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What Would the Founding Fathers Do: Confederate Flag Controversy

The South Carolina Confederate flag controversy through a jurisprudence lens.

Photo by Perry B McLeod (Flickr).

Jurisprudence is defined as the science and philosophy of law.  The definition of jurisprudence serves as a clear roadmap to form an idea of how the application of current laws will serve a future purpose.  First, science is knowledge of the physical or material world gained through observation and experimentation.  Science is taking the facts of today and defining them as they currently are.  In a way, science, in this regard is the same as saying, “This is how the world is.”  Second, philosophy is the critical study of the basic principles and concepts of a particular branch of knowledge, especially with a view to improve or reconstruct them.  Philosophy is the application of science for future implications.  In better words, “This is how the world should be.”  In order to understand the science of today and the philosophy of tomorrow in regards to law, the development of historical law must also be taken into account.

The concept of defining items and people based on their names begins in the early years of life.

In order for individuals to understand and apply legal jurisprudence, human nature must be the starting point in the analysis.  Philosophy scholars continue to debate if human nature is inadvertently good or bad and regardless which side of the proverbial fence is correct, for the limited application of this essay, only a few ideas should be accepted as true.  First, human beings are creatures of judgment and assigning.  Second, it is human nature to associate with those of similar beliefs and third, all individuals harbor a subconscious as well as a conscious bias, developed from past experiences, toward every situation that they encounter during the day.

First, human nature, (or at least human habit) has a distinct judgmental property. A name is no more than a title assigned to a string of personal beliefs held by an associating party.  Judgment begins as soon as a name is heard, or a handshake is exchanged. Individuals constantly scan other people and add to their subjective assignment of defining characteristics. This notion extends to every titled object and named person in existence.

The concept of defining items and people based on their names begins in the early years of life. Parents will typically point and vocally say the name associated with something. For example, when the child learns “dog” in association with the Canine species, the child also begins to attribute past associations, both good and bad with the dog.  This association behavior does not end at puberty unfortunately. As children grow into adults, they pick up not only their own experiences, but also the experiences from other individuals.  The combination of personal beliefs with outside influence can be considered societal categorization.  Over the years the body ages and the mind gains experience to form the ever changing beliefs and understanding of each individual. A viewpoint becomes no more than a title associated to a mental “folder” containing experiences and knowledge pertaining to the view.

Second, within societal categorization, biases are formed surrounding a belief, a place, or an activity.  Within these societal categorizations, individuals tend to associate with like-minded people.  For example, political parties, fraternities, sports fans, student organizations and lobby groups.  The association is so that the individual can benefit from the actions of the societal group.  Society then, is formed based on individuals who have had similar backgrounds or understandings.

The differences in goals and beliefs create problems in understanding just what mankind represents

The interrelationships that mankind has within its own species vary, the truth and reality differ from individual to individual.  Looking at mankind as a whole, there are hundreds of different nations, each with a separate agenda and goal.  The differences in goals and beliefs create problems in understanding just what mankind represents.  A man from South Africa has a different set of morals than a man in South Dakota.  Two men within South Dakota have a different set of morals as well.  The congruity between the species is slim to non-existent or simply not understood; this is because terms such as “Success,” “Happiness,” “Needs,” and “Wants” are undefined on the larger scale and widely different when looking from individual to individual.  This lack of definition leads to confusion, assumption and misunderstanding between people of different faiths, societies and communities.

A closer look at what “society” is and what the “self” entails is required in order to understand why there can be such a difference from person to person.  Consider “society” as all of the beliefs, found in the people within a desired scope, coming together to form a common set of ideals and goals; Success in the society of the United States may be to have a stable income and a loving family…However, today this may be too broad. Since the definition of society truly depends on the individuals that are included in the society and the belief of the majority of the individuals, there is always room for disagreement.  Within the society lies sub-societies as small as a PTSO club at a school and as large as the factionist political parties of today.  Society only embraces the loudest voice, the strongest arm, and the accepted norm.

A closer look at the term society reveals that the definition that is assigned to the word depends on the scope.  The world society is far different than the society of Raleigh, North Carolina.  This is not to say that one’s definition or society is better than another, the difference is only due to different social norms applied at the local level.

The First Amendment sprouts from a history in the United States for religious persecution.

Viewing society at its different social levels creates a cacophony of different beliefs, practices, faiths and norms that cannot be easily reconciled or standardized by any form of government.  Diversity can be narrow between neighbors or broad between cultures.  The differences reach endless possibilities based on perception; however, the similarities are simple.  Every individual across cultures and societies of the world wish to be successful.  Everyone aims to be happy; even if unhappiness makes them ultimately happy. If this is accepted as true, the next question becomes how can mankind create a society to make every individual happy while addressing the differences in beliefs?

As stated before, when individuals form into a society, they tend to group together with people who hold similar values and beliefs.  In the 1700’s, thousands of likeminded people set out toward a new world in order to create an isolated colony of like minded people.  Their colonies were places where their beliefs could be expressed without outside influence or control.  These beliefs were taken into account in the forming of the United States of America.  The First Amendment sprouts from a history in the United States for religious persecution.  In 1771 Virginia, 50 Baptist worshipers were jailed for preaching the Gospel contrary to the Anglican Book of Common Prayer.

The problems arose when the cultures of like minded ideas intersected. Different societies existed together; however, individuals continued to gather with others who believed similar beliefs.  In doing so, they formed adverse positions to other groups within their geographical society; an adverse position can be commonly referred to as a faction within the society.

During the founding, key decisions by the drafters of the American Constitution created a system that was doomed to be controlled by the faction system.  By creating a shorter “broad reaching” constitution the founders left room for interpretation.  Interpretation that has been inevitably based upon the beliefs of the majority.

The founder’s intention was to create a system that could be applied to any time frame.  The Constitution has proven to be capable of living up to that intention; however, the broad constitution has its limitations.  Whenever a broadly written document is applied to a situation, opinions fill the gaps and add definitions to the words that were purposely undefined due to the changing nature of definitions.  For example, when the Supreme Court writes a decision, societal and individual biases and influences help to sculpt the overall interpretation of the constitution.  These biases are focused on what the constitution represents based on their understanding of the document.

Factions push to constrict laws around the rights of their fellow citizens; however, factions only act in pursuant to their beliefs.

A faction as defined by Federalist 10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Factions, in Madison’s opinion, are strictly harmful to the community.  Factions push to constrict laws around the rights of their fellow citizens; however, factions only act in pursuant to their beliefs. Sometimes this belief may be anti-democratic in nature, however, other times it is simply to preserve a way of life from an evolving society.

Within his definition of faction comes the understanding of sub-society.  A sub-society is simply a number of citizens with a similar belief who are united and actuated by some common impulse of passion. To Madison in Federalist 10, the sub-society becomes a faction only when it acts in opposition to the Society at whole.  In Madison’s view,  factions are seen as the young upstarts who are trying to change society; however, these groups are only one side of a two sided coin.  Madison overlooks that Factions occur at two key points in the life of a society: Before the change and After the change.  Before the shift factions, “B-Factions” are the “young upstarts” who wish to see a change. After the shift factions, “A-Factions” are the resisters to the change. The group that yells NO during the change but are unheard or overpowered by the B-Faction. A-Factions only occur in response to a B-Faction and do not always form a strong enough resistance to foster a change.

For example, in response to a racially motivated massacre in Charleston, SC a “before the change” faction grew and succeeded in removing the confederate flag from the statehouse grounds.  The pressure from the B-Faction caused society overall to form a polarity.  They stirred the pot to create a society that, for a time, entered an undefined standard. Society turned to the legislature to answer the challenge to what was an accepted norm for the state of South Carolina.  The legislature acted and decided to take the flag down. Before their decision, the argument from the standing norm of society was that the flag was a part of the state’s heritage and history instead of a signal of oppression.  Thus, after the change, that belief became the A-Faction’s foundation to resist the removal.

Madison in Federalist 10 offers two major ways to cure the evils of factions; First, by removing its causes and second by controlling its effects.  The first is, as Madison puts it, to destroy their liberty; or as we understand it, the right to stand up for their beliefs; “Liberty is to faction what air is to fire, an aliment without which it instantly expires.” He continues on in the same paragraph to state that to remove liberty would remove democracy. This type of cure is similar to the idea that in order to get rid of genetic defects, any individual with genetic defects would simply be euthanized.  “The cure,” in both situations, is much worse than the original problem.  Madison addresses this only to raise the idea that faction will always be part of a democratic society because it is a rotten child, but a child of liberty all the same.

The real option that Madison offers to quell a faction is to control its effects. Madison offers in Federalist 10 that the two ways to control its effects would be to either not allow the same passion or interest in a majority to occur or, not allow the majority to be able to concert and carry into effect the schemes of oppression. He continues further to claim that the democratic republic system works to control its effects; however, what history has proven is that it is unable to fully control the effects.  Fear slips into the majority and cause awkward decisions such as Korematsu. The question then becomes; how does society fix the loopholes in the democratic system to destroy the cyclic faction system?

The solution that Madison offers in to cure a faction can be seen when federalist 10 jurisprudence is applied to the confederate battle flag debate in South Carolina.  The state legislature decided that the flag should be removed from the state house grounds.  Their decision is debated within South Carolina because they were too focused on countering a scheme of oppression than seeking a truly fair solution to the problem facing the state.

One possible solution to control the effects of a faction would be to find a solution that negates the foundation of the arguments held on both sides.  The reason individuals use politics as a medium for factional causes is because they have the ability to make a change based on that issue.  If the democratic republic sides with one side of an argument, they agree to oppress a minority view.  The allowance for a faction to control the subject will remove the liberty of the minority group.  If the government instead acts in order to establish fairness and equality, the liberty, and freedom of individuals will be preserved.

Countering their arguments may be considered similar to making the faction unable to concert and carry into effect the schemes of oppression.  By removing the vehicle of oppression the individuals can no longer press their prejudice upon the government and removes the ability for the majority or minority to fight at all; the solution would prevent an A-Faction from forming.  In effect, it limits their liberty to oppress; such liberty is not protected by the constitution.

[I]t is easy to see how the [Confederate] flag was seen as a symbol of oppression to the B-Faction.

In application, this third option is similar to quashing the reason for the A-Faction to form.  Analyzing the problem further, there is a clear solution to the issue of the confederate battle flag in South Carolina.  The A-Faction in this case is formed on the basis of historical significance of the flag.  Controversially, the flag was put up on the state house in response to the civil rights movement of the 1960’s.  Therefore, it is easy to see how the flag was seen as a symbol of oppression to the B-Faction.

Taking down the flag all together, however, did not address both sides of the argument.  To take both concerns into consideration, a possible solution would be to preserve the entire history of the state and elect to fly every flag related to the tradition and heritage of the state; colony flags, revolutionary war flags, civil war flags, civil rights flags, and any other flag that would be deemed historically significant to the state.  To give the people of South Carolina the choice to include all flags or no flags would counter the argument that the removal of the Confederate Battle Flag destroyed part of the states tradition and heritage.

The claim of historic importance would be preserved and the argument to leave the flag flying alone would be moot.  The B-Faction’s argument that flying the flag at the statehouse is equal to support in the symbol of racial oppression would also be moot since it would be among the full history of the state and the fight for equality.  There is no question that the confederate battle flag that flew at the state house was a symbol of oppression for decades in South Carolina.  There is no question that the confederate flag did not deserve to fly alone because of the negative connotations associated with it.  The question is whether the means to argue was removed from both sides would it have created a proper correction to the political issue?  The only A-Faction that could be formed after such a solution would be one that was motivated by truly racial motivations on its face and would not be supported by the constitution.

Cyrus Corbett V, Associate Editor Emeritus
About Cyrus Corbett V, Associate Editor Emeritus (16 Articles)
Cyrus Corbett V is a 2017 graduate of Campbell Law School and served as an Associate Editor for the Campbell Law Observer during the 2016-2017 academic year. He is from Murrells Inlet, South Carolina and received his Bachelors in Arts in Government from Wofford College in 2014. Since July after his first year of law school, Cyrus has interned at the North Carolina Retail Merchants Association in downtown Raleigh focusing on the Retail Merchants Handbook. His interest is in jurisprudence of the law and negotiation/ mediation.
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