The Confederate Flag

This will be a defense of the Confederate flag in the modern (post Civil War) age.   If you’re not a snowflake, read on.

First, some disclaimers.

Battle Flag.  The Interweb is a cesspool of sticklers and nitpickers.   Yes, I know this flag was never the actual flag of the CSA, simply the Battle Flag of the Army of Tennessee.  However, as a practical matter it’s best to describe it as “the Confederate Flag”.   I don’t see anyone flying the actual CSA flags at any point past 1865.

Mr. Union.  I’m originally from Maryland, and now live in Northern Virginia.  My loyalties are now, and always have been, with the Union.  You won’t catch me flying the flag myself.   Note: Virginia these days is very blue.  Both US senators, Mark Warner and Tim Kaine, are Democrats, and though the vote was closer than expected, Hillary Clinton still won Virginia in 2016.  Though last I heard, all those Confederate monuments were still in Richmond – which is still Virginia’s capital.  I’ve been there several times, most notably for swearing into the Virginia Bar in June 1994.

Anyhow, on with the discussion.

Supreme Court.  The US Supreme Court [Matal v. Tan, 582 U.S. ___ (2017)] recently ruled that offensive speech is still protected by the First Amendment.  This is as it should be.  If you want to call people “n**ger”, that’s your business, and your tombstone.  The state can’t prevent you from doing so.   So you have a legal right to fly the flag which cannot be abridged by the Feds, state, or local authorities, including the police.

Reaction.  Don’t be shocked if some people don’t like seeing the CSA flag waved in their faces.  While the police and local authorities may be barred from taking it down, private parties may decide to take matters into their own hands.

What does it stand for?   Part of the issue with this flag is that it was originally associated with the Civil War, in particular the Confederate States of America.   I don’t buy for a New York minute the nonsense that South Carolina and the others seceded over “state’s rights”.  Nonsense.  Bulls**t.  It was slavery, pure and simple, and the ones responsible at the time said so over and over again. 

Of course, as of 2017, slavery is NOT back on the table.  No way, no how.  I haven’t heard anyone even suggesting that, even from the KKK.  It’s not going to happen.   As for secession, I hear that bandied about, depending on what unpopular policy is emerging from the White House or Congress, or whatever federal agency.  Since we have Donald Trump as President, I’d hardly think the former CSA states would be inclined to secede, and they didn’t do so – or even seriously discuss the matter – during 8 years of Bubba or Obama, nor did they do so after Brown vs. Board of Education, or during LBJ’s administration.   Even at the times at which the flag’s use returned to haunt everyone, its original political agenda did not.   So as a practical matter, neither of the major issues associated with the flag’s original use in 1861-65 apply today.  

The worst possible statement the flag could make, brandished by a Klan member, is “damn it, we’re sorry we lost the war, we’re sorry slavery isn’t around anymore, we don’t like having to allow blacks the same rights as us, but the most we can do is simply wave a flag around and bitch about it.”  The more mundane, benevolent, and acceptable use is to simply say, “I’m from the South and I’m proud of it.”

Lynyrd Skynyrd.   Recently Gary Rossington, the sole surviving original member, decided to retire the CSA flag from the band’s array of imagery, both on stage and on other items such as t-shirts.  Mind you, this is very recent.  Even their reunion t-shirts (1991-present) frequently featured the CSA flag.  And of course during the 1970s the flag was prominent in concert, even in places like the UK (though we recall the UK flirted with the idea of supporting the CSA, however briefly and casually, an implausible scenario from a country which had abolished slavery 30 years before and was active in shutting down the slave trade).

But examine this: Over five original albums, Ronnie Van Zant made no mention of (A) the Civil War, (B) seceding from the Union, (C) slavery, (D) Brown vs. Board of Education (try fitting that into lyrics), or (E) any vague noises about supporting white supremacy.  So why were they flying the flag?  Simple Southern Pride, as misplaced as it might be.

Appropriation.   Some may object, “all well and fine to try to switch it from slavery to simple southern pride, but you can’t change what a symbol means that easily.”  Can you?  Let’s look at the swastika.  The Nazis did NOT invent the swastika.  It had been around for centuries.  But in 1920 they decided to use it themselves.  Can it be reclaimed or repurposed?  Probably not a second time.  Part of the problem is that its prior use was so diffuse and vague – what did it stand for, before the Nazis stole it?  Whereas its use by the NSDAP correlates to a specific political agenda – 25 Points – and a discernable movement.  Plus the Nazis were the epitome of evil. 

The premise of appropriating the CSA flag to “southern pride”, I argue, is much stronger.   As noted earlier, its original political agenda is a non-starter today.   Whereas nationalist movements still exist and the spectre of what the Nazis did is still around – and anti-semitism still alive and well – “southern pride” is not nearly as dangerous.  As Skynyrd showed, many display the flag with no racist intent whatsoever. 

It is possible to brandish the CSA flag, ostensibly as a symbol of “southern pride”, when your actual intent is to assert white supremacy.  “Heritage, not hate”, is often said.  The proper reaction is to take it at face value.  Because if no one ever champions secession, slavery, or white supremacy while flying the flag, those concepts will lose their attachment thereto.  As Tim Allen pointed out:  what flag is flying over the post office?  Appomattox, baby. 

Blacks in the South.  Believe it or not, many blacks still live in the South.  Not all of them moved to DC, NY, Chicago or L.A. and became rappers.  And from what I can tell, the blacks who live in the former CSA are very proud of where they’re from.  Do they want to be slaves?  No.  Do they like the Klan?  No.  Do they want burning crosses in their yards?  No.  Do they want to be lynched?  No.  Do they want the same rights as whites?  Damn right they do, and they deserve them, of course.   I don’t fault them for resenting the CSA flag, regardless of whether it’s meant as racist defiance or simply southern pride.   Occasionally I’ll see a black person flying it, but that’s very rare and not the norm.  But insofar as the flag can simply represent southern pride, it can be – and I know it’s tough to think this way – as a symbol for blacks and white in the south together. In fact, if more blacks would fly it themselves, whites would start looking silly if they tried to surreptitiously assert its original agenda; consider this blacks calling their bluff and including themselves in “southern heritage…not hate”.   So it SHOULD be “taken back” from racists and used to bind the South together, in peace, without slavery, without burning crosses or nooses.  “Heritage, not hate”?  Maybe not as stupid as it sounds.

Or maybe I’m just a Union idiot.  

Black Power vs White Power

The last time the Carolina Panthers were in the Super Bowl, Justin & Janet caused a scandal.  This time around, Beyonce’s Super Bowl “Black Panthers” style show has been upsetting those of us with lighter complexions.

Meanwhile, in stonerville, Phil Anselmo has caught flak for making a Nazi salute and shouting “White Power”, which he tried to explain as a goof on drinking white wine backstage.  Uh, yeah.  And some Flynn guy jumped up immediately to crucify him as a white supremacist and conveniently gather attention for himself as well. 

What’s going on here?

I’ve seen people on Facebook bitching (shock horror, I know), that blacks, Asians, Hispanics, etc. – any non-white minority – can get away with “pride” in their race, but when whites assert the same they’re accused of being racists, or more specifically, white supremacists. 

What seems to be going on is this:  the value judgment made by non-whites is that when THEY assert pride, they are simply saying, “we’re proud of who we are, and we’re just as good as anyone else,” but when white people do so, they’re saying, “we’re better than anyone else.” 

Globally and historically, whites are the only race consistently capable of asserting meaningful power and hegemony over other races.   There was no Nigerian Empire which conquered Europe.  The Chinese in the past subjugated Korea and Vietnam, and the Japanese did so during WWII, but for the most part the victims of Asian aggression were other Asians.   I suppose if you want to classify Hispanics as a separate race, you could accuse them of dominating the native Americans in the New World, but my inclination is to classify Hispanics as a subset of whites.  Anyhow.  Whites have been the only race to dominate other races.

When the statistics are compiled in recent years, in the US at least, most victims of crime tend to be blacks preying on other blacks, and racially motivated crimes show a relative increase of blacks killing whites rather than the other way around.  We all know that many of the slaves were sold to whites by other blacks – tribal rivals – and as “Django Unchained” pointed out, there were black slavers.  On the aggregate, though, whites can take credit for the majority of racial violence, oppression and deaths.

In more recent terms, and closer to the analogy, I’m not aware of any white people killed by the Black Panthers, but the Klan’s body count from the late 1800s through today has been substantial and verified.

Ok, where does that leave us?   Many whites are NOT members of the Klan and do not hold white supremacist values.   I’d say it’s a minority these days, and at that a very small minority.   The most tangible elements of white privilege I can identify as being a beneficiary of in an ordinary, day to day sense is that when I’m pulled over for a traffic violation, the cop simply gives me a ticket, doesn’t ask to search the car, and doesn’t look at me like he suspects I’ve done anything other than the violation for which he cited me.

I would assert that, blaming members of a race – of any race – for crimes committed by others of the same race, is itself racist.  White pride can be, but is not necessarily, an assertion of white supremacy.  Here is where I would distinguish – as I did before – the CSA flag from Nazi imagery.  

Anselmo’s idiocy was making a Nazi salute under circumstances in which it’s impossible to verify that it was made in jest; his explanation sounds highly implausible and ridiculous, and thus his apology comes off as insincere.  The swastika, SS runes, Totenkopf, and the Nazi salute are too closely linked to Hitler & Co. to be divested of any white supremacist intent. 

I’d draw a distinction with the CSA flag, however.   No one believes secession and abolition of the Thirteenth Amendment is politically feasible or reasonable today.  Black perception aside, for many whites it simply means, “I’m proud of being a white Southerner.”  Clearly, when the Klan waves it around, they mean it expressly to offend blacks and assert their cause, but when individuals do so in their capacity AS individuals, I don’t see it as necessarily racist.  In fact, if you google search pictures of Lynyrd Skynyrd playing live in the 1970s, you'll see the CSA flag on stage countless times.  Yet none of their songs advocate slavery or the CSA, and the band itself was fairly liberal by southern standards.  In their case it was obviously meant as a symbol of southern pride rather than white supremacy.

However, having said all that, any white with even a few brain cells has to concede that nonwhites will take offense at the flag no matter what the expressed intent of its display may be.  

The Confederate Flag

God forbid I choose a relevant topic.   I just came back from Albany, and the Museum of New York loves to tell us how New York was the most important state for the Union (although they admit that as a percentage of its population, Vermont sent more soldiers to fight).  Part of a mural in the New York State Capital Building shows Union troops fighting Confederates, who are brandishing – guess what??? – the Confederate battle flag.  Let’s see if the furor will have workers erecting scaffolding in Albany to erase the offending image. 

Now, about the Confederate Battle Flag (hereinafter, “CBF”, please do not think I’m referring to the Brazilian Football Federation).  Yes, I know that it was never the actual flag of the CSA and was more like a military flag or naval ensign.  Though if you look at the actual “Stars and Bars” you can see what Georgia did:  it took advantage of the fact that most people only know the CBF and don’t recognize the actual flag of the CSA when they see it.

Let’s start by saying this is still a free country.  Any private individual should be free to express himself (or herself) with a CBF.  Fly it on your porch, from your pickup, or emblazon it on the top of your ’68-70 Dodge Charger.  Private sellers are free to stop selling it, and I imagine those which continue to sell it will laugh all the way to the bank.

Whether it’s included on the state flag (e.g. Mississippi) or flying on the state capital (South Carolina) should be up to the voters of that state to determine.   If they’re proud and want to give the rest of the country the middle finger, by all means vote to keep it.  If they’re ashamed, vote against it.  It’s that simple.

“OMG, what does it mean?”  I can understand those who sole purpose in showing the CBF is “southern pride”, which might not even necessarily be “white pride.”  I can see black people in the South as being proud of being from the South – they didn’t all move up to NYC or LA after 1865.  I find it hard to believe, though, that blacks would want to demonstrate “southern pride” by flying this flag.  And I can’t blame them for associating this flag with the Confederacy and its values. 

By the way: please, please, please shut up about “state’s rights”.  The only state’s right the Confederacy had any interest in defending was its “peculiar institution”.  So yes, the Civil War WAS about slavery, not state’s rights.  Does that mean flying the CBF is an explicit endorsement of slavery?  Not necessarily, but let me draw a potential parallel.

The battle flag of the Third Reich (above middle) is still available for sale.  It copied the old imperial German battle flag but changed the basic color from white to red and substituted the swastika in the center left in place of the imperial German eagle.  For that matter, you can probably still buy the flag of Nazi Germany:  red with the white circle and black swastika.  Instantly recognizable, as you might well imagine. 

Fly them, and then make the following claim.  “I don’t support or condone Nazi Germany, national socialism, totalitarianism, anti-Semitism, or any of the values of Nazi Germany.  I simply wish to show pride in the military prowess of the Wehrmacht (Heer, Luftwaffe, Kriegsmarine) and Waffen SS, as well as esteemed German generals like Erwin Rommel or Heinz Guderian.   That’s all.”   See how many people accept that argument.  React with shock and horror when Jewish people condemn you.  “They’re missing the point I’m trying to make!”  Uh, yeah.

Having said that, I do believe the “southern pride” argument is not that weak, and here’s why. Circa 2015 I can’t imagine that any appreciable percentage of people flying the CBF sincerely wish to (A) bring back slavery or (B) secede from the US.   Such goals were unrealistic back in the late nineteenth century when the Ku Klux Klan was born, and are no more realistic today than they were then.  Apart from angry voices in the wilderness, vague and empty threats of secession barked out on the Internet or Facebook, no one seriously proposes either of them.  So it would be a mistake to attribute this agenda to anyone waving the CBF in 2015.

There’s also a fair amount of defiance involved.  We’re a plural society.  “America” doesn’t necessarily mean one particular group.  Whites from the South don’t relate to New Yorkers, gangsters from Chicago, hipsters from Seattle, or trendy types in California.  Each subset of our country wants the right to be proud of their particular niche in American society. 

Does flying any such flag count as “fighting words” or “shouting ‘FIRE’ in a crowded theater”, which might merit some form of content-based regulation to keep the peace and avoid bloodshed and riots?   That would have to depend on the circumstances, but probably not.  The courts have protected the Klan’s right to march, as well as “Illinois Nazis” (free from being plowed off a bridge by a Mount Prospect, IL former cop car?) to march and express their values, as unpopular as they are.   So most likely the rights probably stand with the CSA/Nazi crowd on this one. 

Here’s another idea.  In Harry Turtledove’s Timeline 191 series, the South wins the Civil War (the War of Secession, as it’s called), wins a subsequent Second Mexican War in 1881, but then loses World War I.  The US, allied with Imperial Germany, wins that war.  The Nazi Party never materializes, but an analogous party erupts in the defeated Confederate States: the Freedom Party.  This party takes the Confederate Battle Flag and reverses the colors, so it's a red cross on a blue field (above right).    You could fly that flag instead (assuming anyone sells it – it’s a purely fictional flag) but be warned.  In the stories, the Freedom Party took power in 1934 and started World War II in 1941 in the United States, invading Ohio from Kentucky and battling Pittsburgh.  However, the regime also began annihilating its blacks in concentration camps.  Does this sound familiar?   Even the Confederacy never tried doing that.  So a Freedom Party flag could be more provocative than a Confederate Battle Flag.  

Even so, the First Amendment protects free speech and freedom of expression, and that may include language we don’t like or agree with, or images we find offensive.  As a Union sympathizer, however, I will not be flying a CSA flag anytime soon.  Maybe I need a 35-state Union flag on the roof of my ’09 Charger.  

More Lawyers....

By now I’ve been to court dozens of times and seen dozens of lawyers.

 Standard Issue.  Myself and 95% of the other lawyers: we wear the “uniform” of a conservative suit – not too old or worn, not too fancy – with a standard tie and standard shoes.  Black, dark blue, dark grey, brown, grey, light grey, or camel.  We’re indistinguishable from each other – perhaps we should wear names and numbers like athletes.

 Slob.  Every now and then you see this type, more often than not overweight.  His tie is loose, he may be wearing sneakers with his suit, or just a blazer and Dockers.  He has an arrogant casualness, but that doesn’t mean he necessarily knows what he’s doing.  Most of us have a healthy concern for messing with things we don’t understand: we don’t pull our carburetor apart, we don’t try our hand at surgery, and we don’t try to fix the sink – in each case we call the professional.  But even some of these professionals aren’t necessarily experts in their field, they’re simply people who lack this idea of only doing things we know how to do.  This is why you find cab drivers from God-knows-where, who barely speak English and know the roads less than you do, who somehow decided that this was an appropriate job and simply had the shameless moxie to get behind the wheel of a cab and go at it.  There are clueless mechanics who are the same (and are also often from the Middle East).  And unfortunately there are lawyers who fit this description.  Usually, but not always, their disheveled appearance is a warning that they are as careless and sloppy as lawyers as they are when it comes to dressing themselves before going out in public – and into a courtroom.

 CSA/General Lee.  This type is probably less common in New York and L.A. than he is in Virginia and other southern states.  He affects either seersucker suits, bow ties, or string ties and cowboy boots.  He may have a beard/goatee and try to emulate Nathaniel Bedford Forrest (the KKK founder and namesake of Forrest Gump) – had Forrest himself been a lawyer and not a Confederate cavalry general.  His office motif is Civil War prints.  I’ve also noticed that 2/3 of “Civil War” buffs tend to be of the Confederate persuasion.  Given that, even in Virginia, blacks are well represented not only among the bar, but also on the bench, the CSA theme is not particularly calculated to win the hearts and minds of these other lawyers and judges.

 L.A. Law.  I haven’t practiced law in L.A., so I can’t say for certain how lawyers there dress, aside from having watched that show.  Every now and then you see lawyers here who affect the egregiously expensive suits and GQ style.  They’re thin on the ground, mostly because there is a perception here in Virginia that both the judges and the juries are turned off by ostentatious displays of wealth by attorneys and that any such appearance will doom the client’s case: plaintiffs with such attorneys will be deemed “already have more than enough, if he can afford Mr. Cochran here,” and defendants will be deemed to have “deep pockets” and subject to a higher plaintiff’s award than if they simply had a less fancy attorney. 

 Female Lawyers.  Funny, I could have sworn that half the students at George Mason law school when I went back in ’90-93 were female, yet when I go to court it seems that only 25-33% of the attorneys are female.  That number only jumps to 50% if we’re talking about domestic or juvenile cases – though I’ve seen wives represented by male attorneys opposed by their husbands with female attorneys, so the sex of the client has no bearing on the sex of the lawyer representing him/her.

 Since we have no reason to believe that female attorneys have substantially less inclination than their non-lawyer sisters to marry and have families, and the stay-at-home parent is usually (though not always) the mother, a likely explanation for the under-representation of female lawyers among the active trial bar is this very phenomenon.  I know at least two of my GMUSL alumni who stopped practicing law in order to stay at home with the kids, so it’s probably more common than I see. 

 I have found, though, that female attorneys tend to be well-dressed and are never slobs – nor do any of them affect the Scarlett O’Hara look (no CSA equivalent for women).  They can probably get away with overdressing – unlike the male “L.A.” type attorneys mentioned above – as we naturally expect women to pay more attention to fashion and appearance, so it doesn’t count against them the way it would for male attorneys.  For the most part they’re just as competent and skillful as male attorneys.  I haven’t met any who appear to be intimidated by the environment, and I have found a few who are even more arrogant and aggressive than most male attorneys, myself included.

 Judges.  Justice-o-Tron 2000.  Fortunately this type of judge is rare: the one who believes that a rigid adherence to legal principles, beyond all compassion and logic, is the most important standard a judge can have.  I can’t recall encountering any judge who appeared to not take the job seriously, although some judges are more laid back and casual than others – Maryland judges seem to be far more casual than Virginia judges, and Federal judges tend to be more serious than state judges.   Generally, the lower court traffic docket, where most of the defendants are pro se (not represented by attorneys) tend to be the most casual – guilty, minimum sentence, move on – NEXT!  Again, I find that most judges are capable of “seeing the forest for the trees” and recognizing the spirit, rather than simply the letter of the law, and acting accordingly.  I can’t say I always agree with their decisions, but I can respect their reasoning.

 Hurry Up And Wait.  One thing you’ll never see in “Boston Legal”, “L.A. Law”, or any other lawyer show or movie is what 80% of lawyering seems to be: waiting.  Even more so than legal research – which I do for briefs and the rare appeal – waiting is that unglamorous, boring, but ubiquitous part of being a lawyer.  You hurry up to make it to court on time, only to wait while the docket is called – because if your case is first, damn well that will be the day you get there late.  You wait for your client to be processed into the jail so you can see him – or to be processed out when you get him released.  You wait for the prosecutor to talk to the cop, then wait to talk to the prosecutor, to plead bargain on a traffic or criminal case.  You wait for the judge’s law clerks to approve your divorce decrees, and for judges to sign them in publication cases.  Immigration cases are the worst, with such a huge backlog the INS has a bulletin which tells you how far behind they are.

 Paper pushing.  Real estate lawyers, who do closings and settlements, practically never see a courtroom.  Government attorneys are more likely to draft memos and advise bureaucrats than spend time in court.  Junior associates at major law firms are more likely to be stuffed in law libraries than off to court – except for status hearings and collections return dates, the most basic, routine, and uncontested matters.  Even personal injury lawyers, who are supposedly the most visible of trial lawyers – and I should know, because I am one – spend far more time settling cases on the phone with insurance companies, without ever leaving the office, than in court.  And many court appearances are routine: return dates on Warrants in Debt, scheduling conferences, Master Calendar hearings for immigration attorneys, term dates, etc. where all you’re really doing is setting a trial date or informing the court of the current status of a case.  Hardly anything dramatic or exciting which would lend itself to TV or movies.

 Even trials can be quite dull.  We have to put on evidence, certify exhibits and witnesses, make arcane and obtuse objections on minor points of law, and methodically extract testimony from various witnesses which may be dull and repetitive – but necessary.  As dull as it gets sometimes, you have to stay awake and alert, object when necessary, take notes for cross examination or to rehabilitate your own witnesses on redirect, and know when to shut up, because asking the wrong question can sometimes be more harmful than simply saying nothing at all.  On the other hand, witnesses can be difficult, forgetful, argumentative, evasive, arrogant, sarcastic, emotional, long-winded, angry, burst out in tears, contradict earlier testimony, blurt out amazingly harmful, surprising, or idiotic statements, shoot themselves in the foot, or come up with something brilliant on their own.  You never know what’s going to happen. 

 On the other hand, it always feels good to win a case, even if all you did is what I call “judicial discretion management” – avoiding mistakes and guiding the judge to a favorable decision.  Of course the jackpot is winning a case which was almost unwinnable, but that is rare.  Usually you win the cases you should win, lose the cases where you really didn’t have a chance, and break even.