THE BLOG

A Badge and Incident of Slavery

06/23/2015 03:17 pm ET | Updated Jun 23, 2016

The flag of the Confederate States of America is a badge and incident of slavery.

Congress should prohibit flying the flag on State Capitol grounds pursuant to its enforcement powers under the Thirteenth Amendment, i.e., "The Badge and Incident of Slavery Act of 2015."

There would be no First Amendment obstacle to congressional action because States qua States are not persons protected by due process or the Bill of Rights.

The meaning of the Confederate flag is as unambiguous as the meaning of the word "is."
The Constitution of the Confederate States of America--its birth certificate--prohibited the abolition of slavery. Ordinances of secession characteristically were justified as defenses of slavery.

South Carolina's Declaration of Immediate Causes Which Induce and Justify Secession elaborated:
"...[A] sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that "Government cannot endure permanently half slave, half free," and that the public mind must rest in the belief that slavery is in the course of ultimate extinction."

Georgia's Ordinance of Secession explained:
"The party of Lincoln, called the Republican party, under its present name and organization, is of recent origin. It is admitted to be an anti-slavery party... [A]nti-slavery is its mission and its purpose. By anti-slavery it is made a power in the state."

Vice President of the Confederate States of America, Alexander Stephens declared that slavery "was the immediate cause of the late rupture and present revolution. He expanded:

"Our new Government is founded upon exactly the opposite ideas [of racial equality]; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth."

The United States Supreme Court declared in Jones v. Alfred H. Meyer Co. (1968): "Surely Congress has the power under the Thirteenth Amendment rationally to determine what are badges and incidents of slavery, and the authority to translate that determination into effective legislation."

In light of the origins of the Confederate States of America, Congress could easily find that flying the Confederate flag on state grounds as a tribute to the Confederacy is a badge and incident of slavery. Dylann Roof, self-confessed murderer of nine black worshipers at the Emanuel African Methodist Episcopal Chursh in Charleston, South Carolina, had a website that included a photo of himself armed with a gun while holding the Confederate flag. Republican presidential aspirant Marco Rubio condemned Roof's massacre as "an act motivated by racial hatred." All that was missing from the Jim Crow era of black lynchings was a white mob. In Walker v. Texas Div., Sons of Confederate Veterans, Inc., the Supreme Court upheld the refusal of the Texas Department of Motor Vehicles Board to issue a specialty license plate displaying the Confederate battle flag because of a signficant public assoication of the flag "with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups."

The First Amendment would not bar a federal statute prohibiting flying the Confederate flag on state grounds because of its symbolic celebration of slavery--a form of free speech. The Constitution protects persons, not governments. The Supreme Court held in South Carolina v. Katzenbach (1965):

"The word 'person' in the context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and, to our knowledge, this has never been done by any court. Likewise, courts have consistently regarded the Bill of Attainder Clause of Article I and the principle of the separation of powers only as protections for individual persons and private groups, those who are peculiarly vulnerable to nonjudicial determinations of guilt. Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parens patriae of every American citizen."

Republican presidential aspirants concerned with attracting black voters into their ranks have the solution at hand--especially sitting United States Senators.
Exhort Congress to enact the Badge and Incident of Slavery Act.
It would be heralded by black voters as an overdue sequel to the Emancipation Proclamation.

For more information about Bruce Fein, please visit www.brucefeinlaw.com.