Constitutional Law, Politics

The South Will Rise Again (And This Time It Will Try To Be Less Racist)

What to make of the push to strip public places of symbols of the Old South? Conservative columnist Tamara Tabo opines.

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Earlier today, South Carolina governor Nikki Haley signed a law ordering the removal of the Confederate battle flag from capitol grounds. For decades, South Carolina had joined with other states and state institutions below the Mason-Dixon Line in flying the flag. Many Southerners insist that the Confederate flag symbolizes pride in Southern heritage and Rebel spirit. It is not, they claim, an endorsement of slavery or race-based hatred.

South Carolina is not alone. In Washington, D.C., Rep. John Boehner (R. – OH) called for civil debate over whether Congress ought to order the removal of Confederate symbols from federal lands. The House Speaker, apparently overlooking the difficulty of what he was proposing, told reporters, “I actually think it’s time for some adults here in the Congress to actually sit down and have a conversation about how to address this issue.”

In June, the U.S. Supreme Court held in Walker v. Sons of Confederate Veterans that Texas officials could refuse an application for license plates bearing the battle flag. Other states are making similar moves, along with county and municipal governments. Even the Onion is weighing in on “The Pros and Cons of Flying the Confederate Flag.”

When You Say ‘Heroes,’ Whose Heroes Are You Talking About?

In recent weeks, statues of Confederate icons have been defaced in Maryland, South Carolina, and Texas. In Charleston, someone spray-painted a statue of John C. Calhoun with phrases including “Black Lives Matter.” Another Charleston monument was spray-painted with that phrase and “This is the problem. #RACIST.”

No word on whether the protesting vandals thought that including a hashtag would help people searching for graffiti about racism to better find their work.

University of Texas at Austin President Greg Fenves assembled a task force to consider removing statues of Jefferson Davis and other Confederate Civil War heroes after the monuments were similarly spray-painted by protestors.

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What to make of the push to strip public places of symbols of the Old South?

When asked about the controversy on the local public radio show “Houston Matters,” I began by confessing that I find fixation on Confederate culture baffling. I have lived in Texas for years of my adult life, but my instincts belie my Yankee upbringing. My ordinarily conservative political leanings don’t change that.

Moving past gut reactions, I find the common arguments in favor of displaying Confederate imagery pretty deficient, or at least incomplete. Take, for example, the claim that flying the flag is a way for Southerners to honor their ancestors who fought for the Confederacy during the Civil War.

Now, I don’t know your great-grandfather. But even if he was a Rebel veteran, I bet you can find a way to memorialize him as an individual without using the symbol of the political regime for which he fought. If you choose to focus on the political symbol, then you need to be prepared to account for that political symbol’s social meaning.

Either you accept the symbol’s significance as it is today or you owe the world a damned clear explanation of why you just can’t think of any other way to express cultural or familial pride. Examples might include . . . any way that doesn’t jab at unhealed wounds left by an American Holocaust. After all, post-World War II Germans seem to have figured out how this sort of thing goes. Are American Southerners less capable than Germans?

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Many Confederate heroes were responsible for social goods, others argue. I agree that publicly honoring them for those good deeds, without praising their endorsement of slavery, is at least plausible.

In that case, why not take this as an opportunity to use the public space to open a dialogue about a pervasive tension in American history? Juxtapose Confederate statues with works of art — statues, murals, sculptures — depicting the atrocities of slavery, for example.

So, Maybe That’s What Kid Rock, Et Al. Are So Excited About

Supporters of keeping the flag in public space may argue that they are celebrating aspects of the Confederacy that have nothing at all to do with slavery per se. Ask many contemporary bearers of the flag what it symbolizes, if not institutionalized racial oppression, and they will use phrases like “state sovereignty” and “Southern self-determination.” You might even hear about resisting “The War of Northern Aggression.”

When, in a fit of charity, one reads the Constitution of the Confederate States of America, only a few differences from the U.S. Constitution — known to most Americans outside of the South as the Constitution — appear. Aside from the clauses providing for the perpetuation of Southern slavery, the most notable differences involve states’ rights. For example, the preamble begins, “We, the people of the Confederate States, each State acting in its sovereign and independent character . . . .” Article I, Section 2 of the Confederate version gave states the power to impeach federal judges and officers working within their borders. The Old South liked powerful states.

We might accept provisionally that the American Civil War was not about manumissive slavery, but rather about Southern states’ self-determination. But if the empowerment of individual state governments is what flag-waving Southerners are celebrating, then they shouldn’t take much umbrage at what happened in South Carolina, nor in most other recent cases.

After all, the process looks awfully like federalism in action. Individual sovereign state and local governments are deciding to remove Confederate symbols from public spaces. Even the U.S. Congress is only considering legislating what happens in expressly federal spaces like National Parks. They aren’t mandating a universal ban on all public property.

Representative Democracy Is Still Democracy

Legislatures get to prohibit or endorse all sorts of things without constitutional strictures compelling the state one way or another. Most often, the democratic process decides, not the state or U.S. Constitutions. Certainly not unelected, life-tenured jurists hell-bent on social engineering at the expense of constitutional interpretation. At least four people have been trying to tell Justice Kennedy that, to no avail. But that shouldn’t deter the rest of us.

Recent decisions like the one in South Carolina originate in the halls of the legislature, not from a judge’s bench in the courthouse. No federal judge issued a fiat in this case. Elected representatives, subject to political consequences, acted. Mistaking legislative action with a popular vote or referendum would be naive, but mistaking legislative action with outside oppression would be foolish. Representative democracy may not be direct democracy, but it is still democracy.

Fans of the Confederacy are free to disagree with the removal of Southern symbols as a matter of pure policy, of course. But it would be ironic if people who want to display symbols that they claim only signify states’ rights and self-governance would reject the choices of individual states to govern themselves in a slightly less racially inflammatory way. Rising up to take down the Confederate flag may be the sort of Southern independence that Americans on both sides of the Mason-Dixon Line can appreciate.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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