//  5/25/17  //  Commentary

Mitch Landrieu’s speech defending the removal of Confederate war monuments in the heart of New Orleans is an eloquent reminder that expressive harms are real harms. Two features of the speech will be recognized by constitutional lawyers: (1) Landrieu’s attention to the purpose or motives animating a government activity, and (2) Landrieu’s recognition that government acts—symbolic or otherwise—can violate constitutional norms (if not the Constitution) by promulgating messages of denigration or inferiority.  

As Landrieu points out in discussing the original purpose of the erection of Confederate monuments in New Orleans (and in towns and cities throughout the South):

The historic record is clear, the Robert E. Lee, Jefferson Davis, and P.G.T. Beauregard statues were not erected just to honor these men, but as part of the movement which became known as The Cult of the Lost Cause. This ‘cult’ had one goal — through monuments and through other means — to rewrite history to hide the truth, which is that the Confederacy was on the wrong side of humanity.

The purpose of the memorials, as Landrieu observes, was to reassert white cultural dominance in the aftermath of the Civil War. That cultural dominance was soon followed—with the rise of Jim Crow—by the reassertion of white legal dominance. As Landrieu argues:   

After the Civil War, these statues were a part of that terrorism as much as a burning cross on someone’s lawn; they were erected purposefully to send a strong message to all who walked in their shadows about who was still in charge in this city.

That message was heard loud and clear, for it was backed up with de jure segregation. But even after the dismantling of Jim Crow in the middle of the twentieth century, the statues remained—and so did the harm.

Are the statues a cognizable harm in constitutional terms?  On first glance, this appears to be a silly question. It is hard to imagine how particular government memorials could violate the Constitution.

But consider Justice O’Connor’s articulation of the endorsement test in the Establishment Clause context. In considering the constitutionality of government-sponsored religious displays, O’Connor adopted a similar “message-centered” approach. According to O’Connor, expressions of government support for certain religions or religious beliefs—through holiday displays, official prayers, monuments, or other expressive activities—violate the Establishment Clause if an objective observer would view those expressions as endorsing a particular religious viewpoint. That is because:

Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

Professor Nelson Tebbe has extended this logic beyond religion, arguing that nonendorsement is a more fundamental principle in American law, preventing the government from taking positions that denigrate not just in the context of religion, but also in the context of race, gender, and sexuality. He argues that government activities that express endorsement of one protected group over another should be subject to analysis under a general constitutional nonendorsement principle—a basic, foundational rule against government denigration.

Such a rule already seems to be operative across a number of judicial contexts. In holding that domestic partnership status for same-sex couples still violated their rights (even if the terms were identical to marriage), courts invoked this kind of dignitary, non-denigration principle—as did Justice Kennedy in his opinion for the Court in Obergefell v. Hodges—the same-sex marriage case. So too, the Supreme Court in Brown v. Board of Education struck down segregated schools on the basis of dignitary harms. In order to overrule Plessy v. Ferguson—which upheld the infamous doctrine of separate but equal—the Court had to assume that African-American children still endured a harm even if white and black schools were equal in all respects. The harm of segregation did not have to be material; the harm could be embodied in a message of inferiority.

Here we see how the Confederate statues of New Orleans relate to Donald Trump’s executive order on immigration. The courts that have struck down Trump’s “Muslim ban” have found it defective both in its purpose and its expression. Using the Establishment Clause, those courts have taken Trump at his word that the purpose of the executive order was and is to ban Muslims from entering the country. Those statements send a message of religious discrimination clear and simple. When coupled with the order’s legal disabilities on immigrant Muslims, the order’s unconstitutionality is apparent—even in its revised form.

As for Confederate monuments, judges are unlikely to order their removal on the grounds that they violate equal protection. Nevertheless, Landrieu’s articulation of a constitutional norm of nonendorsement is consistent with a larger constitutional ideal. His speech can be understood as an effort to articulate what it means to be a full and equal member of the American polity. 

Some will no doubt raise concerns about the erasure of history and the complicated dynamics of remembering. We respect those who argue for contextualizing but not removing Confederate monuments—as our own mayor, here in Charlottesville, has advocated.

What these approaches share is a commitment to creating a collective history. As mayor Landrieu says:

We have not erased history; we are becoming part of the city’s history by righting the wrong image these monuments represent and crafting a better, more complete future for all our children and for future generations. And unlike when these Confederate monuments were first erected as symbols of white supremacy, we now have a chance to create not only new symbols, but to do it together, as one people. In our blessed land we all come to the table of democracy as equals. We have to reaffirm our commitment to a future where each citizen is guaranteed the uniquely American gifts of life, liberty and the pursuit of happiness.

That guarantee is what is at stake when the government acts in ways that subordinate or denigrate. Those acts have to be tested against the Constitution whether they constitute a denial of rights or an expression of inferiority.

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