BILL ANALYSIS Ó
SJR 15
Page 1
Date of Hearing: June 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SJR
15 (Glazer) - As Amended July 15, 2015
SENATE VOTE: 31-2
SUBJECT: Confederate States of America
KEY ISSUE: should the legislature urge congress and the
president of the united states to rename any federal buildings,
parks, roadways, or other federally-owned property that bears
the name of an elected or military leader of the Confederate
states of America?
SYNOPSIS
This resolution urges Congress and the President of the United
States to rename federal buildings, parks, and properties
currently named for elected or military leaders of the
Confederate States of America. The author maintains that the
Confederacy and its secessionist movement was rooted in the
defense of race-based slavery; that Confederate names and
symbols are offensive and painful to those living under the
legacy of slavery; and that the continued use of Confederate
names is at odds with California's values of racial equality and
tolerance. Last year, the author of this measure introduced SB
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539, a bill that would have prohibited the use of Confederate
names on any state or local property and required renaming of
any state or local property that bore the name of a Confederate
leader. (SB 539 would have exempted municipalities, such as Fort
Bragg.) SB 539 was vetoed by Governor Brown, who contended that
renaming the handful of remaining California properties bearing
Confederate names (apparently only two schools and one street)
would be best handled by local decision makers. Unlike SB 539,
which would have enacted a statute with binding effect, this
resolution merely "urges" Congress and the President to rename
federal properties that bear Confederate names. Were Congress
or the President to act on this resolution, it would require
renaming at least ten military bases named for Confederate
generals, as well as certain national parks, such as the Robert
E. Lee Memorial in Arlington, Virginia. Last year's AJR 26
(Weber), which was signed by the Governor, urges Congress to ban
the sale or display of any Confederate flag on federal property
and encourages the several states to ban the use of Confederate
flags and symbols on state property. This resolution under
review passed off the Senate Floor by 31-2 vote, with seven
members not voting. There is no registered support or
opposition to the bill at the time of this writing.
SUMMARY: Urges Congress and the President of the United States
to rename federal buildings, parks, and properties currently
named for elected or military leaders of the Confederate States
of America. Specifically, this measure:
1)Finds and declares that whereas;
a) The Confederate States of America and its secessionist
movement were rooted in the defense of slavery.
b) Using names of Confederate leaders on federal property
deepens the pain of those living under the legacy of
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slavery.
c) The United States continues to struggle with racial
equality and tolerance and the continued use of Confederate
names in public places is offensive to Americans.
d) The horrific shooting deaths of nine African Americans
attending church in South Carolina, and images of the
shooter wrapping himself in the Confederate flag, points to
the continued use of Confederate symbols to demean, offend,
and wound whole segments of our society.
e) The use of Confederate leaders' names in public schools,
buildings, parks, roadways, or other federally owned
property in California only serves to further the
discriminatory agenda of current sympathizers of the
ideology of the Confederate States, and is antithetical to
California's mission of racial equality and tolerance.
1)Resolves that the Legislature urge the Congress and the
President of the United States to rename any federal
buildings, parks, roadways, or other federally owned property
that bear the names of elected or military leaders of the
Confederate States of America, and to transmit copies of this
resolution, as specified.
EXISTING LAW: None applicable.
FISCAL EFFECT: As currently in print this measure is keyed
non-fiscal.
COMMENTS: The Southern writer William Faulkner observed that
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"the past is not dead. It is not even past." Nowhere is this
point better illustrated than in this resolution and the
contemporary national debate that it represents. Controversy
over the public use and display of Confederate names and symbols
has a long history, but the issue acquired new urgency after the
shooting deaths of nine African Americans while they worshipped
in a South Carolina church. The victims had invited a young man
to join their service, and he responded by killing them.
Investigations into the shooter's background revealed that he
was a white supremacist who had, among other things, posted
online a picture of himself draped in a Confederate flag. One
of the many reactions to the tragic shooting was a call to
remove the Confederate flag from the South Carolina statehouse,
which was eventually done. In the weeks and months that
followed, other Southern localities and institutions removed
Confederate symbols and names from public places. Those who
support these efforts argue that the Confederacy stood for the
defense of slavery and in subsequent years its symbols -
especially the Confederate Battle Flag - became symbols of
segregation and white supremacy. According to the author, the
use of Confederate names, like the Confederate flag, is
demeaning and offensive to "those living under the legacy of
slavery" and an obstacle to our continuing struggle to achieve
racial equality and tolerance.
This resolution, therefore, urges Congress and the President of
the United States to "rename any federal buildings, parks,
roadways, or other federal owned property that bear the names of
elected or military leaders of the Confederate States of
America." Should Congress or the President take such action, it
is not entirely clear how many place names would be affected.
Perhaps the most obvious examples are at least ten military
bases in Southern states named for various Confederate generals.
Changing the names of these bases seems more than reasonable,
especially given that the contemporary United States military is
the successor of the Union Army, not the defeated and defunct
Confederate Army. Surely there are many other worthy persons
for whom these bases could be named. However, changing the name
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of other federal properties may be more complicated. For
example, General Robert E. Lee's home - a mansion occupied by
Union forces during the Civil War and dedicated in 1954 as the
Robert E. Lee Memorial - sits on the grounds of Arlington
National Park in Virginia. Even if the Memorial were renamed,
this resolution urges Congress to rename any federal "building"
or other property that "bear the names" of Confederate leaders.
Given that the mansion was Lee's home, it is difficult to
imagine that the building would not bear Lee's name, even if the
memorial as a whole were renamed. Nonetheless, this resolution
merely "urges" Congress and the President to rename federal
properties; it will presumably be up to Congress and the
President to develop the details and limits of the renaming
project.
The Confederate "Lost Cause." According to the author, despite
frequent claims that the Confederate side in the Civil War
fought to protect states' rights, the declarations published at
the time make it clear that the primary issue in the Civil War
was slavery and the South's determination to preserve it. When
states' rights were invoked, it was most often to defend a
state's right to maintain slavery and the social structure that
it supported. Indeed, as detailed below, cases like Prigg v.
Pennsylvania show that Southerners were more than willing to
abandon state's rights and invoke federal power (in the form of
the federal Fugitive Slave Act) when it was necessary to
preserve slavery.
The view that the Confederacy fought to protect states' rights
rather than preserve slavery emerged only after the Civil War.
According to a number of historians, the argument that the South
had fought the Civil War to protect "states' rights" did not
emerge until the 1880s or 1890s. In separate works, historians
David Blight, Thomas Brown, Cecilia O'Leary, and James Loewen
suggest some possible reasons for this reinterpretation. First,
these historians argue, late-19th century efforts at national
"reconciliation" between North and South required a changed
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understanding of the cause of the war. The South could only be
reconciled, and the efforts of its troops honored, if the war
was about something other than slavery. By the 1890s, it was
easier to honor the South and its Confederate soldiers if they
had fought for constitutional principles, as opposed to slavery.
It was also during the 1880s and 1890s that Southern states
faced the first challenges to its Jim Crow segregation laws,
most notably in the Civil Rights Cases of 1883, and Plessy v.
Ferguson in 1896. The states' rights argument was convenient in
that context, and the re-interpretation of the Confederate
"cause" gave Southern segregationists and states' rights
advocates an historical pedigree. While the declarations issued
by the Southern states at the time of the war claimed that the
war was about the preservation of slavery, histories written
between the 1890s and 1950s greatly diminished the role of
slavery and suggested that the war was about states' rights and
Southern honor. (See e.g. David Blight, Race and Reunion: the
Civil War in American Memory; Thomas J. Brown, Public Art and
the Commemoration of the Civil War; Cecilia O'Leary, To Die For:
the Paradox of American Patriotism; James Loewen, "Five Myths
About Why the South Seceded," Washington Post, February 26,
2011.)
Prigg v. Pennsylvania and the Myth of States' Rights. The
South's opportunistic commitment to states' rights was nowhere
better illustrated than in the case of Prigg v. Pennsylvania
(1842). That case considered whether the Fugitive Slave Clause
of the U.S. Constitution and the Fugitive Slave Act of 1793
preempted so-called "personal liberty" laws enacted by Northern
states. Without ever using the word "slave," the Fugitive Slave
Clause (U.S. Const., Article IV, Section 2) says that any
"person held to service of labor" that escapes to another state
is not "discharged from such service or labor, but shall be
delivered up on claim of the party to whom such service of labor
may be due." This constitutional provision does not say how a
claim must be made or how a slave would be "delivered up" to the
party making the claim. Congress established a bare-bones
procedure with the Fugitive Slave Act of 1793, which allowed a
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slave owner or his "agent" to capture the alleged runaway and
bring him or her before any state or federal judge to obtain a
"certificate of removal." This certificate allowed the owner or
agent to forcibly take the alleged runaway back to the purported
owner. Hoping to protect free black citizens from wrongful
seizures, several Northern state legislatures enacted "personal
liberty" laws. These laws required agents seeking fugitive
slaves to meet state evidentiary and due process requirements,
including a requirement that any alleged "runaway slave" receive
a jury trial to determine his or her status. While the Fugitive
Slave Law required agents to obtain a "certificate of removal"
from state courts, the personal liberty laws asserted the
state's right to impose minimum standards when agents came
before its courts to obtain such a certificate.
In Prigg v. Pennsylvania, the agent of a Southern slave owner
sought to forcibly deliver Margaret Morgan, whom the federal
census listed as a "free person of color," to a man in Maryland
who claimed to own her. Using the higher standards of
Pennsylvania's personal liberty law, the court refused to issue
Prigg, the owner's agent, a certificate of removal. When Prigg
attempted to take Morgan back to her alleged owner without a
certificate, he was arrested and charged with kidnapping.
Prigg's appeal eventually reached the U.S. Supreme Court. The
question before the court was whether the federal Fugitive Slave
Act preempted Pennsylvania's personal liberty law. Joseph
Story, a New Englander who opposed slavery, but who as a former
Federalist advocated a strong national government, issued a
mixed ruling. First, he held that the Pennsylvania state law
was preempted by the federal law, which provided the "exclusive"
manner for returning fugitive slaves (or as we might say today,
it "occupied the field" on the return of fugitive slaves.) But
Story then went on to say that while Pennsylvania could not pass
a law that conflicted with federal law, the states were not
required to enforce or participate in the execution of federal
law. If the federal government wanted to return fugitive
slaves, it could use its own federal courts and federal
marshals. State courts and county sheriffs need not take part
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in it.
Chief Justice Roger Taney, a Southern slave owner and later the
author of the infamous Dred Scott decision, wrote a concurring
opinion. Taney agreed with the central holding - that federal
law preempts state law - but he wrote separately to object to
Story's suggestion that states could not be compelled to
participate in the enforcement of federal law. Federal law not
only preempted state law, Taney believed; it compelled state
officials to enforce federal law. If Southerners were supposed
to believe in states' rights, no one had told Taney. Like other
Southerners, he apparently invoked states' rights when it
protected slavery and abandoned it when it threatened slavery.
(Prigg v. Pennsylvania reprinted in Hall, et.al. American Legal
History: Cases and Materials 233-237 (4th Ed. 2014).) Indeed,
the failure of Northern states to bow to federal law was one of
the first issues cited in the South Carolina Declaration of
Secession.
The South Carolina Declaration of Secession. South Carolina,
the first state to secede from the Union, announced its decision
to the world with a "Declaration of the Immediate Causes Which
Induce and Justify the Secession of South Carolina," in December
of 1860. The Declaration's central contention is that the Union
should be dissolved because the federal government had failed to
live up to its promise, especially by failing to force Northern
states to comply with the federal fugitive slave law. After
Northern states started to follow Story's advice by passing laws
to prohibit the use of state courts and county sheriffs to
enforce federal law, the South demanded a stronger federal law
to compel Northern assistance and override Northern state laws.
They effectively obtained this with the Fugitive Slave Act of
1850, as part of the compromise that brought California into the
Union as a free state. But even this law was not strong enough
for South Carolina, as South Carolina's Declaration alleged that
Northern states continued to behave in ways that skirted the
force of federal law.
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Defenders of the view that the South stood for "states' rights"
usually cite the Declaration's invocation of the "compact
theory" of the federal constitution - the idea that since
sovereign states had made the compact sovereign states could
leave it - as evidence of the "states' right" interpretation.
But defenders of this view ignore the fact that South Carolina
justified secession by claiming that the federal government had
failed to use its power against the Northern states. The South
Carolina Declaration cited the efforts of Northern states to
"nullify Acts of Congress" as evidence of "an increasing
hostility of the part of the non-slaveholding States to the
institution of slavery." The final straw was the election of
Abraham Lincoln. The Declaration quoted Lincoln's statement
that "Government cannot endure permanently half slave, and half
free," to argue that Lincoln planned to abolish slavery in the
South (despite Lincoln's repeated assurances that he only sought
to prevent the extension of slavery into the Western
territories). Lincoln's Republican Party, the Declaration
claimed, sought not only to exclude slavery from the
territories; it wanted to wage war "against slavery until it
shall cease to exist throughout the United States."
("Declaration" reprinted in Hall, supra 253-255.)
In sum, any fair reading of the history of the sectional crisis
that precipitated a Civil War must place slavery front and
center. While Lincoln and most members of the new Republican
Party did not initially seek to abolish slavery in the South,
but rather only wanted to prevent the extension of slavery into
the territories, the several declarations of secession make it
clear that the southern states interpreted Lincoln's election as
a threat to the institution of slavery, not states' rights.
This resolution, therefore, is based on the well-documented
historical interpretation that the "lost cause" of the
Confederacy was principally, if not exclusively, the defense of
slavery. According to the author and others who support
measures similar to this resolution, there is nothing honorable
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about the Confederate cause and, as such, we should not honor
the political and military leaders of the Confederacy by naming
federal buildings, parks, roadways, or other federal property
after them. Contrary to some of the arguments raised against
this and similar measures, both in California and elsewhere,
this resolution is not an attempt to re-write history or purge
history of unpleasant facts that we would rather forget.
Indeed, one could argue that this resolution is not an attempt
to forget the past, but rather an effort to remember it for what
it actually was. If the Confederacy stood for the preservation
of slavery and its accompanying social structure, the author
believes, then this nation should have "no interest in
enshrining the names of those associated with the Confederacy,
its secessionist movement, or [its] ideals in our public
schools, buildings, parks, or other federal property."
The Edmund Pettus Bridge and the Complexity of Historical Names
and Symbols: It is difficult to disagree with the author's
central premise that we have no obligation to honor historical
actors who fought for things that are contrary to our shared
values as a nation. Few if any nations honor traitors, after
all. However history and collective memory are not always so
simple. How and why persons or events are remembered, and the
meanings we attach to them, change over time. For example, if
most Americans associate the Edmund Pettus Bridge with any
historical person or event, they associate it with one of the
key events of the modern Civil Rights movement: the march from
Selma to Montgomery, Alabama, led by Martin Luther King, Jr.,
and others, to pressure President Lyndon Johnson to support, and
Congress to enact, what became the Voting Rights Act of 1965.
Americans may be less familiar, however, with the fact that
Edmund Pettus was a Confederate general and a leader of the
Alabama Ku Klux Klan. In recognition of the role that the
bridge and the Selma March played securing passage of the Voting
Rights Act, the Edmund Pettus Bridge has been designated a
National Historic Landmark. Recently, the Alabama NAACP and the
Southern Poverty Law Center called for the removal of
Confederate names from public schools and other public places in
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Alabama - including, apparently, from the Edmund Pettus Bridge.
However, Congressman and Civil Rights activist John Lewis - who
marched with Dr. King across the Edmund Pettus Bridge and was
beaten by Alabama peace officers for his efforts - believes that
the name of the bridge should not be changed because subsequent
history has created a new meaning and association. In an
editorial opposing the name change, Lewis wrote:
Renaming the Bridge will never erase its history. Instead
of hiding our history behind a new name we must embrace it
-the good and the bad. The historical context of the
Edmund Pettus Bridge makes the events of 1965 even more
profound. The irony is that a bridge named after a man
who inflamed racial hatred is now known worldwide as a
symbol of equality and justice . . . The landmark Voting
Rights Act of 1965 was born from the injustices suffered
on the Edmund Pettus Bridge, and the Bridge itself
represents the portal to which America marched towards a
brighter, more unified future. The name of the Bridge will
forever be associated with "Bloody Sunday" and the marches
from Selma to Montgomery, not the man for whom it was
named.
It is unclear whether the designation of the Edmund Pettus
Bridge as a National Historic Landmark would make it a federal
"park" or federal "property" for purposes of this resolution, or
for purposes of any legislation that Congress might subsequently
enact. (In addition, because the bridge is part of U.S. Highway
80, it is not entirely clear if it is local, state, or federal
property.) But the larger point is that history, collective
memory, and how and why history should be recognized in public
spaces may be more complicated than this resolution presumes.
Prior Related Legislation: SB 539 (Glazer, 2015) would have
prohibited, as of January 1, 2017, naming any school, park,
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building or other public property in California after certain
persons associated with the Confederate States of America, and
would have required the removal of existing Confederate names by
January 1, 2017. SB 539 was vetoed by the Governor on the
grounds that removal of names from local schools and properties
should be handled by local governments and communities.
AJR 26 (Weber, Chapter 196, 2015) encourages Congress to ban
government use or display of the confederate flag on federal
property and encourages the several states to similarly ban
Confederate symbolism in state flags, seals, and symbols.
REGISTERED SUPPORT / OPPOSITION:
Support
None
Opposition
None
Analysis Prepared by:Thomas Clark / JUD. / (916)
319-2334