Donald Trump has now decided that he will stand up for Confederate generals and symbols, accusing everyone else of being eager to erase history. His cult has, of course, decided that any attempt to change the way history is presented -- actually, that any progressive change at all -- is a horrific act of leftist fascism. This is all deranged, and it should continue to be treated with derision.
For the sane world, however, there are still a lot of interesting questions to confront, and we must at least try to begin to think through possible answers. Last week, I joined the side of those who argue that nothing should be off the table, which means that the answer to Trump's slippery slope-style question -- If Robert E. Lee goes, will Washington and Jefferson be next? -- might be yes. Might be, although the arguments can be complicated and nuanced (which are not, of course, words that described Trumpian thinking).
Here, I want to ask what it means to "erase history" and then to suggest that the cases in favor of continuing to honor some of the historical figures now under reconsideration are actually not all that strong. In my column last week, I analogized Joe Biden's position -- essentially that Confederate generals are categorically different from the founders, because the former tried to destroy the nation that the latter built -- to the middle-ground solution in the same-sex marriage debate, that is, creating civil unions. Neither of these centrist compromises is exactly satisfying, but they are still significant in that a hyper-cautious centrist like Biden now no longer feels it politically necessary to dance around the question of Confederate iconography.
The fundamental difference between the same-sex marriage debate and the current debate is that there is no direct analogy to marriage equality when it comes to honoring historical figures. That is, even if one views Biden's approach as a halfway measure, the full measure is not to automatically drop the names of every historical figure and remove every statue. Instead, this debate ends up being a classic facts-and-circumstances inquiry, the type of analysis that people with legal training both love and hate.
Law is all about finding baseline principles. What do we do when there is no consensus baseline? We argue, reconsider, and reach uneasy compromises. Welcome to real life.
To be sure, many people are extremely uncomfortable with all of this, not merely Trump and his minions. For example, New York Times columnist Roger Cohen, whose work is often excellent, apparently cannot wrap his head around the idea that it is important to debate the not-easy cases:
"Some of the founders are now under attack for owning slaves. When George Washington and Thomas Jefferson fall from grace, you have to wonder. Union generals, including Ulysses Grant, who fought to defeat the Confederacy and slavery, were not good enough. They were imperfect, the human condition.How exactly are those founders "under attack"? We are simply asking whether they deserve to be held up as heroes. That is not an attack but an unavoidable question, a question that only seems avoidable to those who approve of the current answer.
"Moral absolutism has its giddy day. The guillotine falls. This is madness. Be careful what you say. It is the hour of the new judges; the judged are scared; and judgment of the judges may be decades or even centuries off.
"We can celebrate our history without hiding from its stains."
Per Cohen, however, people like me are simply being nitpicky, because they/we refuse to admit that the human condition is imperfect. But this is not moral absolutism. It is a question about whether the way that we have been honoring these particular imperfect humans should continue. We remember certain imperfect humans in one way, but we remember others in other ways (or not at all). And that can change.
So no, this is not madness, because we are all now asking how best to "celebrate our history without hiding from its stains." It is the reflexive defenses of Washington and Jefferson that are stain-free. History will be reconsidered in the future, no matter what. If the current judges are judged differently, then so be it. That is how the public performance of shared history works.
(As an aside about Cohen, I should note that most of the column from which I am quoting here is cogent and important. Yet he cannot stop himself from lapsing into lazy pundit-speak. For example, he says of Trump: "We elected this man, knowing who he is." This classic elision of all nuance -- suggesting that The American People knew that Trump would extort political favors from Ukraine, retaliate against whistleblowers, and profit from the presidency, but we still decided as a people to elect him -- is classic blowhard nonsense that turns the 2016 election into a mandate rather than a complicated constitutional mess.)
Indeed, shared history must necessarily be selective, and there is no reason that the selections of heroes made during previous eras deserve to be renewed in perpetuity. If we are supposedly erasing history, we have to ask how the history that we are erasing was written in the first place.
Yet even that gives too much ground to those who are now shouting about other people stealing and rewriting history. After all, if anyone can be accused of erasing and rewriting history, it is Confederate sympathizers -- who have done so for more than a century after their side lost the war. The South explictly fought the war to prevent the abolition of slavery, a fact that screams from all of the historical evidence. But over time, we were told to believe that it was a War of Northern Aggression, that the states that insisted on enforcing a national Fugitive Slave Act were fierce defenders of states' rights, and that the current celebrations of the traitors are merely about families' heritage. If that is not erasing history, it is difficult to know what would be.
Back in the 1970's, a U.S. Senator joked about the Panama Canal: "We should hang on to it. We stole it fair and square." Confederate sympathizers such as Trump look at the neo-Confederate whitewashing of history and the "Lost Cause" myth and say the same: We stole the history of the Confederacy, and we'll fight like hell to keep what we stole.
Taking down statues or changing the names of places does not erase history. There is a clear difference between the historical record and the celebration of parts of it. People who objected when Pete Rose was banned from the Baseball Hall of Fame were apoplectic because, they pointed out, he had the most hits in baseball history (a history that included more than a half-century in which only white men could play, but never mind).
But keeping someone out of the Hall of Fame does not say that he did not get those hits. The record book still says that Rose had more hits than any other player. If all we cared about were keeping accurate records, we would not even have halls of fame. Those exist explicitly for the purpose of bestowing special honors, and it is entirely appropriate for people to say that such decisions should not merely mimic one part of the historical record.
Indeed, even when an organization decides to change the record book -- for example, adding asterisks or simply saying that some achievements do not count (due to steroid use, among other things) -- that still does not change history. Anyone who cares could still consult the historical record and know that 73 home runs were hit by one player in a single season and were counted at the time, even if the record book later were changed to say that those home runs will no longer be counted. The facts of history do not change in these cases, but the ways we think about them do.
Similarly, we need not deny that, say, Kevin Spacey did some remarkable things as an actor, but that does not require us to honor him. His movies exist, so we are not "wiping away history." If people no longer want to see him act, his movies (like so many others) will no longer be made or shown. That is not a rewrite of the past. That is supply and demand. Personally, I can still enjoy, say, "Baby Driver" with Spacey but can no longer stomach Woody Allen's films; but everyone will draw lines in different places. Some cases are more extreme than others, but that is not a reason to ignore the less-extreme ones.
Similarly in politics, there is no reason that our reconsideration of when to engage in public celebration should, per Biden (and Cohen), be limited to the most extreme cases. As I argued in my column last week, we can look anew at Washington and Jefferson and conclude that we have ignored the bad too long and overvalued the good. Again, that does not deny their accomplishments. It says that their stories are more complicated, that the facts and circumstances deserve to be reconsidered, and possibly that people we have unthinkingly revered are no longer deserving of our worship.
Again, the facts will be different for different historical figures. My column noted that Christopher Columbus enslaved people upon his arrival in the Caribbean, and he became a slave trader. What is especially interesting about Columbus, however, is just how weak is the other side of his balance sheet.
To be blunt, what the hell did Christopher Columbus do that makes him a hero? Washington and Jefferson did things that deserve to be celebrated (more on that in a moment), but what did Columbus do that was admirable? He was looking for a trade route and instead found an exploitable island and population. I remember in a public grade school (many years ago) being taught that Columbus did not discover America. Eric the Red supposedly did, centuries earlier. Even in the usual U.S. mythology, then, Columbus's big achievement should be a meh. He captained ships and found things that other Europeans exploited. What did he do for what became the United States?
If we are in the business of balancing credits and debits, then, Columbus is a particularly easy case. For no particular reason, his achievements have been overstated and his atrocities ignored. Other than the cost of putting up new street signs, why exactly should we continue to treat him as we have for far too long?
Other cases raise their own balancing tests, some much easier than others. Andrew Jackson certainly is also an easy case. Even setting aside his fake populism and corruption (including imprisoning judges, which would surely warm Trump's heart), Jackson was a genocidal maniac who authored the "Trail of Tears" that killed thousands upon thousands of Native Americans. Are there positive things that he did as president? Sure, but that cannot possibly make this a difficult case.
What about George Washington? Here, we have a much more obvious case on the positive side, what with his decision to serve only two terms, to inveigh against political factionalism, and so on. But as one of Dorf on Law's readers pointed out in a comment on my short post commemorating Independence Day last Friday: "The Brits lost the First War of American Secession, c. 1774-1783, through logistical ineptitude and their own domestic corruption as much as anything else; the Colonies didn't 'win.'" Which means that Washington's supposed exploits in "winning our independence" is itself a contestable and selective reading of history.
That is not to say that everyone would view even a man who owned 300 slaves and used the government's powers to recapture his escaped slaves as unworthy of public honor, given his positives. I personally think that it is shocking that people are not willing to confront Washington's ugly side, but that is what public discussions are about.
And what of Thomas Jefferson? His soaring rhetoric has inspired many people, including me. It is worth remembering, however, that even his moving Declaration of Independence includes this complaint about King George III: "He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions."
Even Exhibit A in the pro-Jefferson canon, then, is hardly an unsullied celebration of high ideals. More to the point, however, the negative side of Jefferson's story is especially awful. He owned hundreds of slaves, and he was a serial rapist. He did not free his slaves upon his death (which would not have erased the stain, but it would have been better than what he did). And even on the more mundane side, Jefferson's role in the acts that led to the landmark Marbury v. Madison case are not what one would call "good facts" in his case for iconic status.
One of Jefferson's direct descendants wrote an op-ed in yesterday's Times in which he called for the Jefferson Memorial in Washington (!), D.C.(!), to be transformed into a memorial to Harriet Tubman. He argues that Jefferson's slave plantation is memorial enough, because
"[a]t Monticello, you will learn the history of Jefferson, the man who was president and wrote the Declaration of Independence, and you will learn the history of Jefferson, the slave owner. Monticello is an almost perfect memorial, because it reveals him with his moral failings in full, an imperfect man, a flawed founder. That’s why we don’t need the Jefferson Memorial to celebrate him."In other words, one need not choose to stop paying attention to Jefferson but instead to pay attention to him in a more complete way. That is not erasing history but adding to it.
As I wrote last week, I do not expect my point of view to prevail (at least for now), especially given the Biden/Cohen unwillingness to recognize anything other than a bright-line rule. That does not mean, however, that they are right. History will continue to be understood in different ways. We need not pretend that our habitual honoring of people from Columbus on down was well thought out in the first place.
We are not changing the past. We are deciding how we, today, will celebrate or condemn the past. That is not only our right. It is inevitable.