Down with Confederate monuments, ‘up with the stars’

During the national debate about American symbols and monuments, Donald Trump makes two claims: He argues it is an affront to our heritage to take down Confederate monuments and rename military bases honoring Confederate generals, and he also demands that everyone — including athletes and others protesting racial injustice in our society — must act in ways that are properly respectful of our flag.

The first argument makes little sense. The second is starkly inconsistent with the first.

Monuments memorialize individuals and events that deserve to be honored. They do more than describe the past. They assign value to it. To put it simply, all individuals who played a role in American history, every event of any magnitude, is part of American history. But it is absurd to suggest that all such aspects of our heritage deserve to be honored with monuments.

During the American Revolution, 15 percent to 20 percent of the colonists were loyalists who maintained their allegiance to the British Crown. They supported British forces. Thousands took up arms against the patriots fighting for our independence. These loyalists are part of our heritage. Should we memorialize and erect monuments to them?

During the early 1900’s millions of Americans were members of the Ku Klux Klan. They are part of our heritage too. Should we erect monuments to Klan leaders as well?

Playing a part in American history, standing alone, doesn’t justify erecting monuments to people or naming military bases after them. To deserve this kind of recognition, historical figures have to have done and stood for things worthy of our admiration over time. What did the leaders and generals fighting for the Confederacy do? What did they stand for?

First, they fought to dehumanize and enslave an entire race of people. That cause deserves our contempt. It should receive no badge of honor.

Second, they took up arms against our flag. If Donald Trump demands respect for and allegiance to the American flag, why in the world does he insist on protecting monuments to, and honors for, those who disgraced it?

Trump’s apparent commitment to the flag is so great that he wants flag burning criminalized. The Supreme Court held in Texas v. Johnson in 1986 that it violates the First Amendment to punish protestors who burn the American flag as symbolic speech. This was a 5-4 decision emotionally argued by the justices on both sides.

Then-Chief Justice William Rehnquist wrote a particularly passionate dissent. In it, he quoted in its entirety a poem titled “Barbara Frietchie” by John Greenleaf Whittier. Supreme Court justices do not typically recite poetry, much less entire poems, in their opinions. But Texas v. Johnson was a special case because the flag is a special symbol. The poem recounts an allegedly true story of how during the Civil War a Confederate army invaded the northern town of Frederick, Md. Seeing the American flag flying from the attic of Barbara Frietchie’s home, the rebel troops stopped and fired on it, and “rent the banner with seam and gash.” The elderly woman, Barbara Frietchie, took up the flag before it could fall and dared the soldiers below to shoot her, but to spare the flag.

Most law school case books do not include this poem when they publish the highly edited text of Texas v. Johnson. But for the many years I taught the First Amendment as a constitutional law professor, I always read the entire poem to my classes. I wanted my students to know not only the doctrine, but also the passion stirred by this case, and by the American flag.

I doubt Donald Trump has read either the Texas v. Johnson case or Whittier’s poem. If he did, he might think for a moment about who it was that fired on the American flag and “rent the banner with seam and gash.” It wasn’t Black athletes kneeling during the national anthem, calling for our country to live up to the ideals represented by our flag. It was the Confederates whom Trump wants to honor with monuments and the naming of military bases.

And this is the key point: If you demand respect for the flag, you cannot at the same time honor the Confederate leaders and generals who turned traitor against it. The flag was on only one side in the Civil War. It flew in the ranks of the Union troops under assault by Confederate rebels.

Loyal Americans rallied to the colors. In a popular song of the time, they marched to war singing:

Yes, We’ll rally round the flag, boys, rally once again,
Shouting the battle cry of freedom.
We will rally from the hillside, gather from the plain.
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We are springing to the call of our brothers gone before
Shouting the battle cry of freedom
And we’ll fill the vacant ranks with a million free men more
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We will welcome to our numbers, the loyal, true and brave,
Shouting the battle cry of freedom,
And although they may be poor, not a man shall be a slave,
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

For those who respect both our flag and our history, the issue of taking down monuments to Confederate leaders and generals and renaming military bases honoring them should be an easy one.

As Americans we should rally round the flag, shouting the battle cry of freedom.

Down with the traitors and up with the stars.

That means taking down the monuments and renaming the bases.

Down with the traitors and up with the stars.

Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.