After The Monuments: Coming To Terms With History And Hate

Yesterday the last of the much-maligned Confederate statues was removed from Lee Circle in New Orleans, ending a two year battle over how to deal with the city’s – and the South’s – veneration of its “Lost Cause.” Watching a city I love in the throes of an uncharacteristic battle between hateful white supremacists and aggrieved activists has brought home to me the degree to which America has failed to wrestle with a defining fact of its history: while it lost the argument about the supremacy of the federal government, the Confederacy won the Civil War. Terrorist actions all over the South and the cost of enforcing Union policies soured northerners’ taste for the Reconstruction that would have ended white supremacy. After that, Southerners got sharecropping, which was scarcely better or freer than slavery, and Jim Crow. They spread their propaganda all over the country with Birth of a Nation, which lionized the KKK. They argued for “states’ rights” so often the rest of the country forgot or ignored that it is a euphemism for white supremacist oligarchy. Even northern textbooks taught that the Civil War wasn’t really about slavery. And when black southerners migrated north in search of a freer life, they faced less obvious but still permanent racial restrictions. For over a hundred years our history has been written by unacknowledged Confederate victors. I think the movement to erase Confederate monuments from the public square is the expression of an unaddressed need for what the Germans call Vergangenheitsbewältigung, or processing and coming to terms with history. We can’t process our history by wiping the public square clean of the evidence of American apartheid. We have to use it.

Destroying evidence doesn’t help the victims of a crime

Confederate monuments all over the Southern and border States are evidence and must be used to teach the true history of the United States. Both sides of the New Orleans monuments controversy are wrong. Leaving these monuments up as they were doesn’t preserve history, it celebrates mythology. However, tearing them down and hiding them away somewhere like Beauvoir (the home of Confederate President Jefferson Davis) does not erase the white supremacy they represent any more than bulldozing Dachau would have helped erase the impact of the Holocaust. Americans need to be taught about the truth of the Civil War and its aftermath. We need to understand that it had many facets; it was a war about slavery, but it was also a war about whether states could challenge federal power. I would argue that the South functionally won the first question, while the North won the second – and unforgivably waited 100 years to enforce it in favor of black Americans, benefiting economically from Southern practices all the while. We need to understand the nuance that comes with all human history – that Confederates were not universally bad, and that some important ones evolved on the issue of civil rights. Most importantly, we all need to understand the length of scope of the oppression black Americans suffered after the war that was supposed to liberate them. The only way to do that is to use the evidence at hand – statues erected decades after the civil war to Confederate leaders and white supremacist terrorists – to prove that the American history we have been taught is upside down.

These monuments tell an important story about the reality of post-civil war America

The existence of all four monuments taken down by the City of New Orleans proves that the regime in charge 130 years ago revered and celebrated the Confederacy and its cause. Two of them also represent specific lessons about the good and the bad in New Orleans after the Civil War. This first important monument is to the Battle of Liberty Place, an insurrection by white supremacists against the Reconstruction government of New Orleans. This monument was nothing more and nothing less than a homage to racist terrorists who wanted to re-take the city in order to oppress a hefty percentage of its citizens. The fact that it stood, prominently displayed, in the middle of a modern American city until 1989 (and still stood tucked in a corner until 2017) says pretty much all you need to know about the degree to which the South’s commitment to white supremacy (and the North’s quiet enabling of it) has dominated American history. That monument needs to be displayed prominently in an educational context in a public place in the City of New Orleans to teach this history to future generations.

So does the monument to Pierre Gustave Toutant-Beauregard, the man who fired the first shots of the Civil War. He wasn’t just a Confederate General, he was also a prominent advocate for the civil rights of freedmen after his side was “defeated.” He was the most prominent advocate of the New Orleans Unification movement, which saw local Democratic lawmakers and business leaders unite with local wealthy pre-war free people of color to propose equal representation in government for both races and integration of the schools, among other things. It represents New Orleans’s unique pre-war racial dynamics, and an attempt by one of the most prominent Confederates to accept defeat and move on. Beauregard’s change of heart demonstrates that individual opinions varied, and the City of New Orleans has a history at odds with the glorification of Liberty Place. It is certainly an injustice that we have failed for so long to acknowledge the true legacy of the Confederacy. However, it would be foolish and dangerous to overcompensate by pretending that everyone in the Confederacy or in the history of the South should be dismissed as wholly malevolent for participation in white supremacy. Among other things, painting the entire history of every white southerner as purely evil will simply provoke resistance to the message, even in sympathetic people. Coming to terms with history means coming to terms with the whole of history, not creating a new anti-Southern mythology to replace the old pro-Southern mythology. Fortunately, other states and countries have had creative solutions to this problem.

Education, Truth, and Reconciliation

I think possibly the best way to use the Confederate statues removed this month is to create something like Memento Park in Budapest.  The Hungarian government understandably removed a great many public statues after the fall of Communism. They represented Russian ideological control of the country and all of the wrongs done by the Hungarian regime against its people. So the government created a curated presentation of those statues designed to educate future generations about their oppressive past. Can you imagine a similar exhibit in City Park in New Orleans? I can. I think it would be a powerful start to the reconciliation this country sorely needs right now, which can only come from processing the whole truth of our history.

That sort of reconciliation through truth has been going on in Maryland, and I think they have the right idea. In front of the Maryland State House stands a statue of Chief Justice Roger B. Taney, a Marylander who wrote the infamous Dred Scott decision, and who opposed Abraham Lincoln’s emancipationist policies until his death in 1864.  This year, the descendants of Taney and Scott met at the statue and Taney’s descendant apologized to the Scott family. The Scott family asked that the State “Add to [the statue], don’t take from it,” suggesting it would be educational to add a statue of Scott and explanation of the court case to the statue of Taney. There is also a movement for the addition of a statue of Frederick Douglass, another Marylander with a profound impact on the Civil War. These ideas will use and value history, rather than attempting to erase an ugly past or hide it away on a plantation. If there is one thing the New Orleans battle over Confederate monuments has taught us, it is this: failing to come to terms with the history of American apartheid and the people who participated in it – the good, the bad, and the ugly – will only create two polarized mythologies and contribute to the schism in our national life.

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The First Thing We Do, Let’s Kill All The Lawyers

The institution of the Public Defender is being killed off across America, and even in the whirlwind of lies that is the Trump Presidency, it is something we should all be deeply concerned about. There is nothing more important to a free society than the preservation of the Rule of Law, and in the United States, a crucial component of that is the zealous enforcement of the Bill of Rights against the state and federal governments. Public Defenders are probably the most practiced constitutional lawyers in the country.  They protect the 4th, 5th, 6th, 8th and 14th Amendment rights of over 80% of the criminal defendants. However, in recent years, chronic underfunding and mass incarceration have compromised Public Defenders’ ability to properly represent their clients. There are just too many clients and too little time to devote to each of them. This means that most Americans being accused of serious crimes are being deprived of their constitutional rights. That is a very dangerous thing, not just for criminal defendants, but for all of us, because when one of us is deprived of his constitutional rights, it erodes those rights for everyone. If we want to preserve the enforcement of the Bill of Rights, we need to restore the institution of the Public Defender.

Freedom ain’t free in modern America

The two big problems causing the Public Defender crisis are excessive prosecution in poor communities, especially for minor drug crimes, and chronic lack of funding by governments that see public defense as a low priority. The reason over 80% of felony defendants use court-appointed counsel (in cities this means Public Defenders, but in rural areas it can mean local lawyers) is that most felony defendants in the United States are poor. The reasons for this are many, and the subject of a different article, but the trend is consistent across the United States. It is therefore not surprising that the most severe crisis is occurring in the most incarcerated State in America, which is also one of the poorest: Louisiana.

One of the reasons that Louisiana incarcerates so many of its citizens is that it has extremely harsh drug laws. For instance, the current marijuana statute, which was loosened up in 2015, provides that someone found in possession of marijuana shall be imprisoned at hard labor for not more than ten years and have to pay a fine of less than ten thousand dollars. This gives hard-line judges a lot of leeway to penalize defendants. When those defendants do not have sufficient time with their lawyers, they can get undeserved and disproportionate sentences for minor crimes.  Even more worrisome is that they can be fined amounts they cannot afford, and end up in prison when they fall behind on payments.

The lack of adequate public defense means that the rich and the poor in Louisiana receive radically different treatment. Louisiana’s strict drug laws can be navigable for those who can pay, but for those who can’t, there’s no way out. In rural parishes, there often isn’t a full-time public defender at all. Attorneys take on that task as a part-time gig, and excess cases are often distributed by courts to local attorneys who have never tried a criminal case. This disregard is not accidental. While much of the public defense crisis in Louisiana and elsewhere is due to poor funding structures on both State and municipal levels (and in Louisiana’s case a billion dollar budget shortfall), it is also due to years of funding cuts. These cuts keep happening because most people don’t like Public Defenders, and they are perfectly happy to see that funding cut. They are wrong.

Public Defenders are the heroes of the legal profession

Public Defenders spend every day thanklessly defending your rights and mine, working long hours, often at great personal cost, for very little pay. Why do I say they are defending our rights? Because we all have the same rights as Americans, and they are only real if they are enforced when they are inconvenient and unpopular. Public Defenders use the Constitution and other laws to make sure the police are not, say, pulling random people over on the road for no reason (which would be a violation of the 4th Amendment). Now, maybe the Public Defender is defending a guy who turned out to have a pound of heroin in her car, but if she gets that arrest thrown out, it means that next week, when you get pulled over and improperly searched with a loose Adderall in your car and no prescription bottle, your lawyer can say “Judge, we had a case like this last week and this arrest was illegal, just like that one.” Our legal system operates on precedent, and it is good for all of us to make sure that the people trying most of the cases have the time to sit and focus on each case. They make sure all of our rights are not being thrown out the window.

Lawyers make sure we are a nation of laws

The title of this blog post, which is common lawyer joke, is often taken out of context. The line comes from Shakespeare’s Henry VI, Part II, and it is delivered by a would be revolutionary imagining what he will do as soon as he overthrows the government. He’d kill all the lawyers, because they are the people who make everyone else play by the rules. That basically makes us the know it all tattletales of the community, but it is important to have watchdogs to hold everyone accountable. It is the role of the Public Defender to hold the government accountable on behalf of the people and they should be celebrated for it. More importantly, they should be adequately funded. If you’re interested in making a difference, New Orleans Public Defender’s office has recently had to stop taking new felony cases because their funding shortage is so extreme. I have linked to the donation page below, and if you want to support the residents of the most populous city in the most incarcerated State in the Union, I urge you to donate.