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December 12, 2017

Mississippi flag survives lawsuit, but judge explains its symbolism



Federal Judge Carlton Reeves, who happens to be black, has dismissed a constitutional challenge of the Mississippi state flag because it includes the Confederate battle flag, an emblem of slavery.

Reeves said, rightly I think, that the plaintiff had claimed emotional distress, but had not mounted a  constitutional challenge. The plaintiff, a black lawyer,  says his family has been threatened as a result of his lawsuit.

“To succeed in constitutional litigation, however, Moore needs to identify that part of the Constitution which guarantees a legal right to be free from anxiety at State displays of historical racism. There is none.”

 But he nonetheless chose to deal with all the usual suspects who want to say the flag is about history and tradition and all the other Rebel idolatry you hear when, for example, Arkansas legislators vote to preserve the Lee holiday.

Reeves quoted the state’s 1861 secession declaration, which said: “‘Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world.'”

Then, the judge continued in his own words: “To put it plainly, Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated upon white supremacy.”

He continued:

The emblem offends more than just African-Americans. Mississippians of all creeds and colors regard it as ‘one of the most repulsive symbols of the past.’ It is difficult to imagine how a symbol borne of the South’s intention to maintain slavery can unite Mississippians in the 21st century.

The decision is a richly footnoted history from Civil War through the many efforts of Lost Cause admirers to preserve it in the Southern memory and practice — de jure or de facto. It’s a useful source document for the next, inevitable debate on the question here.

[pdf-1]
He observed:

The Confederate battle emblem’s meaning has not changed much in the intervening decades. It should go without saying that the emblem has been used time and time again in the Deep South, especially in Mississippi, to express opposition to racial equality. Persons who have engaged in racial oppression have draped themselves in that banner while carrying out their mission to intimidate or do harm.

The judge took note, too, that many cities and counties and most of the state’s universities don’t fly the flag, precisely because of the symbolism.

At times there is something noble in standing alone. This is not one of those times. The Confederate battle emblem has no place in shaping a New Mississippi, and is better left retired to history.

For that change to happen through the judiciary, however, the Confederate battle emblem must have caused a cognizable legal injury. In this case no such injury has been articulated.168 Whether that could be shown in a future case, or whether “the people themselves” will act to change the state flag, remains to be seen.


Federal Judge Carlton Reeves, who happens to be black, has dismissed a constitutional challenge of the Mississippi state flag because it includes the Confederate battle flag, an emblem of slavery.

Reeves said, rightly I think, that the plaintiff had claimed emotional distress, but had not mounted a  constitutional challenge. The plaintiff, a black lawyer,  says his family has been threatened as a result of his lawsuit.

“To succeed in constitutional litigation, however, Moore needs to identify that part of the Constitution which guarantees a legal right to be free from anxiety at State displays of historical racism. There is none.”

 But he nonetheless chose to deal with all the usual suspects who want to say the flag is about history and tradition and all the other Rebel idolatry you hear when, for example, Arkansas legislators vote to preserve the Lee holiday.

Reeves quoted the state’s 1861 secession declaration, which said: “‘Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world.'”

Then, the judge continued in his own words: “To put it plainly, Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated upon white supremacy.”

He continued:

The emblem offends more than just African-Americans. Mississippians of all creeds and colors regard it as ‘one of the most repulsive symbols of the past.’ It is difficult to imagine how a symbol borne of the South’s intention to maintain slavery can unite Mississippians in the 21st century.

The decision is a richly footnoted history from Civil War through the many efforts of Lost Cause admirers to preserve it in the Southern memory and practice — de jure or de facto. It’s a useful source document for the next, inevitable debate on the question here.

[pdf-1]
He observed:

The Confederate battle emblem’s meaning has not changed much in the intervening decades. It should go without saying that the emblem has been used time and time again in the Deep South, especially in Mississippi, to express opposition to racial equality. Persons who have engaged in racial oppression have draped themselves in that banner while carrying out their mission to intimidate or do harm.

The judge took note, too, that many cities and counties and most of the state’s universities don’t fly the flag, precisely because of the symbolism.

At times there is something noble in standing alone. This is not one of those times. The Confederate battle emblem has no place in shaping a New Mississippi, and is better left retired to history.

For that change to happen through the judiciary, however, the Confederate battle emblem must have caused a cognizable legal injury. In this case no such injury has been articulated.168 Whether that could be shown in a future case, or whether “the people themselves” will act to change the state flag, remains to be seen.

Source

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