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I don’t know why Jack Chin says Goodbye; the Virginia Legislature Says Hello

cedarhillconfederatemonument.jpgIn a recent issue of Constitutional Commentary, Gabriel J. Chin has a very thoughtful article, “Jim Crow’s Long Goodbye,” [21 Constitutional Commentary 107 (2004)]. I applaud Professor Chin’s research, which measures vestiges of the Jim Crow era in education, primarily through a study of statutes left on the books, which are now largely unenforced. Such statutes, for instance, provided for public financing of segregation academies. While the statutes are now largely symbolic, Chin identified several that have some continuing impact on state budgets. Alabama and Mississippi both allow teachers at private schools to join the teachers’ retirement system.

Chin is correct that in order to understand the appropriate legal and legislative response to Jim Crow we must have accurate data on its extent and continuing impact.

I don’t know why Professor Chin says goodbye; the Virginia legislature says hello. Well, hello, at least, to funding the memory of the Confederacy. The Virginia Code, § 10.1-2211, provides for a modest grant ($5 per grave per year) to be administered by the United Daughters of the Confederacy for the maintenance of graves of Confederate soldiers.

State funding for cemeteries is appropriate, in my opinion. We ought to remember our ancestors and preserve their places of repose. So funding for the graves of Revolutionary War soldiers, which the legislature began to do in 2002, is appropriate. Va. Code § 10.1-2211.1. Civil War cemeteries (and in an earlier era pensions for Civil War veterans) pose particular questions, however. For in the years after the war, as the nation struggled to reunite itself, cemeteries and the seemingly ubiquitous public monuments in both north and south were places where the memory of suffering at the hands of the former enemy was kept alive and where the place of slavery in the war was forgotten. The understanding of the war in both North and South become one of Southerners fighting honorably for preservation of their homeland and for a cause they honestly (if mistakenly) believed to be just.


In July 1913, fifty years after the battle of Gettysburg, veterans north and south gathered to celebrate the anniversary. The Gettysburg reunion was a great act of national unity and of national forgetting.

Providing public funds for pensions to those who suffered during the war and for monuments is naturally divisive. In the years after the war, as the Union provided its veterans pensions, the struggling southern states were left to provide meager pensions for their veterans. Many will likely agree with the federal government’s policy of providing funding only for Union veterans; however, the policy caused hard feelings in southern states. The problem with Virginia’s action today is that it, similarly, provides funding for one group. It remembers and honors those who fought, among other purposes, to maintain the system of slavery. Virginia also should provide money to maintain the graves of slaves, which also dot the countryside.

Yet, the study of the vestiges of Jim Crow education leads naturally to a broader investigation of the vestiges of Jim Crow (the system of racial violence and of segregated schools, housing, public accommodations, and even segregated memory). We should count legislative action that contributes to that segregated memory as one of those vestiges, particularly because the funding for confederate cemeteries began in 1950, as legislatures were looking for ways to shore up Jim Crow.

The amount of money provided by the Virginia legislature to care for Confederate cemeteries is small. But the statement it makes, about the memory of the war, is not so insignificant. In our world symbols are important. As Ralph Ellison reminds us, “Since the Civil War . . . symbolic action has served as a moral substitute for armed, warfare, and we have managed to restrain ourselves to a debate which we carry on in the not always justified faith that the outcome will serve the larger interests of democracy.” The preservation of cemeteries is a worthy and noble cause. I hope that we will consider the inequities in funding some cemeteries and not others.

The picture is from the Cedar Hill Cemetery in Suffolk, Virginia. In the interest of full disclosure, I should say that one of my hobbies is visiting cemeteries, and one of my areas of interest is cemetery law. Maybe in the spirit (ha, ha) of Ann Althouse’s pictures of Madison, I’ll post some pictures of my favorities cemeteries, like Tuscaloosa’s Greenwood Cemetery.

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    4 Responses

    1. Goodbye Jim Crow?

      Al Brophy has posted an interesting piece at Concurring Opinions.  Professor Brophy writes:  "In a recent issue of Constitutional Commentary, Gabriel J. Chin has a very thoughtful article, “Jim Crow’s Long Goodbye,” [21…

    2. In Consideration of Modern Vestiges of Jim Crow

      Virginia’s Department of Historic Resources has a statutorily mandated fund specifically for the preservation of the graves of Confederate soldiers. Professor Al Brophy discusses the state funding in his review of Professor Gabriel J. Chin’s recent art…

    3. Mike Hill says:

      Professor Brophy’s insight into the Virginia Legislature’s love for historical cemetaries, specifically that of the Civil War, is quite compelling. However, the Civil War, itself, is a historical byproduct. The funding attributed to the upkeep of the cemetary, in a less pessimistic view, is more of a contribution to history, not a contribution to a particular viewpoint (i.e. slavery). The only agreement that surfaces from Civil War historians is that many good able bodied men sacrified their lives for their strongly held beliefs. (Albeit, slavery, economics, Northern Aggression, federalism, etc.) For this and only this reason should the Virginia legislature continue to fund the Civil War cemetaries.

      Additionally, Professor Brophy supports the funding of the Revolutionary War Cemetaries for the just reason that we ought to remember our ancestors. Bravo! I agree with him completely! However, one, if so inclined, can argue that the Revolutionary War, especially in the context of the icons of the Revolutionary War, was a war fought not for strongly held COMMUNAL principles but for power and greed. Many of the figures of the Revolutionary War were selfish individuals concerned with their own power struggle, rather than the struggle between the colonists and the crown. Furthermore, the end consequence of the War was an acknowledgment that anarchy, fueled with “weapons of mass destruction” (in those days, pitch forks and canon balls) trumps political dissent. And, as a brief aside, has Professor Brophy forgotten that numerous “gods” of the Revolutionary War used their slaves to fulfill their every sexual craving? Such a pessimistic viewpoint of the Revolutionary War does injustice to those who fought for their strongly held beliefs. (Albeit, slavery, British Aggression, economics, power, greed, etc.) Are we now to say that any vestige of the Revolutionary War be striken from the rolls of history? I think not! Each historical moment should be placed in context!

      I believe the only difference with those that revere the Civil War and those that revere the Revolutionary War is a geographical boundary. Those from the Northern states tend to view the Revolutionary War as their place in history (even if their ancestors were possibly slave owners). However, the Southerners cannot relate to such reverance. Southerners must support a history with that which they can see themselves and their ancestors – The Civil War (even if their ancestors were possibly slave-owners)

    4. Mike Hill says:

      Professor Brophy’s insight into the Virginia Legislature’s love for historical cemetaries, specifically that of the Civil War, is quite compelling. However, the Civil War, itself, is a historical byproduct. The funding attributed to the upkeep of the cemetary, in a less pessimistic view, is more of a contribution to history, not a contribution to a particular viewpoint (i.e. slavery). The only agreement that surfaces from Civil War historians is that many good able bodied men sacrified their lives for their strongly held beliefs. (Albeit, slavery, economics, Northern Aggression, federalism, etc.) For this and only this reason should the Virginia legislature continue to fund the Civil War cemetaries.

      Additionally, Professor Brophy supports the funding of the Revolutionary War Cemetaries for the just reason that we ought to remember our ancestors. Bravo! I agree with him completely! However, one, if so inclined, can argue that the Revolutionary War, especially in the context of the icons of the Revolutionary War, was a war fought not for strongly held COMMUNAL principles but for power and greed. Many of the figures of the Revolutionary War were selfish individuals concerned with their own power struggle, rather than the struggle between the colonists and the crown. Furthermore, the end consequence of the War was an acknowledgment that anarchy, fueled with “weapons of mass destruction” (in those days, pitch forks and canon balls) trumps political dissent. And, as a brief aside, has Professor Brophy forgotten that numerous “gods” of the Revolutionary War used their slaves to fulfill their every sexual craving? Such a pessimistic viewpoint of the Revolutionary War does injustice to those who fought for their strongly held beliefs. (Albeit, slavery, British Aggression, economics, power, greed, etc.) Are we now to say that any vestige of the Revolutionary War be striken from the rolls of history? I think not! Each historical moment should be placed in context!

      I believe the only difference with those that revere the Civil War and those that revere the Revolutionary War is a geographical boundary. Those from the Northern states tend to view the Revolutionary War as their place in history (even if their ancestors were possibly slave owners). However, the Southerners cannot relate to such reverance. Southerners must support a history with that which they can see themselves and their ancestors – The Civil War (even if their ancestors were possibly slave-owners)