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Carla T. Main edits the opinion pages of the NLJ. She can be reached at [email protected]. We are still fighting the Civil War, albeit bloodlessly. Questions that should have been laid to rest long ago-such as why the war happened and what its legacy means for modern Americans-are the subject of contention today. And not just between North and South, as one might expect, but among citizens within the respective “sections” (as we used to describe ourselves in unmistakable terms of free or slave, North or South, and the up-for-grabs Western territories) of the country. We cannot even agree on what the Confederate flag means. Is it a noxious reminder of a time when blacks were slaves or a benign symbol of the bravery of young soldiers? Like nearly all modern disputes, this one has found its way into the courts. The 4th U.S. Circuit Court of Appeals in Dixon v. Coburg Dairy recently held that an employee, fired for refusing to remove two Confederate flag stickers from his toolbox, failed to state a claim for wrongful discharge. Matthew Dixon, a mechanic who worked for a South Carolina dairy, was a member of the Sons of Confederate Veterans, an organization of men whose ancestors served in the Confederate armed forces. A black co-worker, Leroy Garner, said that the stickers on Dixon’s toolbox were racially offensive. Nothing in the lengthy court opinion indicated that Dixon’s use of the flags was a symbol of a blatantly hostile affiliation, such as with the Ku Klux Klan, or that the stickers were intended by him as a threat to Garner. Dixon appeared to be one of those Southern enthusiasts for Confederate “heritage”-some of whom are black- whose ancestors served in the Confederacy. The Sons of Confederate Veterans is not a white-supremacist organization, nor is it affiliated with the Klan, according to Kirk Lyons, a member who is also the director of the Southern Legal Resource Center, an organization that supports what it sees as civil rights infringements in the lives of “Confederate Southern Americans.” “We have denounced the use by the Klan of the Confederate flag,” said Lyons, pointing out that the Klan also uses the American flag. The Sons of Confederate Veterans, said Lyons, “is a historical, fraternal and charitable organization” that preserves Southern heritage, which it defines as pride in states’ rights and the protection of Southern homes from invasion during the Civil War. Leroy Garner didn’t see the flag the same way. He complained to Coburg Dairy that the stickers violated the company’s policy against harassment. The dairy offered to buy Dixon a new toolbox, if he would keep the one with the stickers at home. He refused and the dairy fired him. Dixon sued, claiming that his dismissal violated a South Carolina statute that makes it unlawful for a private employer to fire someone on the basis of his “political opinions or the exercise of political rights and [constitutional] privileges.” On appeal, the court grappled with whether the case even presented a federal issue, given the clear applicability of the statute and the absence of a state actor. But the 4th Circuit reasoned that the state law invited an “analogy” to federal First Amendment privileges. It then split some legal hairs and found that no violation of the state law occurred, because Dixon was not fired because of his political beliefs. “Dixon could have kept his job,” the court wrote, “not by changing his opinions, but by altering how he chose to express them.” In one sense, the decision is not all that startling: Coburg Dairy is a private employer and could lawfully limit the political speech of its employees. (Though it is troubling that the court insisted on interpreting a state law-deciding against a state citizen-with a nebulous federal interest at stake.) Case holds a deeper meaning The Dixon case handily illustrates an ongoing divide in this country regarding the Civil War. In 2000, two men, one white and one black, interpreted a 140-year-old symbol in opposite ways and a man lost his job. Flag disputes are fairly common in the South, set off by flags on children’s school clothes, hard hats and toolboxes, and parade signs; the symbol is also the subject of “flag debates” at colleges and on talk radio. How could two such divergent views co-exist in the very heart of South Carolina-the instigator of the secessionist movement-without the element of overt racial antagonism, which does not seem to be present here? Dixon’s association with the flag, like that of many Southerners, seems closely tied to romantic ideas of honor and independence from federal domination, and a concerted distancing from the legacy of slavery. “The war was devastating,” said Edward C. Smith, a history professor at American University. “Generation after generation in the South grew up hearing about lost farms,” and other tragedies. There was also a “tremendous sense,” said Smith, of being misunderstood by the North. Historian David W. Blight, in Race and Reunion, writing of the “politics of Civil War memory,” discussed the grief and smoldering humiliation felt in the South, exacerbated by Reconstruction, that had to be vented somehow on the national stage. At the same time, the cause of black emancipation was struggling to advance. As a result, two conflicting strains of memory emerged in America. There was an emancipationist vision of the war as principally a struggle between the abolitionist momentum of the North and the will of the South to hold on to slavery. This view, championed by Frederick Douglass and others, required ongoing tension between the states, with the North pressuring the South to emancipate and enfranchise its black citizens. An assimilationist view also emerged: The war was a battle propelled by Southern politicians, in which ordinary Southerners fought valiantly. This political fence-mending and face-saving began immediately after the war ended. Imprisoned and disgraced, the Confederate president and vice president began to passionately insist, as early as 1865, “that states’ rights, and states’ rights alone, lay at the root” of the war, wrote historian Charles B. Dew in Apostles of Disunion: Southern Secession Commissioners and the Causes of the Civil War. But the original pro-secession speeches given throughout the South in 1860, painstakingly gathered by Dew-a self-described “son of the South”-show that slavery was at the heart of secession. According to the prewar words of the secessionist orators themselves, secession was driven by fear of federal domination that would lead to abolition, loss of slaves worth $4 billion and a slave uprising such as the one seen in Haiti. Putting issues aside But by 1913, when Woodrow Wilson presided over a huge and unprecedented government-sponsored reunion of Union and Confederate soldiers in Washington, Memorial Day had officially been transformed into a day of national mourning for soldiers on both sides. All could agree on the mutual bravery of men on the battlefield and the equal tragedies of their deaths and maiming. Political blame was distinctly absent. Over the years, the comfortable ideals of soldiers’ bravery and fraternity gained currency as the North stood by during a century of racial discrimination and segregation in the South (with a record of race relations in the North that was far from perfect) in order to buy peace and build a superpower nation. We have dulled our historical memory-in both the North and South. Instead of sweeping the Confederate flag under the rug, we need to shake it out in the clear light of day and finally decide what this part of our history really means to all of us and put an end to Southern-and Northern-mythmaking.

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