Should The Confederate Flag Be Removed?

Posted July 18, 2016

July 14, 2016 Picture: Tami Chappell/REUTERS

This article is part of The Critique’s May/June 2016 Issue “Black Lives Matter (Part II): Understanding The New Movement For Racial Justice”

Article VI: 2. The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Amendment XIV: 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article III. Section 3: Treason. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort.

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. (U.S. Code Subsection 2381, 1948)

INTRODUCTION

Much has been made of the issue of whether or not the confederate battle flag ought to be removed from non-educational governmental display at and by government buildings such as courthouses, state capitol buildings, city halls, etc.. It has long stood throughout the U.S. south as a symbol of “southern pride and culture,” yet it represents a legacy of bigotry and hatred not only for many southerners in the U.S., but for most of the rest of the country.

The primary reason cited for its removal is that it is offensive to U.S. blacks and many others. Yet this does not actually serve as a sufficiently good reason for the removal of the confederate battle flag. Rather, there are other more compelling reasons for its removal.

WHY THE CONFEDERATE BATTLE FLAG IS VALUED BY SUPPORTERS OF THE CONFEDERACY

The confederate battle flag is often displayed at country western music concerts, NASCAR events, football games, in restaurants and bars throughout the south, etc.. But what has become a firestorm of controversy these days is the fact that said flag is still displayed at government properties in many jurisdictions throughout the south, places where law and order are supposed to prevail under the ultimate authority of the U.S. Constitution.

By “ultimate authority of the U.S. Constitution,” I mean to refer to the constitution’s supremacy clause (Article VI, Section 2) which relegates each and every state and local law to the ultimate authority of the U.S. Constitution. This suggests that anything or any law that is contrary to the U.S. Constitution must be made to conform to it, or suffer significant consequences.

As noted, supporters of the confederate battle flag insist that the flag represents “southern pride and culture.” What is meant by this is not entirely clear, however. Does it represent, for instance, the “good ole’ days” of slavery and white supremacy, of “nigger lynchin’ and rapin’,” of blacks[1] having to step aside on even muddy ground so that whites could pass by on sidewalks, of segregated restaurants and bathrooms and drinking fountains, movie theatres and stadiums?

Or, is it the southern pride and culture that involves recollections of segregated professional baseball, tennis, football and basketball leagues wherein often the very best athletes in such sports were not even allowed to compete in those leagues where the real money was made so such black athletes were not permitted to make a deserved living at such sports where they paid the most earnings, making many inferior white athletes wealthy in the process?

Even more importantly, segregated education meant that blacks could not receive equal quality of education such that they could compete with whites on an equal playing field, becoming educators, scientists, etc., at a far greater rate than blacks did under Jim Crow.

Or perhaps it is the southern cultural pride in the days when black “mammies” took care of white children so that “hoop skirt-sportin’ southern belles” could seek social status rather than gainful employment, belching out orders to black servants to “fetch my sweet tea, nigga!”. Perhaps it is the southern pride in recollecting the days when whites would–absent either apology or shame–refer to a black man as “boy,” and hire and fire him at will.

It is difficult to grasp precisely what southern pride and culture is apart from such images that are firmly rooted in southern history. And let us not forget that culture just is rooted in history; any attempt to deny this is disingenuous. But for the sake of discussion, let us assume the most positive but realistic view of what southern culture might amount to in the minds of confederate battle flag supporters.

I shall assume that “southern pride and culture” means at least the following. Times were simpler back in the days prior to the end of slavery in the U.S.. The southern economy was thriving, at least some of the time during slavery, and there was a perceived peace and tranquility throughout the land. Folk “knew their places” in southern society, and it made life much easier (for whites) than life is now (for whites).

With the passages of various civil rights legislations in the 1960’s, and with school desegregation around the same time period, southern life was dismantled and whites had to learn to change with the times and get along with blacks as equals of sorts. This made life significantly more difficult for southern whites, and disrupted their way of life in a variety of ways.

This was especially the case during particularly hard economic times. Wherever whites were in public, blacks could be also—as equals under the law. And this violated the socio-political and economic privilege that whites came to enjoy as a birthright throughout the south. The musical and other artistic preferences of whites and blacks differ(ed) from one another, as did religious styles of worship and even apparel. Modes of communication differed between them, among other things.

Now that times have changed throughout much of the south (hence, it is called the “new south”), supporters of the confederacy long for the simpler days (of segregation) when white sports heroes were about the only heroes one heard or read about, where white political heroes were about the only ones respected by the establishment, when whites had almost absolute power over their own lives and anyone else’s who existed in the domain of whites. This, I take it, is what is meant by “southern pride and culture.” This is intended to be a factual description, but one with obvious moral implications.

Let us bear in mind that the issue here is not whether or not one should have the legal right to display any flag they wish on a personal basis. If one wishes to display a nazi flag at one’s house, then one ought to have that right and does have that right—both legally and morally.

Rather, the issue is whether or not a state, city, county or any other governmental agency should be permitted to display the confederate battle flag on government properties for purposes other than educational ones (such as at a museum, for instance).

The former issue pertains to the right to freedom of expression protected by the First Amendment to the U.S. Constitution, ironically, a supreme legal document of the government from which Jefferson Davis’ confederate states of America violently fought to secede. But is the latter matter protected thereby?

“If one wishes to display a nazi flag at one’s house, then one ought to have that right and does have that right—both legally and morally”

So even if the confederate battle flag is a symbol of southern pride and culture, this is insufficient reason to display it at governmental properties (except, of course, for educational aims).

If it were, and the argument from southern pride and culture were sufficient to justify the otherwise governmental display of the confederate battle flag generally at governmental properties, then any other symbol of southern pride and culture would be justifiably displayed in said locations.

What, then, about the flags of the southern-based Black Panther Party which registered several southern blacks to vote during the 1960’s? By parity of reasoning, if the argument from southern pride and culture supports the governmental display of the confederate battle flag, then it also supports the governmental display of the other flags representing aspects of southern pride and culture so that any symbol of southern pride and culture ought to enjoy such display, that is, absent some independent and non-question-begging argument as to why only the confederate battle flag should enjoy privileged status amongst various symbols of southern pride and culture.

Thus the non-educational governmental display of the flag of the Black Panther Party, or the flags of the several historically black colleges, or of the NAACP, etc., would also be justified. Of course, one must be mindful not to adopt the view that the confederate battle flag enjoys such privileged status because it represents white “southern pride and culture,” as that would be to arbitrarily ignore other forms of southern pride and culture.

Thus if the southern pride and culture argument, bolstered perhaps by the education argument, is able to justify the governmental display of the confederate battle flag on government properties, then it also by parity of reasoning supports the same display of the Black Panther Party flag, among some others, for similar purposes.

THE CONFEDERATE BATTLE FLAG,

OFFENSIVENESS, AND HARMFUL WRONGDOING

Much ado has been made in the local and national USA media concerning the fact that the display at government venues of the confederate battle flag is offensive to blacks and many other of us non-whites. It is deemed as a symbol of white oppression of non-whites, and numerous supporters of the confederate battle flag seem not to grasp this much about their symbol.

For many, it is a symbol of hate. For others, it is a symbol of white privilege, and for yet others it is a symbol of Jim Crow mourning the abolition of slavery and longing for the times of white privilege. In either case, it is seen as a symbol of racism.

However, that something like the confederate battle flag is offensive is not a sufficiently good reason to remove it from courthouses, public libraries, etc. For if the mere offensiveness of something like a flag were sufficient reason to remove it, perhaps no flags whatsoever would be able to be displayed because all of them would offend someone or other. The fact is that U.S. law does not nor ought it to protect against mere offenses.[2]

Are there other more compelling reasons to remove the confederate battle flag from public places sponsored by governments in the U.S.? There are at least two such reasons. One is that it represents a harm to others, and another is that it represents an enemy of the state.

THE CONFEDERATE BATTLE FLAG AS A HARM TO OTHERS

It is not that the display of the confederate battle flag at government buildings is merely offensive that it ought to be removed from such venues. Rather, it is that it constitutes a genuine harm to others, in this case, a harm to non-whites—especially to blacks.

What is a harm? A harm, Joel Feinberg points out, is the setting back of a legitimate interest.[3] So in claiming that said display of the confederate battle flag is a harm to blacks in particular, it is being said that the very governmental display of the flag sets back one or more legitimate interest blacks possess.

But one thing is clear, being merely offended by the display of said flag hardly constitutes a legitimate interest blacks (or other non-whites) possess. While a society that punished offensiveness would be one in which it would be convenient for some to live, it would be overly restrictive on individual and group freedom of expression, for instance.

This would in turn imply that it would be a freedom significantly lacking in self-respect and respect for others, among other things that make adult living worthwhile. It would, then, not be a society in which a reasonable person would care to live. So something other than mere offensiveness must serve as a sufficiently good reason to remove the confederate flag from government buildings, as noted above. There must be some harm involved in its said display.

Now what precisely might constitute genuine harms that blacks experience by way of the confederate battle flag displays in question? One such interest of blacks that is set back is the legitimate one in not being harassed by a symbol of past oppression’s display at a government site.

Certainly a victim of oppression has a right to not have to re-experience the psychological turmoil of that oppression every time they attempt to conduct business with the federal, state or local government. To suggest otherwise would be to not grasp the power that especially unrectified oppression has on victims and victim-heirs.

While this is especially true with regard to older contemporary blacks who experienced first-hand the humiliations of Jim Crow, it is also true of younger contemporary blacks who did not experience such oppression, but who still are intimidated by the symbol of white supremacy.

This implies that even if it were true, as some contemporary supporters of the confederate battle flag claim, that the confederate battle flag is not about racist hatred and such but of southern pride, the fact that the intentions of some supporters of the confederate battle flag is claimed to be benign does not mean that the flag does not existentially serve for blacks as a symbol of white supremacy and oppression.

But even more important than the psychological harm that blacks might experience due to the governmental display of the confederate battle flag is the fact that its display by the government violates the equal protection clause of the 14^th Amendment to the U.S. Constitution by representing southern pride and culture which was clearly apartheid in character.

So the inequality represented by the confederate battle flag and rebel outlook on politics and religion stand opposed to the equality of citizenship that the equal protection clause is designed to guarantee by way of governmental laws, policies, and actions.

Thus, the U.S. Constitution by way of its 14^th Amendment condemns the governmental display of the confederate battle flag even if it protects by way of its 1^st Amendment the private and even personal public display of said flag, regardless of its offensiveness to others.

U.S. blacks have a legitimate interest in being equally protected by the law of the land. The confederate battle flag stands as a symbol of the supreme and violent opposition to that very constitutional value.

To permit a governmental agency to display the confederate battle flag desecrates the lives lost in fighting to preserve the value which was enshrined during the post-civil war era precisely because it was necessary to include an Amendment to clarify for everyone the supreme importance of the equal protection of all U.S. citizens.

Since the confederate battle flag symbolizes opposition to such a constitutional and moral value, it must never be displayed by a governmental agency or on governmental properties.

Furthermore, U.S. blacks have a legitimate interest in being provided by the state a measure of justice for their oppression at the hands of U.S. whites. Of course, much has been written about reparations to U.S. blacks.[4]

Part of a comprehensive reparations policy would involve the removal of all symbols of government oppression of blacks in order to provide a measure of justice toward blacks. This would include, of course, the confederate battle flag because of its harm to U.S. blacks in the form of psychological intimidation and reminder of their oppression at the hands of so many U.S. whites [See Kershnar for a discussion of black reparations].

THE CONFEDERATE BATTLE FLAG REPRESENTS AN ENEMY OF THE STATE

To this point, my arguments have addressed the display of the confederate battle flag on government properties except for educational purposes on the assumption that offensiveness is not a sufficient condition to remove the flag. But not only is the offensiveness of the confederate flag not a sufficient condition for its removal, it is not even a necessary condition for it.

For one can imagine a case wherein the governmental display of said flag is not even witnessed or experienced by anyone except supporters of said flag, thereby not offending anyone.

Assuming that one cannot be offended by something about which they do not know, such a display of the confederate flag can nonetheless serve as a harm to those who do not experience it or know of its display.

Not only does the confederate battle flag serve as a harm to U.S. blacks because it sets back their legitimate interests in not being harassed by a symbol of their past oppression’s display at a government site and because its governmental display violates the 14^th Amendment’s equal protection clause and because its removal is a means of non-compensatory reparations for the oppression of blacks throughout the south for generations, it is also in at least some of its versions a flag of the enemy of the state vis-à-vis the civil war!

This fact has not prohibited the states of Florida, Georgia, Louisiana, Mississippi and South Carolina from passing laws that prohibit the desecration of said flag (presumably, in either of its versions)–and this despite the fact that in Texas v. Johnson (1989) the U.S. Supreme Court ruled that such laws were unenforceable.

On the other hand, in 2014 California passed AB 2444 which prohibits the sale and distribution of the confederate flag by governmental agencies, except for educational purposes. As it turns out, the arguments of this paper support the California AB 2444.

U.S. President Abraham Lincoln, of course, sought to reconcile the union and confederate states after the civil war, though his efforts at this were met in part by a confederate sympathizer’s assassinating him. However, Lincoln’s well-intentioned but misguided desire to reconcile the union and confederate states required, if it was to succeed, genuine forgiveness, which in turn required genuine apology on behalf of the confederate states to the union states. Yet a genuine apology requires, among other things, adequate rectification of the harmful wrongdoings committed.[5]

How could the confederate states possibly rectify the union states for all of the horrendous damages that eventuated from the civil war in terms of the hundreds of thousands of union soldiers who were killed, the lives that were devastated as a result, the havoc that the institution of slavery wrought on millions of blacks slaves over the generations, the ensuing era of Jim Crow, etc.?

Instead of contrition and rectification, Lincoln’s desire for reconciliation was met with Jim Crow, protected in part by the nightriders of the KKK, not to mention the U.S. Supreme Court and other federal offices that turned a blind eye to these instruments of oppression of blacks, and the all too familiar story of the sacrifice of black lives that seemed to not matter to Lincoln nearly as much as he was concerned with preserving the union of white lives, north and south.

So much for Lincoln’s notion of “the better angels of our nature”! Perhaps he meant to say: “the better angels of our white nature.” For this would explain his inadequate concern for the rights of U.S. blacks and his willingness to be so permissive toward the (white) “sons and daughters of the confederacy.”

Lincoln’s precedent was followed by many an Executive until more recent generations wherein a Second Reconstruction and Civil Rights era was ushered in beginning with Mendez v. Westminster (1946); Brown v. Board of Education (1954), President Lyndon B. Johnson’s signing of the Civil Rights Act in 1964, and the Voting Rights Act in 1965, etc., each of which enabled Johnson to begin to defeat Jim Crow.

Whatever his motives and shortcomings, Johnson was a better friend to blacks than was Lincoln, as Johnson went on record scolding various southern politicians over civil rights issues. He knew he was a racist. But he nonetheless knew what some of the right things to do were as President in order to provide better equality of opportunity for blacks and others of us non-whites, including also the Fair Housing Act of 1968, Volunteers in Service to America (VISTA) which targeted the poor and mentally disabled in various walks of life, the Child Nutrition Act of 1966, the National School lunch Act of 1968, the Community Action Programs (CAPS) in 1965, and legal services for the poor in 1965. U.S. blacks benefited greatly from such programs. There is no question that for Johnson, black lives mattered.

Lincoln’s oft stated desire to reconcile the northern and southern “brothers”[6] at war aside, it is an irrefutable fact of history that the confederate battle flag (in whichever of its many versions) was the flag of the confederacy whether or not a particular version of it was flown during the civil war period.

And insofar as the confederacy was responsible for killing several thousand union soldiers, it was indeed an enemy of the state. As such, its flag deserves no room at governmental venues except as a museum piece (or for educational purposes) as the State of California has recognized. Indeed, it ought to be desecrated as most enemy flags are just after war time (e.g., various nazi symbols during and after WWII).

Had Lincoln cast aside his obsession with the union states’ reconciliation with the enemy and instead imprisoned the confederate POW’s and non-combatant supporters of said flag, his assassin would likely have not been able to perform his fatal deed.

To be sure, it was Lincoln’s prerogative to attempt to reconcile himself with whomever he chooses on a personal basis. But he hardly had a moral right to prohibit the desecration of the confederate battle flag, and the imprisonment (e.g., ironically, enslavement) of a group of people (confederate battle flag supporters) who ended up oppressing U.S. blacks first by way of slavery, then through Jim Crow and violent KKK raids that killed and otherwise harmed such blacks by setting back their legitimate interest in peace and tranquility.

Gestures and feelings of reconciliation by Lincoln, Grant, and Union troops cannot begin to serve as a genuine basis of forgiveness for the oppression of blacks. For forgiveness requires genuine apology, which was surely mostly absent amongst most southern whites.

The supporters of the confederacy were not sorry for slavery. They were not sorry for the killing of so many union troops. They were sorry only that they had lost the war to the union states and that therefore slavery and the zenith of southern white pride and culture would be no more in the south.

Make no mistake about it; Lincoln was no genuine friend of blacks. If he were, then he would have never tolerated the display of the confederate battle flag as it was widely celebrated and on public display throughout the south.

Moreover, he would have ordered the trials of those most responsible for injustices against blacks. And each confederate soldier and officer found guilty of complicity with regard to the war of all U.S. wars would have been executed for treason. Why? Because they were enemies of the state, and because it is a requirement of justice and because black … lives … matter!

Perhaps this is too much to expect from Lincoln, U. S. Grant, and most other whites both north and south, as each suffered from the moral delusion that the American Indian lands on which they stood to even fight each other to the death was actually their own from which either to secede or to prevent secession.[7]

Footnotes & References

[1] By ‘blacks,” I mean U.S. blacks, those of African descent whose genealogies trace back to slavery in the U.S..

[2] Joel Feinberg, The Moral Limits of the Criminal Law, 4 Volumes (Oxford: Oxford University Press, 1984-1990).

[3] Joel Feinberg, Harm to Others (Oxford: Oxford University Press, 1984).

[4] Objections similar to this one are addressed in Bernard R. Boxill, “The Morality of Reparation,” Social Theory & Practice, 2 (1972), pp. 113-122; J. Angelo Corlett, Race, Racism, and Reparations (Ithaca: Cornell University Press, 2003), pp. 197-213; J. Angelo Corlett, Heirs of Oppression (Lanham: Rowman & Littlefield Publishers, 2010), pp. 168-186; Race, Racism, and Reparations (Ithaca: Cornell University Press, 2003), Chapters 8-9; Howard McGary, Race and Social Justice (London: Blackwell Publishers, 1999).

[5] Corlett, Heirs of Oppression, Chapter 8; J. Angelo Corlett, Responsibility and Punishment, 4^th Edition (Dordrecht: Springer, 2014), Chapter 8.

[6] Lincoln’s views on reconciliation of union and confederate states is discussed in Thomas Carson, Lincoln’s Ethics (Cambridge: Cambridge University Press, 2015).

[7] For a discussion of whether or not the confederacy had a moral right to secede and whether or not the Union states had a moral right to prevent the confederacy from seceding, see J. Angelo Corlett, Terrorism: A Philosophical Analysis (Dordrecht: Kluwer Academic Publishers, 2003): Philosophical Studies Series, Volume 101, Chapter 4.