In disconnecting the “political bands” that linked “the thirteen United States of America” to Great Britain, the founders of our nation said that “all men are created equal . . . [and] are endowed . . . with . . . unalienable Rights . . . [to] Life, Liberty and the pursuit of Happiness.” What the founders intended was something entirely different.
Noble as those words and principles may have been—for the first time, the people of a nation announced to the world their intent to form a government of their choosing—they did not apply to everyone. Left unbroken were the shackles binding the captured, enslaved souls who toiled on plantations, in pine barrens, and at wharves. The purported unalienable rights to life, liberty, happiness, self-determination, and their attendant freedom came with a caveat: they did not apply to slaves.
That exception, of course, was enshrined in the Constitution of the United States of America. Reflected in the document that purported to “establish Justice” and “secure the Blessings of Liberty” for the “People of the United States,” the Constitution made the point that an enslaved individual counted as only three-fifths of a person. Chiseled into the bedrock of our democracy was an acceptance of the enslavement of human beings in what ironically had been declared to be a land of innate liberty and unyielding equality.
So was born a country of freedom for some, justice for fewer than all, and an original sin that this now mature nation struggles with even today. The protests that swept the nation in 2020 reflect as much. How to best respond to some of the systemic issues highlighted by the objections of “today” might require a brisk but careful response to be carried out not immediately or reflexively, but “tomorrow.” Certain symbolic, yet significant, measures can be taken immediately.
Democracy, at least at some level, is freedom from arbitrary actions, be they of government or of citizens. That freedom is protected by justice, which guarantees fair treatment and proper administration of laws.
However, how we personify justice in this country sometimes suggests that yesterday’s view—that the extent of liberty and justice that one is entitled to depends on the shade of that person’s skin—still prevails today. Throughout this country, allegories of justice are told through the conspicuous heraldry of Confederate figures and of slaveholders at courthouse steps and on courthouse walls. Slavery and the institution that supported it are the worst forms of racism, and racism is incompatible with justice. It should take no time to conclude that there is no justification for using those figures as representatives in our halls of justice. Along those lines, it also should take no time for American courts experienced in the practice of adopting “bright line rules” to implement this practice in the narrow circumstance of courthouse iconography. Although it is appropriate and, in fact, important to remember positive contributions and achievements in American society, our modern illustration of justice should be free from the taint of slavery and the Confederacy. So, if a figure of yesterday “preached equality, but . . . didn’t practice it,” insofar as they bought, owned, leased, loaned, or traded another human being, or if the figure fought for the Confederacy in support for that practice, then they should not be used to symbolize justice at the modern courts of today.
This article touches upon those points. Parts I and II of this article, respectively, consider our nation’s original sin and its reluctant reconciliation with its history of slavery and its consequences. Parts III through V of this article, in turn, briefly note the national and international shift in the understanding and acceptance of symbols of inequality before suggesting a responsible, reasoned review of our illustrations of justice. In Part VI, this article announces its bright-line rule for modern metaphors of justice: those who engaged in the practice of slavery, and those of yesterday who supported the renegade faction in this country who took up arms in support of that practice, cannot symbolize justice today. Finally, in Part VII, this article notes the relevant demand of justice in this area, namely, that courts replace antiquated articulations of a justice that applied only to some with inclusive representations that best symbolize our national covenant of equal justice, at all times and for all.