THE CONFERDERATE FLAG AND ITS LEGAL IMPLICATIONS ON AMERICAN SOCIETY

By Nick Ustaski

It took another domestic incident for United States lawmakers to again spark the serious debate of whether or not southern states should have the legal right to fly the flag of the Confederate States of America. The Confederate States of America was formed in the 1860’s and went to war with the Union creating the most deadly U.S. domestic war in history where literally in some cases “brothers killed brothers”. The United States of America faced its first domestic threat in the U.S. Civil War, a war that was fought over the disagreement in many issues between the northern and southern states particularly the issue of slavery. The Confederate states were dependent on slavery for economic reasons, but it was also a great part of its social and political structure. When the war started in 1861, the Confederacy officially seceded from the United States as a unified, separate state. The Civil War lasted 4 long years, but finally came to an end in 1865 with Robert E. Lee’s surrender to future President Ulysses S. Grant. Days after the surrender, John Wilkes Booth, a southern loyalist assassinated U.S. President Abraham Lincoln. Lincoln’s assassination is just one example showing angry that never became resolved from the Civil War. Slavery was legally abolished in 1865 with the passage of the 13th amendment of the U.S. constitution. Racism and African American civil rights were a topic that dominated the 19th and 20th centuries, the peak being the Civil Rights Movement in the 1960’s. All of these social and political turmoil’s whether it being racism, hate crime, southern beliefs, or white supremacy each still play a prevalent role in an ever changing American society.  

Last week a man who claimed to be a white supremacist innocently murdered members of an historic African American church. This incident made nationwide news and sparked outrage throughout the United States from people of all races. The shooting incident stirred much debate in the past few days about the uses of the confederate flag, as the flag was present at the shooting and the gunman associated himself with it. This debate includes questions like: should people have the right to display the symbol of the anti-bellum flag and is it legal to do so? The freedom of speech protection provided by the First Amendment to the U.S. constitution makes it so that American people can have the confederate flag on their own property. Whether the flag can be displayed in a public space is an entire different legal argument.  The legality of having a confederate flag in public areas depends upon whether the public space is designated as a public form, limited public forum, or nonpublic forum. The U.S. government can only intervene in this issue if it achieves significant government interest. However, it is ultimately up to the individual states to determine whether they believe they flag should be displayed in public spaces. In 2000 for example, civil rights activists lobbied to have the confederate flag removed from the capital building in South Carolina. South Carolina is a state that has great pride in its confederate history and ancestry. Another piece of legal legislation, the South Carolina Heritage Act made it so Confederate history and historical elements could not be removed.

The South Carolina example above shows that many southern states wish to have the Confederacy remembered as part of their state’s history and it is not a right of the U.S. federal government to take away that right. The Confederacy, despite its bad implications, it still a part of the United States history. This is what angers many southerners in the debate of the use of the flag. Why should the south have to take away a part of their ancestry after all isn’t the U.S. supposed to be a “united” states of America? From a historical perspective, the flag should remain under its current restrictions and legislations, however the flag does anger many African Americans and civil rights activists even to this day. Some African Americans may see the flag as a reminder of their ancestors history as slaves and a gruesome war that finally lead to the legal abolition of slavery in the United States. Many white supremacist southerners may use the Confederate flag to represent the old south, a time where the white race dominated and viewed the African American not as equals, but as slaves. Some white southerners may even feel disgraced by the flag; it is really up for interpretation. Seeing the flag still flown today (no less on a state capitol building) continues to anger individuals and the murders of innocent African American this week again sparked the heat of this debate. Current South Carolina Governor Nikki Haley radically changed the Confederate Flag debate when she called for the flag’s removal from the capitol just days ago. South Carolina is one of the strongest states in its history that has favored the use of the flag to represent Southern heritage.  It will take two thirds of the state legislature to agree and approve to remove the flag from the capitol and move it to another appropriate location. Whether this issue can be agreed upon is something to watch in the next few weeks. If South Carolina changes its Confederate flag legal policies, than many other southern states are likely to follow. This debate more interestingly will probably carry into the 2016 Presidential election and become a major topic of discussion, as it is an issue that literally divides the country.

The Civil War created a divide in the United States and the repercussions of that divide are still a ripple effect in American society today. President Obama himself and his administration believe that the Confederate flag has a place in America and that place is in a museum not being displayed everyday to the American public. Whatever is ultimately decided in this debate will have to be decided by a court of law.