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The Persistence of the Confederate Narrative

67 Pages Posted: 9 Sep 2015 Last revised: 13 Sep 2017

Peggy Cooper Davis

New York University Law School

Aderson Bellegarde Francois

Howard University School of Law

Colin P. Starger

University of Baltimore - School of Law

Date Written: March 9, 2016

Abstract

Ever since the United States was reconstituted after the Civil War, a Confederate narrative of states’ rights has undermined the Reconstruction Amendments’ design for the protection of civil rights. The Confederate narrative’s diminishment of civil rights has been regularly challenged, but it stubbornly persists. Today the narrative survives in imprecise and unquestioning odes to state sovereignty. That appreciation of the doctrines of federalism and separation of powers should govern adjudication of the Constitution’s meaning is unarguable. That it should preclude national responsibility for the protection of human rights is, however, unacceptable.

We analyze the relationship, over time, between assertions of civil rights and calls for the protection of local autonomy and control. This analysis reveals a troubling sequence: The Confederate narrative was shamefully intertwined with the defense of American chattel slavery. It survived profound challenges raised by post-Reconstruction civil rights claimants, and by mid-Twentieth century civil rights movements, and it reemerges regularly to pose questionable but unanswered challenges to calls for national protection of civil rights. Our close examination of the Confederate narrative’s jurisprudential effects exposes an urgent need to address the consequential but under-recognized tension between human and civil rights in the United States on the one hand and local autonomy on the other.

Keywords: reconstruction, narrative, slavery, constitutional law, civil rights, federalism, 14th amendment, 13th amendment

Suggested Citation

Davis, Peggy Cooper and Francois, Aderson Bellegarde and Starger, Colin P., The Persistence of the Confederate Narrative (March 9, 2016). Tennessee Law Review, Vol. 84, 2017; NYU School of Law, Public Law Research Paper No. 15-46; University of Baltimore School of Law Legal Studies Research Paper No. 2016-07. Available at SSRN: https://ssrn.com/abstract=2658339 or http://dx.doi.org/10.2139/ssrn.2658339

Peggy Davis

New York University Law School ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212 998 6465 (Phone)

Aderson Francois

Howard University School of Law ( email )

2900 Van Ness Street, N.W.
Washington, DC 20008
United States

Colin Starger (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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