A Modest Proposal

Consider this proposal for a law, and I am only half tongue in cheek here, enacted using the grant of Congressional enforcement powers under the final sections of the 13th, 14th and 15th Amendments to the United States Constitution, respectively:

1.  An "Unreconstructed Government" shall mean any state, county, city, or other governmental entity that as a matter of official policy, or as a matter of practice without ratification in an official policy (or contrary to a statement in an official policy), makes use of any of the distinctive symbols of the Confederate State of America, or a substantially similar symbol, or uses the name of any politician of the Confederate State of America to name any building, department, part of a building, or program. 

2. In any civil action, or in any motion filed or legal action taken in any civil or criminal or administrative case in any state, or local or federal court or administrative proceeding, in which it is alleged that an Unreconstructed Government, or an officer, employee or agent of that Unreconstructed Government acted with an intent to discriminate against a person on account of race or ethnicity, because a person is not a native born non-Hispanic white individual, this intent shall be presumed.  This presumption may be overcome only with proof beyond a reasonable doubt to the contrary.

Thus, for example, in an employment discrimination lawsuit, or Batson challenge, or suit alleging that a state patrol officer acted in a racially discriminatory manner with South Carolina, which is an "Unreconstructed Government" as defined in the statute, the person claiming discrimination would automatically establish that intent unless the State of South Carolina overcame that presumption with proof beyond a reasonable doubt.

Governments make symbolic statements and this law would not bar them from doing so.  But, it is well within the scope of federal power under the Reconstruction Amendments to make reasonable efforts to define the statement that a governmental entity makes when it uses those symbols, in a manner that reflects their widely understood meaning.

Flying a Confederate flag, just like burning a cross, has a well defined meaning in the American historical context which everyone on both sides of the issue of whether those symbols are used understands perfectly well.

If a government wants to make those statements, coded in symbols, however, it needs to live with the consequences of its acts, like losing cases where it claims, insincerely to be saying something else, in the Courts.

States like South Carolina, which has flown the Confederate battle flag since 1962, and which recently experienced a white supremacist murder of nine people at a prayer meeting in a historically black church which was intended to "start a race war," would have to decide if they wanted to pay that price.

The hope, of course, is that so shamed and so made to pay the consequences of their acts, that the Unreconstructed Governments in the United States would "voluntarily" change their ways in a way that created a new cultural reality, just as anti-discrimination laws have done in the private sector despite the fact that they are extremely hard to enforce in many contexts such as initial hiring of employees for open positions.

Many "moderates" are willing to make racist statements with symbols if there are no consequences for their actions, but would change their tune if they were forced to own their symbolic statements.