The Civil War enters these excerpts not as a military or political narrative but as a dividing line, a legal cause, and a rhetorical yardstick. Guests and host invoke it to date the modern Supreme Court, to explain the Reconstruction amendments, to trace compulsory service to the draft, and to measure how polarized American politics has become. No excerpt describes battles, campaigns, generals, or the war’s conduct; the sources treat it as a before-and-after whose consequences are the actual subject.
The war as a curriculum cut-off
In a segment on North Carolina’s approach to high school history, Bob Zadek says the state’s Chief Academic Officer, Rebecca Garland, would exclude from the high school curriculum any history taught prior to 1877. He lists what that would remove: the American Revolution, the Declaration of Independence, the Civil War, and the War of 1812. His rendering of the position is blunt — the Civil War, the writing of the Constitution, and the Revolutionary War would all be treated as things that never happened — and he attributes the rationale to a claim that students cannot relate to the material. The date 1877 is the only periodization the excerpt supplies; the war appears here purely as one of the pre-1877 events that would fall outside the course of study. Best of: Changing the Face of History (2010)
Reconstruction and the Fourteenth Amendment
A later episode treats the war as the event that produced the post-Civil War amendments. Zadek names the 13th, 14th, and 15th amendments and calls the 14th perhaps one of the most important amendments in the history of the Constitution, while noting that most people who know it exists are unsure what it does. Revenge of the Pen and the Phone (2018)
Guest Sheldon Gilbert supplies the substance. He describes the country after the Civil War as fractured and broken, with the status of former slaves in the South among the first questions to be answered — whether they would be citizens or treated like Native Americans as dependent sovereigns. Out of that debate, he says, came the first sentence of Section 1 of the 14th Amendment, which he reads aloud: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Gilbert states that the purpose of that sentence was first and foremost to undo the Dred Scott decision and wipe it off the books, and that it does more by creating a categorical rule for how one becomes a citizen. The excerpt also records Zadek’s characterization of Dred Scott, written by Chief Justice Taney, as probably the worst Supreme Court decision in the history of the Supreme Court, and his description of Taney as an avowed pro-slavery justice from Maryland. Revenge of the Pen and the Phone (2018)
Conscription, the draft, and the riots
The war also figures as the origin point of American compulsory military service. In a discussion of mandatory public service with economist Warren Gibson, Zadek says the first system of draft was in the Civil War, and that it produced brutal draft riots in New York, with fires, which he compares to recent rioting during the pandemic. Conscription Gets a Face Lift (2020)
Zadek’s account of the mechanism is the point of the comparison: young men were drafted by Lincoln and had to serve, but a draftee could hire somebody else to serve in the military in his place, and if he did, he did not have to serve. From this he argues that conscription is nothing other than a tax — that taxes are never limited to money, citing England in the Middle Ages, where he says taxes were assessed and paid in grain or livestock. He extends the analogy to compulsory public service, calling it a tax on 18-year-olds from which others are exempt, and asks whether an 18-year-old compelled under threat of prison to give a year of life to an activity has had something of economic value extracted. Gibson agrees that it is not different from a tax and calls it compulsory extraction of value. Gibson adds that service is a good thing and good for young people when voluntary and local, but that it is not a primary obligation and should not be forced. Zadek also names two proposals he says are already in public discussion as eligible public service areas: a Climate Corps and a National Infrastructure Apprenticeship Program, which he predicts would amount to janitorial services and park cleanup. Conscription Gets a Face Lift (2020)
Court packing and the Civil War precedent
In the court-packing episode, the war supplies the one example both speakers treat as a successful expansion of the Supreme Court. Zadek notes that the Court has had nine justices since after the Civil War, for over 100 years, and that nine is not a magic number, having changed perhaps five or six times in American history. Philip Hamburger on Court Packing (2021)
Philip Hamburger, identified as a professor of law at Columbia Law School and founder and president of the New Civil Liberties Alliance, gives the history: the Court began with six because there were three circuits — Northern, Southern, and Middle states — each needing two justices, and the number was increased to nine in the middle of the 19th century as the country expanded and circuits increased. He calls the closest thing to successful court packing the period around the Civil War, when Congress increased the size of the Court both under Lincoln and afterwards for fear that Southern sympathizers might dominate it. He describes that as the only clear successful example in American history, and as a response to a civil war when the loyalties of the Court were uncertain — an extreme example, in contrast to what he calls an attempt to pack the court in response to mere politics. Philip Hamburger on Court Packing (2021)
Hamburger also draws a forward-looking warning from the precedent: until 1912, the only court packing had been in response to a Civil War, and now, he says, we have to worry that court packing will invite civil war. He attributes the introduction of court packing as a political element in the 20th and 21st centuries to Teddy Roosevelt, who he says threatened to reconfigure the courts and deprive judicial decisions of binding effect, and made this a campaign promise. Zadek, for his part, says the country survived court packing and that it may have accomplished an important long-range nationwide goal, describing the sequence as first support for Lincoln and then a slap down to Andrew Johnson, whom he calls far more sympathetic to slavery. Philip Hamburger on Court Packing (2021)
Polarization and the limits of the comparison
The war recurs as a baseline in a conversation with Ilya Somin about threats to democracy. Zadek presses on the word “increased” in “increased polarization,” recalling the Vietnam War era — polarization, assassinations, cities burned — and asking from when to when the increase runs; he says he could not find a clear trend from an earlier time and suggests polarization is a constant with occasional dips. 3 Libertarian Ideas to Strengthen Democracy (2022)
Somin concedes there has always been some degree of polarization but says that by just about any measure — distance between the parties on policy or how supporters of the two parties feel about each other — it is higher now than in at least several decades, perhaps throughout the time it has been measurable with modern survey data. He cites the percentage of people who see the opposing party as a menace to America or a threat to democracy, and data on whether people would be angry if a friend or relative married a member of the opposing party, which he puts at record highs around 40% or more — higher, he says, than opposition to marriage across religion or race. He states that polarization has been rising for several decades and is likely higher today than at any time in the post-World War II era, while acknowledging that no data of that kind exists for the Civil War period, so it is very possible it was greater then. He rejects the inference that things are not bad because they are not yet as bad as during the Civil War or right before it, calling that a poor historical comparison. 3 Libertarian Ideas to Strengthen Democracy (2022)
Across episodes
The topic is touched in five episodes, and the excerpts show no development in how the war itself is treated: it remains a date, a cause, or an analogy throughout. What changes is the argument it serves — curriculum in the 2010 episode, the 14th Amendment in 2018, conscription in 2020, court packing in 2021, and polarization in 2022 — with Bob Zadek advancing the curriculum, draft, and polarization framings and Sheldon Gilbert, Warren Gibson, and Philip Hamburger supplying the substantive accounts in their respective episodes.
What the sources do not cover
The excerpts contain no account of the war’s military course, its battles, its generals, its duration, or its conclusion, and no discussion of slavery as a cause beyond its connection to the 14th Amendment and to Taney’s Dred Scott opinion. They do not state the name of any statute, the holding of any case other than as described, or the text of any amendment beyond the first sentence of Section 1 of the 14th. Several excerpts break off mid-exchange — Zadek’s question to Gibson about Great Society job programs, his opening in the birthright citizenship segment, and his question to Somin about foot voting — and nothing after those breaks is reported here.