Confederate-flag license plates

Time has an article via NBC News about the latest Supreme Court case:

The Supreme Court has agreed to hear a case involving the image of a Confederate flag on a license plate and decide how much control state governments can exert over slogans and messages on vehicle tags. The court will hear an appeal from the state of Texas, which refused five years ago to approve a specialty plate for the Sons of Confederate Veterans, including a logo of a Confederate battle flag surrounded by group’s name and the year 1896.
After hearing public comments, the state motor vehicle authority rejected the request, explaining that “many members of the general public find the design offensive,” and associate the flag “with organizations advocating expressions of hate…”

Jason Kuznicki has a blog post on the subject at Ordinary Gentlemen:

J. Arthur Bloom tries to meet the paleo-libertarians halfway. When I say that the Confederacy wasn’t libertarian, he agrees, and then asks, “What’s the point?”
For me, the point is simple. It’s that people aren’t completely stupid. They know very well what symbols mean, and they know that those meanings are not infinitely malleable.
If the Confederacy wasn’t libertarian, and it wasn’t, then waving its flag is no way to rally libertarians to your cause. At best the people who fall in line behind you will be a certain flavor of nationalist, and nationalism has never been a particularly libertarian sentiment. At worst? Well, we know where that leads.
The truth is probably a bit orthogonal to both nationalism and racism. Bloom comes close to it: what could the Confederate flag stand for, he asks, among people with “little geographic or hereditary connection to the Old South,” among “the sort of economically disenfranchised Appalachians whose ancestors tended not to own slaves”?
I suspect it’s rather like the Che Guevara t-shirt on the back of a campus leftist. It’s not about supporting the Cuban Revolution. Still less is it for the tyrannical government the revolution created. It’s not about the firing squads, and it’s certainly not about the Cuban Missile Crisis, which Che helped directly to precipitate (with a big boost from that insecure patrician warmonger, John F. Kennedy). The t-shirt, like the flag, stands as a generic symbol of rebellion; both sides have them. It’s not supposed to be “for” anything.
Yet one doesn’t get a pass on such matters by dint of carefully declining to think through their implications: if you don’t think them through, someone else will. As a matter of fact, libertarians love to mock those Che t-shirts. And they are quite right to do so. I have done nothing more, and nothing less, in condemning the Confederate flag.
This little controversy isn’t about cleverly finessing the libertarian message in the hopes of winning over the masses. It’s not about libertarian populism, whatever that even means. It’s about getting libertarianism right. It’s about building a movement that actually stands for liberty, and that does not stand for anything else but liberty.
Ultimately I wrote what I did so that the many, many enemies of libertarianism will have to argue directly against liberty— a losing proposition, in the longest of terms— rather than being able to argue, even once: “I know damn well what liberty is, and you guys aren’t it.” I want to make it hard to be anti-libertarian, not easy.
For conservatives, the implications of Confederate apologism are a little different, and they can sort those out on their own. As for us, the libertarian program doesn’t need this flag, and we won’t gain anything from it that can’t be had better elsewhere. Indeed, nothing about our program needs to change when we burn the Stars and Bars. (You are okay with free speech, right? Even if it offends certain people? Oh, good…)
Burn it, because it should be burned. And yet one can still be a critic of Lincoln, and a friend of secession in principle, and a libertarian most certainly should be both.
People who care about liberty should still say, loudly and clearly, that Lincoln behaved as a tyrant in office. In the name of saving the old republic, he twisted it beyond recognition. Lincoln’s commitment to abolition was never more than tactical, and at best lukewarm. His commitment to civil liberties was rather a commitment to destroying them. He suspended habeas corpus, censored the press, and jailed dissidents. He and his party instituted an illegal income tax, a horde of other taxes, a forced conscription and, were that not enough, an inflationary money.
And yet. For everything that I have named in the above paragraph, the Confederacy did at least the same, point by point, and often much worse. Had slavery been abolished twenty years earlier, and had the war taken place just for the hell of it, there still wouldn’t be a libertarian dog in the fight.
Which is not to say that I oppose secession in principle. I am a warm friend of the right to disassociate oneself from a political community. Our Constitution would be much improved if it provided an explicit process for states and regions to leave the Union by their own choosing, and without anyone else’s consent. Yet, even without that mechanism, the natural right remains. It’s not alienable. As in, literally not alienable; you can always secede. Personally. Or with a few friends. Or with your whole state. After that, it’s up to you to bear the consequences, because natural rights can’t help you deal with those.
Secession presents philosophical questions at several levels. It may be paper-legal or not. It may also be ethically justified or not. To my mind, the most justifiable cause of secession is to preserve individual liberty. The least justifiable is to repress individual liberty. And there is no doubt which one the Confederacy served.
I know very well the claim that smaller, more local government tends to respect individual liberty better than larger, more distant government. Is it correct? Often enough, yes. But why do the defenders of this principle always seem, when they go looking for examples, to settle on the Confederacy which, if anything, is the world’s most important counter-example, and whose central government, as seen from hinterland, was hardly less distant than Washington? Examples like these bring discredit on their proponents.
Nor does alternate history help. I’ve heard again and again that if the South had only been let go peacefully, slavery would have faded away without firing of a shot.
I suppose one is always entitled, as by inalienable right, to wishful thinking. But one ought not to base strong real-world claims on alternate histories. We can never actually run another experimental trial. But over in the real world, nothing about the government of the Confederacy so much as hints that they were preparing to let slavery go gentle into that good night. Constitutionally, free states were barred from ever entering the Confederacy. They had to have slavery to get in. Still worse, it is doubtful that any existing Confederate state was permitted under that Constitution to abolish slavery. (And can we just be honest for two quick seconds here? Gradual emancipation wasn’t Jefferson Davis’ platform, it was Lincoln’s.)
Worse, I am haunted by a bleaker counterfactual: had the war not been fought in 1861, might it have come in 1916? In the future lay tanks, incendiary rounds, and phosgene gas. How bad would that Civil War have been?
Of course, our actual history fell at a sickening slant. With the sole exception of the Reconstruction Amendments, virtually nothing good came of the Civil War. Even the amendments were largely inoperative for more than a century. One badly wants a do-over, knowing what we now know, and yet we see so easily how so many things could have been so much worse.
Might the Northern war effort at least have been conducted differently? Qualms aside, I do think it should have been. I favor Murray Rothbard’s recommendation from chapter eleven of The Ethics of Liberty:

There was only one possible moral solution for the slave question: immediate and unconditional abolition, with no compensation for the slavemasters. Indeed, any compensation should have been the other way, to repay the oppressed slaves for their lifetime of slavery. A vital part of such necessary compensation would have been to grant the plantation lands not to the slavemaster, who scarcely had any valid title to any property, but to the slaves themselves, whose labor, on our “homesteading” principle, was mixed with the soil to develop the plantations.

If I could go back in time and be one person in the Civil War, I would be William Tecumseh Sherman. Here are my orders in the march to the sea: Emancipate all slaves. Destroy nothing. Give all to those who built it. What would the slaves do with their new assets? And with their former masters? Not my problem. The freedmen have farms to run, and justice to administer. I, however, have a war to administer.
The real Sherman behaved very differently, of course, and unconscionably. It doesn’t make me a Confederate sympathizer to say, as clearly as I can, a pox on his house, too.

Read the rest of the story from our partners at NBC News:

The Supreme Court has agreed to hear a case involving the image of a Confederate flag on a license plate and decide how much control state governments can exert over slogans and messages on vehicle tags. The court will hear an appeal from the state of Texas, which refused five years ago to approve a specialty plate for the Sons of Confederate Veterans, including a logo of a Confederate battle flag surrounded by group's name and the year 1896.
After hearing public comments, the state motor vehicle authority rejected the request, explaining that "many members of the general public find the design offensive," and associate the flag "with organizations advocating expressions of hate".
The Sons of Confederate Veterans sued and won in the Fifth Circuit Court of Appeals. It ruled that license plate messages— other than official mottos, such as Lone Star State— are free speech and can't be restricted by the state even if some consider the words offensive.
The Federal courts are divided on whether the message on a license plate is strictly government speech— in which case the government has more authority over what is said— or a mixture of government and private speech. Court battles have been fought over messages such as Choose Life on license plates.
In the Texas case, the appeals court said the legal test is whether a reasonable observer would understand the message to be an expression of government or private speech. Greg Abbott, the Texas Governor-Elect, filed court papers as state attorney general urging the court to rule in favor of the state and against the Confederate group.

Rico says the damned Civil War has been over for 150 years; you'd think these guys would give it up. (And aren't there 1865-era laws about displaying the Stars and Bars?)