It’s been one hell of a week in American politics.
This country, which is normally so glacially slow to change its mind about, well, anything, executed two U-turns of portentous moment and neck-breaking alacrity: it suddenly seems the Confederate flag is no longer welcome in many parts of the South, and it suddenly seems that same-sex marriage is here to stay. If I haven’t made it overwhelmingly evident elsewhere in this blog, let me just say here that I applaud both these decisions. They are progressive steps in the right direction for our country, for our people, and for our national morals. I could sit here and extol them, laud and congratulate, and I am happy to do that in person — but here, now, I want to get out what still worries me, before those worries fade into the fog.
This is not to take away from the week’s victories, and I don’t want to insult their power by whining that we have more left to do. It should go unsaid that there is always more to do. But — moral objections aside — I’ve seen some frightening arguments against the two decisions, and I feel the need to reinforce the point that moving forward requires taking an inventory of our past.
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The Southern Cross flag (“Confederate flag” is really a misnomer, since the flag you’re thinking of was used only as a battle flag, though like most people I use the terms interchangeably) is a symbol of at best insurrection and at worst vicious hate. That it’s used proudly, as a symbol of ancestry and regional pride, has always left me incredulous — and I think belies a dangerous misrepresentation of history. The Civil War was not that long ago, and if its roots and lessons are already being distorted, I worry for how it will be presented ten, fifty, a hundred years from now. Yes, it’s fine to be proud of where you come from. I have nothing against nationalism (state-ism?), but the Southern Cross has a legacy that is drenched in hatred and racism, not in pride and independence. The only defenses of using the Confederate flag that I’ve heard go something like this: the flag’s not about slavery, it’s about standing up for your ideals and small government and mom-and-pop shops and freedom! Or, the flag’s not about the Confederacy, it’s about the Army of Northern Virginia standing up for their ideals and small government and mom-and-pop shops and freedom!
Okay, I’m not going to dance around this — those arguments are bullshit and I’m going to demolish them. I’ve been reading a lot about the Civil War the last couple of weeks, which I credit to watching “Lincoln” on a long trans-Pacific flight and listening to some great podcasts on a drive from the Bay Area to LA. This by no means makes me an expert, but I feel at least as qualified to make assertions about 19th century American history as I did at the end of my AP US History class in high school. I think that you could make an argument that the North did not enter the Civil War to end slavery, did not enter for liberty in any sense, but fought for the abstract idea of “Union.” Fine.
But you absolutely cannot say that the South seceded and went to war for anything other than to preserve slavery. The Vice President of the Confederacy, Alexander Stephens, gave a speech in March of 1861, just a few weeks before the South really kicked off the Civil War by shelling Fort Sumter. In the speech, Stephens lays out all the ways the progressive constitution of the CSA is far superior to that of the backwards-thinking nation to the north. I’m going to quote a sizable swath of it, because it’s so repulsive I think everyone should be required to read it. The emphasis is mine:
The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution, African slavery as it exists amongst us, the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the “rock upon which the old Union would split.” He was right. What was conjecture with him, is now a realized fact. … The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. … Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the storm came and the wind blew.
Our new government is founded upon exactly the opposite idea; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. This truth has been slow in the process of its development, like all other truths in the various departments of science. … The errors of the past generation still clung to many as late as twenty years ago. Those at the North, who still cling to these errors, with a zeal above knowledge, we justly denominate fanatics. All fanaticism springs from an aberration of the mind from a defect in reasoning. It is a species of insanity. One of the most striking characteristics of insanity, in many instances, is forming correct conclusions from fancied or erroneous premises; so with the anti-slavery fanatics. Their conclusions are right if their premises were. They assume that the negro is equal, and hence conclude that he is entitled to equal privileges and rights with the white man. If their premises were correct, their conclusions would be logical and just but their premise being wrong, their whole argument fails.
In summary: what the actual fuck.
So, once and for all: yes, the Confederate States of America was built on slavery. Yes, the armies that flew the battle flags were fighting for slavery. And so yes, the Southern Cross, that battle flag of the Confederate army, is — by its leaders’ own admission — not merely a pro-slavery banner, but in fact a total proclamation of white supremacy.
To say otherwise is to whitewash (sorry) history. This is something that I think is incredibly dangerous — a nation should be made to face its sins and remember its misdeeds, and the United States has plenty of both. Willfully or ignorantly ignoring one of our most blatant sins by arguing the Confederate flag only shows some sort of home team pride makes me worry not only for our citizens’ knowledge of their country’s past, but for their willingness to lead that country in the right direction in the future.
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If misrepresenting our past is dangerous, it is possibly no more so than clinging to it doggedly. This is what I saw in the dissenting opinions from the Supreme Court’s decision for legalizing same-sex marriage. I’m going to ignore Clarence “Slaves Did Not Lose Their Dignity” Thomas, but between Scalia and Roberts, there was plenty of confusing logic to go around.
The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
Scalia is more, um, Scalia-esque:
This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Here’s the thing: normally I’d probably agree with these statements. Roberts and Scalia are right; it is not the Supreme Court’s place to legislate from the bench, and doing so unbalances all those checks America’s founders fought so hard to set up. But the fact remains that something like marriage is a fundamental human right that was being ignored, or in the worst cases banned, by local governments. This is absolutely a case where the court can and should step in to prevent injustice and inequality.
I know citing a previous case may be dangerous, because you can always throw the Dred Scott decision or Plessy v. Ferguson back in my face, but I don’t understand how you can look at Obergefell v. Hodges, which restores a fundamental right to a group of people state governments had been discriminating against, and not see Brown v. Board of Education 2: Electric Boogaloo. Yes, normally the court should not interfere in the legislative process. But I think in extraordinary cases, the court has an obligation — both moral and legal — to wield its power to right iniquity. The justices cannot sit by as states trample their citizens’ rights.
Kennedy realizes this in his majority decision, and makes a fantastic point about how we cannot foresee the morality of the future:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
I deeply respect Kennedy’s willingness to say the Founding Fathers may have not been omniscient. While I believe these titans of American history — Washington, Jefferson, Hamilton, et al — were visionary, I worry that our current commentators and leaders elevate them to almost infallible status, when they are merely men, and so almost by definition fallible. Our veneration of the Founders, capital F, borders on blind hero worship. These men were brilliant, yes, and their invention (American democracy!) equally so, but we have to remember not to apotheosize them — because they were, occasionally, wrong.
My point here is that just because the Founding Fathers said or believed something doesn’t necessarily mean the country has to go on saying or believing that more than two centuries later. It is important to cleave to the ideals of our country’s Founders not out of some dogmatic loyalty to them, but because they are, on the whole, right. Every generation must think critically about this statement — like Justice Kennedy.
We cannot rely on past ideals just because we idealize the past.
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I guess I don’t know how meaningful this is to say after writing a thousand words or so of what is more or less diatribe, but I really am happy with this week’s results. Removing the Confederate flag and legalizing same-sex marriage are major coups for love, equality, humanity. I’m proud to live in a country where these events came to pass, and I just don’t want the past to cloud that. I want us to always recall and acknowledge, as a nation, the mistakes of our history — so that we can move forward together: respectful of our history but unburdened by its beliefs, aware of our failings but unshackled from their causes, nostalgic about our past but unbounded in our future.