Civil War and Island Dreams

This week's "Legal Times of Washington" contains two articles worthy of attention.

The first, by Professor Sanford Levinson of the University of Texas Law School, asks chief justice-nominee Roberts what he thinks of the Civil War (or whether he calls it the War Between the States). He does this because, he says, the Civil War changed our entire concept of the Constitution, thus making questions of the founders' original intent meaningless in many ways. Issues of states' rights (the right to secede from the union being only the most obvious) and equality (as personified in the Fourteenth Amendment) were radically changed by the war, on the one hand, but also the concept of constitutional limits on executive power was eroded by Lincoln's war, that had no precedent.

Quoting Faulkner, Levinson says: "The past is never dead. It's not even past".

Which reminds me of the old Chinese historian who was asked to explain Napolean's effect on Europe. "Can't do it", he said, "it is just too soon."

The second article, written by Orlando Vidal, a D.C. lawyer, talks about the "Insular Cases", those early twentieth century Supreme Court cases which said that the United States could established commonwealths in captured lands, or "territories not destined for statehood", in effect creating second class citizens. The discussion of the cases was interesting. Equally interesting was the failure of the article to mention the District of Columbia.

Vidal's concentration is partly on the applicability of the constitution outside of the 50 states and the District, which he says not only relates to Puerto Rico and Guam, but to issues such as those now being faced at Guantanamo, again creating an area of importance in the upcoming Roberts hearings.