Confederate memory and monuments: of judicial opinions, statutes and buildings.

• Author: Brophy, Alfred L.
• Position: THE DIFFICULT ROAD TO RECONCILIATION

[I]t is well that we keep in mind the fact that not all of American history is recorded. In some ways we are fortunate that it isn't, for if it were, we might become so chagrined by the discrepancies which exist between our democratic ideals and our social reality that we would soon lose heart. Perhaps this is why we possess two basic versions of American history: one which is written and as neatly stylized as ancient myth, and the other unwritten and as chaotic and full of contradictions, changes of pace and surprises as life itself. Perhaps this is to overstate a bit, but there is no denying the fact that Americans can be notoriously selective in the exercise of historical memory.

--Ralph Ellison, Brown University, 1979 (2)

In his 1979 address at Brown University, "Going to the Territory," Ralph Ellison spoke about Americans' memory of the Civil War, the era of Reconstruction afterwards and then those dark days of the Jim Crow era. In the aftermath of the war, Americans generally had reconciled, in part through a selective memory. As Ellison said, "Having won its victory, the North could be selective in its memory; as well as in its priorities, while leaving it to the South to struggle with the national problems which developed following the end of Reconstruction. And even the South became selective in its memory of the incidents that led to its rebellion and defeat." (3) The victors, the North, left the field, leaving the South and African Americans to deal with the aftermath.

The usual memory of the Civil War in Ellison's youth was that it was the result of a bumbling generation, where abolitionists and proslavery forces brought the rest of the sober and rational Americans to war. Afterwards, corrupt and incompetent Yankees and freed men made a mockery of the rule of law. Then, white Southerners "redeemed" themselves and re-established the rule of law. That vision, promulgated in history textbooks and in popular novels, correlated with a national policy of returning power to Southerners. One might look, for example, to Thomas Dixon's novels The Leopard's Spots and The Clansman (which was later the basis for D.W. Griffith's movie Birth of A Nation) for a sense of the dominant interpretation of the war and reconstruction. Dixon's work has important analogs in the academic literature as well, such as William Archibald Dunning's Reconstruction, Political and Economic, 1865-1877 and Ulrich Bonnell Phillips' American Negro Slavery, on plantation slavery. This method of interpretation continued through Avery O. Craven's The Coming of Civil War--evidence that although a historical school may be thoroughly rejected, it continues on in books, which have the power to live (and even remain in print) well beyond the time they have otherwise been rejected.

Work of this character continued to appear past the Second World War. Perhaps the best-known of these works is E. Merton Coulter's The South During Reconstruction (1947) and later his Confederate States of America (1952). The South During Reconstruction appeared from the prestigious Louisiana State University Press. (4) By the time the book came out, there had already been decades of historical scholarship that pointed out the unfair--indeed, inaccurate--nature of such histories. W.E.B. DuBois's Black Reconstruction in America 1860-1880, published in 1935, for instance, provided an important catalog of the biased depictions of Reconstruction. In fact, pieces of this nature continue to appear today, though not from respectable scholarly sources. (5)

Thus, there was a process of selective memory, which historians have thoroughly documented in recent years. (6) The centrality of slavery as a cause of the Civil War was written out of the collective memory of the war. (7) The process by which that happened is significant--and important. It happened through a concerted effort to first forget the causes of the war, then to focus on the war as an effort to protect the homeland. We could talk about this, then, as a process of selective forgetting and selective remembering--or selective forgetting and then the recreation of memory. This selective process remade our nation's understanding of history and how that history relates to the present. For, if the common memory of the war is that it was about slavery the actions of those who fought against the Union seem immoral. However, if we view the war as a struggle over political self-determination, about home rule, and about honorable people fighting for their homeland--then we have a much different sense of the war. That historical memory can then shape how we think about the efforts to repair our country after the war. If the war was about ending slavery and racial equality, then perhaps we think the Thirteenth Amendment should be construed broadly. (8) And perhaps we will think the Fourteenth Amendment ought to be construed broadly to give Congress power to prevent further intrusions by states on the rights of their citizens.

In a field like law, which draws so much upon cultural values, it is no surprise that judges--like historians, novelists, and filmmakers--reflected an incorrect view of history and built upon it. This occurred in the Slaughterhouse cases, when the court rewrote the Fourteenth Amendment from one of protection of social rights to protection of economic rights. This also occurred in Cruickshank, when the Supreme Court limited the power of Congress to protect civil rights. For Cruickshank held that Congress had no power to make violations of civil rights a federal crime. (9) For nearly a century afterwards, the federal government had only limited power to protect civil rights. Precedent being what it is, Cruickshank reflected the Supreme Court's endorsement of a narrowly limited Reconstruction. But it was not just a reflection of the Supreme Court's values. It also created limitations on federal power.

The Supreme Court's famous 1896 decision in Plessy v. Ferguson is another excellent illustration of the ways that the Supreme Court drew upon common tropes in writing about race and equality. Justice Brown drew upon the then-dominant ideas about the social need for the separation of the races to justify a Louisiana statute that demanded separation of the races on railroad cars:

A statute which implies merely a legal distinction between the white and colored races--a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color--has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection. (10) In concluding the opinion, Justice Brown observed that equality should come from feelings of mutual affection between the races, which would emerge from a process of gradual accommodation in which black people would (as Booker T. Washington said in 1895 in his Atlanta exposition speech) (11) show themselves worthy, rather than from demanding equal rights:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.... Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane. (12) Justice John Marshall Harlan "saw through" this, to the truth, to paraphrase Ralph Ellison in Invisible Man. Justice Harlan phrased it starkly:

I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by...