The Cross, the Confederate, and the Constitution

Abstract

Constitutional law has a great deal to say about what symbols are permitted in the public square. Somewhat baroque legal rules (sometimes created pursuant to the First Amendment’s speech and religion clauses but originating elsewhere too) govern the government’s expressive conduct. Those legal rules determine who gets to “speak” through statues, memorials, and symbols; how those statues, memorials, and symbols are understood and from whose perspective; and—perhaps most importantly—whether and to what degree those statues, memorials, and symbols cause or do constitutional harm. This chapter considers these constitutional rules in light of recent controverses over religious symbols and Confederate monuments, both of which have become political flashpoints in an on-going and increasingly bitter culture war. The chapter describes how constitutional law influences and shapes the battlefield on which that culture war is fought and it further argues that constitutional principles should limit the scope of the permissible weapons that can be wielded there.

Keywords: First Amendment, church-state, constitutional law, compelled speech, equal protection, government speech, Confederate monuments, religious symbols