05/25/2014 08:59 pm ET Updated Jul 25, 2014

Forgetting to Remember: Racial Inequality and Mythmaking on Memorial Day

For 150 years, since the Emancipation Proclamation freed slaves in Confederate states, we have relied upon the conveniences of selective memory and mythmaking to imagine a more united, United States. In the aftermath of the Civil War, the need for reconciliation -- at least to believe in reconciliation -- was, indeed, very real. In the late 1860s and 1870s the reunion of North and South was marked with new fraternal traditions and with a day of cheerful remembrance. Memorial Day told a story that honored, even redeemed lives lost in the war by celebrating emancipation and reconciliation. This belief in a happy ending did help the country to survive the trauma of Civil War, but it came at a tremendous cost; it set a precedent that made it easy to ignore -- even to deny -- the legacy of slavery and entrenched institutional racism that would oppress generations of "emancipated" blacks.

The transformation of history into myth, the softening of the bad and the glorification of the good, are inevitable symptoms of the passage of time. But in post-Civil War America, the process was expedited in the name of sectional reconciliation. The Civil War was divisive, long, destructive, and bloody, taking the lives of more American soldiers than all other wars (prior and subsequent) combined. When it was finally over the nation needed to heal, but it also needed to deal with the question of what emancipation would mean for millions of Americans. There was a brief moment of hope for former slaves, a period of Reconstruction that, if it had succeeded, would have given black Americans a fighting chance. But in 1877, the opportunities for blacks created during Reconstruction were taken away -- quite literally -- by a compromise that stripped land, rights and political power.

The United States could not afford to upset white southerners by providing aid to black southerners (through Reconstruction); the slavery issue was accepted as resolved, federal troops withdrew from the South, and a reunited nation was imagined. As life for black southerners receded into new forms of legalized slavery -- the Jim Crow era of the South -- white America moved on and by the 1880s Memorial Day parades featured Union and Confederate veterans marching side by side in blue and gray. The Great Betrayal was complete, and the issue of civil rights for black Americans would not seriously be addressed again until the middle of the next century.

The Civil Rights Movement that peaked in the 1960s, however, was only the beginning. Collective amnesia and deliberate efforts to imagine the legacy of slavery as resolved by Brown v. Board of Education and the Civil Rights Act of 1964, have left most Americans, including a few who sit on the Supreme Court of the United States, believing wholeheartedly in the greatest myth of our time: the myth of equal opportunity and equal rights. In April of this year the Supreme Court decided that voters are entitled to ban -- Constitutionally -- affirmative action in admissions for public schools. While intelligent people can disagree as to the merits and effectiveness of affirmative action, in upholding the Michigan ban the Supreme Court made a tragic mistake. One of the most important principles of our judicial system is that because its judges are not elected they have the freedom to protect civil and political rights of all citizens -- in particular those least represented by the majority electorate -- without fear of retribution. The effect of the Supreme Court's recent decision is to entrust majority voters with the protection of minority rights, and the only version of the United States in which such a system is fair and just is the mythical country that reunited and emancipated its slaves 150 years ago, the imagined colorblind, free, and equal nation.

Only Justice Sotomayor (with Justice Ginsburg concurring) seemed aware of the power of amnesia, writing in her dissent that the Constitution must be applied "with eyes open to the unfortunate effects of centuries of racial discrimination." Justice Sotomayor also spoke of the clear connection between the history of slavery, Jim Crow, and the current trend of racially discriminatory changes being made to state voting laws. Voting laws are particularly insidious because they are not facially discriminatory, but their result is. In some ways, this kind of discrimination in the 21st century United States is more dangerous than in previous decades because it is concealed, quiet, and deniable. Existing inequalities have become less transparent. For example, despite more equality in wages, it will take generations and policy change for black families to build the wealth and capital available to a much larger percentage of white families; likewise, despite legal integration of schools, de facto racial segregation based on geography and socioeconomic status has become the norm in many parts of the country. It is now more important than ever that we are vigilant in continuing to consider issues like affirmative action with "eyes open."

On this Memorial Day let us remember that the passage of time may heal wounds, but it does not in itself create equality. Recognizing the fact that most black Americans did not live free lives after the Civil War means considering the connection between inequality and the legacy of institutional racism. Let us truly, honestly, honor those who fought in the Civil War and those who fought in subsequent wars by honoring the principles that they died for. Freedom and equality in a democracy are not end goals but processes, only ever achieved through constant and continual deliberation, action and participation. If we remember thoughtfully, we will realize our responsibility as voters. So too, might our lawmakers and judiciary.