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It is painful even today to contemplate the awful devastation wreaked upon this nation by the War Between the States. But like most cataclysms, the Civil War also gave birth to some important positive developments. I would like to talk with you today about two such offspring of that war, and the extent to which, like many sibling pairs, they have influenced each other's development. The first child - the most well-known progeny of the Civil War - was this country's commitment to civil rights. The war, of course, ended slavery. But it did not - and could not - change the way Americans thought about and treated each other. Civil rights and their polestar, the principle of equal protection of the laws, encompass far more than the absence of state-sanctioned servitude. The Congresses and Presidents that served in the wake of the Civil War aimed at this more fundamental and difficult goal. They brought about ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. And they enacted a variety of laws designed to enforce the guarantees of those Amendments. But as history shows so agonizingly, it takes much more than well-meaning laws - or even constitutional amendments - to reweave the social fabric of a nation. In the first place, a law that is merely on the books is quite different from one that is actually enforced. And what is more, a law that is enacted will not necessarily even remain on the books. Under the principle of judicial review established in Marbury v. Madison, the Supreme Court is the final arbiter of the meaning of the Constitution, the interpretation of federal statutes, and the validity of those statutes under the Constitution. Congress can pass laws, but unless those laws are enforced, they have little meaning in people's lives. And unless they are upheld when challenged in the Supreme Court, they cannot be enforced. And that is where my other child of the Civil War - a much more obscure offspring - comes in. The position of Solicitor General was created by Congress in 1870, shortly after ratification of the Fifteenth Amendment. It is without doubt an utterly unique institution. Perhaps nothing exemplifies this better than this anomaly: whereas many lawyers consider being Solicitor General the greatest job one could ever have (and they are right), the overwhelming majority of citizens has no idea what the Solicitor General does - or even that the country has one.

Publication Citation

75 Ind. L.J. 1297-1315 (2000)