war school leaders. >> blundering generation. >> blundering generation, yeah.

but, i mean, as our generation -- that's always a troubling phrase to use around anybody, isn't it? but let's just say people of our ilk, you know, we've been -- we've grown up appreciating conflict. that is, understanding historical change as conflict. >> i certainly do. >> yeah. >> yes, on my part. >> okay, okay, andy. >> well, no. i mean, i just -- one can't disagree. i find myself in a difficult paradox when we get into this topic, but i guess it's a mace i choose to be. we make compromises all the time. we're compromising at all times because of the coats we wear, because we walk down the street as free people in a country where millions of people are incarcerated, in many cases waving on any rational, moral analysis would conclude they ought to be.

and there are people in this country who speak with just the same passion that stephanie just spoke with about other issues on which they feel any kind of compromises to give away the moral ground completely. now, we may not agree with them on certain issues, like abortions, for instance. i don't mean to presume what people think about that in this room. >> we use john brown. >> absolutely. so we have to recognize that there are people in this country and there are fellow citizens and they have the same free speech rights that we have. we believe that there are issues right now that we are blind to and that we're selling our souls by not acting against. they may not be international issues rather than national one webs but i think we need to take that view seriously and it might help us to feel a little bit more how complicated it was to be an american in -- not by 1860, but in the decade that led up to the situation of 1860.

>> but even by 1860, there are hard truths we need to come to terms with in the civil war era. nobody is talking about a compromise relating to the institution of slavery itself. the part they're trying on compromise is on the extension of slavery. no one is arguing, no one beyond what would have been considered the app abolitionist cringe in 1860. it's a perfect example of how war eggs rage out of control and bring consequences no one could have anticipated. no one could have anticipated the end of slavery in four years. and the only reason it happened is because 3 million men take up arms and that makes anything possible. >> the things that we stumbled on have been gentle guidance. there is another legacy which is that the civil war experience frames both a powerful impulse

towards moral modesty about our passions and about our views and objectives and political end. that's the lesson of robert penn warren's pragmatism. it's lewis megnon's. i was just teaching this morning, shot in the chest, shot is in the neck, bold bluff, antietam, chandler's fill, comes out of that experience and went into the war as one of the relatively few abolitionists and comes out of the war convinced that his moral passions and the moral passions of his colleagues are mistakes. >> impassionat. >> but the it also frames the passionate social projects that people are engaged in. so the civil rights movement borrowed on the language of the abolitioni abolitionist. so we have all of these social movements that organize themselves around the models of abolition as the one great, you

know, relatively pure example of extraordinary socialism in our country. but also, we're called on to be modest at the same time. >> i want to make a equipment argument, just a little bit -- 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 slavery is a particular 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 we talk about pragmatism, we are talking about two sides that have power. 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, the tricky place i find myself and i talk on this topic and it's 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 calamatology. 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 humanity. but there have been other great crimes. the gulag. the holocaust. we didn't intervene in time to stop the holocaust. what we know about stalin retrospective, we didn't intervene. one of the answers to david's questions about why the donald generation was looking for compromise and middle ground. that was the policy of the 1940s and the 1950s, it was a containment policy 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 not to intervene because we believed by containment they would eventually be eradicated. that's what lincoln believed. containment would eventually lead to the end of slavery. that's not how it turned out. we can say he was wrong.

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 legacies. 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 stephanie, the idea, 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 narratives that 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 room in jerusalem. we thought we were the outlyers. we don't love the story in the way you mean. it turns out to other stories of the civil war, we look crazily in love with our civil war even as we document its horrors, costs, limitations. to historians of african civil wars, the spanish civil war, the 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 >> no. >> well, since he died, yes. five united states postage stamps. there is no other loser in a 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 listens to scholars? >> i know! >> almost nobody does. i think the lost cause 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 chancelorsville. you don't talk about the underdog waging a gallant fight over constitutional issues, and 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 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. multiplied by -- you pick the number -- and put together.

it's true. and ted turner loves it, it's still on all the time. >> our books are still for sale in there. >> 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 alexander stevens' cornerstone speech? that would be a pretty effective anecdote that the civil war was not about slavery. jefferson was wrong --