From the Archives: Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols
In 1991, James Forman, Jr., then a YLJ editor, published a Note entitled Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols. The Note received the Michael Egger Prize, awarded to the best Note or Comment on current social problems in the Yale Law Journal.
Today, Professor Forman is a Clinical Professor of Law and Supervising Attorney at Yale Law School. Because recent events have renewed the debate over the symbolism and propriety of the Confederate flag, we are drawing fresh attention to his argument that state governments violate the United States Constitution when they fly the flag.
The introduction of Professor Forman's Note is below. The full piece is available here.
Preferred Citation: James Forman, Jr., Note, Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols, 101 Yale L.J. 505 (1991).
On April 9, 1865, General Robert E. Lee conceded, “[T]here is nothing left for me to do but go and see General Grant.” The Confederate Army surrendered, and Dixie, the Confederate battle flag, ceased to fly. But only temporarily. In 1956, for the first time in nearly a century, Georgia resurrected the Confederate symbol by changing its state flag in symbolic opposition to Brown v. Board of Education. South Carolina followed suit six years later, hoisting the flag above its state capitol. The following year, Alabama revived Dixie, with Governor George Wallace raising the flag as part of his “Segregation Forever” campaign. Brown is still the law of the land, yet Dixie remains entrenched.
Last year, in NAACP v. Hunt, the Eleventh Circuit rejected the National Association for the Advancement of Colored People's (NAACP) claim that the Constitution of the United States and federal statutes mandate the removal of the flag from the Alabama state capitol. Central to the court's conclusion was the notion that the Hunt plaintiffs' problem involved neither the flag nor the law, but their “own emotions.” Moreover, the court held that “there is no unequal application of the state policy; all citizens are exposed to the flag. Citizens of all races are offended by its position.” In sum, the court told the plaintiffs to turn elsewhere for relief, because “the federal judiciary is not empowered to make decisions based on social sensitivity.”
This Note takes issue with the Hunt court. It proceeds in two parts. Part I argues that the Alabama government's flying of the rebel flag violates the Equal Protection Clause of the Fourteenth Amendment because the flag was raised with the intent to discriminate against blacks. Part II argues that flying the flag violates the First Amendment because it is a form of racist government speech that chills the speech rights of blacks.
Throughout, the argument will focus on the harms the Confederate flag presents, the appropriate legal remedies, and the Hunt court's misunderstanding of those harms and remedies. The most fundamental errors in Hunt's analysis of the First and Fourteenth Amendment claims stemmed from the court's reliance, however unconscious, on a number of thoroughly repudiated constitutional tenets. Accordingly, this Note will both argue that removing the Confederate flag is constitutionally required and demonstrate that leftover jurisprudential tendencies continue to serve as barriers to a meaningful conception of the First and Fourteenth Amendments.