Home -> Law Blog Directory -> Legal Commentary Blogs -> Discriminations

Legal Commentary

: Discriminations

The ?Bloody Shirt? Still Waves. Does It Fly In The White House?

I have had, or in any event taken, several opportunities to discuss both the original and modern versions of ?waving the bloody shirt,? described here as the popular Republican tactic for more than a generation after the Civil War to remind voters of the Democrats? sympathies with the South. In addition to that post, see More Waving Of The Bloody Shirt and The Bloody Shirt Still Waves..., and Section 5 As The New Bloody Shirt.

Now it?s being waved again, by a bunch of professors, teachers, and a few fellow travelers. Based on their efforts, ABC News asks, ?Will President Obama Send A Wreath to Confederate Memorial in Arlington??

On Memorial Day, President Barack Obama will participate in an annual presidential tradition ? a public wreath-laying ceremony at the Tomb of the Unknown Soldier at Arlington National Cemetery in Virginia.

But the day may be marred by a brewing controversy over whether President Obama will send a wreath to the cemetery's Confederate Memorial, as presidents have done since Woodrow Wilson.

A group of several dozen university professors and scholars have written a letter to the president asking him to not send a wreath or any commemorative token to the Confederate Memorial.

History News Network has the letter these worthies sent to the president. Some of the signers are quite well known ? Princeton?s highly regarded Civil War Historian, James McPherson (seen on this site here and here), First Friend Bill Ayers; some aren?t ? but all are quite earnest about the evil of a President of the United States (united?) continuing a tradition of honoring the Confederate dead along with the Union dead.

Rather than comment on this new bloody shirt waving directly, I?m going to do so indirectly by quoting in its entirety an old post (very old: from 2002) on a couple of identical issues. I?m reposting rather than simply linking because I want to note which of its links (most of them, alas) are now dead, which I?ve done with strikes. Another reason for reposting is that I think the same thing now that I did then.

September 8, 2002
Freedom of (or from ?) Confederate Flags

Back in April Eugene Volokh posted an interesting discussion (as is his wont) of the First Amendment implications of allowing/banning displays of the Confederate flag. [Old link is dead; post can be found here.]

The occasion for his comments was a Fourth Circuit Court of Appeals decision striking down Virginia's refusal to allow the Sons of Confederate Veterans to design a custom license plate that featured the Confederate flag. [Old link is dead, but Sons of Confederate Veterans v. DMV can be found here.] Eugene pointed out that this was not an easy case, for the government had several good arguments on its side ? that when it ?spoke? it should have wide latitude in saying, or not saying, whatever it wanted and that agreeing to the Sons? logo would give it the commonwealth?s stamp of approval. On balance, however, Eugene concluded the court was right since in its operation Virginia?s custom license program was an open forum and thus not allowing the Confederate flag was viewpoint discrimination.

A similar flap occurred in Washington back in 1993. The Senate was all set to renew, as a matter of routine, the ?design patent? of the United Daughters of the Confederacy, as it had done a number of times in the past. Senator Carol Mosely-Braun of Ill. (subsequently defeated, alas not over this) objected on all the predictable grounds, and the Senate, embarrassed, backed down and refused to renew. All the issues Eugene mentioned re flags on license plates were present then -- govt speech, govt ?endorsement,? awarding an honor, etc., as well as the same selective censorship/First Amendment issues. Although I thought (and think) the arguments on the politically correct side were not frivolous, I also thought (and think) the free speech argument was stronger, except that nobody really made it.

Anyone wishing to pursue this matter can find an official summary here [Haven?t found new link]. Anyone wanting to pursue the matter on a more theoretical, as well as historical, level would be well advised to read the book by my friend Sandy Levinson, a professor of law at the University of Texas. Sandy is a dear friend, but I should warn you that he endorses the trashing of symbols, statues, etc., once what they stood for becomes sufficiently unpopular. He?s a native North Carolinian, but if he had a bulldozer, the skill, and time he?d raze all those ?Lest We Forget? monuments that anchor Southern squares.

Why bring all this up now? some of you must be asking. Because Geitner Simmons of emerging Regions of Mind fame has just brought to my attention an article from Greensboro, N.C, about the United Daughters of the Confederacy being compared to the Ku Klux Klan by a middle school principal as he withdrew the school?s participation in the UDC?s annual essay contest. He then was forced to issue an abject apology.

No doubt about it: the Confederate flag is a controversial, divisive symbol, and groups that honor it are not popular. I would not display it in my house if I knew it offended family or guests. But lest we leap to accept this as an acceptable standard for exclusion from public spaces, recall that at Berkeley these days the American flag (for Southerners who remain unreconstructed: the Union flag) is itself unpopular and banned (or so some said) from certain events. See discussion here. It is also worth pondering what standard would dictate exclusion of the UDC from the schools that would not also exclude the Daughters of the American Revolution. Surely not favoring rebellion against established authority, justifying slavery, etc. Oh, so you want to exclude both? Then who would you allow in?

Perhaps we should take some lessons from our own past and re-learn the ones that teach that toleration is not the same as endorsement and that our core values (including ?diversity,? properly understood) favor the widest possible boundaries for expression, and participation in public life, that are consistent with public safety.

As it turns out, I have written about similar issues ? flying the Confederate flag; Vanderbilt, in the name of ?diversity,? attempting to sandblast the word ?Confederate? off its Confederate Memorial Hall, paid for in part by donations from the United Daughters of the Confederacy; etc. ? several times. Don?t worry; I?m not going to repost all of them here. But if you?re interested, as you should be, go here, here, and here.

It will be interesting to see whether our first post-partisan president rejects the sectional reconciliation symbolized by the tradition of joint wreath-laying. If he does reject it, in order to be consistent he should take immediate steps to ensure that ?stimulus? funds are used to repair roads with politically incorrect names (Arlington County?s Lee-Jackson Highway comes to mind, and the highway with the same name connecting Jacksonville to St. Petersburg), no fixing up of town squares containing Confederate monuments; no funds to any school named after Lee, Jackson, Stuart, Jefferson Davis, etc.

Full post as published by Discriminations on May 24, 2009 (boomark / email).