Abandoned Symbols: Confederate Flags and Criminal Justiceby Joseph Margulies

Old Confederate FlagIn the wake of the horrific massacre in Charleston, leading social conservatives across the country have loudly called for the removal of the Confederate battle flag from public display. But some people have wondered whether their call, however welcome, will prove nothing more than an empty gesture, a cynical strategy to woo moderate whites to the conservative camp in the 2016 election.
As is my wont, I am more hopeful. In ways that have not been adequately appreciated, the elite repudiation of the flag in the wake of Dylan Roof’s murderous rampage could be an important step, not simply in the debate over slave-era symbolism but in the contemporary struggle for criminal justice.
Why do we care about symbols? They don’t put food on the table, money in your pocket, or a roof over your head. You can’t eat a symbol. But they are nonetheless as important to our lives as anything we can buy.
Symbols play two equally important roles in American life. In the most obvious sense, they represent a belief system. The Constitution, for instance, symbolizes our belief in and commitment to the rule of law. Yet symbols also signal our membership in a particular community. For many years, Christians have used the ixthus to signal their faith to fellow believers, and many conservative Christians now display the symbol in their home or business or affix it their cars.
This dual role makes symbols vital to both our personal and communal identity; they declare what we believe as individuals and confirm our place in a tribe of like-minded others. We could never survive without symbols, and if suddenly they were taken from us, we would surely create others to take their place.
Yet symbols are deliberately vague and ambiguous. That’s part of what makes them so valuable. It is important that the Constitution, as a symbol, not be given a single, inflexible meaning, since that would prevent it from accommodating the shifting demands of the day. Equality, for instance, means something very different today from what it meant during the heyday of Jim Crow. In fact, historians have shown that its meaning today bears only a distant “family resemblance” to its meaning at the time of the Founding.
What is true for equality is no less true for many of the other terms and expressions in the Constitution, as recent historic events in the Supreme Court have made abundantly clear. What we mean by liberty, wrote the historian Michael Kammen, has “changed and broadened over time, . . . ranging from constraints upon authority to improvements in the conditions of social justice, of privacy, and a growing concern for the protection of personal liberty.”
This process is not only natural but inevitable, despite what Justice Scalia might think. As Justice Felix Frankfurter once observed, “Great concepts like . . . ‘due process of law,’ ‘liberty,’ [and] ‘property’ were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”
The meaning of symbols is thus perennially a work in progress, continually renegotiated in the many spaces occupied by both the individual and the community—the private space, where the individual reflects on her own beliefs; the communal space, where the community speaks with its own members; and the public space, where the community speaks with the wider world.
In this never-ending negotiation, we have long understood the prominent role played by the community’s elites. These are the politicians, religious leaders, and other public figures that are widely believed by the community itself to be the keepers of the flame, the men and women who best represent the ideas and ideals of the belief system.
And that brings us at last to the Confederate Flag. In the days since the massacre in Charleston, elite social conservatives have consciously redefined the flag in both its individual and communal sense. Consider this statement from South Carolina State Senator Paul Thurmond, the son of arch-segregationist Strom Thurmond:
I think the time is right and the ground is fertile for us to make progress as a state and to come together and remove the Confederate battle flag from prominent statue outside the Statehouse and put it in the museum. It is time to acknowledge our past, atone for our sins and work towards a better future. That future must be built on symbols of peace, love, and unity. That future cannot be built on symbols of war, hate, and divisiveness.
. . .
Now we have these hate groups and the symbols that they use to remind African Americans that things haven’t changed and that they are still viewed as less than equal human beings. Well, let me tell you: Things have changed. Overwhelmingly, people are not being raised to hate or to believe that they are superior to others based on the color of their skin. My generation was raised to respect all people, of every race, religion, and gender.
At the individual level, Thurmond declares that the Confederate flag cannot be a legitimate representation of the southern, socially conservative belief system. A true southern conservative, he admonishes, does not believe in these things.
But the communal redefinition is even more important. Pronouncing that “things have changed,” Thurmond emphasizes the need “to come together” as a state and build a future around “symbols of . . . unity” rather than “divisiveness.” The implication is unmistakable. Contrary to the long-held socially conservative mantra, Thurmond says the flag does not represent fidelity to an honorable heritage, but to a racist, violent, sinful past.
In announcing this change, Thurmond has declared that the voice of the black community, which long called for this change, is more important than the voice of a significant portion of the white community, which had for just as long called to maintain the status quo. Inclusivity, with its explicit appeal to common membership in a broader community that transcends race, has trumped the traditional exclusivity of southern, white, social conservatism.
This is an extraordinarily potent declaration. Calling divisive symbols into question, demanding anew that they prove themselves worthy of inclusion in the conservative canon, and repudiating them if they are found wanting implies a healthy receptivity to profound change. And if applied conscientiously, a determination to denounce symbols deriving from a racist, divisive past would sweep away much of the iconography of modern conservatism.
In particular, we have known for years that much of the architecture of the criminal justice system has been built around precisely such symbols: Willie Horton, the welfare queen, the crack whore. These and other symbols have generated an entire set of divisive law enforcement and prosecution strategies, like the war on drugs and “zero tolerance” policing, that have been broadly endorsed by whites but widely deployed against blacks. If the denunciation of the Confederate flag implies a willingness to revisit these toxic symbols and failed strategies, and to heed the voice of the black community, then criminal justice reform is truly upon us.
I may be hopeful, but I am not naïve. I have no illusions that the repudiation of the Confederate battle flag, by itself, will eliminate racism in this country or make the criminal justice system fair. But the combination of message and messenger—elite social conservatives siding with an historically marginalized black community over numerically, economically, and culturally dominant whites to remove a divisive symbol of oppression—is an enormously important step that should be encouraged.