Cross-posted from Dorf on Law

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.

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