Historical Memory and Transitional Justice

By Peggy Cooper Davis, Professor of Law at New York University School of Law (see full bio at the end of the article).

*Editors’ note: This piece contains an excerpt from a previous work of the author. For more on this topic, see Peggy C. Davis,  Anderson Francois & Colin Starger, The Persistence of the Confederate Narrative, 84 U. Tenn. L. Rev. (2017).

I was honored in September of 2020 to join an august group of speakers convened by Professor Christie Warren, the brilliant and prolific director of William and Mary’s Center for Comparative Legal Studies and Post-Conflict Peacebuilding.  Professor Warren had called us together at a time of urgent national soul-searching that was triggered by official and sometimes deadly violence against Black and Brown people and against demonstrators supporting the idea that Black lives matter. We came together to understand transitional justice more fully and to assess its applicability in the United States.

Albie Sachs, the legendary freedom fighter, lawyer and jurist from South Africa was the first to speak; he left us with a profound question.  He told us that the person who had fire-bombed his car in 1988, leaving him with a severed arm and a sightless eye, had recently asked whether they could sit down together for coffee, and he invited us to help him decide how he should respond.  This invitation intensified our thinking about truth, about violence and about the possibility of reconciliation.  This intensified thinking awakened and reinforced my belief that the United States has never faced the truth about slavery’s physical and psychological violence or taken the steps necessary to make reconciliation possible.

This was not the first time that Albie Sachs had inspired me to think deeply about slavery and reconciliation.  More than a decade ago, I traveled to Cape Town, South Africa to join a conference honoring Laurens Ackerman, a jurist who served with Albie Sachs on the South African Constitutional Court. At that conference, I gained a firsthand understanding of the South African Constitutional Court’s commitment to equal respect for the dignity of each human being.[1]  I saw in Cape Town a gathering of Justices deeply engaged with scholars and other citizens in discussions about justice and human dignity.  They were engaged in this way because their nation had made a constitutional commitment to respond to its history of apartheid by reimagining relationships among citizens, and reimagining the relationship between citizens and the state, in a way that was appreciative of and responsive to apartheid’s cruelty and injustice.  I got a glimpse of the profound thinking that went into honoring that commitment as the Justices interpreted the Constitution that Albie Sachs was so much a part of bringing into being. It was clear in the Justices’ discourse – as it is in their writings – that they saw themselves as part of a process of coming to terms with atrocity.  Of coming to terms with apartheid’s denial of the dignity and humanity of black and brown people.[2]  It was my thought then that the United States had not taken on the work of coming to terms with the atrocity of slavery.  Not officially.  And not wholeheartedly. And not without detouring onto paths of obfuscation and denial. 

This thought has only deepened in the decade or more since that conference. It came to me again as I read Johar v. Union of India, the recent decision of the Supreme Court of India which invalidated laws that criminalized same sex intimacy.[3] I noticed that the Court positioned itself as post-colonial and that the Court professed a conscious effort to follow lessons of empathy and respect learned in the supremacist context of British colonialism.

I do not mean to idolize or idealize the South African or the Indian state. I mean to say that I see in their jurisprudence a reckoning with group-based cruelties.  And I think that reckoning process nurtures the capacity for empathy and therefore facilitates recognition and respect for human rights. On the other hand, I see in the United States’ jurisprudence a denial of group-based cruelties and, as a consequence, a hobbled capacity for recognizing and respecting human rights. I do not know whether a Truth and Reconciliation process would have improved our capacity for empathy or our capacity to recognize and respect human rights, but I suspect that it might have done so.[4]  And it might still.

To put it differently, I believe that we in the United States would have a more just and humane set of constitutional principles were we to own and better understand our own our history of throwing off supremacist oppression. We would have a more just and humane set of constitutional principles if we understood the senses in which we are a post-colonial nation.[5]

The United States is post-colonial. But it is post-colonial in an atypical way.  Like South Africa and India, it is post-colonial in the sense that our country was formed in rebellion against British imperial rule. We seem, however, to be in denial about our post-colonial status, and the United States is not usually classified by others as a post-colonial nation. This has to do, I suppose, with the fact that the United States revolution was more a rebellion of colonizers than a rebellion of indigenous people. More like a Boer War than like an indigenous or enslaved people’s liberation struggle.  I suppose it also has to do with the fact that many in the United States have thought of themselves as members of an always already White country — alas, many still do — and colonization is typically thought of in terms of White colonizers and Black and Brown colonized people. But the United States is, I think post-colonial.  And in a double sense.

The Revolution of 1775 was a war against distant, monarchical rule and a war against governance without representation. But British rule over the thirteen colonies was not as overtly supremacist as was European rule over lands that were populated more heavily or lastingly by indigenous people and other people of color.

The disregard of native sovereignty and compromise with the institution of slavery factored heavily in the United States revolutionary calculus, and the result was an incomplete and imperfect Founding Constitution. The declaration that all are created equal and endowed with inalienable rights was not explicitly given the force of law, and the constitution that followed did not disavow, but only papered over, the new nation’s developing caste structure. The Constitution contained no Equal Protection Clause; the Bill of Rights was an afterthought that protected only against abuse from the national government.[6] It contained no explicit right to vote, to be educated or to have any measure of social justice.  States remained free to enslave or to disenfranchise. Citizenship was undefined, and the Supreme Court was able to announce in the Dred Scott case that African Americans could not qualify.[7] 

The consequences of this are stunning, and it is stunning to see the extent to which they linger. A clear example is the United States’ professed impotence in the enforcement of human rights.  As the noted scholar and activist Gay McDougall and others have eloquently pointed out, when the United States has signed core international human rights instruments, it has failed to make them self-executing and, it has appended the following qualifying statement:

“[T]he United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments. . . .”[8]

It adds that to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take “measures appropriate to the Federal system” to see that the covenant is fulfilled.[9] This qualifying statement implies that there is a huge hole in the foundation of our government. It implies that the United States has no enforceable national charter of human rights.[10] But we needn’t think that way. We can think differently if we focus on the second sense in which the United States is post-colonial.

Looking beyond the American Revolution, we can think of the United States Civil War as a war of liberation from colonial-style oppression and think of the post-Civil War Reconstruction as the formation of a new, multiracial nation that would stand against supremacist oppression. To think this way is to adopt perspectives made visible by the great sociologist and historian, W.E.B. Du Bois[11], and the preeminent contemporary historian of the United States Reconstruction, Eric Foner.[12] Du Bois and Foner were foremost among those who made it possible for us to see the post-civil-war Reconstruction of the United States in an ennobling way:  To see enslaved people deserting plantations and joining Union armies; to see abolitionists who had not been enslaved also joining those Union armies; to see the Union engaged in a struggle against supremacy and the cruelties it engenders; and to see the Reconstruction Amendments reform the United States Constitution to be consistent with the ideas of equality, liberty and the collective, as well as the individual, pursuit of happiness. This is a national story that engenders empathy and empowers federal enforcement of human rights. This is the story that the first Justice Harlan told when he said that the Reconstruction Amendments had enacted a “charter of liberty.”[13] 

But this is a story that is consistently squelched by what I call The Confederate Narrative.[14] The Confederate narrative is a story in which the states’ reunion after the Civil War was a modest reform that ended state-sanctioned slavery but otherwise left the states full authority to define the peoples’ rights and to enforce those rights.[15] It is a story grounded in the assumption that People’s rights are best protected by limiting federal power and protecting the power and independence of states.[16]

The states’ rights presumption underlying the Confederate narrative has innocent sources.[17] It echoes colonial resistance to British tyranny, and it is bolstered by the psychological residue of times when the perils of distant rule loomed large because interstate communication and travel were so slow and arduous that the nation seemed unworkably vast and federal authority seemed threateningly remote.[18] Yet the Confederate narrative is most significant – and notoriously significant – for having protected slave power, undermined the Civil War Amendments, and justified Jim Crow subordination.[19]  Under the banner of state sovereignty, state governments in the former Confederacy were complicit in the surveillance, harassment, and murder of any who dared to challenge segregation, white supremacy and the iron-fisted control of labor.[20] The Confederate narrative and its underlying assumptions about the importance of states’ rights persist to this day, not only to justify racial subordination, but also to thwart opposition to the subordination of women and sexual minorities.[21]

Union victory in the Civil War might have established the primacy of human rights over local control. The Thirteenth, Fourteenth, and Fifteenth Amendments and no fewer than five Reconstruction-Era Civil Rights Acts declared the People’s rights and gave the federal government power to protect them. Yet as federal authority was asserted, the Confederate narrative was reasserted to valorize local control, and Reconstruction was undone.[22] As historian David Blight has shown, the excited post-war celebration of emancipation and of newfound hope for a more egalitarian Union were replaced over time by shock over the war’s carnage and persisting belief in white supremacy.[23] As a result, the South was “redeemed,” and the nation was left with a dominant memory of principled and valiant brothers ending a painful misunderstanding with mutual respect and ponderous questions about the optimal balance of state and federal power.[24]

It is ironic – and significant – that the name given to the resurgence of Confederate power was redemption, for the Redeemers did not wash away the sins of the former Confederacy; they reenacted them.[25]  The Redeemers, many of them Klansmen and White Knights, violently displaced the multiracial governments established under Reconstruction and returned to a supremacist creed, to racist and classist management of the work force and to nearly race-blind neglect of public welfare.[26]  That violence and social indifference begat – and continues to beget – more violence.

David Blight has written brilliantly of the United States’ transition from Civil War to “redemption.”  He began by describing the first Memorial Day:

“In Charleston, South Carolina, where the war had begun, the first collective ceremony, involving a parade and the decoration of the graves of the dead with spring flowers, took place on May 1, 1865.”[27] “In . . . collective public performances, [B]lacks in Charleston proclaimed their freedom and converted destruction into new life. . . . The freedpeople of Charleston had converted Confederate ruin into their own festival of freedom. They provided the images and metaphors . . . with which to establish the earliest ‘theaters of memory’ for the transition from slavery to freedom.”[28]

He then described Woodrow Wilson, the first Southern President after the Civil War, addressing a “Blue and Gray” Reunion of undoubtedly White veterans on July 4, 1913:

“How wholesome and healing the peace has been!  We have found one another again as brothers and comrades, in arms, enemies no longer, generous friends rather, our battles long past, the quarrel forgotten – except that we shall not forget the splendid valor, the manly devotion of the men then arrayed against one another, now grasping hands and smiling into each other’s eyes . . .”[29]

Blight comments that while:

“Lincoln had soared above the ‘honored dead’ in 1863 to try to imagine a new future in America. Wilson soared above honored veterans in 1913 to describe a present and a future in . . . which white patriotism and nationalism flourished, in which society seemed threatened by disorder, and in which the principle of equality,” was forgotten.[30] 

Theaters of memory had ceased to celebrate universal human freedom.  They had evolved in ways that permitted erasure of the inhumanity of slavery and obliviousness to the principle that Black lives and freedom matter.  We can only hope that contemporary insistence upon the truth that Black Lives Matter can lead us from reconciliation among White brothers to a reconciliation that is more genuine for being universal.

About the Author

Peggy Cooper Davis is a Professor of Law at New York University School of Law and a leading commentator in the field of cross-racial interactions within the justice system. She joined the NYU Law faculty in September 1983 after having served for three years as a judge of the Family Court of the State of New York and after having engaged in the practice and administration of law during the preceding 10 years. In her influential article Beyond the Confederate Narrative, she and her co-authors demonstrate through careful exegesis of critical lines of Supreme Court opinions how the Confederate narrative has subverted post-bellum ideals of human dignity and equal respect for all people. Her forthcoming book, Enacting Freedom, illuminates the importance of anti-slavery and civil rights traditions as guides to the scope and meaning of Fourteenth Amendment liberty interests.


[1] Lourens W. H. Ackerman, The Legal Nature of the South African Constitutional Revolution, 2004 N.Z. L. Rev. 633, 643 (2004).

[2] See S. Afr. Const., 1996 Art.  39 (1) “When interpreting the Bill of Rights, a court, tribunal or forum – (a)must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b)must consider international law; and (c)may consider foreign law.”

[3] See generally Johar v. Union of India, (2018) 1 SCC 76 (2016) (India).

[4] See generally Truth Commission: South Africa, United States Inst. of Peace (Dec. 1, 1995), https://www.usip.org/publications/1995/12/truth-commission-south-africa.

[5] See generally Audrey Osler, Human Rights Education, Post Colonial Scholarship, and Action for Social Justice, 53 Theory and Rsch. in Soc. Educ. 244, 265 (2015).

[6] U.S. Const. amend. I-X.

[7] See Dred Scott v. Stanford, 60 U.S. 393, ­­411-12 (1856).

[8] See Martha F. Davis, The Upside of the Downside: Local Human Rights and the Federalism Clauses, 62 St. Louis U. L. J. 921, 924 (2018).

[9] See Gay J. McDougall, Toward a Meaningful International Regime: The Domestic Relevance of International Efforts to Eliminate All Forms of Racial Discrimination, 40 How. L. J. 571, 588 (1997); see also Tara J. Melish, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies, 34 Yale J. Int’l L. 389, 391 (2009) (arguing that, while the U.S. typically encourages governments to fully incorporate human rights treaties into domestic political and judicial processes, at home we have tended, in the name of state sovereignty and other doctrines, to shield ourselves from similarly committing to fully accepting international human rights norms as federal obligations).

[10] The Advoc. for Hum. Rts., Human Rights and United States Law, https://www.theadvocatesforhumanrights.org/human_rights_and_the_united_states (last visited Feb. 15, 2021).

[11] See generally W.E.B. Du Bois, Black Reconstruction in America: An Essay Toward a History of the Part which Black Folk Played in the Attempt to Reconstruct Democracy in America 1860 – 1880 (Henry L. Gates ed. 2007).

[12] See generally Eric Foner, Reconstruction Updated Edition: America’s Unfinished Revolution, 1863-1877 (2014).

[13] See e.g., Barenblatt v. United States, 360 U.S. 109, 144 (1959).

[14] The following three paragraphs are excerpts from a previous work of the author. See Peggy C. Davis,  Anderson Francois & Colin Starger, The Persistence of the Confederate Narrative, 84 U. Tenn. L. Rev. 301, 302 (2017).

[15] Davis,  supra note 14, at 302.

[16] Id. at 302.

[17] Id. at 303.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 304-05.

[22] Id. at 305.

[23] Id.

[24] Id.

[25] See generally Philip Dray, The Wrong Kind of Redemption: A Civil War that Never Ended (Apr. 8, 2019) https://lithub.com/the-wrong-kind-of-redemption-a-civil-war-that-never-ended/.

[26] See generally Id.

[27] David W. Blight, Race and Reunion: The Civil War in American Memory 65 (2001).

[28] Id. at 67.

[29] Blight supra note 26, at 11.

[30] Id. at 14.

Citation for Cover Image

Thomas Nast, A Privilege (1875) available at http://pudl.princeton.edu/objects/1544bp24n

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