Symbolism and the Thirteenth Amendment: The Injury of Exposure to Governmentally Endorsed Symbols of Racial Superiority

Edward H. Kyle January, 2020

Acknowledgment:

I would like to acknowledge the guidance of Prof. John Q. Barrett in the drafting of this Article and my wife, Christine, and daughter, Gracie Lou, for their love and support during its creation.

Abstract

One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state that merely asserting offense at a message does not meet this requirement, even if the message is offered by the Government. In this article, I show that holding to be incorrect.

The Constitution provides certain absolute rights that the government may not infringe upon. One of those rights is the right to be free from slavery, which the courts have expanded to include all of its badges and incidents. Though courts have gone back and forth on what constitutes a badge of slavery, a historical look at the Thirteenth Amendment shows that amongst the things the drafters intended the definition to include was the philosophical message of racial supremacy if it is communicated by the government. In my article, I demonstrate that the scope of the Thirteenth Amendment includes a ban on the governmental endorsement of racial supremacy, including endorsements made in the form of symbols. I show that mere exposure to such a message is the unique form of injury that a violation of that right creates and, as such, is a concrete harm on which Article III standing can be based. Finally, I provide a workable test for determining whether a particular exposure to a symbol of racial superiority possesses all the elements necessary to constitute an injury in fact for the purposes of standing.

I. Introduction: The Case of Moore v. Bryant

Close to the time of its founding, the fictitious town of South Park, Colorado voted on the new town’s flag.¹ The locals decided on a design featuring a dark yellow field with four cheering White human figures gathered around a gallows on which a Black figure was hanging by his neck.² Later generations would call for its change, stating that such a symbol sends a strikingly clear message to the viewer: the town government favors racial supremacy.³ It condones the right of the White race to treat the Black race any way it sees fit and communicates that the city government still harbors and endorses at least one of the elements that led to and maintained the institution of American slavery.⁴ Many people would like to believe this is a simple work of fiction; nothing more than a satirization of the debate between heritage and hate that could never actually happen in the United States of America. Unfortunately, these people may be wrong.

In 2001, voters in the State of Mississippi were presented with the question of what the visual composition of their State flag would be.⁵ They decided to maintain the 1894 design, which featured three horizontal bars of blue, white, and red, as well as a depiction of the Battle Flag of the Army of Northern Virginia (commonly referred to as the “Confederate Battle Flag” or the “Confederate Flag”)⁶ prominently placed in the upper left corner.⁷ To many voters, the design represented the history of their State and a pride in their Southern culture and way of life.⁸ However, for others it was a reference to a dark period in American history when the Government not only tolerated but also actively endorsed the institutions of white supremacy and human slavery.⁹ Carlos Moore was of the latter opinion.

Mr. Moore was an African American citizen of Mississippi who claimed his family line traced back to slaves of the American south.¹⁰ Since Mississippi State law called for the display of the State flag in front of all public buildings,¹¹ Moore was consistently exposed to it and its perceived message –both as a private citizen and due to his employment as an attorney, as a local professional.¹² He found it difficult to conduct his professional and personal life and began suffering increased anxiety due to the constant reminder that his State favored a social construct in which he was considered, at best, a second-class citizen.¹³ More concerning for him was the flag’s effect on his daughter, a school-aged child who would be taught to honor and compelled to pledge allegiance to a perceived symbol of her subjugation.¹⁴ Since the flag was the result of a public vote, there was no aid for him in the halls of his State legislature or executive offices, so he went to the courts for relief from the message. Unfortunately, no comfort was to be found there either.

Judge Reeves of the United States District Court for the Northern Division of the Southern District of Mississippi gave an impassioned response to Moore’s position.¹⁵ In an eleven-page analysis, Judge Reeves tracked the use of the Confederate Battle Flag from its origins in the Confederacy through its usurpation by modern hate groups.¹⁶ In his written opinion, he emphasized that the purpose of the symbol as adopted by Mississippi was to tell the rest of the Union that Mississippi continued to believe that the Black race was not equal to the White race, and that the State refused to acknowledge otherwise.¹⁷ In essence, he concluded, it was the same type of sentiment that had contributed in part to the institution of slavery, the War for Southern Independence, and the civil unrest that followed.¹⁸ Despite his apparent agreement with Moore’s position, Judge Reeves then slammed closed the doors of the courthouse.

While Judge Reeves felt that Moore’s argument was factually correct, Moore had failed in one key legal aspect: he had not shown himself to have standing to bring his case.¹⁹ Judge Reeves held that the injury Moore complained of, a physical ailment due to the stigmatic unequal treatment of his race in violation of the Fourteenth Amendment, was not sufficient to establish standing (in other words Moore’s right to be heard in court).²⁰ The Supreme Court decided in Allen v. Wright that mere discrimination was not a sufficient injury under the Fourteenth Amendment.²¹ The discrimination must be accompanied by a particularized, tangible injury to the individual resulting from the challenged action.²² Since Moore could only point to generalized injuries, none of which constituted an act of discrimination against him or demonstrated some form of unequal treatment, he had no personal grounds on which to challenge the flag. Though Moore also complained of a violation of his Thirteenth Amendment right, Reeves dismissed this argument in a footnote, stating that Congress had not passed any statute or resolution addressing or defining the Confederate Battle Flag as a badge of slavery and therefore, it was not a violation.²³

On appeal, the Fifth Circuit affirmed Judge Reeves’s conclusion regarding standing.²⁴ Writing for a unanimous three-judge panel, Judge Higginson emphasized that mere exposure to an offensive message, even one spoken by the government, is not a sufficient injury to grant standing under the Equal Protection Clause of the Fourteenth Amendment.²⁵ Simply stated, since Moore could not demonstrate some personalized, concrete injury resulting from an act of discrimination conducted in response to the flag, the federal courts had no grounds to hear his case. In his appeal, Moore dropped the Thirteenth Amendment complaint and the Fifth Circuit did not refer to it.²⁶

Later that year, Moore filed an appeal to the U.S. Supreme Court.²⁷ At first, it appeared the Court intended to hear the case, which would have served as an opinion of first impression on the question of standing with regard to racial symbols. The Court ordered extended time for the submission of briefs and requested a brief from the State of Mississippi, which had previously waived its right to provide one.²⁸ Then, without providing explanation, the Court denied the petition.²⁹ Just like that, the issue was closed.

Regrettably, the courts and Moore’s legal team failed to see the true nature of the case and what injury the flag may have been producing. Neither party properly applied the Thirteenth Amendment to a situation it was designed to address. Specifically, if the Confederate Battle Flag was indeed offered as a symbol of the State’s endorsement of the philosophy of racial superiority as it existed under the institution of U.S. slavery, then the flag was conveying a message that the United States Constitution specifically forbade the government from expressing. The injury was the exposure to that message. The proper course of action should have been an examination of that symbol in court.

In this article, I will start by examining the Thirteenth Amendment and demonstrate that part of its intended purpose was to forbid the governmental endorsement of racial supremacy. I will then show how exposure to such a message alone is a sufficient injury to establish standing under Article III of the U.S. Constitution.

II. Article III Standing and the Badges of Slavery

A. The Elements of Standing

Under Article III of the United States Constitution, for a party to bring an action in federal court, they must have a personal case or controversy.³⁰ This has been interpreted as meaning that a party must (1) have suffered an “injury in fact” (2) that is “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” (3) which is traceable to the challenged actions of the defendant, and (4) which is likely to be redressed by a favorable decision.³¹ The injury in fact must be particularized, meaning that a plaintiff must show that they personally have a legally protected interest that was violated by the actions of the defendant.³² The injury must be concrete, meaning that it may not be a mere “psychological consequence presumably produced by observation of conduct with which one disa-grees.”³³ However, this does not mean that the term is limited to tangible injuries only.³⁴

When faced with an intangible injury, the courts may determine that standing exists if history and the judgment of Congress point to the intangible harm as being one that traditionally provided standing under U.S. or English law, such as the violation of an absolute and protected right.³⁵ If the Constitution creates an absolute right and if a person is deprived of that right, then an injury has occurred regardless of whether there is any other effect.³⁶ One such right, as will be shown below, is the right to be free of the badge of slavery that results from the government’s endorsement of the message of racial supremacy.³⁷ A plaintiff need not meet the elements of standing with definitive proof in order to be heard in court; they need only be able to make “general factual allegations of injury.”³⁸ Naturally, there will always exist the requirement that the allegations are true and provable at trial.³⁹

B. Courts Have the Power to Determine for Themselves What the Badges of Slavery Are

An area of contention in Thirteenth Amendment jurisprudence is whether the courts have the power to determine, without an act of Congress, whether a specific indicator constitutes a badge of slavery. Nearly every decision the Supreme Court has made regarding the Thirteenth Amendment refers to Congress’ power to create laws under the Amendment.⁴⁰ This, however, does not mean that the courts have found such power to belong purely to the legislative branch.

Justice Brewer stated that “[t]his amendment denounces a status or condition, irrespective of the manner or authority by which it is created.”⁴¹ Though the Court has never explicitly declared something to be a badge of slavery, it has indicated that the courts possess such an ability. The Thirteenth Amendment has been held as self-executing, which means it does not require an act of Congress to be implemented.⁴² Though Congress has broad power under the second clause of the Amendment, that power is meant only to facilitate enforcement.⁴³ The amendment itself was meant to provide rights that Congress does not have any power to limit by refusing to legislate them into being. Simply stated, just because Congress has not declared something to be a badge of slavery does not mean that it isn’t or that the Courts are forestalled from making such a determination.

Still, this is not without some contention. In Palmer v. Thompson , the Supreme Court held that a municipality’s decision to close public swimming pools rather than integrate them was not a violation of the Thirteenth or Fourteenth Amendment because the statute was neutral on its face and in its effect.⁴⁴ When discussing the Thirteenth Amendment, Justice Black, who a year earlier in Oregon v. Mitchell seemed to agree with the Court’s power to determine the badges,⁴⁵ held that the refusal to allow Blacks and Whites to swim in the same public pool was not a badge of slavery because Congress had not passed a law regulating pools.⁴⁶ He stated: “[e]stablishing this Court’s authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country would grant it a lawmaking power far beyond the imagination of the amendment’s authors.”⁴⁷ While this position has never been directly overturned, neither the Supreme Court nor any other federal court has cited Palmer in support of it. Further, the Court indicated in later opinions that the courts retained the power to define a badge of slavery.⁴⁸ Even the example case of Moore does not point to Palmer or any Supreme Court case asserting that the courts may not determine what is a badge of slavery.⁴⁹ There, Judge Reeves cited two Fifth Circuit cases that held that Congress has the power to define the badges, but neither case directly stated the power was Congress’ alone.⁵⁰

From the holdings of the Court, it is clear that while Congress has the power to define the badges of slavery, it is not a power granted to them alone. The Court need not refrain from hearing a case purely because the harm is rooted in a symbol not addressed by Congress.⁵¹ In fact, if the threat to the rights protected is truly one of great social concern, it may be argued that the courts not only have the power, but also the duty to make such a determination.⁵²

C. Defining the Badges of Slavery

Before it can be established that freedom from governmental endorsement of racial supremacy is a right under the Thirteenth Amendment, how the Amendment has been interpreted and what it was meant to encompass must be examined. When interpreting any Constitutional provision, especially one that is a direct result of significant historical events, it is important to consider what the provision meant to the country at the time it was written.⁵³

Following the War for Southern Independence, the nation was faced with the question of how to prevent the evils it perceived as causing the conflict. Most pressing was the issue of the freed slaves in the South, and what their status would be moving forward. Despite the fact that they had been liberated through war and proclamation,⁵⁴ the Constitution itself did not recognize them as citizens or assign them a right to be free.⁵⁵ To remedy this, in 1865 the States ratified the Thirteenth Amendment to the Constitution.⁵⁶ Its wording was plain “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”⁵⁷ Yet, seemingly before the ink of the words was dry, their exact meaning became nothing short of a complicated debate.

On its surface, the meaning of the amendment seems straightforward. The literal action of enslaving another person is forbidden.⁵⁸ However, early in the amendment’s history the Court read more into those words than plain liberty.⁵⁹ Justice Bradley famously wrote that the Amendment did not just bar the actual act of slavery, but also all of its “badges and incidents.”⁶⁰ He held that the Thirteenth Amendment was not merely aimed at laws allowing slavery or even just at the actual act of enslavement, it also had a “reflexive character… establishing and decreeing universal civil and political freedom throughout the United States.”⁶¹ This reflective character empowered the Amendment to not just ban slavery itself, but also all of its elements and indicators.⁶²

The question remained of how exactly to define these badges and incidents. The Congressional debates around the ratification offered no clarification. Many Congressmen of the time argued that their intention in proposing and voting on the Amendment was simply to free the black man, nothing more.⁶³ Others argued that nothing short of true racial equality was the mission of the Amendment.⁶⁴ Senator Harlan, for example, argued that the removal of slavery also meant the removal of all of its incidents, meaning there should be no right provided to a citizen essential for the condition of freedom that was denied because of a person’s race.⁶⁵ The only point of agreement was that the state of forced servitude was to be banned.

The most telltale evidence of the interpreted meaning of the Amendment is the concept of a “badge” of slavery.⁶⁶ The Oxford dictionary defines “badge” as “a feature or sign which reveals a particular quality.”⁶⁷ At its core, therefore, prohibiting the badges of slavery includes the barring of any feature or sign that would reveal the status of slavery in a person. The nature of these features or signs of slavery went through a transition during the period of ratification of the Thirteenth Amendment.⁶⁸ Prior to its passing, many considered a “badge of slavery” to be the color of a man’s skin or some other physical indication that, in the eyes of society and the law, he was inferior.⁶⁹ Since the passage of the Thirteenth Amendment removed the color of a man’s skin as an indicator, many began to see the term as referring to legal restrictions placed on the civil rights of a citizen due to his race.⁷⁰ Looking at both meaning and history, it becomes clear that the focus of the Amendment, at a minimum, was to remove not only slavery itself but also any indicator – physical or civic –that the person was considered a slave. Since the Thirteenth Amendment is applicable against all actors, state and private, this bar on the indicators of slavery applies equally to all level of government.⁷¹

When the Supreme Court heard The Civil Rights Cases , it seemed ready to venture into this quagmire of a definition. Instead of elaborating on the term, however, Justice Bradley unsuccessfully sought to confine it. While declaring that the Thirteenth Amendment bans more than the act of enslavement, he also carefully explained that the goal of the Thirteenth Amendment was not to create equal citizenry.⁷² He wrote that the purpose was only to emancipate the former slaves to the same extent as the Black men of the Northern States.⁷³ Justice Bradley discussed how the envisioned Amendment was intended to make Blacks of the south the same as their northern brethren.⁷⁴ At the time, Black citizens of the north were free but did not enjoy all of the rights of the White men.⁷⁵ Since a person in such a state of second-class citizenship⁷⁶ was considered a freedman that must have been what was intended by the Thirteenth Amendment.⁷⁷

After The Civil Rights Cases , the Supreme Court has never offered a clear definition or test for the term. At times the Supreme Court has endorsed a narrow meaning, confining the term to the literal, physical bondages of slavery, while at other times it seemed to be holding the door wide open for a broad interpretation.⁷⁸

The modern precedent for the definition of “badges of slavery” comes from Jones v. Alfred H. Mayer Company , in which the Court held that the Civil Rights Act of 1968 barred racial discrimination in the selling of private as well as public property.⁷⁹ Though Justice Stewart never directly defined the term, he strongly indicated that it meant more than mere physical freedom.⁸⁰ He held that it at least meant that all races had the freedom to enjoy the same civil rights, in that case specifically the right to purchase property.⁸¹ Though vague, his holding implies that the Court considers section one of the Thirteenth Amendment to go beyond physical liberty. At the same time, the Court directly overruled Hodges v. United States , which had called for a narrow definition of the term.⁸²

Modern legal scholars continue to debate what the badges are and specifically how to identify them.⁸³ The test that is gaining the strongest footing in modern courts seems to be the one proposed by Associate Professor McAward of the University of Notre Dame Law School. After a lengthy exploration of the history of the term, she stated that, “[i]n its most general sense, the term ‘badge of slavery’ therefore refers to indicators, physical or otherwise, of African Americans’ slave or subordinate status.”⁸⁴ Accordingly, the proper test looks to whether the challenged indicator is one that was traditionally associated with a slave or subordinate status and whether its allowance has significant potential to lead to the de facto re-enslavement or legal subjugation of the targeted group.⁸⁵ Due to this test reflecting the base line concerns of the drafters of the Thirteenth Amendment, the federal courts are embracing it more and more.⁸⁶

The central theme that can be taken from all of these definitions and tests is that, if nothing else, the Thirteenth Amendment was intended not just to ban the physical act of slavery. Its purpose was to also ban all of slavery’s individual elements that would have the effect of indicating that the targeted person is of a subjugated race and whose allowance could lead to the de facto subjugation of that race.

D. Racial Supremacy v. Racial Discrimination

It is important to note here that what is being discussed is the message of racial supremacy, not racial discrimination. While this may seem like splitting a fine hair, it is an important distinction for the purposes of Thirteenth Amendment analysis. Webster’s Dictionary defines “supremacy” as “the quality or state of having more power, authority, or status than anyone else.”⁸⁷ It defines “discrimination” as “the practice of unfairly treating a person or group of people differently from other people or groups of people.”⁸⁸ Racial supremacy has to do with an actual state of existence, specifically that one’s state is superior to another’s because of race. Discrimination deals not with a state of existence, but rather with a method of treatment. Looking at the content and effect of the Thirteenth and Fourteenth Amendment, this distinction appears to have been in the minds of the drafters.⁸⁹ The Thirteenth Amendment deals specifically with a state of existence—that of freeman versus slave—while the Fourteenth aims specifically at methods of treatment under the law.⁹⁰

The Court has spoken very clearly about standing under the Fourteenth Amendment.⁹¹ It has held that for a person to have standing the claimed injury must not be merely stigmatic; there must be an accompanying tangible unequal treatment.⁹² This approach is not being challenged here and makes logical sense, considering the subject matter of the Amendment. Naturally, an Amendment meant to forestall unequal treatment may not be violated unless someone has suffered an injury resulting from unequal treatment.⁹³ This must logically differ, however, from an Amendment meant to prevent a state of existence. What the Thirteenth Amendment aims at is the institution of slavery as a whole, including the elements necessary for its existence.⁹⁴ The concern is not the harm of being unequally treated, but the promotion of the existence of the institution.

When deciding which amendment to apply to a particular case, this distinction is remarkably important, and it reflects the mistake made by the parties and courts in Moore . If what is being questioned is the treatment of the individual under the law, then the Fourteenth Amendment is proper. However, if, as in Moore , what is being challenged is whether an action changes the status of a person to, or endorses a person as, a second-class citizen in the eyes of the government, then the Thirteenth Amendment and its rulings must be applied.

E. The Message of Racial Supremacy Was Always Considered a Badge of Slavery

In 1874, less than a decade after the ratification of the Thirteenth Amendment and nine years before he would write the majority opinion for The Civil Rights Cases , Justice Bradley, then a circuit judge for the District of Louisiana, heard a case regarding criminal charges against a group of White men who intimidated and falsely held a group of Black men in order to prevent them from voting. Regarding the scope of the Thirteenth Amendment, he wrote:

It was supposed that the eradication of slavery and involuntary servitude of every form and description required that the slave should be made a citizen and placed on an entire equality before the law with the white citizen, and, therefore, that congress had the power, under the amendment, to declare and effectuate these objects. The form of doing this, by extending the right of citizenship and equality before the law to persons of every race and color… was necessary for the purpose of settling a point which had been raised by eminent authority, that none but the white race were entitled to the rights of citizenship in this country. As disability to be a citizen and enjoy equal rights was deemed one form or badge of servitude, it was supposed that congress had the power, under the amendment, to settle this point of doubt, and place the other races on the same plane of privilege as that occupied by the white race.⁹⁵

Bradley’s writing reflects almost word for word the charge of the Civil Rights Act of 1866—which declared all people born in the United States to be equal citizens and prescribed penalties for their subjugation.⁹⁶ The Civil Rights Act of 1866 is unique in that it was written by a majority of the Congressmen who had drafted the Thirteenth Amendment, and it was passed prior to the passage and ratification of the Fourteenth Amendment.⁹⁷ It demonstrates the intentions of the drafters of the Thirteenth Amendment clearly, because it was in no way influenced by the parallel charges of the Fourteenth.⁹⁸ What is clear from the Amendment itself as well as the writing of the courts at the time is that the intention of the Thirteenth Amendment was not merely the ending of literal slavery, but also an ending to those elements that allowed the institution of slavery to exist. Right away, the philosophy of racial supremacy was identified as one such element.⁹⁹

Racial supremacy and American slavery went hand in hand almost from the beginning, though there is debate on which came first.¹⁰⁰ The foundation of the moral acceptance of American slavery was the belief that the enslaved race was so inferior to the enslaving race that its subjugation was not only morally correct, it was a natural state that benefited the enslaved.¹⁰¹ This sentiment was even upheld by the Supreme Court itself where, in perhaps the Court’s most infamous decision, Chief Justice Taney wrote:

that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.¹⁰²

oed on the Senate floor in support of the Civil Rights Act of 1866.¹⁰³

Since Justice Taney’s sentiments and General Schurz report reflect the prevalent beliefs of the time, they surely were in the minds of the drafters of the Thirteenth Amendment. In attempting to eliminate slavery, the drafters were looking not just to forced servitude itself, but also to the philosophies that had enabled its past and future existence. This included the belief on the part of the governing body that the White race was superior and therefore justified in subjugating Black people. Justice Bradley would later reflect this in The Civil Rights Cases where he wrote:

Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible form ; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom… as is enjoyed by white citizens.”¹⁰⁴

the minds and hearts of many white men.”¹⁰⁵ Ultimately, the goal of Congress in creating the Thirteenth Amendment was not mere freedom, but the establishment of the Black race as equal citizens in status to the White.¹⁰⁶ Any indication that the government considers the Black man to have a different status of citizenship from the White would be a continuance of a substance of slavery, which is banned by the Constitution.

Finally, when the McAward test is applied¹⁰⁷, it shows that racial supremacy ought to be considered a badge of slavery. It has already been demonstrated that history considers racial supremacy to be an element of the American slave system. But could its allowance lead to the de facto re-subjugation of a race? Again, history shows that the allowance of government endorsed racial superiority will indeed have such an effect. We need look no farther than the Jim Crow era to find such evidence.

Under Jim Crow, the Southern States sought to reestablish a system by which Blacks would occupy a lower level of society and politics than Whites did.¹⁰⁸ They enacted laws aimed at perpetuating the segregation of the races under the reasoning that allowing an inferior race to intermingle with a superior one would have dire results.¹⁰⁹ Just as General Schurz had warned, allowing the State governments to operate under the philosophy of racial superiority was leading to the subjugation of the freed Black man.¹¹⁰ Under these new laws, Blacks were banned from exercising basic rights, such as voting, serving on juries, traveling with Whites, showing public affection, or even just lighting the cigarette of a White woman.¹¹¹ While these laws were eventually struck down under the Fourteenth Amendment, it is clear that the base philosophical element that allowed the de facto return to second class citizenship was the belief that the government was justified in viewing the Black man as an inferior race.¹¹²

Racial superiority was an element of the institution of American slavery. The drafters who sought to end this institution knew and acknowledged the subjugating effect of allowing the government to endorse the message of racial superiority. History shows that the allowance of such an endorsement can, and at points has, led to the re-establishment of Blacks as second-class citizens.¹¹³ Thus, the governmental endorsement of racial superiority constitutes a badge of slavery and is therefore unconstitutional under the Thirteenth Amendment.

III. A Message May be Unconstitutional

Once freedom from a governmentally endorsed message of racial superiority is established as a right, the next step is to establish the form of injury its infringement would take. When it comes to an injury caused by exposure to that particular message, there is no applicable case law or statute. Fortunately, there is a parallel history under the First Amend-ment’s Establishment Clause and its constitutional ban of governmental endorsement of any specific religion. In this jurisprudence, the courts have held that mere exposure to a symbol of religious preference that car-ries government endorsement is itself an injury on which standing can be based.¹¹⁴ As with racial supremacy, it is the message itself that is being barred, not the effect of the message on the treatment of the people, and the injury it produces may be based on this distinction.¹¹⁵

clause of the First Amendment seems clear on its face: the U.S. shall not establish a national religion. But, it too has since been read to have a much wider scope.¹¹⁶ The Supreme Court has held that the Amendment bars the government not only from creating a national religion, but also from endorsing the idea that any one religion is superior to another.¹¹⁷

The Founders feared a national church because of the long history between the government of England and the Church of England, as well as the effect that state sponsored churches were already having on the early colonists.¹¹⁸ At the same time, they feared the message that any group of people were outsiders due to their religious affiliation and thus not equal citizens.¹¹⁹ In response to this fear, the Founders sought to ensure that the government would be barred from communicating such a message,¹²⁰ either through legislation or a showing of endorsement.¹²¹

In other words, the First Amendment bars not only the actual establishment of a national religion, but also the message that any religion is endorsed by the government. This was done because it was feared that the allowance of such an expression would hinder the constitutional right of a citizen to be free of the government’s establishment of a religion.¹²² In the same light, when the Thirteenth Amendment barred the badges of slavery, it barred anything that would lead to the hindrance of the constitutional right to be free of all elements of slavery based on a person’s race.¹²³ This includes the government endorsement of racial superiority. As under the Establishment Clause, it is the message itself that is barred.

The bar on endorsement has not been limited to direct statements or actions.¹²⁴ When the government has endorsed religion through symbology, such as allowing prayer in school,¹²⁵ the displaying of paintings of Jesus,¹²⁶ and the offering of religious symbols such as crosses and the Ten Commandments,¹²⁷ the courts have repeatedly found the endorsement to be in violation of the Constitution.¹²⁸ Since the message itself is barred, any method by which the government may be interpreted as promoting that message is likewise unconstitutional.

IV. Symbology and Article III Standing

A. Mere Exposure to a Constitutionally Barred Symbol is a Recognized Injury in Fact

In order to determine if a right has been invaded to the extent necessary to qualify as an injury for the purpose of Article III standing, standards can be set reflecting the particular kind of injury that such an invasion would create.¹²⁹ While there has been no direct holding on the standards for exposure to a symbol of racial supremacy, analogous conclusions from the Establishment Clause can be drawn.

An invasion of the Establishment Clause requires only an exposure to the message, nothing more.¹³⁰ It is not required that the people hearing the endorsement be compelled or coerced or show any other effect; it is enough that they were exposed to a message that the government was not allowed to convey.¹³¹ The exposure creates the harm by fostering “the hatred, disrespect and even contempt of those who held contrary beliefs.”¹³² Since the interest protected under the Establishment Clause is of a spiritual, rather than economic or physical in nature, then an injury to the spirit beyond mere offense may be deemed a concrete injury for the purposes of standing.¹³³ Though mere exposure is not commonly considered a tangible harm, ultimately, it is the right to be free of the message and its possible effect on one’s spirit that is protected. Exposure is the unique harm the violation of that right creates. Since this harm is of such a similar nature to the harm of a government-endorsed message of racial superiority, it is logical to apply the same standard to both.¹³⁴

One of the original intentions of the Thirteenth Amendment was to ban the badges of slavery, including the government endorsement of the message of racial superiority.¹³⁵ This is an absolute right created by the Constitution, thus its abridgment alone is enough to constitute an injury.¹³⁶ Since the injury prevented spiritual in nature, exposure may be considered the unique harm that results from the abridgement. In the end, it is the message that people are protected against, not its effect on them. Mere exposure to such a message constitutes a concrete harm to the absolute right to be free of that message and therefore, meets the standing requirements of Article III.

B. Test for Whether Exposure to a Particular Symbol of Racial Superiority Is Sufficient to Provide Article III Standing

Of course, it is not correct to say that exposure alone, viewed in a vacuum, is always an injury in fact. Such a broad allowance for standing has been widely denounced by the courts.¹³⁷ In Allen , Justice O’Connor voiced a concern that granting standing for such a broad style of injury would allow almost anyone in the country to challenge almost anything anywhere, something that was never intended by the Constitution.¹³⁸ Fortunately, though the recognition of the injury of exposure to a symbol of racial superiority would be new, there is precedent to be found in Establishment Clause cases that would limit its allowance and create a workable test. While the Supreme Court has not provided a test or series of requirements regarding standing specifically for religious symbol exposure, the lower courts have created a workable model that can easily be applied to symbols of racial supremacy.¹³⁹ Specifically, it can be shown that a plaintiff has standing to bring an action into federal court if they can show that they are a member of a community whose government has offered a symbol of racial supremacy meant to communicate that in the eyes of the government, the plaintiff is a second class citizen due to their race.

The first element, and most limiting, is that the party bringing the action must belong to the governmental community that is offering the message. In Valley Forge Christian College v. Americans United for Separation of Church & State , the Court held that the parties did not have standing to challenge the transfer of property from the government to a church related college because the plaintiffs did not belong to the affected community; they were merely aware of the action.¹⁴⁰ A party cannot bring a general grievance simply because they see that the government is not following the Constitution.¹⁴¹ In dealing with religious symbols, the lower courts strongly integrated the Valley Forge holding by requiring that the parties be from the community offering the symbol.¹⁴² In the same way, it would not be enough for a plaintiff to merely have been exposed to a symbol of racial superiority; they must be a member of the community whose government endorsed such a message in order for them to have standing to challenge it.

Secondly, for an injury to provide Article III standing, it is also required that the plaintiff show they are amongst the people who have been injured.¹⁴³ It is not enough to be a caring citizen or to be personally offended at the actions of one’s own community; the accused action must directly injure the plaintiff.¹⁴⁴ This requirement may be more difficult to satisfy when challenging a symbol under the Thirteenth Amendment as opposed to the First. Since the Establishment Clause provides a general right to all citizens, it is hard to imagine a plaintiff from the offering community who cannot claim they were amongst the injured parties. If the government endorses Catholicism, the right of Catholics to be free from religious endorsement is as infringed as a Jewish citizen’s would be.

For the Thirteenth Amendment to apply, it would require a showing that the person was of the race being targeted as inferior. For example, a White citizen of a community offering a symbol of white supremacy would not have been personally injured, despite being a member of the offering community, because his personal status is not affected. His right to not be viewed as a second-class citizen by his government has not been infringed. It is necessary for a plaintiff to show that they are of the group whom the message is targeting as inferior for them to claim that they have been personally injured by the particular endorsement.

While some courts have held that there must be some effect from the exposure (generally that the plaintiff have changed some of their activities in response¹⁴⁵), a majority of courts have held that the exposure is the harm and nothing further is required to establish standing.¹⁴⁶ In addition, the number of exposures or possible exposures is inconsequential; it is enough that an exposure occurred.¹⁴⁷ The size of the population ultimately harmed and whether the symbol was seen by a large number of people is unimportant.¹⁴⁸

Finally, it must be shown that the message is in fact government speech promoting racial superiority. While the Courts have not been entirely clear on the relationship between the First Amendment, Thirteenth Amendment, and private actions, there has never been a question about their relationship to the government.¹⁴⁹ Since what is barred is endorsement by the government, the plaintiff must show that what they are challenging is in fact an endorsement of racial superiority by the government. This is not as easy of a question as it sounds on the surface.

In the very split decision of Lemon v. Kurtzman , the majority, the concurrence, and the dissent agreed that the purpose of a religious symbol must be analyzed not just by its facial meaning, but also by its historical and physical context to determine whether it was a message of endorsement.¹⁵⁰ While the issue there was whether subsidizing teachers at a religious school constituted endorsement, the same opinion has been applied to such seemingly obvious symbols as a cross,¹⁵¹ a menorah,¹⁵² and a nativity scene.¹⁵³ In all of these cases, the plaintiff was required to demonstrate that the symbol –taking into account not only its facial and subjective meaning but also its history and the method of its display –was offered by the government for the purpose of religious endorsement in order to gain standing to challenge it.¹⁵⁴

In the same vein, a plaintiff making a claim against a symbol under the Thirteenth Amendment must take into account meaning as well as historical and physical context to show that it is being offered by the government for the purpose of endorsing racial supremacy. This requirement functions as much as a safeguard as it does a gate. Staying with the example of Moore , if the courts had determined that the Confederate Battle Flag as offered within the Mississippi State flag communicated a message of racial supremacy, that would not mean that the State could not display the Confederate Battle Flag or the old State flag in places where historical context warrants it, such as a historical battlefield. In such a context, the symbol –though arguably a promotion of racial supremacy in nature –is not functioning as an advancement of the message but instead as a historical reference and would not be barred by the Thirteenth Amendment.

Using this long history of rulings as a guide, it is simple to determine whether a particular exposure to a symbol of racial superiority should be considered an injury for the purposes of standing. The plaintiff must be able to make some factual allegation that the challenged symbol is being offered by the government for the purpose of endorsing racial supremacy, and that that offering creates the concrete harm. The plaintiff must be a member of the community offering the symbol and must be of the race being promoted as inferior. While they must demonstrate exposure, they need not show that the exposure was frequent, that it altered their activities, or that it created any other effect or influence. So long as these elements are met, the plaintiff should not be refused his opportunity to be heard by the courts.

V. Conclusion

… [T]here is an impulse to decide difficult questions of substantive law obliquely in the course of opinions purporting to do nothing more than determine what the Court labels “standing”; this accounts for the phenomenon of opinions, such as the one today, that tend merely to obfuscate, rather than inform, our understanding of the meaning of rights under the law. The serious by-product of that practice is that the Court disregards its constitutional responsibility when, by failing to acknowledge the protections afforded by the Constitution, it uses “standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits.” The opinion of the Court is a stark example of this unfortunate trend of resolving cases at the “threshold” while obscuring the nature of the underlying rights and interests at stake.¹⁵⁵

Justice Brennan penned these scolding words in dissent to the denial of standing in Valley Forge .¹⁵⁶ He criticized the actions of a Court that, by his accusation, was not afraid to invoke standing to dodge a ruling on the merits of the issue.¹⁵⁷ While not every denial of standing is such, in the case of Carlos Moore it very much seems to be so. By refusing to hear his case, the Supreme Court has shut the door on a controversial issue that is growing in national importance.¹⁵⁸

More and more, symbols such as flags, statues, and memorials are being challenged for their perceived message of racial supremacy. Those challenges have grown to the point of violence in the streets, as was recently seen at the 2017 Charlottesville protests.¹⁵⁹ At the center of this public debate is the question of whether such symbols should be allowed to exist at all, much less carry any form of governmental endorsement. Courts have understandably been reluctant to hold such a hot potato, using the excuse of standing to keep such questions outside the courthouse. Unfortunately, in doing so, they are ignoring a charge of the Constitution itself.

From its creation, the Thirteenth Amendment was meant to do more than simply free the then-existing slaves.¹⁶⁰ It was intended to eradicate the institution of slavery from the American landscape, and provide an equal citizenship status to all races.¹⁶¹ This meant not only breaking the bonds of servitude, but also removing all elements that caused slavery or could enable its return.¹⁶² To accomplish this, it is essential that the government not be able to convey the message that any race of citizen is inferior to another. The right to be free of such an attack is implicit in the freedom provided by the Amendment.¹⁶³

A U.S. citizen has a right to not be told by their government, at any level, that they are not deserving of the full rights of any other citizen.¹⁶⁴ Since this is an absolute right, any infringement results in an injury regardless of whether it is accompanied by a further action or not.¹⁶⁵ The message need not be a direct statement or statute, it is barred no matter what form it takes, even that of symbology.¹⁶⁶ Since the harm can be connected to a government action –such as endorsement –and a court order will relieve the harm, it is proper that a remedy be sought through the courts.¹⁶⁷

This is not a novel or unique approach to such a problem. Just as under the Thirteenth Amendment, the First Amendment equally creates an absolute right to be free from a specific message: governmental endorsement of a particular religion.¹⁶⁸ There it has been accepted that a mere one time exposure to such a message, even in the form of a simple religious symbol, is enough to unjustly infringe a citizen’s right, even though no economic or physical harm existed.¹⁶⁹ To ensure such protection, a formula was created to show standing and allow the wronged to have their day in court.¹⁷⁰

Such a standard is equally applicable to the harm of exposure to a message of racial supremacy. Though no physical or economic harm may be inflicted by such an expression, it still represents an injury to an absolute right and therefore, must be capable of being argued in court.¹⁷¹ This is not a call for the floodgates to open. The plaintiff must still be able to show they were personally harmed by the message by offering a factual allegation that it is a message of racial superiority, that it carries government endorsement, that they are a member of the community offering the symbol, and that they are themselves a member of the race being promoted as inferior.¹⁷²

The need for standing in these types of cases goes beyond a mere desire to create a theoretical interpretation of a one-hundred and fifty-aught year-old amendment and its satellite issues. One need not stretch their minds to find the intrinsic harm in a city passing a resolution that the White race is supreme to all others or erecting a statute celebrating the teachings of William J. Simmons. Despite their personal agreement that such symbols should not be allowed, the courts will simply throw up their hands and say there is nothing they can do. Nothing can be done to remove such symbols unless the plaintiff can point to a specific, physical harm or mistreatment resulting from the symbol’s existence. According to the courts, simply being told by your government that you are of an inferior race is not enough.¹⁷³ These courts have errored in their analysis.

While they are right in saying that the Fourteenth Amendment, which promises equal treatment, has not been violated, what they have failed at is recognizing the promise of equal citizenship required by the Thirteenth. The courts failed in seeing that the nation was driven into its bloodiest conflict due as much to an idea as an action. That the Constitution was amended to demand that the people have a method by which they may challenge and remove such a philosophy.

What is not being argued in this writing is that specific symbols of Southern heritage, including the Confederate Battle Flag, are absolutely a promotion of racial superiority and therefore should be taken down and banned. There is still a lot of muddy water to wade through in order to get to an ultimate decision: issues of historical context and the extent to which it can immunize a message; at what point private speech becomes government speech; whether a vote can turn government speech into private speech; and, ultimately, what message is being conveyed must still be addressed. However, the fact that such heated and controversial issues lay ahead is no reason for the courts to refuse to enter the fray. In fact, as the debate gets more and more intense it has arguably become the duty of the court to give the parties on both sides the proper forum they deserve to be heard and to determine whether either side is losing their constitutional protection. Article III must not be invoked for the purpose of avoiding the difficult constitutional issues that are within that debate. For, as Brennan argued, “[t]o construe that Article to deny standing to the class for whose sake constitutional protection is given simply turns the Constitution on its head. Article III was designed to provide a hospitable forum in which persons enjoying rights under the Constitution could assert those rights.”¹⁷⁴ This includes the right to free expression, but it also includes the right to be free from all government-endorsed symbols of racial superiority.