Wednesday, August 16, 2017

What's the Difference Between Confederate Leaders and Slave-owning Founding Fathers?

by Michael Dorf

Baltimore's overnight removal of Confederate statues and similar actions elsewhere raise the question also raised by President Trump in his remarks yesterday expressing solidarity with the "many fine people" who just happened to participate in explicitly racist and antisemitic events in Charlottesville: "Is it George Washington next week? And is it Thomas Jefferson the week after?" The short answer to Trump's question is that we honor Washington and Jefferson despite the fact that they owned slaves, whereas memorials to the likes of Robert E. Lee, Jefferson Davis, and Stonewall Jackson honor them because they fought for the Confederacy, a secessionist movement that had the preservation of slavery as its organizing principle.

Yet the longer answer is more complex. The nationwide movement to strip honors from people who participated in slavery and institutional racism has as its object some people whose contemporary honors can fairly be said to be based on other accomplishments. For example, the movement at Princeton to take away Woodrow Wilson's honors proceeds despite the fact that almost no contemporary Princetonians who seek to retain those honors thereby wish to honor Wilson's virulent racism or his "accomplishment" of segregating the federal workforce. Just as most Americans honor Washington and Jefferson despite rather than because of slavery, most Princetonians who honor Wilson do so despite rather than because of segregation. So what's the difference?

One might think that there is no difference. Perhaps if one thinks that Princeton ought to de-Wilsonize, one also ought to think that the U.S. ought to de-Washingtonize and de-Jeffersonize (and de-Madisonize, etc.).

Or perhaps there is no difference in principle but a difference in practicality. Renaming some buildings and removing some statues on a college campus is orders of magnitude easier than tearing down the Washington and Jefferson Memorials, renaming the capital, etc. But practicality alone does not seem to explain the reluctance--into which Trump, in his own insidious way, tapped--to de-Washingtonize and de-Jeffersonize.

And it shouldn't. A hypothetical example may help. Suppose that the U.S. had lost World War II and that, as a consequence, Nazi occupiers had erected giant memorials and renamed cities. Suppose further that over time the regime and public attitudes changed so that in this alternative universe Americans eventually came to hold the extremely negative views about Nazism that most Americans (excepting perhaps our real-life president) currently hold. Is there any doubt that we would tear down the Hitler and Geobbels Memorials, even if they were the size of the Washington and Jefferson Memorials, or that we would change the names of cities?

If I'm right about what we would do to purge the taint of Nazism, why should practicality stand in the way of purging the taint of slavery? Surely slavery, like genocide, is the sort of enormous evil that warrants purging.

I have thus far examined two possible explanations for reluctance to undo honors for the likes Washington and Jefferson: the despite/because distinction and practical considerations. Neither one, standing alone, suffices. Is it possible that in combination these two explanations justify the reluctance? Perhaps, but I'm not confident of that answer either. Suppose that in the counterfactual world, Hitler, not Eisenhower, had built the interstate highway system, and that some people defended retaining giant memorials and other honors to Hitler on the ground that they celebrated his promotion of interstate travel, not Nazi ideology. We would then have a despite/because distinction along with a practical obstacle to removal; and yet we still would (I hope) want to de-Hitlerize the nation.

There is another possible distinction between the hypothetical Hitler and Goebbels Memorials and the real ones celebrating Washington and Jefferson. Washington and Jefferson are our own. The Nazis are (in the alternative universe) foreign conquerors. But even that fails. Post-war Germany quite honorably teaches its children about Nazism but does nothing to honor its Nazi past. Hitler's role in building the autobahn has been exaggerated, but even if it had not been, you can be sure that contemporary Germany would not retain the name "Hitler's Autobahn" or anything like that--even though Nazism was native to Germany in a way that it was not to the U.S. in my alternative universe.

I am not sure that there is any truly persuasive reason for retaining monuments and other honors to the likes of Washington and Jefferson--even accepting the claims that they themselves hoped to see a peaceful end to slavery. The strongest arguments for Washington's and Jefferson's ambivalence towards slavery can be found, respectively, at the Mount Vernon and Monticello websites. The best that can be said for them is that they were relatively enlightened for people who owned slaves. At the end of the day, it is not clear that this counts for all that much.

In a 2011 article in (appropriately enough) the Virginia Law Review, I argued (among other things) that as a matter of equal protection law, what makes legal disputes over the flying of the Confederate battle flag by state institutions difficult is that symbols mean different things to different people. I still concluded that such displays violate a basic constitutional principle forbidding the state from branding any of its citizens second-class (or worse), but I acknowledged that the extant law on the question is unclear.

That said, the policy question is or should be easy. It is long past time to relocate statues of Confederate generals and politicians to museums, where they can be studied in historical context.

Meanwhile, the policy question of what to do about the Washington and Jefferson Memorial is harder for one basic reason: The narrative. It is possible to tell the story of Washington and Jefferson and the other founding fathers in a way that speaks to Americans of all races and backgrounds. Indeed, it's not just possible; if you do it well, you win eleven Tony Awards.

As it happens, last night I attended a performance of Hamilton on Broadway. I had listened to the soundtrack many times before, but this was my first time seeing it live. As most readers likely know, the cast overwhelmingly consists of people of color, mostly African American. The show makes John Laurens an important character in Act One, thereby highlighting the existence of abolitionism even during the Revolution. Slavery and race are palpable on the surface of the show.

The show succeeds brilliantly--with a Black Washington and a Black Jefferson--both because of and in spite of how it plays with race.

I don't know whether at some point in the future we will as a nation come to the conclusion that Washington and Jefferson are too tainted by slavery to merit their continued honors. For now, however, the key distinction between Confederate heroes and Revolutionary heroes is that there is no plausible way to tell the story of the former in a way that makes it the story of all Americans. For now, at least, we--or at least Lin-Manuel Miranda--can tell the founders' story that way.


jax said...

I heard one commentary explain the confederate statues were used to intimidate people 50 years after the Civil War.

From Wikipedia:

This is a list of Confederate monuments and memorials. The monuments and memorials honor Confederate leaders, soldiers, or the Confederate States of America in general during the American Civil War.[1] At least 1,503 symbols of the Confederacy can be found in public spaces across the country.[1][2] Many of these monuments were erected in the early 20th century, decades after the Civil War, as part of the campaign to promote and justify Jim Crow laws in the South.[3]

Outside of the argument of glorifying the Confederacy, these statues were clearly used to intimidate people 50 years later. That is not true of the legacy of Washington or Jefferson.

Shag from Brookline said...

The 1787 Constitution accommodated slavery that had been in existence for many decades in the American Colonies without making specific reference to slavery or slaves. The 1787 did specifically make reference to Native Americans with provisions for sovereignty. Slavery was an evil, eventually resulting in the Civil War by the rebellion of many slave states, a rebellion that failed, followed by the Civil War Amendments that, inter alia, outlawed slavery in specific terms.

Let's go back in time to the Native Americans that were pushed back as American Colonies were established, with many battles, conflicts, yes, wars. While the 1787 Constitution recognized Native American sovereignty, as American expanded there were more battles, conflicts, yes, wars. That sovereignty was give short shrift.

Slaves were brought here against their will. Native Americans were pushed away from their lands by force.

There has yet to be reconciliation on slavery and racial issues that followed despite the Civil War Amendments and the civil rights movement of the 1960s and beyond. The plight of Native Americans remains unresolved. Voluntary immigration to America has helped America to grow despite discrimination, what with assimilations. But America's "original sins" respecting African-Americans and Native Americans remain conflicting. America needs reconcialtions to remain strong in the world we live in today. Tom Friedman's NYTimes column today focuses upon what he has been observing on his round the world trip about the make-up of America's military, with its diversity, as the strength of America, contrasting this with the protesters in Charlottesville.

We can spend a lot of time going back into American history to find guilt in various persons. But the focus should be on America today, as we cannot undo the past. Can America survive with the Neo Nazis, White Supremacists, KKK, White Nationalists, Alt Right and other hate groups not being challenged constantly? If they are not challenged, America will weaken.

Washington and Jefferson are diversions for these hate groups - and President Trump, based upon his presser yesterday.

Joe said...

A recent article reaffirms the spirit of the first comment:

It has been noted that Hamilton's record on slavery is at best mixed, including his wife's family. John Laurens, from South Carolina, deserves to be known more about regarding the slavery issue. "We Americans at least in the Southern Colonies, cannot contend with a good Grace, for Liberty, until we shall have enfranchised our Slaves." He did in a pointless skirmish after Yorktown.

Some do have nothing much good to say about Washington and Jefferson, as Shag saw in another blog when someone responded to me personally (Balkinization, Lee post). A black woman legal commentator also expressed her disfavor recently. But, I do think there are differences between them and Lee, including that they didn't commit treason on the U.S. in defense of slavery.

The first point is really the most important -- there is a role to recognize Lee's place in history etc. but the statues were in place to selectively glorify a failed attempt to secede in defense of slavery. A rather narrow aspect of "Southern heritage," especially given many fought for the Union. So, e.g., I don't think Taney's picture should be taken from the US Supreme Court as one of many Chief Justices. Plus, he isn't being honored for Dred Scott v. Sandford. Context matters.

And, Shag is correct. It is a diversion. But, it's part of wider debate.

Joe said...

Edit: "Died."

The equal protection aspect regarding Confederate flags would come up too in the license plate case the Supreme Court decided on First Amendment grounds. Also, there was some arguments that it was a "badge of slavery" under the Thirteenth Amendment. Statues, especially those with a certain intent, might be thought of as well. Finally, if flags etc. are in court rooms, I saw some arguments of due process problems.

Reuel Schiller said...

For a thoughtful take on this issue, Dorf on Law readers may wish to examine the report issued by Yale University's Committee to Establish Principles on Renaming. While the report addresses the issues relating to a particular building on Yale's campus, it does so after establishing general principles that I believe can useful for addressing issues of renaming and removal in a wide variety of contexts. For those of you who only wish to see the principles, they are listed and explained on pages 18-23 of the report.

The Report can be found here:

Reuel Schiller

John Barron said...

ln his original draft of the Dol, Jefferson wrote:

"he has waged cruel war against human nature itself, violating it's most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, & murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another."

Jefferson was forty years ahead of Wilberforce, but he couldn't change the world by himself. To extirpate him from our history for that practical limitation borders on the absurd.

Joe said...

Wilberforce did not wait until 1816 to speak out against the slave trade.

The provision is appreciated but limited. First, the "negative" to my understanding involved a Virginian effort to close off the slave trade. Virginia had a glut of slaves and didn't need it. Also, the negative very well was as much as a statement of supremacy of Great Britain over the colonists than any protection of slavery per se.

Jefferson's passing the blame of slavery to George III overall was a joke really; slavery wasn't being forced on the colonialists by Great Britain. The bit about exciting slave rebellions (ala Lincoln!) isn't exactly without problems either. "He" didn't deprive the slaves of liberty. The colonialists themselves, unlike the home country, passed local slave laws and brought slaves in.

Jefferson did support in theory, though less in practice, certain basic ideals (including saying he only had a suspicion that blacks were inferior; he was a man of science, so his principles made that open to the scientific method) regarding race that in the long run was beneficial. This provision specifically left something to be desired and without editing, I myself would be loathe to vote for it.

jason settle said...

Isn't the important distinction between the likes of Washington and Jefferson, on the one hand, and prominent figures of the Confederacy, on the other, the issue of treason by Secession. The Confederacy was illegal and treasonous and was announced by sudden war against the Union, all done in the name of slavery. Washington and Jefferson never made war on their own countrymen in the name of slavery; the Confederates did.

Moreover, monuments to Confederates stand in a different pose. A Washington or Jefferson monument celebrates the creation of the Union, which did not create and was at best conflicted as to slavery. A Confederate monument on the other hand celebrates a figure whose only accomplishment was to attempt to destroy the Union for the sole reason of slavery.

Also, the Confederate monuments themselves were expressly created to communicate a message of inferiority to African-Americans in the civil rights era. They were not meant to celebrate the individuals depicted in them at all, but as a political message in favor of segregation, and not slavery as such.

David Ricardo said...

As one who grew up a few miles for Monticello and went to Stonewall Jackson Elementary School, Jefferson Grammar School and Robert E. Lee High School, drove on the Lee-Jackson Highway, etc I have struggled to come to grips with the veneration of these people along with the other Founding Fathers. And I have come to an accommodation as follows.

Washington was a slaveholder. But Washington was a man of many actual accomplishments, the two most notable being generalship of the Revolutionary Army that won independence and being the first President and thus setting an example for how Presidents should act. So as Mr. Dorf has pointed out we celebrate Washington despite his slave holdings.

Jefferson is more difficult. But the accommodation that can be made is that we celebrate not Jefferson the man, whose ugly history of slaveholding has been well documented, but the ideals and ideas of Jefferson. In this world the Jefferson monument is not a tribute to Jefferson the person but a tribute to the philosophy that is found in the Declaration, the Constitution and his other writings and speeches. In a perfect world the beautiful and inspiring Jefferson Memorial and other celebrations of Jefferson would exist without any statue of Jefferson. We wrongly attribute to Jefferson the person the ideals of Jefferson the author. To judge Jefferson the person is to look at how he lived his life, not what he said.

Unlike Washington Jefferson’s accomplishments as a person are numerous but not all that significant. He spent the Revolutionary War in relative comfort as a politician. Other than the Louisiana Purchase it is hard to find a history altering act. It is not impossible to hold high the beautiful words of Jefferson while condemning the life of Jefferson as a man who even in his later years when the anti-slavery movement was in full force regarded African American women as breeding stock and their children as ‘capital’. Jefferson retained his slaves for one of the worst possible reasons; he wanted to live a lifestyle that was greater than he could afford, and so retained slaves to further his comfort in life and his carnal desires. We do not honor the man, we honor the fact that he was able to document the concepts of universal freedom and supremacy of the individual.

But neither of the reasons that Washington and Jefferson are honored apply to the men who led the battle of insurrection against the nation. Lee and Jackson may have been brilliant generals, but they lead troops in a cause that may be regarded as one of the worst causes for which men have ever fought, the retention of African Americans as slaves and the dissolution of the United States of America. Lee and Jackson, along with the rest of the Confederate leadership did not pen any great tracts, they did not participate in any great deeds, they simply sent men into battle to kill and be killed for slavery and destruction of the union that Jefferson’s words and other’s actions had created.

The nation has started to face reality and slowly rid itself of monuments to Lee and Jackson and the others. Over time history will regard them for what they were, not for what southerners want to pretend what they were.

CJColucci said...

Admit it, you wrote this post just so you couild tell us you got Hamilton tickets.

Greg said...

I find the arguments about Lee and Jackson compelling.

The problem with expanding this line of reasoning so far as to invalidate Washington and Jefferson is that none of us will completely live up to society's morals 200 years from now. We can stop honoring people or we have to recognize that all people are flawed, and we recognize them for striving toward greatness and to some extent meeting it, not for perfection.

I think other posters are right in thinking that we should choose who we honor because of what it says about us today, not necessarily about what it says about the person who is being honored.

As for tearing down existing monuments that no longer send a message we want to send, the right thing to do is move them into museums where they can be given additional context. To do otherwise is to risk becoming ISIS, destroying millennia of cultural heritage just because it was created by and for people who no longer match our current morality.

Greg said...

I'd also like to point out that preemptively invoking Godwin's law is generally a mistake.

The problem with comparisons to Hitler is that pretty much everyone agrees that "Hitler was special." There is no other individual or group in history as villainized as Hitler and the Nazis, and so almost no rational thought can be applied in a comparison to them, especially in some hypothetical where Hitler is temporarily considered a respected statesman. Of course everyone would tear down monuments to Hitler and the Nazis, BECAUSE HITLER. I'm not sure this provides any useful insights when we try to apply the same standards to other historical figures.

The problem with even Lee and Jefferson Davis is that to some groups, particularly northern liberals and communities of color, they practically are Hitler. But to other groups, particularly southern white conservatives, they're something else. Even if those conservatives can see them as so tainted by their association with slavery that they should not be honored, they still don't see them as Hitler.

Joseph Simmons said...


That's a head-scratcher. Their role in establishing the American Republic and principles of liberty seem like very good reasons. I suppose from our modern perch it's easy to discount the significance of what they did. While slavery and its legacy has played an enormous part in the development of our nation, legally and socially, it is not the be-all/end-all of America. Charting the progress of America reveals the two men set a very good project into motion. That's not narrative relying on whitewashing their misdeeds. I think you have it right that we honor them despite their owning slaves. We do this because of the significance of their accomplishments.

A greater mystery is why we keep Jackson on our money. Practically, it is easy to remove him. While he did pay off the federal debt, I don't think that's a compelling enough reason to keep him. His support of slavery and atrocities against Native Americans would seem to loom larger in his legacy but maybe I'm missing something.

tjchiang said...

I think your dismissal of the because/despite distinction is too quick. Your first counterargument is that the distinction cannot hold because the movement to strip honors from racists also targets Woodrow Wilson. But the fact that some people argue for stripping honors from Wilson only means that the because/despite distinction is not persuasive to those people in that movement. It does not mean that the distinction cannot be persuasive to people of reasonable judgment, unless you think the case for stripping honors from Wilson is beyond debate.

Your second counterargument is a set of hypothetical honors bestowed upon Nazi leaders, which is defended by pointing to their hypothetical accomplishments unrelated to Nazism. The short answer is that the hypothetical is so far-fetched that it no longer serves as a good intuition pump. In today's reality, no monument to Hitler, in Germany or elsewhere, whatever its ostensible purpose, can possibly be understood by its audience to celebrate Hitler without reference to his Nazism. Anyone who defends a Hitler statue by saying that it is really celebrating his accomplishment of erecting the Autobahn (or the alternative reality interstate highway system) would simply be lying, just as no one really thinks we have the Jefferson Davis Highway to honor him for his accomplishments as U.S. Secretary of War.

As a counter-counter-example to your counterargument, we do have a monument to someone who the whole country agrees is a traitor, and the honor is relatively uncontroversial because everyone agrees that we are honoring the person for something other than his treason: The Boot Monument to Benedict Arnold at Saratoga National Park.

Joe said...

On the comparisons to Nazis:

Mike Godwin‏ @sfmnemonic Aug 13

By all means, compare these shitheads to Nazis. Again and again. I'm with you.

[talking about the white supremacist protesters]

Joseph Simmons said...

tjchiang, I agree very much. The trouble with the Benedict Arnold monument as an example is that it doesn't identify him, suggesting that it is perhaps the proper way to treat flawed heroes. It is also rather out of the way and easily missed if you stay on the trail, to the extent that matters.

ge13031 said...

I believe the monuments are tributes to people that actually took up arms against the United States of America. This was done because of a belief that all men are NOT created equal (white supremacy) . I do not think that this is something that should be glorified in monuments seen as threats that "The South Will Rise Again". Horrors. You want to pay tribute to the traitors (Rally 'Round The Flag Boys) visit their graves, and pray for their souls.

Mike B said...

The challenge is you're using today's morality to judge mid-1800s morality. Slavery, right or wrong, has been a part of every major civilization until the turn of the 19th century, and then started falling out of favor globally. Likely, with or without the Civil War, slavery as an institution would have been eliminated within a few decades in the US.

What we're discussing here is akin to, say....50 years from now, having discussions about removing statues of other Founding Fathers, George W Bush, Bill Clinton because they were "anti-LGBT". After the American Revolution, man states had anti-sodomy laws and cross-dressing was generally punished by imprisonment or corporal punishment. As late as the mid-90s, a vast majority of the population was still opposed to same-sex marriage. Hell, Prop 8 (limiting the state's recognition of marriage to that of one man and one woman) passed in uber-progressive California as recently as 2008 by popular vote (roughly 7 MM for and 6.4 MM against). What about the Supreme Court justices who upheld a lower court's decision of Baker v Nelson? The Minnesota Supreme Court states in its ruling "the institution of marriage as a union of man and woman uniquely involving the proceeating and rearing of children within the family is as old as the book of Genesis." A mere 40 years later and much of America now supports same-sex marriage. Do we now go after statues and memorials honoring those individuals who's thoughts were "contemporary" at the time?

Most people, regardless of color, see no symbolism in the states of Lee, Stonewall Jackson, Washington, or Jefferson just like the LGBT community sees no malice in a statue of FDR (see The Newport Sex Scandal) or Harry Truman (signed the Uniform Code of Miltary Justice). There's got to be a better way than, for lack of a better word, trying to whitewash history.

Joe said...
This comment has been removed by the author.
Joe said...

You don't need to 'whitewash' history.

People will still have means to study what happened in a number of ways. If history is your concern, displays specifically in place to promote a certain narrow part of it is not the best way to do it. And, yes, sometimes a word seems a tad inapt.

Shag from Brookline said...

Apparently Mike B with this beginning from his closing paragraph:

"Most people, regardless of color, ...."

believes that "most people, regardless of color" believe as he does. That's arrogance in whitewash.

Asher Steinberg said...


Another distinction is that there is no plausible way to tell the story of America without honoring, and giving a lot of the credit for its very being, to Revolutionary heroes.

Mike B said...

Shag - 60% of African Americans polled say either leave the statues or have no opinion. Which qualifies as "most". Stop listening to the Twitter mob and think independently.,%202017.pdf#page=3

Mike B said...

And of those 40% who say take the statues down, I'd love to be able to go back in time 2 weeks and see what their answer would have been.

Mike B said...

A separate poll showing similar results:

Shag from Brookline said...

I trust that Mike B will continue to follow certain polls in the next weeks to inform of their results on his point of "most people, even of color, ...." Perhaps there are past polls that are quite different from those he links to. Polls are snapshots at a certain point in time. Mike B's polls should be compared to polls on Trump. Now if Mike B had said; "Most people, even of color, recently polled, ... " that would be less absolute than what he did say.

By the way, I'm not on twitter but assume a tad that Mike B follows Twit King Trump and thus feels that he thinks independently..

Mike B said...

Shag, please don't let facts and data get in the way of your opinion. My comment stands - most people do not equate Robert E Lee, Stonewall Jackson, et al with slavery, oppression, hate, etc. These recent polls are likely skewed in support of taking the statues down in light of recent events.

Similarly, most people do not equate statues of Martin Luther King Jr, Franklin Delano Roosevelt, or Bill/Hillary Clinton with hatred and bigotry, even though all l were opposed to gay marriage and gay rights.

I love that you assume I'm pro-Trump. I'm in the middle with about 80% of Americans, meaning I'm pro-common sense (which would eliminate me from the pro-Trump crew). This argument over statues falls well outside the lines of common sense.

Shag from Brookline said...

Polls constitute "facts and data"? That's "pro-common sense"? What if polls change, especially in the near future? Would such changes constitute "facts and data"? (Consider polling on ACA over the past 7 years.) What Mike B considers common sense may not be universal on this subject. Is it "pro-common sense" to rely on polls"? (Again consider ACA polling. Are Republicans displaying common sense on what to do with ACA? And consider polling as Nov. 8th approached.) Polls can be interesting but deceiving. In politics, live by polls, die by polls. What do the polls cited by Mike B say about loyalty to the United States of America as compared to loyalty to the Confederacy? How did Rasmussen in particular phrase the polling questions?

Mike B said...

Maybe you'll believe Charles Barkley instead

Shag from Brookline said...

Is Mike B's pro-common sense reflected by Charles Barkley because Barkley happens to be a celebrity African-American? Like Donald J. Trump might have reflected his common sense with African-American celebrity Mike Tyson during the campaign? How does Charles Barkley comport with "facts and data"? Maybe Mike B can provide a LeBron James link - or an Al Sharpton link.

Shag from Brookline said...

Mike B might take a peek at the WaPo on Kevin Durant's refusal to visit the White House and the agreement of the rest of the Warriors as NBA champs to decline the traditional visit. SLAM, DUNK!