Earlier this month, a Federal District Court Judge in the Middle District of Georgia, Clay D. Land, ruled against the National Ranger Memorial Foundation in their lawsuit against Biden Secretary of Defense Lloyd Austin and others, regarding the brick paver honoring John Singleton Mosby at the Ranger Memorial at Fort Moore, formally known as Fort Benning, Georgia, that was targeted for removal by the Naming Commission.
This is another in a line of openly bigoted rulings dealt against those standing up for Southern-American history in the courts. In reading Judge’s Land’s decision, putting aside his responses to the Foundation’s arguments, what is most troubling is the tone and wording of the conclusion to his decision which, in my opinion, constitutes judicial activism instead of Constitutional Originalism and Textual Construction.
The conclusion combines bad facts and bad law into a dangerous toxic mix of Anti-Southern bigotry and judicial activism.
An “open rebellion” of the Confederacy against the Union was not the case. Any honest student of history knows there would have been no war had Lincoln simply let the South go. A judge needs to be careful in the words he uses for fear of unfair casuistry. He says “rebellion”, fair history says “defense of an invasion”. It’s not just a “tomato” “tomato” argument. His sua sponte insertion of this view of history is openly bigoted and belies judicial objectivity.
The application of the phrase “treasonous taint” skirts the issue of the Unconstitutionality of Bills of Attainder. He smugly and piously defended the implementation of a United States law which the Constitution expressly forbade Congress from passing. (Reference: Article 1, Section 9 of the U.S. Constitution).
Though the Foundation did not raise the Constitutional issue, it is the duty and obligation of the court to read and apply the Constitution. The textualist revolution is demanding that judges do this, but this judge has apparently not gotten on board in reading the Constitution.
Judge Land further asserts that Congress can choose not to honor someone on a military installation. The way I read the Constitution, the Commander in Chief controls the Military, not Congress. Not only does Judge Lamp get this wrong, but Constitutionally. Congress cannot appear to taint one’s reputation, without a trial, as this judge did, and as Congress did when they passed the 2021 National Defense Authorization Act with the Naming Commission provisions.
Jefferson Davis famously was charged with treason and looked forward to a trial, but treason was not applicable and neither he nor any other Confederate was ever tried, much less convicted.
Congress cannot pass a bill of attainder, but neither can Judge Land bootstrap “attainder” into US Law. This sets a bad precedent to insert bad facts and bad law promoting judicial activism where it is unwarranted.
I do hope that the Ranger Foundation will appeal this decision and that a Judicial Ethics complaint will be filed against Judge Land. This is the kind of decision language that undermines public confidence in the judicial system.
It is these obscure corners of the law, which if overlooked, will combine with other bad decisions to continue to undermine the Constitution. All Southern-Americans have a stake in Mosby’s reputation and disrespecting Mosby like this adds to the accumulation of stigmatic defamation levied upon us and our families
Southerners like Land, a Louisiana native and a former Georgia State senator, reminds me of what President Jefferson Davis said, “nothing fills me with deeper sadness than to see a Southern apologizing for the defense we made of our inheritance.”
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Excerpt of Judge Land’s Conclusion in The National Ranger Memorial Foundation, Inc. vs. United States Department of Defense, et. al.:
“Mosby’s ranger tactics and methods may be worthy of admiration and respect in some quarters. But other Americans may genuinely conclude that the development of them as an officer of the Confederate States of America in an open rebellion against the United States adds a treasonous taint that overcomes the appropriateness of any tribute to the effectiveness of some specific maneuver or survival technique. It is beyond reasonable dispute that the United States Congress, consisting of the duly elected representatives of the American people, has the authority to decide whether Mosby should be memorialized and honored on a United States military installation. Congress has determined that he should not be, and the court finds that its determination was properly implemented by the Secretary of Defense.”
The views expressed at Abbeville Institute are not necessarily the views of the organization or its members.
Unfortunately, most southerners have no idea about the intricacies of the war let alone who Mosby was. The renaming of military installations is just another stripping of southern heritage because southerners tend to not care. It is sad that we have to move our memorials onto private land. I do not believe this case will see a revisit in the future.
“nothing fills me with deeper sadness than to see a Southern apologizing for the defense we made of our inheritance.”
There are too many of these Yankee-corporate-criers (Scalawags) today of Which President Davis has spoken. Most are the milquetoast sissies who love their titles and hate their blood. Judge Land is of this ilk. May we never meet, Judge. You disgust me.
Thank you so much for this, Mr. McCallister. Maybe because my great-great grandfather was in Mosby’s Rangers, I read your article with special interest. But I also find myself vexed by the effect of all this nouveau cartoonish history on the living, on people like my college-age son, and my uncle who recently died and contributed so much to his Southern city, and was bewildered by all the smears and statue toppling. Incidentally, everyone I know who feels this way was also a supporter of the Civil Rights movement.
Hopefully I’ll complete my half-written essay about all this soon, instead of just watching people grieve privately.