August 15, 2019 Substantive Law

Confederate Monuments That Remain

By Beth D. Jacob
Jefferson Davis statue in front of the Alabama State Capitol in Montgomery

Jefferson Davis statue in front of the Alabama State Capitol in Montgomery

Reprinted with permission from Human Rights, (44:1) at 9–10. ©2019 by the American Bar Association.  All rights reserved.  This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

When Amazon moves to its new second home in Crystal City, Virginia—part of the Washington, D.C., metro area and a stop on the D.C. metro—its address will be on or near Jefferson Davis Highway, one of the main Crystal City thoroughfares. While the fact that the leader of an armed insurrection against the United States is honored so near the nation’s capital may seem surprising to some, Jefferson Davis Highway is only one of almost 2,000 roads, schools, statues, and other monuments throughout the United States honoring the Confederacy (not counting cemeteries, battlefields, and thousands of historical markers that dot the Southern landscape). SeeWhose Heritage: A Report on Public Symbols of the Confederacy.” The largest monument is etched into Stone Mountain outside of Atlanta. Bigger than Mount Rushmore, the high-relief carving of Robert E. Lee, Jefferson Davis, and Stonewall Jackson dominates the landscape on the site of the 1915 revival of the Ku Klux Klan. While most Confederate symbols are found in states that were part of the Confederacy, some are in states like California or New York, and even in states such as Idaho, Arizona, and New Mexico, which were admitted to the Union after the 1865 end of the Civil War.

It is well accepted by historians that the Confederacy was established and fought primarily to preserve slavery. For example, in what is known as his “Cornerstone Speech,” Confederate Vice President Alexander H. Stephens declared in 1861: “Our new government is founded 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.” Henry Cleveland, Alexander H. Stephens, in Public and Private: With Letters and Speeches, Before, During, and Since the War, at 721 (1866). The Confederate Constitution also enshrined this idea, providing that “the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected” in all Confederate territories. Confederate States Const. art. IV, § 3, cl. 3.

It is also well recognized, including by a unanimous United States Supreme Court, that public monuments reflect the opinions of the municipalities where they are found. “Permanent monuments displayed on public property typically represent government speech. . . . A monument, by definition, is a structure that is designed as a means of expression,” and this is also true for “privately financed and donated monuments that government accepts and displays.” Pleasant Grove City v. Summum, 555 U.S. 460, 470–471 (2009) (Alito, J.). Thus, the unacceptable message of Jefferson Davis Highway, Monument Avenue in Richmond, Virginia (a parade of Confederate leaders), Emancipation Park in Charlottesville, Virginia (Robert E. Lee), and the scores of schools named after Confederate icons, is that those who fought to preserve slavery should be honored, and those whose ancestors were slaves are less respected or even inferior to other Americans. Portraits of Confederate generals are even found in courtrooms, and statues honoring the Confederacy stand before courthouses across the South, sending the unpalatable message that some members of the community are less worthwhile—and less likely to receive impartial justice—than others. 

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