Peggy Cooper Davis, Aderson Francois, and Colin Starger
Content warning: this article quotes a decision that includes the n-word1.
Dixie is a song with a complicated history. Versions of it were sung by both Confederate and Union troops during the Civil War. Historian Karen Cox carefully documented the song’s lingering popularity and its mixed social and racial signaling in Dreaming of Dixie. Over the years – and for reasons that are not entirely clear – “just whistling Dixie,” a slang expression based on the song, came to stand for bravado without follow-through. A seemingly overblown statement might cause listeners to wonder whether the speaker was speaking truth or “just whistling Dixie.” A threat might cause listeners to wonder whether the speaker was actually dangerous or “just whistling Dixie.”
Here is the gist of the Confederate Narrative as it was famously told in United States v. Cruikshank, the post-Civil War Supreme Court decision that squelched the federal government’s authority to prosecute racial and political violence:
Before the United States became a nation, each of thirteen groups of the People surrendered their powers, to one of thirteen states. When the Union was formed, those states surrendered a very limited number of their powers to the Union. Powers not surrendered to the Union were exclusively reserved to the several states. Each state serves the People by carefully guarding those reserved powers to itself.
And here is how the Confederate Narrative structures the majority opinion in Dobbs v. Jackson Women’s Health. The opinion describes the issue before it as such: “[T]he State [of Mississippi]’s primary argument is that we should. . . once again allow each State to regulate abortion as its citizens wish.“
After elaborate discussion, the opinion concludes that Roe and Casey “arrogated” the authority of “the citizens of each State” to regulate or prohibit abortion, and so the majority justices “overrule those decisions and return that authority to the people and their elected representatives.” In each case, the power of the states is capacious; the power of the federal government is closely limited, and the power of the people is subsumed within that of the states.
The Confederate Narrative Eclipses the People
How is it that the rights of the people of the United States are made to appear subsumed in a story of states’ rights? As we will show, it happens because of a compromise with slaveholding interests that led to the omission of people’s rights in the language of our original Constitution. And it happens because of a rhetorical trick designed to denigrate the Reconstruction Amendments’ measures to undo that compromise. Let us explain.
In the declaration of their independence from Britain, the soon-to-be United States announced fidelity to the “self-evident” truths of human equality and human entitlement to life, liberty, and the pursuit of happiness. But as the new nation formed its constitution, fulsome commitments to human liberty and human equality were not feasible. Why? Because human slavery was central to the wealth and productivity of the former colonies.
At the nation’s founding, enslaved people were, and had to remain, unequal in the eyes of law and deprived of rights otherwise thought to be inalienable, such as the right of reasonably limited self-governance; the right of political participation; the right to work under chosen terms; the right to travel; the right of partnership choice and family recognition; the right to choose when and whether to procreate; and the rights of custody and guardianship of one’s children.
As a result, these rights were not explicitly protected against infringement by the states. The subsequent addition of a Bill of Rights arguably extended some of these rights to all people, but the Bill of Rights bound the federal government only. It did not bind the states, and it did not guarantee equal protection of the law.
The constitutional compromise with slavery was to have been undone after the Civil War. Union victory promised what Abraham Lincoln called “a new birth of freedom.” The words of the Declaration of Independence were finally to be enforceable as the nation made a belatedly unequivocal commitment to human equality and to full protection of a core of inalienable rights. The Constitution was amended to solemnize that commitment: slavery was outlawed; citizenship and its privileges became rights of birth on United States soil or of naturalization; each person was assured equal protection of the law, and all people’s life, liberty and property were safeguarded against unreasonable deprivation.
The post-Civil War constitutional commitment to a new, national birth of freedom has consistently been undermined by the embrace of what we call the Confederate Narrative. The narrative can be understood as telling this story:
The Thirteenth, Fourteenth and Fifteenth Amendments were the work of overly zealous and vindictive Unionists who wished to punish Confederate states’ rebellion and amplify federal power. In haste to do those things, the drafters wrongfully put aside states’ rights principles that are the Union’s bedrock. Those intemperate Amendments must be read narrowly to preserve the autonomy of states and to temper the central government’s thirst for power. Reading the Amendments with an eye to protection of states’ rights is the surest way to protect the rights and freedom of the People.
As you might have noticed, the final sentence of the Confederate Narrative is a non sequitur: The rights of a state do not always align with the rights of all its people. Therein lies the rub.
The Confederate Narrative is not gospel. The story of post-Civil War constitutional reform can be told differently. We might reframe this history with the following:
The Thirteenth, Fourteenth and Fifteenth Amendments were the death knell of slavery and slaveocracy. They were the work of people who understood that human slavery had poisoned the United States polity — people who had endured Civil War carnage to end slavery and protect human freedom. These Reconstruction Amendments were a belatedly full embrace of the proposition that all people are created equal and endowed with rights that include life, liberty, and the pursuit of happiness. They enabled an egalitarian, multi-racial and fully democratic polity of free citizens.
Some might call this the Union Narrative. We have called it the People’s Narrative because its principal agents are the people of the re-United States, and in it the rights of the People are not subsumed.
The Confederate Narrative Disrupted Reconstruction
The Confederate Narrative was important in draining northern enthusiasm for nurturing Reconstruction’s experiment in multi-racial and egalitarian democracy. It helped sustain an image of a war-battered South worthy of sympathy and an image of the Civil War as an unfortunate but fully resolved battle among White2 brothers who had reconciled with mutual respect. Working in the background to shape implicit assumptions, the Confederate Narrative supported decisions to withdraw Union troops from the former Confederate states and cede control of those states to “Redeemers” professing to restore noble southern values, but bent on the resumption of White supremacy. It also worked — and it continues to work — to undermine the Reconstruction Amendments’ protections of free citizenship.
To take just one example, the Confederate Narrative had an early and stunning effect in shaping the logic of cases concerning the federal government’s power to outlaw and punish Redeemers’ racially and politically motivated violence. The 1872 case of Blyew v. United States involved two Kentucky White men who allegedly were concerned about the possibility of another war “over niggers” and set out to kill some. They were said to have hacked six members of a Black family with axes, four of them to death. State court convictions were precluded because the Black witnesses to the killings were ineligible to testify against White people in Kentucky courts.
Relying on Reconstruction legislation meant to remove cases to federal courts when justice could not be had in state courts, federal prosecutors indicted and convicted the men. The defendants appealed, arguing that the federal government did not have the authority to commandeer the prosecution of an ordinary criminal case. To the tune of the Confederate Narrative, they signaled that the Court’s decision would “influence. . .the destinies of the country” beyond the Justices’ lifetimes by “draw[ing] the line of demarcation between the powers of a great central government on the one hand and the local rights of self-government retained to the States and the People on the other.”3 The Supreme Court overturned the defendants’ convictions, but it did not address the clash between federal and state power. Instead, it decided the case on the basis of a technicality.
Federal efforts to prosecute Redeemer violence continued, and the accused continued to sound the Confederate Narrative in order escape punishment. They were successful. The classic articulation of the narrative came in Cruikshank, a Reconstruction era case involving federal attempts to prosecute perpetrators of the mass murder in Colfax, Louisiana, of Black people who were attempting to assume political control they had won with the ballot. Once again thwarting the federal government’s authority to prosecute racial and political violence, the Court gave a full-throated rendition of the Confederate Narrative. It went something like this:
[B]efore the Union was formed, the People granted power to the various states. In 1787, the States surrendered very limited powers to a federation. Powers not surrendered to the federation remain exclusively with the states, and the states serve the People by carefully guarding their reserved powers.
For this oft-repeated theory of state sovereignty, the Court cited just one case and the Preamble to the Constitution.
The Confederate Narrative Continues to Sound
The Confederate Narrative remains potent in the 21st century, serving as a seemingly neutral justification for inhibiting federal authority to protect individual and human rights. We offer just a few examples. In the year 2000, the Supreme Court invalidated provisions of the Violence Against Women Act on the ground that they exceeded federal authority to protect the civil rights of women. It relied on 19th century cases that stifled federal efforts to protect freed people. It intoned the Confederate Narrative’s questionable premise that decentralization of power is the People’s best protection against tyranny, by saying, “the Framers crafted the federal system of Government so that the people’s rights would be secured by the division of power.” And it cautioned against blurring “the boundaries between the spheres of federal and state authority.”
One would think that those who espouse state stewardship of the People’s rights might take special care to protect voting rights. After all, if the People are to be protected by their local elected representatives, the People should have full voice in electing those representatives. Not so. In 2012, federal protection of voting rights was limited by the Supreme Court’s invalidation of key provisions of legislation designed to protect access to the polls. These voting rights measures were invalidated to the tune of the Confederate Narrative as extraordinary interferences with States’ rights of equal sovereign power.
When the Court voted to ensure marriage equality for sexual minorities, each of the dissenters from the Court’s result also relied on the Confederate story that the People’s rights are best protected by protection of States’ rights. Justice Roberts decried “stealing” decision-making about same-sex marriage rights from “the People” and “from the hands of state voters,” and accused the majority of accumulating power at “the expense of the people.” Justice Scalia accused the majority of robbing the People of the liberty to govern themselves. Justice Thomas charged the majority with “wiping out with a stroke of the keyboard the results of the political process in over 30 States,” and Justice Alito accused it of usurping “the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
This brings us back to where we started: Dobbs. It is unsurprising that the majority justices in Dobbs echoed the Obergefell dissenters in their insistence that a question of human liberty be decided by state legislative bodies. As we have said, Justice Alito, writing for the Court, framed the issue presented by the Mississippi statute as a matter of returning the question of abortion choice to the control of the People’s local representatives.
The opinions of Justices Kavanaugh and Thomas also read from the Confederate Narrative playbook. Justice Kavanaugh declared that “the Constitution is neutral [on the issue of abortion] and allows the people and their elected representatives to address the issue through the democratic process.” He seems to forget that the People and the legislative branches are distinct entities and that the People have spoken through a constitutional amendment to protect their liberty against state power and to protect themselves equally. Justice Thomas also conflated the People and the legislative branches when he declared that “substantive due process [jurisprudence] exalts judges at the expense of the People from whom they derive their authority.”
The Confederate song of Northern intemperance and bitterness has faded, but the Confederate melody of states’ rights at the expense of human liberty lingers on. We cannot ignore or pretend that the Court is not “whistling Dixie.”
Peggy Cooper Davis is a Professor of Law and the Shad Professor of Lawyering and Ethics at New York University School of Law.
Colin Starger is a Professor of Law and Associate Dean of Academic Affairs at the University of Baltimore School of Law.
Aderson Francois is a Professor of Law, the Anne Fleming Research Professor, and the Director of the Institute for Public Representation Civil Rights Law Clinic at the Georgetown University Law Center.
Footnotes
- The Law Review decided to use the n-word in its entirety in this instance at the request of the authors and because the reference is a quotation from a historical document
- There is an on-going debate about the capitalization of “white.” The Law Review does not capitalize “white” in order to avoid connotations with white supremacy and white power and because “white” is a more fluid racial category. However, we respect the authors’ view that differential capitalization can emphasize and perpetuate a harmful and hierarchical distinction.
- Jeremiah Black, Argument for Kentucky, Blyew v. United States, 80 U.S. 581 (1872), reprinted in CHAUNCEY F. BLACK, ESSAYS AND SPEECHES OF JEREMIAH S. BLACK WITH A BIOGRAPHICAL SKETCH 539 (1885).