In Defense (sort of) of Robert E. Lee

A couple of key points seem to be getting lost in the controversy over the legacy of Robert E. Lee. First and foremost, at the time Lee made his choice, we were still, truly, the United States of America. Technically, according to the Constitution, we still are: the 10th Amendment explicitly says the only rights & authorities possessed by the Federal Government are those "delegated to the United States by the Constitution, [or] prohibited by [the Constitution] to the States." Apart from that, the states (supposedly) remain sovereign. But the Lincoln administration effectively rendered this clause moot when they removed the evil of slavery--enshrined in the Constitution, as it existed at the time, remember--from the states choosing to practice it...not by the Constitutional process of an amendment, but rather unconstitutionally, by "Executive Order" (the Emancipation Proclamation) and force of arms)--only going back to clean up the legalities after the fact, when it was a fait accomplis. This was in a very real sense, a betrayal of the promise used to win over the sovereign states in which slavery was central to the economy, to agree to join the Union in the first place, so they seceded. And when the Union made it clear that they would not be allowed to leave in peace, our Civil War began.

Robert E. Lee and the other confederate leaders fought to defend the unambiguous evil of humans permanently owned, without rights, as property. We rightly condemn them for that. But they also fought to defend their states--the sovereign political unit that had banded together a mere ? century before under the Constitution--and the rights of those states under the Constitution. This is what I find most disturbing about the recent trend to cast them as traitors: while the officer's oath they swore at the time was to the government, today's oath (the one I myself swore 35 years ago, to "support and defend the Constitution of the United States against all enemies, foreign and domestic [and] bear true faith and allegiance to the same") would arguably have required them to do as they did.

And this is why--as one whose sympathies lie firmly with the Union, and the ensuing century and a half of progress in making it "more perfect" (though we still have a long way to go, even on racial justice alone)--I nonetheless feel obliged to push back a little, against this wholesale demonization of the only military officers in U.S. history to have actually been forced to choose between loyalty to the Government of the United States and the loyalty to the Constitution of the United States. First, because--and this should not be a controversial take--the right response to discovering a moral wrong in the Constitution is to amend the Constitution...not for the militarily stronger side to kick the weaker side's ass in a bloody civil war. And second, because even though it happened that way the last time, there's no guarantee that the militarily stronger side will be the one morally in the right, every time.

I mean think about it: suppose COVID had happened four years later, and Donald Trump had squeaked out a narrow win last year, and retained control of the Senate. In pandemic-stricken 2024, every three- or four-star general or admiral promoted for the last eight years is a Trump nominee for the rank, and has been mentoring and selecting like-minded leaders for promotion. The civilian head of every Federal intelligence and law enforcement agency is an (increasingly extreme) Trump nominee, and has been selecting and promoting like-minded subordinates. Maybe another Supreme Court justice has died or retired, and been replaced by another Trump nominee. Benedict Donald decides--like he did last year--that he wants to postpone the election indefinitely, until the pandemic is over, citing trumped-up fears of election fraud.

Only this time, there is no more "Deep State" loyal to the Constitution, to tell him no. This time, everybody salutes and goes along with Shitler.

God forbid we should ever find ourselves in such a situation--but if we did, it seems like we might want a whole lot more officers who'd tell the Government of the United States to pound sand, and who'd go home to fight to hold the United States to its Constitution, as it actually existed.

Seems like we might want a whole lot of officers who thought like Robert E. Lee.

So sure, tear down all the statues that weren't even erected until doing so could be used by American racists to visually thumb their noses at the increasing rights of Black Americans. Go ahead and remove, even, the few that were erected, in the war's aftermath (and against Lee's own wishes, as many have noted!), in the spirit of magnanimity in victory--or to honor the difficult choice I've discussed here, faced by every American military man of the day--and just move them to museums or military cemeteries, where their war dead are buried, and where they can still memorialize their sacrifice, without seeming a public endorsement of the evil they fought for. And by all means, update our American History curricula to castigate Lee and all the others who fought for the 'right' to call other human beings property and abuse them at will. America, the Constitution, and the world are unarguably better because they lost.

But please don't do so without ensuring we also wrestle with the dilemmas our Civil War couldn't resolve--of what happens when the Government and the Constitution are on opposite sides, in a war for our nation's soul; of what we do when we find something in the Constitution to be morally abhorrent. And for the love of God--and the Republic--don't do so by demonizing those who put their lives on the line for either the Constitutionality of their moral belief or the morality of the Constitutional order, for the impossible choice our politicians forced them to make.

Because quite possibly, one day, we'll be forcing them to make it again--when perhaps the Government will be in the wrong, Constitutionally and morally. And because--as Trumpism should have warned us--that day might be coming for us sooner than we think.