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Many lawyers and law professors are currently imagining the questions we would like to ask Judge John Roberts Jr. in his confirmation hearings. What one or two questions — and, more to the point, answers — would provide the most illumination into the thinking of the undoubtedly brilliant and personable, but also quite taciturn, lawyer who seeks membership on the Supreme Court at this critical juncture in our history? Given five minutes to question Roberts, I would ask him the following: (1) What do you call the war that occurred in the United States between 1861 and 1865, and why? (2) What do you believe was the “meaning” of that epic struggle? How do you believe the war changed our constitutional fabric, if at all? These questions may seem theoretical and anachronistic, but they are neither. And not just because back in the early 1980s, Roberts edited an article by President Ronald Reagan to change “Civil War” to “War Between the States.” WHAT WAS IT? Only 10 years ago, the U.S. Postal Service printed a series of stamps that balanced pairs of such historical figures as Abraham Lincoln and Jefferson Davis, Ulysses Grant and Robert Lee, and William Sherman and Stonewall Jackson. The block of these 20 stamps gave the series two titles. In large print was “The Civil War”; in smaller print was “The War Between the States.” It seemed that even a federal agency like the post office didn’t want to take sides in a still-living debate. Does it matter what we call it? “Civil wars” are usually instigated by illegitimate insurrectionists (unless, as with the American Revolution, they win and become honored as the founders of a new political order). Designating the events of 1861-65 as such a war carries with it a (proper) disdain for the Southern slavocrats who attempted to dissolve the Union rather than accept Abraham Lincoln’s election. In contrast, the “War Between the States,” the designation still preferred by many white Southerners, suggests that, like the United Nations today, the Union was a “compact” of “sovereign states,” any one of which could withdraw when the Union no longer served its interests. This view is written in stone on a monument to the Confederate war dead in front of the Texas State Capitol in Austin: “The People of the South, Animated by the Spirit of 1776, to Preserve their Rights, Withdrew from the Federal Compact in 1861. The North Resorted to Coercion.” At least four members of the current Supreme Court — including Justice Sandra Day O’Connor, whom a Justice Roberts would replace — espouse a theory of “compact” and “state sovereignty” much like Jefferson Davis did, and the debate echoes in many contemporary cases involving the powers of the national government. So does Judge Roberts believe that Lincoln was unequivocally right in viewing himself as constitutionally empowered to resist Southern secession? In addition, was Lincoln entitled to do whatever he thought necessary to win that war, including engaging in a number of actions that many scholars (and judges) believe went beyond his constitutionally limited powers? Justice Felix Frankfurter once wrote that “it would pursue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War.” Does Judge Roberts agree, especially given the fact that President George W. Bush’s administration is increasingly citing Lincoln as the basis for its own constitutionally questionable actions? WHAT DID IT MEAN? There is a close connection between the first question about what to call that war and the second question about what it means. The current majority of the Supreme Court — again including O’Connor — often turns to “the intent of the Framers” to discern the meaning of the Constitution. But when, exactly, was our Constitution — the Constitution that we live under in 2005 — framed? Historian Garry Wills has suggested in his book Lincoln at Gettysburg that the Constitution of 1787 in effect died at the Battle of Gettysburg, to be replaced by a considerably different Constitution that reflected the lessons of that war, or at least the values of its victors. At the center of that new Constitution is the 14th Amendment, which instantiated Lincoln’s view of the United States as “conceived in liberty and dedicated to the proposition that all men are created equal.” The 14th Amendment, ratified in 1868, not only echoed the language of liberty and equality; it also gave Congress sweeping power to enforce, against the states, new visions of liberty and equality. These most obviously extend to inclusive legislation designed to fully integrate African-Americans — a term that makes sense only as a result of Northern success in the war — including what we today call “affirmative action.” But since the 14th Amendment does not explicitly refer to race, Congress could adopt inclusionist legislation for any group that it thought was being deprived of liberty or equality by the no-longer “sovereign states.” Obvious candidates include women and, in recent years, the disabled. But the current majority of the Supreme Court, led by Roberts’ mentor Chief Justice William Rehnquist, is committed to an extraordinarily crabbed view of the 14th Amendment and, equally importantly, congressional power. That majority seems to believe that the war was only about the right to secede and the abolition of chattel slavery (which was achieved by the 13th Amendment). Otherwise, the “states’ right” to discriminate as they saw fit continued unchanged. Perhaps Judge Roberts is a “moderate” Republican, who believes that the vindication of the war — the guarantee that the Union soldiers at Gettysburg did not die “in vain” — required the 14th Amendment as well. If so, why? Was the 14th Amendment to safeguard the interests only of newly freed blacks — and even then, only by adopting color-blind legislation — or did it go well beyond that in guaranteeing a “new birth of freedom” for all Americans, with Congress being a full partner in that promise? If Roberts joins the conservative bloc, and thus reinforces its status as the ruling majority of the Court, millions of other Americans will be left to the tender mercies of state legislatures, and Congress will be prohibited from declaring that “equal protection” is violated when, say, disabled Americans are the victims of rank discrimination. Just remember the Supreme Court’s egregious decision in Board of Trustees of the University of Alabama v. Garrett (2001), in which Chief Justice Rehnquist blithely rejected congressional power to find that discrimination against the disabled violates equal protection of the law. Rehnquist, who holds on to his job even though, by almost all accounts, he is suffering from a serious form of cancer, stated that it was “rational” to “hold to job-qualification requirements which do not make allowances for the disabled.” Congress’ view that respect for the dignity of the disabled requires more than “minimum rationality” is dismissed almost with contempt by the conservative majority. Does this reflect the kind of judicial “modesty” — or fidelity to American history — that Judge Roberts will wish to proclaim? “The past is never dead,” wrote William Faulkner. “It’s not even past.” Anyone who believes that the events of the 1860s are part of a dead past is blind not only to Faulkner’s novels but also to what is all around us, from public monuments to Confederate flags to postage stamps to opinions of the Supreme Court. What I would like to hear, more than anything else, is how John Roberts proposes to come to terms with this never-ending, never-buried aspect of our history.
Sanford Levinson is a law professor at the University of Texas at Austin. He is the author, most recently, of Wrestling With Diversity (2003).

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