BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  June 8, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SJR  
          15 (Glazer) - As Amended July 15, 2015


          SENATE VOTE:  31-2


          SUBJECT:  Confederate States of America


          KEY ISSUE:  should the legislature urge congress and the  
          president of the united states to rename any federal buildings,  
          parks, roadways, or other federally-owned property that bears  
          the name of an elected or military leader of the Confederate  
          states of America? 


                                      SYNOPSIS


          This resolution urges Congress and the President of the United  
          States to rename federal buildings, parks, and properties  
          currently named for elected or military leaders of the  
          Confederate States of America.  The author maintains that the  
          Confederacy and its secessionist movement was rooted in the  
          defense of race-based slavery; that Confederate names and  
          symbols are offensive and painful to those living under the  
          legacy of slavery; and that the continued use of Confederate  
          names is at odds with California's values of racial equality and  
          tolerance.  Last year, the author of this measure introduced SB  








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          539, a bill that would have prohibited the use of Confederate  
          names on any state or local property and required renaming of  
          any state or local property that bore the name of a Confederate  
          leader. (SB 539 would have exempted municipalities, such as Fort  
          Bragg.)  SB 539 was vetoed by Governor Brown, who contended that  
          renaming the handful of remaining California properties bearing  
          Confederate names (apparently only two schools and one street)  
          would be best handled by local decision makers.  Unlike SB 539,  
          which would have enacted a statute with binding effect, this  
          resolution merely "urges" Congress and the President to rename  
          federal properties that bear Confederate names.  Were Congress  
          or the President to act on this resolution, it would require  
          renaming at least ten military bases named for Confederate  
          generals, as well as certain national parks, such as the Robert  
          E. Lee Memorial in Arlington, Virginia.  Last year's AJR 26  
          (Weber), which was signed by the Governor, urges Congress to ban  
          the sale or display of any Confederate flag on federal property  
          and encourages the several states to ban the use of Confederate  
          flags and symbols on state property.  This resolution under  
          review passed off the Senate Floor by 31-2 vote, with seven  
          members not voting.  There is no registered support or  
          opposition to the bill at the time of this writing. 


          SUMMARY:  Urges Congress and the President of the United States  
          to rename federal buildings, parks, and properties currently  
          named for elected or military leaders of the Confederate States  
          of America.  Specifically, this measure:  


          1)Finds and declares that whereas; 


             a)   The Confederate States of America and its secessionist  
               movement were rooted in the defense of slavery.


             b)   Using names of Confederate leaders on federal property  
               deepens the pain of those living under the legacy of  








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               slavery.


             c)   The United States continues to struggle with racial  
               equality and tolerance and the continued use of Confederate  
               names in public places is offensive to Americans.


             d)   The horrific shooting deaths of nine African Americans  
               attending church in South Carolina, and images of the  
               shooter wrapping himself in the Confederate flag, points to  
               the continued use of Confederate symbols to demean, offend,  
               and wound whole segments of our society.


             e)   The use of Confederate leaders' names in public schools,  
               buildings, parks, roadways, or other federally owned  
               property in California only serves to further the  
               discriminatory agenda of current sympathizers of the  
               ideology of the Confederate States, and is antithetical to  
               California's mission of racial equality and tolerance. 


          1)Resolves that the Legislature urge the Congress and the  
            President of the United States to rename any federal  
            buildings, parks, roadways, or other federally owned property  
            that bear the names of elected or military leaders of the  
            Confederate States of America, and to transmit copies of this  
            resolution, as specified. 


          EXISTING LAW:   None applicable. 


          FISCAL EFFECT:  As currently in print this measure is keyed  
          non-fiscal. 


          COMMENTS:  The Southern writer William Faulkner observed that  








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          "the past is not dead.  It is not even past."  Nowhere is this  
          point better illustrated than in this resolution and the  
          contemporary national debate that it represents.  Controversy  
          over the public use and display of Confederate names and symbols  
          has a long history, but the issue acquired new urgency after the  
          shooting deaths of nine African Americans while they worshipped  
          in a South Carolina church.  The victims had invited a young man  
          to join their service, and he responded by killing them.   
          Investigations into the shooter's background revealed that he  
          was a white supremacist who had, among other things, posted  
          online a picture of himself draped in a Confederate flag.  One  
          of the many reactions to the tragic shooting was a call to  
          remove the Confederate flag from the South Carolina statehouse,  
          which was eventually done.  In the weeks and months that  
          followed, other Southern localities and institutions removed  
          Confederate symbols and names from public places.  Those who  
          support these efforts argue that the Confederacy stood for the  
          defense of slavery and in subsequent years its symbols -  
          especially the Confederate Battle Flag - became symbols of  
          segregation and white supremacy.  According to the author, the  
          use of Confederate names, like the Confederate flag, is  
          demeaning and offensive to "those living under the legacy of  
          slavery" and an obstacle to our continuing struggle to achieve  
          racial equality and tolerance. 


          This resolution, therefore, urges Congress and the President of  
          the United States to "rename any federal buildings, parks,  
          roadways, or other federal owned property that bear the names of  
          elected or military leaders of the Confederate States of  
          America."  Should Congress or the President take such action, it  
          is not entirely clear how many place names would be affected.  
          Perhaps the most obvious examples are at least ten military  
          bases in Southern states named for various Confederate generals.  
           Changing the names of these bases seems more than reasonable,  
          especially given that the contemporary United States military is  
          the successor of the Union Army, not the defeated and defunct  
          Confederate Army.  Surely there are many other worthy persons  
          for whom these bases could be named.  However, changing the name  








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          of other federal properties may be more complicated.  For  
          example, General Robert E. Lee's home - a mansion occupied by  
          Union forces during the Civil War and dedicated in 1954 as the  
          Robert E. Lee Memorial - sits on the grounds of Arlington  
          National Park in Virginia.  Even if the Memorial were renamed,  
          this resolution urges Congress to rename any federal "building"  
          or other property that "bear the names" of Confederate leaders.   
          Given that the mansion was Lee's home, it is difficult to  
          imagine that the building would not bear Lee's name, even if the  
          memorial as a whole were renamed.  Nonetheless, this resolution  
          merely "urges" Congress and the President to rename federal  
          properties; it will presumably be up to Congress and the  
          President to develop the details and limits of the renaming  
          project. 


          The Confederate "Lost Cause."  According to the author, despite  
          frequent claims that the Confederate side in the Civil War  
          fought to protect states' rights, the declarations published at  
          the time make it clear that the primary issue in the Civil War  
          was slavery and the South's determination to preserve it.  When  
          states' rights were invoked, it was most often to defend a  
          state's right to maintain slavery and the social structure that  
          it supported.  Indeed, as detailed below, cases like Prigg v.  
          Pennsylvania show that Southerners were more than willing to  
          abandon state's rights and invoke federal power (in the form of  
          the federal Fugitive Slave Act) when it was necessary to  
          preserve slavery.   


          The view that the Confederacy fought to protect states' rights  
          rather than preserve slavery emerged only after the Civil War.   
          According to a number of historians, the argument that the South  
          had fought the Civil War to protect "states' rights" did not  
          emerge until the 1880s or 1890s.  In separate works, historians  
          David Blight, Thomas Brown, Cecilia O'Leary, and James Loewen  
          suggest some possible reasons for this reinterpretation.  First,  
          these historians argue, late-19th century efforts at national  
          "reconciliation" between North and South required a changed  








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          understanding of the cause of the war.  The South could only be  
          reconciled, and the efforts of its troops honored, if the war  
          was about something other than slavery.  By the 1890s, it was  
          easier to honor the South and its Confederate soldiers if they  
          had fought for constitutional principles, as opposed to slavery.  
           It was also during the 1880s and 1890s that Southern states  
          faced the first challenges to its Jim Crow segregation laws,  
          most notably in the Civil Rights Cases of 1883, and Plessy v.  
          Ferguson in 1896.  The states' rights argument was convenient in  
          that context, and the re-interpretation of the Confederate  
          "cause" gave Southern segregationists and states' rights  
          advocates an historical pedigree.  While the declarations issued  
          by the Southern states at the time of the war claimed that the  
          war was about the preservation of slavery, histories written  
          between the 1890s and 1950s greatly diminished the role of  
          slavery and suggested that the war was about states' rights and  
          Southern honor.  (See e.g. David Blight, Race and Reunion: the  
          Civil War in American Memory; Thomas J. Brown, Public Art and  
          the Commemoration of the Civil War; Cecilia O'Leary, To Die For:  
          the Paradox of American Patriotism; James Loewen, "Five Myths  
          About Why the South Seceded," Washington Post, February 26,  
          2011.)


          Prigg v. Pennsylvania and the Myth of States' Rights.  The  
          South's opportunistic commitment to states' rights was nowhere  
          better illustrated than in the case of Prigg v. Pennsylvania  
          (1842).  That case considered whether the Fugitive Slave Clause  
          of the U.S. Constitution and the Fugitive Slave Act of 1793  
          preempted so-called "personal liberty" laws enacted by Northern  
          states.  Without ever using the word "slave," the Fugitive Slave  
          Clause (U.S. Const., Article IV, Section 2) says that any  
          "person held to service of labor" that escapes to another state  
          is not "discharged from such service or labor, but shall be  
          delivered up on claim of the party to whom such service of labor  
          may be due."  This constitutional provision does not say how a  
          claim must be made or how a slave would be "delivered up" to the  
          party making the claim.  Congress established a bare-bones  
          procedure with the Fugitive Slave Act of 1793, which allowed a  








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          slave owner or his "agent" to capture the alleged runaway and  
          bring him or her before any state or federal judge to obtain a  
          "certificate of removal."  This certificate allowed the owner or  
          agent to forcibly take the alleged runaway back to the purported  
          owner.  Hoping to protect free black citizens from wrongful  
          seizures, several Northern state legislatures enacted "personal  
          liberty" laws.  These laws required agents seeking fugitive  
          slaves to meet state evidentiary and due process requirements,  
          including a requirement that any alleged "runaway slave" receive  
          a jury trial to determine his or her status.  While the Fugitive  
          Slave Law required agents to obtain a "certificate of removal"  
          from state courts, the personal liberty laws asserted the  
          state's right to impose minimum standards when agents came  
          before its courts to obtain such a certificate. 


          In Prigg v. Pennsylvania, the agent of a Southern slave owner  
          sought to forcibly deliver Margaret Morgan, whom the federal  
          census listed as a "free person of color," to a man in Maryland  
          who claimed to own her.  Using the higher standards of  
          Pennsylvania's personal liberty law, the court refused to issue  
          Prigg, the owner's agent, a certificate of removal.  When Prigg  
          attempted to take Morgan back to her alleged owner without a  
          certificate, he was arrested and charged with kidnapping.   
          Prigg's appeal eventually reached the U.S. Supreme Court.  The  
          question before the court was whether the federal Fugitive Slave  
          Act preempted Pennsylvania's personal liberty law.  Joseph  
          Story, a New Englander who opposed slavery, but who as a former  
          Federalist advocated a strong national government, issued a  
          mixed ruling.  First, he held that the Pennsylvania state law  
          was preempted by the federal law, which provided the "exclusive"  
          manner for returning fugitive slaves (or as we might say today,  
          it "occupied the field" on the return of fugitive slaves.)  But  
          Story then went on to say that while Pennsylvania could not pass  
          a law that conflicted with federal law, the states were not  
          required to enforce or participate in the execution of federal  
          law.  If the federal government wanted to return fugitive  
          slaves, it could use its own federal courts and federal  
          marshals.  State courts and county sheriffs need not take part  








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          in it. 


          Chief Justice Roger Taney, a Southern slave owner and later the  
          author of the infamous Dred Scott decision, wrote a concurring  
          opinion.  Taney agreed with the central holding - that federal  
          law preempts state law - but he wrote separately to object to  
          Story's suggestion that states could not be compelled to  
          participate in the enforcement of federal law.  Federal law not  
          only preempted state law, Taney believed; it compelled state  
          officials to enforce federal law.  If Southerners were supposed  
          to believe in states' rights, no one had told Taney.  Like other  
          Southerners, he apparently invoked states' rights when it  
          protected slavery and abandoned it when it threatened slavery.   
          (Prigg v. Pennsylvania reprinted in Hall, et.al. American Legal  
          History: Cases and Materials 233-237 (4th Ed. 2014).)  Indeed,  
          the failure of Northern states to bow to federal law was one of  
          the first issues cited in the South Carolina Declaration of  
          Secession. 


          The South Carolina Declaration of Secession.  South Carolina,  
          the first state to secede from the Union, announced its decision  
          to the world with a "Declaration of the Immediate Causes Which  
          Induce and Justify the Secession of South Carolina," in December  
          of 1860.  The Declaration's central contention is that the Union  
          should be dissolved because the federal government had failed to  
          live up to its promise, especially by failing to force Northern  
          states to comply with the federal fugitive slave law.  After  
          Northern states started to follow Story's advice by passing laws  
          to prohibit the use of state courts and county sheriffs to  
          enforce federal law, the South demanded a stronger federal law  
          to compel Northern assistance and override Northern state laws.   
          They effectively obtained this with the Fugitive Slave Act of  
          1850, as part of the compromise that brought California into the  
          Union as a free state.  But even this law was not strong enough  
          for South Carolina, as South Carolina's Declaration alleged that  
          Northern states continued to behave in ways that skirted the  
          force of federal law.  








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          Defenders of the view that the South stood for "states' rights"  
          usually cite the Declaration's invocation of the "compact  
          theory" of the federal constitution - the idea that since  
          sovereign states had made the compact sovereign states could  
          leave it - as evidence of the "states' right" interpretation.   
          But defenders of this view ignore the fact that South Carolina  
          justified secession by claiming that the federal government had  
          failed to use its power against the Northern states.  The South  
          Carolina Declaration cited the efforts of Northern states to  
          "nullify Acts of Congress" as evidence of "an increasing  
          hostility of the part of the non-slaveholding States to the  
          institution of slavery."  The final straw was the election of  
          Abraham Lincoln.  The Declaration quoted Lincoln's statement  
          that "Government cannot endure permanently half slave, and half  
          free," to argue that Lincoln planned to abolish slavery in the  
          South (despite Lincoln's repeated assurances that he only sought  
          to prevent the extension of slavery into the Western  
          territories).  Lincoln's Republican Party, the Declaration  
          claimed, sought not only to exclude slavery from the  
          territories; it wanted to wage war "against slavery until it  
          shall cease to exist throughout the United States."   
          ("Declaration" reprinted in Hall, supra 253-255.)


          In sum, any fair reading of the history of the sectional crisis  
          that precipitated a Civil War must place slavery front and  
          center.  While Lincoln and most members of the new Republican  
          Party did not initially seek to abolish slavery in the South,  
          but rather only wanted to prevent the extension of slavery into  
          the territories, the several declarations of secession make it  
          clear that the southern states interpreted Lincoln's election as  
          a threat to the institution of slavery, not states' rights.   
          This resolution, therefore, is based on the well-documented  
          historical interpretation that the "lost cause" of the  
          Confederacy was principally, if not exclusively, the defense of  
          slavery.  According to the author and others who support  
          measures similar to this resolution, there is nothing honorable  








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          about the Confederate cause and, as such, we should not honor  
          the political and military leaders of the Confederacy by naming  
          federal buildings, parks, roadways, or other federal property  
          after them.  Contrary to some of the arguments raised against  
          this and similar measures, both in California and elsewhere,  
          this resolution is not an attempt to re-write history or purge  
          history of unpleasant facts that we would rather forget.   
          Indeed, one could argue that this resolution is not an attempt  
          to forget the past, but rather an effort to remember it for what  
          it actually was.  If the Confederacy stood for the preservation  
          of slavery and its accompanying social structure, the author  
          believes, then this nation should have "no interest in  
          enshrining the names of those associated with the Confederacy,  
          its secessionist movement, or [its] ideals in our public  
          schools, buildings, parks, or other federal property." 


          The Edmund Pettus Bridge and the Complexity of Historical Names  
          and Symbols:  It is difficult to disagree with the author's  
          central premise that we have no obligation to honor historical  
          actors who fought for things that are contrary to our shared  
          values as a nation.  Few if any nations honor traitors, after  
          all.  However history and collective memory are not always so  
          simple.  How and why persons or events are remembered, and the  
          meanings we attach to them, change over time.  For example, if  
          most Americans associate the Edmund Pettus Bridge with any  
          historical person or event, they associate it with one of the  
          key events of the modern Civil Rights movement: the march from  
          Selma to Montgomery, Alabama, led by Martin Luther King, Jr.,  
          and others, to pressure President Lyndon Johnson to support, and  
          Congress to enact, what became the Voting Rights Act of 1965.   
          Americans may be less familiar, however, with the fact that  
          Edmund Pettus was a Confederate general and a leader of the  
          Alabama Ku Klux Klan.  In recognition of the role that the  
          bridge and the Selma March played securing passage of the Voting  
          Rights Act, the Edmund Pettus Bridge has been designated a  
          National Historic Landmark.  Recently, the Alabama NAACP and the  
          Southern Poverty Law Center called for the removal of  
          Confederate names from public schools and other public places in  








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          Alabama - including, apparently, from the Edmund Pettus Bridge.   
          However, Congressman and Civil Rights activist John Lewis - who  
          marched with Dr. King across the Edmund Pettus Bridge and was  
          beaten by Alabama peace officers for his efforts - believes that  
          the name of the bridge should not be changed because subsequent  
          history has created a new meaning and association.  In an  
          editorial opposing the name change, Lewis wrote:



             Renaming the Bridge will never erase its history. Instead  
             of hiding our history behind a new name we must embrace it  
             -the good and the bad.  The historical context of the  
             Edmund Pettus Bridge makes the events of 1965 even more  
             profound.  The irony is that a bridge named after a man  
             who inflamed racial hatred is now known worldwide as a  
             symbol of equality and justice . . . The landmark Voting  
             Rights Act of 1965 was born from the injustices suffered  
             on the Edmund Pettus Bridge, and the Bridge itself  
             represents the portal to which America marched towards a  
             brighter, more unified future. The name of the Bridge will  
             forever be associated with "Bloody Sunday" and the marches  
                                                                 from Selma to Montgomery, not the man for whom it was  
             named.


          It is unclear whether the designation of the Edmund Pettus  
          Bridge as a National Historic Landmark would make it a federal  
          "park" or federal "property" for purposes of this resolution, or  
          for purposes of any legislation that Congress might subsequently  
          enact.  (In addition, because the bridge is part of U.S. Highway  
          80, it is not entirely clear if it is local, state, or federal  
          property.)  But the larger point is that history, collective  
          memory, and how and why history should be recognized in public  
          spaces may be more complicated than this resolution presumes. 


          Prior Related Legislation:  SB 539 (Glazer, 2015) would have  
          prohibited, as of January 1, 2017, naming any school, park,  








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          building or other public property in California after certain  
          persons associated with the Confederate States of America, and  
          would have required the removal of existing Confederate names by  
          January 1, 2017.  SB 539 was vetoed by the Governor on the  
          grounds that removal of names from local schools and properties  
          should be handled by local governments and communities. 


          AJR 26 (Weber, Chapter 196, 2015) encourages Congress to ban  
          government use or display of the confederate flag on federal  
          property and encourages the several states to similarly ban  
          Confederate symbolism in state flags, seals, and symbols.  

          REGISTERED SUPPORT / OPPOSITION:

          Support

          None

          Opposition

          None 



          Analysis Prepared by:Thomas Clark / JUD. / (916)  
          319-2334