It's debatable: Considering Charlottesville's decision to remove Lee statue

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate whether the Charlottesville City Council should have removed a statue of Robert E. Lee from public display. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

MOSTER 1

I am steadfastly opposed to the decision of the Charlottesville City Council to remove the statue of Robert E. Lee from public display.  Notwithstanding Lee’s service to the Confederate States of America during the Civil War, he should not fall victim to revisionists who seek to apply contemporary moral standards to prior historical figures.

Viewing the totality of Lee’s career, he was an exemplary solider and hero having graduated second in his class at the U.S. Military Academy.  He went on to serve with honor during the war with Mexico in 1846 under Gen. Winfield Scott.  He was viewed as a military genius and a patriot.

Upon the election of Abraham Lincoln, seven southern states seceded from the Union.   The newly elected president viewed such decision as acts of rebellion requiring a military response.  Although Lee was offered the role as commander of the Union, he resigned his commission to take up the Southern cause.  Of course, it is this decision which forever tarnished his reputation and led to the removal of his statue by the city of Charlottesville, Virginia.

As a student of history and the constitution, I challenge Professor Rosen to cite any authority which prevented a state from exercising its right to secede from the Union during Lee’s tenure.  Unlike the prior Articles of Confederation which were deemed to be perpetually binding on the member states, no such restriction was set forth in the constitution. Consequently, Lincoln had no legal right to demand continued adherence to the Union and exercise military action against the seceding states.  Although this is a controversial statement, it is legally correct.  Lee was not in violation of any laws or legal precedent which existed at that time.  He was not a traitor.

The above position does not negate my abhorrence of slavery and the moral imperative of the Union forces.  That said, the participating states under the Constitution had the legal right to secede notwithstanding the legitimacy of the slavery issue.

Of course, history is written and viewed from the perspective of the victors and the losers are vilified.  Interestingly, Robert E. Lee retained his heroic veneer after the Civil War but now has fallen victim to the enormous pressure of historical revisionists who seek to eradicate our own history based on contemporary standards.

The removal of General Lee’s statue is an affront to our history and opens the door to the eradication of the Founding Fathers themselves who supported slavery at the time including Thomas Jefferson and George Washington.  Where do we draw the line? Should we demolish the Washington Monument and rename the capital city?

We honor American history and ourselves by recognizing who we are – blemishes and all.  That is the American spirit.  Censorship is not.

ROSEN 1

In the 2009 case of Pleasant Grove City v. Summum, the Supreme Court observed that “[g]overnments have long used monuments to speak to the pubic…. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” The free speech clause does not regulate such government speech; “[a] government entity has the right to speak for itself.”

To Charlottesville's governing body, the Robert E. Lee monument represented a message it no longer wanted to convey because the majority of its citizens viewed the statue as a symbol of racial injustice given Lee's defense of the Confederate states and slavery. Consequently, the City Council voted to remove the monument. Charles' objections notwithstanding, the decision to remove the Lee monument rested solely with Charlottesville's residents through their democratically elected representatives.

Nor was the City Council's decision irrational. I am familiar with Charlottesville, having lived there for seven years. (Charlottesville is the home of the Army's Judge Advocate General’s Legal Center & School to which I was assigned as a graduate student, a professor, and later, the school’s commandant.) The Robert E. Lee monument was located only a few short blocks from what had been a market where slaves were bought and sold, the enormity of which cannot be overstated. The monument was not completed until 1924, well after the end of the Civil War. It was dedicated at the height of “Jim Crow” and the KKK, and to the people of Charlottesville—particularly its African-American residents—it was emblematic of an era of white supremacy. And to some, Lee was a “traitor” who breached his solemn oath to “support the Constitution,” and “to bear true allegiance to the United States of America, and to serve them honestly and faithfully against all their enemies….”

I agree with Charles that we should neither judge historical figures based wholly upon contemporary mores nor permit small vocal minorities dictate our moral standards. Communities must be free, however, to display only those monuments that reflect their residents' values and beliefs.

MOSTER 2

Rick’s rejoinder is well-reasoned, and I certainly respect the right of Charlottesville to articulate any sociopolitical message it chooses.  The issue here presented, however, like General Lee, is of greater stature and that is the concerted effort to retroactively negate our own history and vilify those who honorably served.

The removal of Lee’s statue is part of a larger effort across the country to eradicate all vestiges of the southern resistance during the Civil War.  According to NPR over 100 Confederate monuments have been removed since 2020.  As I stated previously, General Lee and his colleagues were not traitors and did not violate their oath to the Constitution as still erroneously maintained by many scholars and others.  Although President Lincoln was obviously correct on the slavery question, he was dead wrong on secession.

The problem with the Charlottesville action and other municipalities is that it embodies the worst form of censorship as personified by George Orwell in his dystopian novel “1984.”  It is certainly dangerous to burn books or in the case of physical monuments – to melt down the characters depicted.  However, the greatest threat of all is in the falsification or erasure of the idea itself.  That’s what the Charlottesville action is all about.

It is historically incorrect that the Southern states engaged in an illegal insurrection.   They had every legal and constitutional right to leave the Union.  The only Supreme Court decision of which I am aware, was decided in 1869, years after the conclusion of hostilities.  No such restriction was in place when Robert E. Lee determined to honor his allegiance to the State of Virginia and the Southern cause.

I will also note that the removal of Thomas Jefferson’s statue at the University of Virginia has also been hotly debated – the very citadel of learning that he founded.  Indeed, where does this madness end?

We dishonor ourselves by rewriting history.  Yes, Charlottesville had the right to remove the statue of General Robert E. Lee, but it was the wrong decision.

ROSEN 2

I agree with much of what Charles argues. Whether Robert E. Lee was a traitor in light of the customs and beliefs of his era is a complex question.

That Lee believed loyalty to his state was more important than his oath to the federal government is not wholly surprising. Although rejected by the Supreme Court in McCullough v. Maryland, many still believed that the United States was just a compact of sovereign states, which transferred some powers to the national government. The “United States” was referred to in the plural (“the United States are”), only becoming singular following the Civil War (“the United States is”). Even today states talk about secession. For example, according to Reuters, during the Trump Administration, one-third of Californians wanted the state to separate from the national government. I do not remember the advocates of separation being called traitors.

References to Lee as a traitor may simply be a “kneejerk” reaction to his abandonment of the Union. But I believe more is involved: Lee breached his oath to the United States to perpetuate the institution of slavery, and government entities no longer want to honor such a divisive historical figure. Parenthetically, Congress amended the Articles of War (now the Uniform Code of Military Justice) to include Lee's conduct as a form of desertion — a capital offense in time of war.

I concur with Charles' concerns about “cancelling” other historic figures who held views or engaged in conduct no longer approved by society although lawful and customary when they were alive. Charles' reference to Thomas Jefferson is good example. Jefferson founded the University of Virginia (one of my alma maters), yet there are those who want to erase his connection to the university. Similarly, activists at the University of Wisconsin have pushed for the removal of a bust of Abraham Lincoln based in part on his views about race, which may have been progressive in his time, but are no longer acceptable. I suspect future generations may find the views of these activists to be repugnant, and they too will be “cancelled.”

The generals who led the Confederate armies are unique however. They took up arms against the United States in defense of slavery and involved the nation in its bloodiest war, leaving the country with an indelible scar. Many citizens rightfully believe these generals do not deserve the approbation of their communities by displaying statues in their honor.

This article originally appeared on Lubbock Avalanche-Journal: It's debatable Charlottesville's decision to remove Lee statue