The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The District of Columbia authorized a working group to make recommendations about public displays. The Committee states that "[c]ommemoration on a District of Columbia asset is a high honor reserved for esteemed persons with a legacy that merits recognition." And how should that person's legacy be assessed? The working group identified five factors:
1. Participation in slavery – did research and evidence find a history of enslaving other humans, or otherwise supporting the institution of slavery?
2. Involvement in systemic racism – did research and evidence find the namesake serving as an author of policy, legislation or actions that suppressed persons of color and women?
3. Support for oppression – did research and evidence find the namesake endorsed and participated in the oppression of persons color and/or women?
4. Involvement in supremacist agenda – did research and evidence suggest that the namesake was a member of any supremacist organization?
5. Violation of District human rights laws – did research and evidence find the namesake committed a violation of the DC Human Right Act, in whole or part, including discrimination against protected traits such as age, religion, sexual orientation, gender identity and natural origin?
I knew these purges would never end at eliminating confederate statutes. The third and fifth factors are so broad, as to sweep in every "namesake" who is commemorated in the District of Columbia.
From these five factors, the Working Group identified five ways to address the "namesake." Call them the five degrees of cancellation.
- Recommend renaming the asset
- Recommend removal of the asset
- Recommend contextualization of the asset
- Clear namesake from further review
- Recommend additional research prior to final decision point
The Working Group recommends renaming twenty-one schools. By my count five schools are named after Presidents. Perhaps the most bizarre name on this list is James Birney. They would strip his name from a public school.
You have probably never heard of Birney. He was a prominent abolitionist. Randy and I discuss him in our new book on Slavery and the Constitution (stay tuned):
Birney had formerly been a slaveholder in Kentucky, but later moved to Cincinnati, Ohio to advocate against slavery. In 1836, he founded the abolitionist newspaper The Philanthropist. In his paper, he not only opposed slavery, he also maintained that African Americans were entitled to equal rights and opportunities with white people.
Birney was instrumental in developing the arguments against the constitutionality of the Fugitive Slave Act. He recruited Salmon Chase, then a young lawyer, to work on Matilda's case. We explain:
Matilda's father sent slave catchers to find her and bring her back. Soon, she was located and held in custody. The slave catchers sought her removal from Ohio pursuant to the Fugitive Slave Act of 1793. Birney recruited his fellow Cincinnatian attorney, Salmon Chase to assist in Matilda's legal defense. They sought a writ of habeas corpus for Matilda's freedom. Together, Birney and Chase developed an argument that Congress lacked the enumerated powers to enact the Fugitive Slave Act. Therefore, the slave catchers could not rely on this law to remove Matilda. And, because the Act was unconstitutional, state judges were not obligated to assist slave catchers who were attempting to return runaway slaves….
Birney later went on to be a leader of the anti-slavery Liberty party.
In 1840 and 1844, Birney was the Liberty Party's candidate for president. The Liberty party adopted a stridently antislavery platform, which proved to largely unsuccessful.
I have little faith in the Working Group's ability to parse the five factors for cancellation. If they included Birney, their research was woefully incomplete. And if Birney's former slaveholding permanently disqualifies him, then Justice John Marshall Harlan–the legendary Plessy dissenter–is out. Of course, his views on Chinese people would violate the third and fifth principles.
The Working Group also urged the Mayor to "recommend the Federal government remove, relocate, or contextualize the following assets."
- Christopher Columbus – Columbus Fountain (federal)
- Benjamin Franklin – Benjamin Franklin Statue (federal)
- Andrew Jackson – Andrew Jackson Statue (federal)
- Thomas Jefferson – Jefferson Memorial (federal)
- George Mason – George Mason Memorial (federal)
- Francis Griffith Newlands – Newlands Memorial Fountain (federal)
- Albert Pike – Albert Pike Statue (federal)
- George Washington – Washington Monument, George Washington Statue (federal)
They missed the FDR monument. He enacted internment of Japanese Americans. I can't imagine how that prominent monument on the National Mall evaded the Working Group's careful scrutiny. And they missed the John Marshall statute outside the D.C. Circuit Courthouse. He is not safe.
The District of Columbia has even proposed renaming itself as the Douglass Commonwealth, after Frederick Douglass. Wait till residents read what Frederick Douglass wrote about racial preferences. Here is an excerpt from Justice Thomas's Grutter dissent:
Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on to day's majority:
"[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him positive injury." What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).
Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of "strict scrutiny."
These purges will sweep in everyone.