VOL. 41 | NO. 36 | Friday, September 8, 2017
Mississippi case offers hope for bust removal
State Sen. Lee Harris is encouraged by the U.S. Supreme Court’s request for the state of Mississippi to respond to a lawsuit seeking to remove the Confederate battle flag from its state flag.
The Memphis Democrat concedes that Carlos Moore, the Mississippi attorney who filed the lawsuit, still faces an “uphill battle.” Two lower courts ruled against him, mainly finding he had no standing or couldn’t show enough individual injury from the state flag’s design, though largely staying away from the age-old argument surrounding the Confederacy.
Nevertheless, Harris says he believes the development within the Supreme Court case stands in “huge contrast” to a Sept. 1 vote by the Tennessee Capitol Commission against seeking a waiver to relocate a bust of Confederate General Nathan Bedford Forrest to the State Museum from the State Capitol.
“On the one hand, you find some momentum from the Supreme Court on Mississippi. On the other hand, if you look at what happened with the (Forrest) bust at the State Capitol, we should all be disturbed about what happened there, that there was a growing national consensus around removing some of these divisive symbols, except in Tennessee,” says Harris, who accompanied Moore on a 2016 Tennessee tour to tell people about his efforts.
Harris adds Tennessee will make headlines as the first state to stand with Confederate monuments and “divisive” symbols, becoming an “outlier” and creating a “really negative legacy” for the state.
Moore and his attorney, Michael Scott, filed their writ of certiorari with the U.S. Supreme Court in late June asking it to take the case. By late July, the Southern Poverty Law Center, Lambda Legal, the Mississippi legislative black caucus and Congressional Black Caucus filed briefs in support.
The state of Mississippi informed the court it wouldn’t file a response unless the justices sought one, which they did last week.
The deadly protests in Charlottesville, Virginia surrounding removal of a Robert E. Lee statue could be catching the Supreme Court’s attention, forcing it to take a stand.
“We do believe that it strengthens my argument that the flag is an emblem about hate and even further that the Confederate monuments are about hate and not about heritage and that varied emblems and the statues of the generals, they embolden the racists,” Moore explains. “And the reason I’m obsessed with the [Mississippi] state flag is that the state flag, with the Confederate emblem, it endorses white supremacy, it endorses the enslavement of my ancestors and it basically ratifies it.
“And it says it was an acceptable period of time, and it was something that is to be celebrated instead of condemned. So, if a whole state thinks that, an entire sovereign state thinks that and is bold enough to put it in its flag, that then (sends) a message that the racists hear loud and clear.”
Scott agrees that Confederate statues celebrate people who “stood for horrible principles.” But that’s almost another topic, as far as their legal case is concerned.
A state flag is supposed to “unify and represent a people as a whole and represent what the state stands for. And when a flag adopted by a state does just the opposite of standing for everybody and expresses a preference for white supremacy, if the courts can’t do something about this, it’s really, really bad.”
“So, we’re hopeful the Supreme Court will see it that way and say they need to do something, they can’t just remain passive.”
Gov. Bill Haslam urged the Capitol Commission and Tennessee Historical Commission to remove the Forrest bust from the State Capitol in the days just after the Charlottesville protest claimed three lives.
Capitol Commission Chairman Larry Martin, a Haslam appointee, cited national civil unrest since Charlottesville as part of his reason for seeking relocation of the Forrest bust to the Tennessee State Museum.
Martin was more than gracious in explaining his motion to request a waiver from the Tennessee Historical Commission for the statue’s removal, noting thousands of soldiers on both sides of the Civil War were killed. In fact, more than 600,000 died, the majority of them Union soldiers.
“The loss was real, and their bravery should be recognized,” he said.
Martin, the state’s commissioner of Finance & Administration, pointed out Forrest was a “complex” man, a slave trader and grand wizard of the Ku Klux Klan who was charged with war crimes in the slaughter at Fort Pillow but later in life reached out to the black community for the “common good.”
He also made note of a Wall Street Journal column by Peggy Noonan that pointed out not all that made America is good and that tearing down statues can tear down “avenues of communication.”
Still, Martin added General Robert E. Lee (and Forrest too) not only chose to lead the “losing side” in the war but was “on the wrong side.”
“The Tennessee State Capitol should be a place that represents a united Tennessee, not a divided one,” Martin said.
He explained the Legislature passed the Tennessee Heritage Protection Act putting responsibility for monuments in and around the State Capitol in the hands of the Capitol Commission and setting up a process for those matters to be considered by the Historical Commission. The act was amended in 2016 to require a two-thirds vote by the Historical Commission to change the names of buildings or move monuments related to war and history.
But just when it seemed as if Forrest was about to be eased out the door, the state’s constitutional officers, who are elected by the Legislature, slammed it shut.
Comptroller Justin Wilson argued that the General Assembly in 1973 passed resolutions by overwhelming votes to place the Forrest bust in the State Capitol. Subsequent moves led to the placement of busts of frontiersman David Crockett and Sampson Keeble, one of the state’s first black senators during Reconstruction after the Civil War. Unfortunately, Wilson referred to Keeble as “Samuel” at least twice, leading one to believe he’s never really studied the bust.
“The General Assembly should deal with matters on the second floor of the Capitol,” Wilson said, apparently willing to cede authority the Legislature delegated to the Capitol Commission when it passed the Heritage Protection Act.
Commission member Bob Martineau, another Haslam appointee who leads the Department of Environment and Conservation, makes the point that the Capitol Commission was following the process set up by the Legislature, which easily could have set up a different procedure.
Martineau also pointed out the idea was not to remove Forrest’s bust and put it in a box but to display it in the museum where its historical context could be studied.
But Wilson responded, “I seriously doubt the intent of the Legislature was to do this.” He argued the matter should be put in the hands of the General Assembly.
Martin conceded he could not read the minds of the Legislature in 1973, but he felt the rules they passed in 2015 and 2016 were “crystal clear now.”
Yet Treasurer David Lillard threw another monkey wrench in Martin’s proposal, saying a plan should be established for all items in the Capitol to explain them in historical context, from Confederate and Union history to the suffering of slaves.
Arguing historical items should be displayed on a rotating basis, Lillard pointed out Gov. Haslam’s portrait will go up when he leaves office at the end of 2018 and another governor takes the seat, forcing the removal of another governor’s portrait from the halls of the Capitol. The building doesn’t have enough room for every governor.
The display of governors’ portraits, of course, has absolutely nothing to do with Nathan Bedford Forrest, who was considered a helluva Civil War general but never held any state office. And when you’re debating the matter in the Tennessee Tower’s Nashville Room, where nobody told the commissioners how to operate the microphones, you might get the idea nobody’s listening.
Thus, views such as the tried-and-true argument by Rep. Curtis Johnson, deputy speaker of the House, resonated through this august body of the Capitol Commission.
“What bothers me is when does this stop?” Curtis asked, pulling out the “slippery slope” ammunition. “Do we come back next month and remove the monument of Andrew Jackson?” (For those who forgot, Jackson had slaves but worked like the dickens to keep the Union together.)
The statue of Jackson on horseback sits on the Capitol grounds, along with one of Confederate boy hero Sam Davis of Smyrna, a spy who was hanged by Union troops after refusing to tell them who gave him some sensitive documents.
Secretary of State Tre Hargett proved to be another constitutional officer willing to ignore the legislation passed by the General Assembly within the last two years, saying he was afraid of an unelected body undoing the work of elected legislators.
Hargett, a former legislator, harkened back to his childhood days in Lauderdale County in southwest Tennessee where, he said, he didn’t think about Forrest yet when he looked at his black classmates he wondered, “how do you defend the indefensible,” the institution of slavery. (Too bad Forrest isn’t alive to answer that very question.)
Hargett pointed out the Legislature could have filed legislation to take monuments down but didn’t, and he further argued the Capitol Commission should focus on letting the public know the history of the building’s construction, including work done by slaves and prison laborers in erecting it.
Ironically, the state’s three constitutional officers paid no heed to the words of Commission member Howard Gentry, who read part of the Constitution stating “all men are created equal and endowed with inalienable rights.” He read it out of respect to his father’s parents, who were born into slavery.
“When I was a little boy and came into the State Capitol, there were colored bathrooms, and that bothered me. It bothers me today. It never will leave me,” he said during the meeting.
Those were finally taken down when “the time” called for it, he said. Yet at age 65, he still feels the hurt.
Republican lawmakers such as Curtis Johnson and Sen. Jackson Johnson, commission members who voted against Martin’s request, helping seal the 5-7 vote against seeking a waiver, seem willing to make sure nobody forgets the days of Jim Crow and segregation forever, if they’re concerned moving Forrest will erase history.
Likewise, for state Reps. Mary Littleton and Debra Moody, Republicans from Dickson and Covington respectively, who attended the meeting and had a few words afterward with Justin Jones, a Fisk student who protests frequently at the Legislative Plaza.
“We can’t undo history, but we have to learn from it, and I think that’s what we’re trying to do, make sure nothing like that ever happens again in our world,” Littleton said afterward. Moody was in too big a hurry to comment.
Jones, however, said he only wanted Moody to see things from a different perspective.
“As someone of color, imagine the most abusive thing you went through and being reminded of that every day you walk into the Capitol,” he said.
Reps. Harold Love of Nashville and G.A. Hardaway of Memphis were caught off guard somewhat by the commission’s decision, with Love saying he was “concerned” about the votes of the constitutional officers, men he has worked with on several other issues.
“Secretary Hargett evoked the Charleston massacre. I would remind him that the gentleman who committed that massacre draped himself in the Confederate flag,” Love said.
Said Hardaway, “It’s disappointing, it’s not necessarily surprising. We knew it would be close. But the excuses – and I don’t offer the description as reasons that the no votes were offered – are some of the same standard fare we’ve been confronting for a while, and we’ve debunked it. The Capitol is a place where we honor those who have contributed positively to Tennessee in a way that reflects our values and our standards today.”
Noting he represents Tennesseans from all walks of life, Hardaway says he finds it difficult each day to walk past a monument to a slave trader, “a guy that made his living as a merchant dealing in human flesh.”
Love, as a result, says he’s left with no recourse but to introduce legislation to remove the Forrest bust.
The entire Black Caucus shares the sentiment of Gov. Haslam and Tennessee’s U.S. senators, who called for Forrest’s removal. The group will form legislation this fall dealing with relocation of Confederate monuments.
“The bust belongs in the State Museum. We are here to learn from history, not be reminded of its influence on the continuation of hatred, racism and bigotry,” says Rep. Raumesh Akbari, chair of the Black Caucus. “Its very presence in our State Capitol denotes an acceptance and pride that most of us do not share of the worst era in our nation’s history.”
House Democratic Leader Craig Fitzhugh, who is making a gubernatorial run, points out Tennessee made the wrong decision as, “History is watching.”
“I represent Lauderdale County, the site of the Fort Pillow massacre. I know how deep the wounds Nathan Bedford Forrest inflicted really are, and I know that it’s long past time to heal these wounds,” he adds.
He pledges to do whatever it takes, including legislative action, “to right this wrong.”
Political correctness reverses
Critics of such moves to relocate Confederate monuments and statues call it “political correctness” run amuck.
State Historian Carroll Van West, however, in a Facebook post says many of these monuments were erected at the turn of the 20th century as “politically correct” statements trying to redefine the war and endorsing Jim Crow segregationist policies.
“The monuments were about glorification of an imagined past – and the assertion that the South remained unbowed, defiant,” he writes.
West doesn’t want the monuments to be destroyed but moved to places where they can be protected and studied. He notes, however, that too many people “stood by for years while domestic terrorists transformed the monuments into rallying points for their sick political agenda; by doing so we have forfeited the monuments’ place of prominence in our public landscape.”
West adds it is important to understand the Civil War’s impact on the state of Tennessee. But he adamantly opposes letting white supremacists and neo-Nazis “twist the real past into a fake past that divides and erodes our great nation – hell no!!”
Carlos Moore might consider asking Carroll Van West and Larry Martin to file briefs in support of his lawsuit against the state of Mississippi. He’ll need all the support he can muster.
Considering how close Charlottesville is to Washington, D.C., as well as the events transpiring across the nation, Moore says he believes they combine to “heighten the sense of urgency” for the high court. He hopes the Supremes will realize the Confederate flag is not a political matter but a constitutional right.
“We have the equal protection clause and the 14th Amendment we’re simply trying to take advantage of, and we just hope that they’ll hear the case,” he says.
No doubt, he’s seeking a better outcome than Harris and the Black Caucus received from the Tennessee Capitol Commission, which appears to be stuck in the political expedience of a dark past.
Sam Stockard is a Nashville-based reporter covering the Legislature for the Nashville Ledger, Knoxville Ledger, Hamilton County Herald and the Memphis Daily News. He can be reached at email@example.com.