Confederate monuments and government speech

I drove into the breadbasket of the Confederacy the weekend before the 2017 eclipse--the Shenandoah Valley--up the Lee Highway and past any number of Stuart-Mosby-Forrest streets that joined the main route along the way.

The controversy over recent events in Charlottesville, where a neo-fascist/KKK march protesting a planned removal of a statue of Robert E. Lee erupted into violence, still hung like a cloud over the public mind (judging from Facebook and Twitter), but the most-commented thing on Lee Highway this weekend was the eclipse-totality-bound Northerners backed up for miles trying to shorten their trip south by avoiding I-81, where, strangely, traffic was flowing smoothly. Someone suspected that an unreconstructed butternut may have sabotaged an app.

The proud omnipresence of the Confederacy in such parts of the South is so taken for granted by white Southerners that they don't even notice how overweening it can be. For that reason, when something like Charlottesville happens and Southerners react by saying that moving a statue is "erasing history" and then add that the next step is outlawing the United Daughters of the Confederacy, well: I wonder if there is such a thing as disingenuous hysteria.

Although I have always been a scalawag, I'm friends and family with people who believe that the Confederacy fought for a just cause and a good reason. These aren't people who can be dismissed as ignorant yahoos or simple racists. These are educated, well-informed people who also revile the fascists that disturbed Charlottesville's peace. Their arguments about the Confederacy can be subtle and historically factual; they can also seem to be correct, but don't stand up to further investigation. Whatever the case, in addressing their arguments I feel an obligation to apply the Golden Rule and treat them respectfully.

One argument that seems at the outset to have some merit is that removing the statues is a violation of free speech. Driving up Lee Highway, I pondered this. Whose speech is violated? Whose speech is a statue? The First Amendment was intended to protect the individual (or the private group) from government over-reach. But these statues do not belong to an individual or to a private group.

They belong to the government. The government has by its power placed them in the public square. The government has, in a very real sense, imposed them.

It is of course the government's purpose to impose all manner of things: rules of the road, taxes, health and safety regulations, compulsory school attendance, etc. It's why we have government. In the United States we pride ourselves on having a government that we choose--through elections--and that thus expresses the voters' will (I won't say "popular will" because so many people don't vote).

These statues are among those things imposed by the government. As such, I reasoned, they "belong" to the government and are subject to whatever limitations--if any--the government might impose. Since they are not the "speech" of a private individual or group, then, they would not be subject to First Amendment protections: the government can't protect itself against itself.

In fact--I reasoned further--it seemed that a stronger First Amendment argument would be that these statues represent state sponsorship of a tyrannical ideology that broke away from the USA in order to establish a nation based on African-American slavery. The existence of slavery in the USA did not make it a slave nation; it made it a nation that tolerated slavery. The difference between that and the establishment of slavery as a cornerstone of a new nation is as obvious as it is paramount. Anyone saying otherwise is simply not accepting the historically factual basis for the break that led to the Civil War. This being the case, I couldn't help but begin seeing the Confederate statues as the Southern equivalent of the giant banners, busts, and statues with which the totalitarian states of the Soviet Union and Maoist China so famously decorated their public squares.

When time permitted, I was able to learn that there is in fact, in the legal discourse surrounding the First Amendment (which lawyers--I have one in my family--try to warn laypeople like me to stay away from), such a concept as "government speech." It has been used to justify viewpoint restrictions, e.g. in Texas where it was the basis for preventing a Confederate flag license plate. I even found--mirabile dictu--on a blog written by members of the faculty of the University of North Carolina School of Government, a post by Frayda Bluestein from October, 2009, reporting a Supreme Court decision--Pleasant Grove City, et al. v. Summum--which had determined unanimously that, when it comes to resolving challenges to monuments in parks, "government speech" standards rather than First Amendment, a.k.a. "free speech" ones should apply.

Knowing that there are depths of legal interpretation not accessible to laypeople unequipped with the right diving apparatus, I emailed Professor Bluestein to see if the same reasoning might apply in Charlottesville. She replied the next day: "Yes, based on the case summarized in that blog post, I would say that the government has adopted that speech as its own, and it would be up to the government to make the decision about whether it stays or goes." She went on to refer me to a more recent post on the same blog that detailed the extent to which North Carolina has gone to legislate the permanence of those "government speech" monuments: if you want to remove Confederate statues in that state, you'd better have the legislature in your corner.

(I very much appreciate Professor Bluestein taking the time to reply to an unsolicited email from out of the blue. You rock!)

So the "free speech" argument turns out to have no merit. But there are more subtle and historically factual arguments, e.g. it is a valid complaint that Unionists get a pass on the issue of racism, when in fact, at the time, they were as racist as Southerners--with the exception of a small group of abolitionists--and this reality continued long after the war and up to the present day. Generally speaking, Unionists entered the Civil War without a thought as to what would happen to the slaves. As far as they knew, nothing would happen: slavery would continue when the Union was restored after a short war. When the war dragged on, slavery became the issue in the North as well as in the South (where it was, after all, the national raison d'etre from the very outset). But even destroying slavery did not mean that Northerners favored extending full civil rights to freedmen. The best that can be said about Northerners after the war is that a few of them tried, vis-a-vis black citizens, to usher in a new order. For most of them, however, at war's end, African-Americans continued to be a Southern "problem" that Yankees would just as soon leave to the tender mercies of their late antagonists. The failure of Reconstruction lies as much at the door of Northern apathy as of Southern intransigence.

Yet in the popular imagination of the 21st century, the Yankees trump the Confederates as good guys in the race category when in fact they do not deserve this distinction. They did destroy the institution of slavery, but then? They walked away, leaving it to the South to fend for itself. And we know how that turned out.

Still, this Southern argument, valid though it may be, does not address the issue of the existence of statues glorifying the Confederacy. Why are they even there? Even if Northerners were as racist as Southerners, that says nothing about why there should be statues honoring the men who not only abjured their citizenship in the USA but who fought against it in a war to establish a nation founded upon slavery.

This is where Confederate apologists--particularly from the upper South--get tetchy. They will dance a quadrille around the fact that the CSA was founded to preserve, protect, sustain, and expand the institution of African-American slavery. They will say that such men as Robert E. Lee fought to defend their state from invasion or for states' rights or for the right of secession--but they will never, ever admit that they fought for slavery. Moreover, they will castigate those who say otherwise as being historically ignorant.

The problem with this argument is that it fails to recognize the fact that, from day one, the purpose of the CSA--as a duly constituted nation--was to institutionalize the slavery of black people, and that all those who came along later--like those Virginians like Lee who invoked "defense of state" as their reason--hitched their wagons to that star. There is no escaping it. Lee became the most important general of a nation that institutionalized slavery. He led troops into battle against the USA in order to accomplish the purpose of the Constitution of the Confederacy, which explicitly protected "negro slavery." It doesn't matter whether he was kind or wicked to blacks. It doesn't matter why he personally decided to turn his back on the country to which he had formally sworn allegiance. Like all soldiers, his personal opinions, whatever they may have been, were dissolved once he put on the uniform of the Confederacy, whose laws he was now sworn not only to uphold, but to deliver by leading an army against his former nation. There is no weaseling out, no carping, and no whingeing about this. Lee did not so do. When he joined the team, he committed himself to its goals.

Here is a simple test about the Lee statue in Charlottesville. Imagine you are an alien with no knowledge of the Civil War or of Lee. You look at the statue. What can you tell from it? There is no inscription other than his name and the years of his birth and death. It is a man on a horse. But what kind of man? A uniformed man. That is the basic unit of understanding this statue. All the rest follows from the uniform.

Poor Robert E. Lee. He wanted the memory of the war buried so the country could move on. He never wanted statues. So why don't Confederate apologists listen to him? Do they have no respect for the man they claim to revere? On the one hand they elevate above all reason his personal feelings for leaving the Union, on the other they completely disregard his personal feelings as to what the end of the war should mean.

So once again I ask--and now with Lee himself joining the chorus--why Confederate statues? Some of the backwash from the most recent controversy says that it's all about Jim Crow: that most of the statues date from the first two decades of the 20th century, when--in the words of the Southern Poverty Law Center--"states were enacting Jim Crow laws to disenfranchise the newly freed African Americans." This trope has been picked up and amplified, but, while it seems to be a promising interpretation, it leaves out too much to be satisfactory as a historical explanation.

First of all, it leaves out the fact that the period of time during which "newly freed" blacks were deprived of their rights was quite a bit longer. The so-called "nadir of race relations" in the South stretched back to 1877, when a national political deal brokered over the election of 1876 finally ended Reconstruction and handed the future of African-American citizenship over to the state governments of the South. Viewed through this optic, Jim Crow legislation can be seen as merely the capstone to a process that began much earlier and was carried out with much violence.

A more compelling timeline comes from cultural rather than legislative history, and in a peculiarly Southern way that is highly revealing not only about the reluctance there to "let go" of the Civil War, but also about the manner in which racism was engrained in the Southern psyche in a way the rest of the country did not experience. The key to this explanation is women's clubs.

Women's clubs in the latter half of the 19th century and into the 20th asserted a singular influence on American public culture; these groups were a characteristic expression of the Progressive Era nationwide. Lacking the vote, women nonetheless--by organizing around causes and issues having to do mostly with social improvement--were able to produce profound social changes. As a lifelong public librarian, my favorite example is the public library: wherever Andrew Carnegie ran into a brick wall with his offers of construction capital to establish public libraries, women's clubs were there to pick up the cause, particularly in the South. It was through their lobbying that many Southern cities established their public libraries.

The phenomenon that explains the spike in Confederate statue-building better than any other is the life cycle of that most Southern of women's clubs, the United Daughters of the Confederacy. In the early days (it was founded in 1894) its specialty was monuments intended to convey "a proper respect for and pride in the glorious war history." Through their tireless efforts--not the least of which was raising money to pay for the monuments--the South is now blanketed with Confederate monuments in the public square. Mildred Rutherford (1851-1928), historian-general of the organization, said that when the men said they could not build the monuments because they were "under an oath of allegiance," the women responded, 'we are under no oath.' And the work went on. ... More monuments stand to the Confederate soldier today [1913] than to any other soldier of any other nation who ever fought for any cause."

Cause: the UDC agitated for a sanitized view of slavery and the antebellum South well-known as the "Lost Cause." This in no way means that they had lost hope in retaining whatever white-supremacist lineaments might remain from the struggle. The women of the UDC were triumphalists. Thanks to the Ku Klux Klan and other such agencies of terror--to which Mildred Rutherford credited the "glorious victory" of "regaining self-government" in the South--the "negroes were frightened into going to work." The servile race had been returned to the place reserved for it by the South, and there it must remain. Rutherford again: "Yes, the South is triumphant today! ... Let us keep the ballot box pure! ... Teach your children not to falter till the right shall rule in Dixie."

"The right." One wonders what Mildred Rutherford would have thought of the alt-right. She could only have agreed with those who favor a white ethno-state. After all, that's what she believed had been accomplished by the "triumphant" South, with its monuments honoring the heroes of its "glorious victory."

The Lee statue in Charlottesville is not a UDC statue. It was commissioned and then donated to the city by a local son, a munificent philanthropist who spent his wealth with sacrificial gifts that enriched the city and UVA with, among other things, the city's public library and the university's department of economics and commerce. But the statue shares the cause of the UDC: all of those fine contributions to the well-being of the city and the university were not intended for African-Americans. They came from and depended upon a social order that was symbolized by the statue of Robert E. Lee,  astride his charger and resplendently triumphant. The "glorious victory" belonged to whites, and blacks had to remember their subordinate place in that world.

Today, we cannot ignore that symbolism: a triumphant South lording it over a subservient class of African-Americans. No, not slaves, but stripped in perpetuity of all the rights and duties of citizens. How can anyone ignore the flip side of that "heritage"?

There is to me no greater irony in American history than that, after all the death and destruction of slavery, the Civil War, Reconstruction, and Jim Crow, the eventual demise of Mildred Rutherford's ethno-state--at least de jure--should have come after a long campaign of nonviolence by African-Americans. Its success depended at least to some extent on white Southerners deciding that the South of the UDC--in an America that proclaimed all to be created equal--was an embarrassment that needed to end. But it was the example and the eloquence of such black Americans as W.E.B. DuBois, Ida B. Wells, Martin Luther King--as well as the long legal struggle of the NAACP--that produced this triumph. I believe it to be a victory for all Americans, one well worth celebrating with "government speech" in the public square.

We are not the same people in the South who erected those statues. We--most of us--believe that African-Americans share the rights and duties of citizenship. It is time for "government speech" in the South to reflect and represent this enormous sea change in Southern attitudes.

I never was much for waiting on the Robert E. Lee. I will say this though: he did surrender. That is the most important thing about Robert E. Lee. And if he is owed a debt of gratitude by later generations, it is for that very thing, because it means that along with his surrender came the surrender of a nation founded upon slavery. It didn't entirely spare us a long and bitter guerrilla campaign--the Knights of the Ku Klux and the Camellias and all the other cosplay chivalrons of White Supremacy that so captivated Mildred Rutherford and the UDC were yet to come--but when the surrender happened, it helped produce a change in the framework of Federal law that eventually, a century later, could be used by the non-violent warriors of civil rights to extract, finally, at long last, at least a formal measure of citizenship.

There is much happening today that would shock the Confederate memorialists. Every place we stopped to eat or get gas in the breadbasket of the Confederacy had blacks and whites working side by side. Every place we stopped had blacks and whites socializing, as well as families of mixed race. And this is in the state that took its UDC, lily-white, racial purity family law diktat all the way to the Supreme Court--only 50 years ago! How horrified Mildred Rutherford would be now. I have no doubt she would be re-thinking her triumphalist notions.

For some reason I was reminded of the favorite truck line of my youth: Mason-Dixon truck lines, out of Kingsport, TN. I loved its logo that emblazoned the sides of its trailers: an illustration of Generals Grant and Lee shaking hands at Appomattox. That's the statue I always wanted to see in a Southern square.

There's obviously still a long way to go. The challenges of de facto racism are still strong.  But at least we should be able to endow Robert E. Lee with the plinth-inscription best suited for the times: "And yet, he surrendered."