Tearing Down Confederate Monuments or Erasing American History?

by Diane Rufino, February 15, 2023

The Confederate “Reconciliation Memorial” in Arlington National Cemetery, which is a magnificent sculpture honoring the Confederate dead, has stood peacefully and respectfully in its current location for 109 years. Yet patriotic and historically-minded members of the community (plaintiffs “Defend Arlington” and Friends of Arlington”) have filed suit against the U.S. Department of Defense (Lloyd Austin, as Director) for its flagrantly inappropriate decision to remove and/or demolish the Confederate Memorial from the grounds at Arlington Cemetery. The case is Arlington v. Austin, which was filed with the US District Court for the District of Columbia this month, on February 16.

At the Arlington National Cemetery there is a 109-year-old Confederate Memorial to the Reconciliation and Reunification of our great nation after our bloodiest war – the War of Northern Aggression (incorrectly named the “Civil War”). It was the brainchild of Union soldier and president, William McKinley, who said “every soldier’s grave made during our unfortunate civil war is a tribute to American valor.” The sculptor, internationally renowned Jewish artist Moses Jacob Ezekiel, was a VMI Confederate soldier. Art critic Michael Robert Patterson states that “no sculptor, as far as known, has ever, in any one memorial told as much history as has Ezekiel in his monument at Arlington; and every human figure in it, as well as every symbol, is in and of itself a work of art.”

The statue, erected and unveiled in 1914, features an elaborately designed monument that offers a nostalgic, mythologized vision of the Confederacy, including highly sanitized depictions of slavery. The monument depicts bronze woman, crowned with olive leaves, standing on a 32-foot pedestal, and was designed to represent the American South. According to Arlington, the woman holds a laurel wreath, a plow stock and a pruning hook, with a Biblical inscription at her feet that says: “They have beat their swords into plough-shares and their spears into pruning hooks.” The pedestal features 14 shields, engraved with the coats of arms of the 13 Confederate states and Maryland, which didn’t secede or join the Confederacy. Some of the figures also on the statue include a slave woman depicted as “Mammy” holding what is said to be the child of a white officer, and an enslaved man following his owner to war. There is an inscription on the great statue, which is in Latin, which translates to: “The victorious cause was pleasing to the gods, but the lost cause to Cato,” and was meant to equate the South’s secession to a noble “lost cause.”

As a description on the cemetery’s website states: “The history of the Confederate Memorial embodies the complex and contested legacy of the Civil War at Arlington National Cemetery, and in American culture generally.”

The picture below shows an aerial view of the Confederate Memorial at Arlington with over 500 graves of Confederate military personnel and some family in concentric circles around the monument. Sculptor Moses Ezekiel was buried in 1921 around the base, along with two other Confederate soldiers and one Confederate sailor. The Memorial became their grave marker.

In a series of three reports, filed in August through September 2022, an independent commission (the “Naming Commission,” which will be discussed below) recommended that the Confederate Memorial at Arlington National Cemetery be dismantled and taken down, as part of its final report to Congress on the renaming of military bases and assets that commemorate the Confederacy. Panel members rolled out the final list of ships, base roads, buildings and other items that they said should be renamed. The list includes the Confederate Memorial at Arlington National Cemetery, two Navy ships, and some Army vessels to street signs, water towers, athletic fields, hospital doors and even decals on recycling bins. Unlike the commission’s recommendations earlier in the year laying out new names for nine Army bases, there were no suggested names for the roughly 1,100 assets across the military that bear Confederate names. Retired Army Brig. Gen. Ty Seidule, Vice-Chair of the commission, said the final cost for all of its renaming recommendations will be $103,407,759. The bulk of the remaining costs, which amounts to $21,041,301, would cover the renaming of nine Army bases, and about $450,000 for recommended new names at the U.S. Military at West Point in New York.  [The reports can be accessed and read from this site – https://www.thenamingcommission.gov/home ]

The Naming Commission (short for “The Commission on the Naming of Items in the Department of Defense that Commemorate the Confederate States of America or Any Person Who Served Voluntarily with the Confederate States of America”) is an 8-member US congressional commission that was established by the Biden administration through the 2021 National Defense Authorization Act (NDAA). Its stated purpose is to address systemic racism in the military by creating and providing a list of military assets with names associated with the Confederate States of America (including persons who served it voluntarily) and providing recommendations for their removal. Recall that this notion of “systemic racism,” a favorite and often-asserted characterization of American society by Democrats and the radical left, really became a talking point in the wake of George Floyd’s killing, in Minneapolis, Minnesota with riots exploding all across the country. The Naming Commission is comprised of retired army generals and navy admirals, and other notables.

In the summer of 2020, the George Floyd protests and resulting removal of Confederate monuments drew attention to the U.S. Army installations named for Confederate soldiers. These installations and other defense property were generally named in the early to mid-20th century at the height of the Jim Crow era to court support from Southerners.

In response, lawmakers added a provision for a “renaming commission” (ie, the “Naming Commission”) to the National Defense Authorization Act for Fiscal Year 2021. It was vetoed by President Donald Trump. However, it was enacted on January 1, 2021, after a successful veto override. The law required the commission to develop a list that could be used to “remove all names, symbols, displays, monuments, and paraphernalia that honor or commemorate the Confederate States of America or any person who served voluntarily with the Confederate States of America from all assets of the Department of Defense.” The law required the Secretary of Defense to implement the plan within three years of its enactment.

In August – September 2022, the commission delivered its report and recommendations to Congress in three parts. It disbanded on October 1, 2022, after fulfilling its duties to Congress.

On October 6, Secretary of Defense Lloyd Austin declared in a memo that he concurred with all the commission’s recommendations and was committed to implementing them as soon as possible, within legal constraints. On January 5, 2023, William A. LaPlante, U.S. under-Secretary of Defense for acquisition and sustainment (USD (A&S)), directed the Department to implement all of the commission’s recommendations.

Although the Naming Commission only recommended that the Memorial statue be taken down from its base, in a truly barbaric crime against art and history, the Secretary of the US Department of Defense, Lloyd Austin wants the Memorial to be demolished.

The Lawsuit –

The issue discussed in this article, the removal of the Memorial at Arlington National Cemetery, and addressed by the “Defend Arlington” plaintiffs in their lawsuit, starts with the recommendations (3 independent reports) made by this Commission from August to September, 2022.

The complaining parties (“plaintiffs”) allege that the decision to remove the magnificent memorial goes beyond the Department of Defense’s (DOD) authority under National Defense Authorization Act (NDAA) § 370 and violates APA § 706 because its issuance is arbitrary, capricious, and an abuse of the Department of Defense’s discretion; it exceeds the department’s statutory authority and is otherwise not in accordance with law.  [Note: The NDAA is the name for each of a series of federal laws specifying the annual budget and expenditures of the U.S. Department of Defense. The first NDAA was passed in 1961. The U.S. Congress oversees the defense budget primarily through two yearly bills: the National Defense Authorization Act and defense appropriations bills. The authorization bill is the jurisdiction of the Senate Armed Services Committee and House Armed Services Committee and determines the agencies responsible for defense, establishes recommended funding levels, and sets the policies under which money will be spent. The appropriations bill provides funds. The National Defense Authorization Act is not to be confused with the Patriot Act, which was passed in the wake of 9/11].

The complaining parties, Save Southern Heritage Florida and Defend Arlington, have spent months and months lobbying, conducting historical and legal research, and planning. They have given up the peaceful approach and have recently filed a federal lawsuit in a Washington DC District Court today to block removal or demolition of the Confederate “Reconciliation Monument” in Arlington Cemetery. The lawsuit names the Department of Defense Secretary, Lloyd Austin, and two other federal officials and alleges that they have illegally attempted to remove or demolish the Confederate “Reconciliation” Monument in Arlington National Cemetery based on recommendations made by the Congressional “Naming” Commission in September 2022. The lawsuit charges the federal officials with violation of the Administrative Procedures Act, National Environmental Policy Act, National Historic Preservation Act and the Federal Advisory Committee Act for decision making that was arbitrary, capricious and contrary to law. The suit alleges numerous claims of overreach by the Department of Defense in its implementation of the 2021 Armed Services Appropriation Act, particularly as it relates to the Naming Commission’s recommendation to remove the Memorial at Arlington National Cemetery.

Plaintiff ‘Defend Arlington’ is an unincorporated association of individuals and groups that are dedicated to the preservation of Southern- American heritage and Confederate and Jewish Veterans. Individual Plaintiffs include Archivist Teresa Roane, H.K. Edgerton, Richard Moomaw (whose great great great uncle is buried in the Confederate section of Arlington) and retired US Army Historian Lieutenant Colonel Edwin Kennedy (USA-ret).

Plaintiffs seek an order declaring that the Department of Defense has no authority under the National Defense Authorization Act (NDAA) to require implementation of the Naming Commission’s recommendation to remove the Memorial in Arlington National Cemetery, alleging that the Department of Defense’s directive is invalid and asking the court to enjoin (prevent) the department from implementing or enforcing the Naming Commission’s recommendation. Independent of this lawsuit, Defend Arlington has expended significant resources developing and preparing educational materials, articles, White Papers, speaking and attending conferences in furtherance of increasing understanding of the civil war, southern heritage, and artistic and historic significance of the Reconciliation Memorial. The removal of the Memorial frustrates the sole mission of Defend Arlington’s organization by redirecting resources that would be used for educational materials and advocacy associated with their respective groups to confront the imminent threat of destruction of a significant part of American and Southern history in Arlington National Cemetery. At the direction of its associates, Plaintiff Defend Arlington’s organizational resources have been diverted and diminished to combat this agency action due to irreversible damage that would result.

The History of Arlington National Cemetery –

One afternoon in May 1861, a young Union Army officer went rushing into the mansion that commanded the hills across the Potomac River from Washington, D.C. “You must pack up all you value immediately and send it off in the morning,” Lt. Orton Williams told Mary Custis Lee, the wife of Confederate General Robert E. Lee, who was away mobilizing Virginia’s military forces as the country hurtled toward the bloodiest war in its history.

Mary Lee dreaded the thought of abandoning Arlington, the 1,100-acre estate she had inherited from her father, George Washington Parke Custis, upon his death in 1857. Custis, the grandson of Martha Washington, had been adopted by George Washington when Custis’ father died in 1781. Beginning in 1802, as the new nation’s capital took form across the river, Custis started building Arlington, his showplace mansion. Probably modeled after the Temple of Hephaestus in Athens, the columned house floated among the Virginia hills as if it had been there forever, peering down upon the half-finished capital at its feet. When Custis died, Arlington passed to Mary Lee, his only surviving child, who had grown up, married and raised seven children and buried her parents there. In correspondence, her husband referred to the place as “our dear home,” the spot “where my attachments are more strongly placed than at any other place in the world.” If possible, his wife felt an even stronger attachment to the property.

On April 12, 1861, Confederate troops had fired on the federal garrison at Fort Sumter, South Carolina, prompting a number of states from the Deep South to join in rebellion. President Abraham Lincoln, newly installed in the White House, called up 75,000 troops to defend the capital. Four more southern states then seceded, bringing the total to 11. As the spring unfolded, the forces drifted into Washington, set up camp in the unfinished Capitol building, patrolled the city’s thoroughfares and scrutinized the Virginia hills for signs of trouble. Although officially uncommitted to the Confederacy, Virginia was expected to join the revolt. When that happened, Union troops would have to take control of Arlington, where the heights offered a perfect platform for artillery—key to the defense or subjugation of the capital. Once the war began, Arlington was easily confiscated and occupied. But then it became the prize in a legal and bureaucratic battle that would continue long after the guns fell silent at Appomattox in 1865. The federal government was still wrestling the Lee family for control of the property in 1882, by which time it had been transformed into Arlington National Cemetery, the nation’s most hallowed ground.

Orton Williams was not only Mary Lee’s cousin and a suitor of her daughter Agnes but also private secretary to General in Chief Winfield Scott of the Union Army.

Working in Scott’s office, he had no doubt heard about the Union Army’s plans for seizing Arlington, which accounts for his sudden appearance there. That May night, Mrs. Lee supervised some frantic packing by a few of the family’s 196 slaves, who boxed the family silver for transfer to Richmond, crated George Washington’s and G.W.P. Custis’ papers and secured General Lee’s files. After organizing her escape, Mary Lee tried to get some sleep, only to be awakened just after dawn by Lt. Williams. The Union army’s advance upon Arlington had been delayed, he said, though it was inevitable. She lingered for several days, sitting for hours in her favorite roost, an arbor south of the mansion. “I never saw the country more beautiful, perfectly radiant,” she wrote to her husband. “The yellow jasmine in full bloom and perfuming the air; but a death like stillness prevails everywhere.”

The general, stranded at a desk in Richmond, feared for his wife’s safety. “I am very anxious about you,” he had written her on April 26. “You have to move and make arrangements to go to some point of safety….War is inevitable & there is no telling when it will burst around you.”

By this time, he almost certainly knew that Arlington would be lost. A newly-commissioned brigadier general in the Confederate Army, he had made no provision to hold it by force, choosing instead to concentrate his troops some 20 miles southwest, near a railroad junction at Manassas, Virginia. Meanwhile, Northern newspapers such as the New York Daily Tribune trained their big guns on him—labeling him a traitor for resigning his colonel’s commission in the Union Army to go south “in the footsteps of Benedict Arnold!”

The rhetoric grew only more heated with the weather. Former Army comrades who had once admired Lee turned against him. None was more outspoken than Brig. Gen. Montgomery C. Meigs, a fellow West Point graduate who had served amicably under Lee in the engineer corps but now considered him an insurgent. As he wrote in a letter to his father: “No man who ever took the oath to support the Constitution as an officer of our army or navy…should escape without loss of all his goods and civil rights and expatriation,” He urged that Lee as well as Gen. Joseph E. Johnston, who also had resigned from the federal Army to join the enemy, and Confederate President Jefferson Davis “should be put formally out of the way if possible by sentence of death and executed if caught.”

When Johnston resigned, Meigs had taken his job as quartermaster general, which required him to equip, feed and transport a rapidly growing Union Army – a task for which Meigs proved supremely suited. Vain, energetic, vindictive and exceptionally capable, he would back up his belligerent talk in the months and years ahead. His own mother conceded that the youthful Meigs had been “high tempered, unyielding, tyrannical…and very persevering in pursuit of anything he wants.” Fighting for control of Arlington, he would become one of Lee’s most implacable foes.

By mid-May, even Mary Lee had to concede that she could not avoid the impending conflict. She wrote to one of her daughters: “I would have greatly preferred remaining at home and having my children around me but as it would greatly increase your Father’s anxiety I shall go.” She made an eerily accurate prediction: “I fear that this will be the scene of conflict and my beautiful home endeared by a thousand associations may become a field of carnage.”

She took a final turn in the garden, entrusted the keys to Selina Gray, a slave, and followed her husband’s path down the estate’s long, winding driveway. Like many others on both sides, she believed that the war would pass quickly.

On May 23, 1861, the voters of Virginia approved an ordinance of secession by a ratio of more than six to one. Within hours, columns of Union forces streamed through Washington and made for the Potomac. At precisely 2 a.m. on May 24, some 14,000 troops began crossing the river into Virginia. They advanced in the moonlight on steamers, on foot and on horseback, in swarms so thick that James Parks, a Lee family slave watching from Arlington, thought they looked “like bees a-coming.”

The undefended estate changed hands without a whimper. When the sun rose that morning, the place was teeming with men in blue. They established a tidy village of tents, stoked fires for breakfast and scuttled over the mansion’s broad portico with telegrams from the War Office. The surrounding hills were soon lumpy with breastworks, and massive oaks were felled to clear a line of fire for artillery. Frank Leslie’s Illustrated Newspaper reported that “all that the best military skill could suggest to strengthen the position has been done and the whole line of defenses on Arlington Heights may be said to be completed and capable of being held against any attacking force.”

The attack never materialized, but the war’s impact was seen, felt, and heard at Arlington in a thousand ways. Union forces denuded the estate’s forest and absconded with souvenirs from the mansion. They built cabins and set up a cavalry remount station by the river. The Army also took charge of the newly freed slaves who flocked into Washington after Lincoln’s Emancipation Proclamation of 1863. When the government was unable to accommodate the former slaves in the capital, where thousands fell sick and died, one of Meigs’ officers proposed that they be settled at Arlington, “on the lands recently abandoned by rebel leaders.” A sprawling Freedmen’s Village of 1,500 sprang to life on the estate, complete with new frame houses, schools, churches and farmlands on which former slaves grew food for the Union’s war effort. A visiting journalist would report in the Washington Independent in January 1867: “One sees more than poetic justice in the fact that its rich lands, so long the domain of the great general of the rebellion, now afford labor and support to hundreds of enfranchised slaves,”

As the war had heated up in June 1862, Congress passed a law that empowered commissioners to assess and collect taxes on real estate in “insurrectionary districts.” The statute was meant not only to raise revenue for the war, but also to punish turncoats like Lee. If the taxes were not paid in person, commissioners were authorized to sell the land.

Authorities levied a tax of $92.07 on the Lees’ estate that year. Mary Lee, stuck in Richmond because of the fighting and her deteriorating health, dispatched her cousin Philip R. Fendall to pay the bill. But when Fendall presented himself before the commissioners in Alexandria, they said they would accept money only from Mary Lee herself. Declaring the property in default, they put it up for sale. The auction took place on January 11, 1864, a day so cold that blocks of ice stopped boat traffic on the Potomac. The sole bid came from the federal government, which offered $26,800, well under the estate’s assessed value of $34,100. According to the certificate of sale, Arlington’s new owner intended to reserve the property “for Government use, for war, military, charitable and educational purposes.” Appropriating the homestead was perfectly in keeping with the views of Lincoln, Secretary of War Edwin M. Stanton, Gen. William T. Sherman and Montgomery Meigs, all of whom believed in waging total war to bring the rebellion to a speedy conclusion. “Make them so sick of war that generations would pass away before they would again appeal to it,” Sherman wrote.

The war, of course, dragged on far longer than anyone expected. By the spring of 1864, Washington’s temporary hospitals were overflowing with sick and dying soldiers, who began to fill local cemeteries just as General Lee and the Union commander, Gen. Ulysses S. Grant, began their blistering Forty Days’ Campaign, exchanging blows from Virginia’s Wilderness to Petersburg. The fighting produced some 82,000 casualties in just over a month. Meigs cast about for a new graveyard to accommodate the rising tide of bodies. His eye fell upon Arlington.

On May 13, 1864, the first military burial at Arlington was conducted for Private William Christman.

In June 1864, General Meigs moved to make official what was already a matter of practice: He wrote to Secretary Stanton: “I recommend that…the land surrounding the Arlington Mansion, now understood to be the property of the United States, be appropriated as a National Military Cemetery, to be properly enclosed, laid out and carefully preserved for that purpose.” Meigs proposed devoting 200 acres to the new graveyard. He also suggested that Christman and others recently interred in the Lower Cemetery should be unearthed and reburied closer to Lee’s hilltop home. “The grounds about the Mansion are admirably adapted to such a use.” Stanton endorsed the quartermaster’s recommendation the same day.

Loyalist newspapers applauded the birth of Arlington National Cemetery, one of 13 new graveyards created specifically for those dying in the Civil War. A reporter from the Washington Morning Chronicle commented: “This and the [Freedmen’s Village]…are righteous uses of the estate of the Rebel General Lee.”

Touring the new national cemetery on the day that Stanton signed his order, Meigs was incensed to see where the graves were being dug. “It was my intention to have begun the interments nearer the mansion,” he fumed, “but opposition on the part of officers stationed at Arlington, some of whom…did not like to have the dead buried near them, caused the interments to be begun” in the Lower Cemetery, where Christman and others were buried.

To enforce his orders, as well as to make Arlington uninhabitable for the Lees, Meigs evicted officers from the mansion, installed a military chaplain and a loyal lieutenant to oversee cemetery operations, and proceeded with new burials, encircling Mrs. Lee’s garden with the tombstones of prominent Union officers. The first of these was Capt. Albert H. Packard of the 31st Maine Infantry. Shot in the head during the Battle of the Second Wilderness, Packard had miraculously survived his journey from the Virginia front to Washington’s Columbian College Hospital, only to die there. On May 17, 1864, he was laid to rest where Mary Lee had enjoyed reading in warm weather, surrounded by the scent of honeysuckle and jasmine. By the end of 1864, some 40 officers’ graves had joined his.

Meigs added others as soon as conditions allowed. He dispatched crews to scour battlefields for unknown soldiers near Washington. Then he excavated a huge pit at the end of Mrs. Lee’s garden, filled it with the remains of 2,111 nameless soldiers and raised a sarcophagus in their honor. He understood that by seeding the garden with prominent Union officers and unknown patriots, he would make it politically difficult to disinter these heroes of the Republic at a later date. The last autumn of the war produced thousands of new casualties, including Lt. John Rodgers Meigs, one of the quartermaster’s four sons. Lieutenant Meigs, 22, was shot on October 3, 1864, while on a scouting mission for Gen. Philip Sheridan in Virginia’s Shenandoah Valley. He was returned with solemn honors to Washington, where Lincoln, Stanton and other dignitaries joined his father for the funeral and burial in Georgetown. The loss of his “noble precious son” only deepened Meigs’ antipathy toward Robert E. Lee.

“The rebels are all murderers of my son and the sons of hundreds of thousands,” Meigs exploded when he learned of Lee’s surrender to Grant on April 9, 1865. “Justice seems not satisfied if they escape judicial trial and execution… by the government which they have betrayed and attacked and whose people loyal and disloyal they have slaughtered.” If Lee and other Confederates escaped punishment because of pardons or paroles, Meigs hoped that Congress would at least banish them from American soil.

Lee avoided the spectacle of a trial. Treason charges were filed against him but quietly dropped, almost certainly because his former adversary, Grant, interceded on Lee’s behalf with President Andrew Johnson. Settling in Lexington, Virginia, Lee took over as president of Washington College, a struggling little school deep in the Shenandoah Valley, and encouraged old comrades to work for peace.

The Lees would spend the postwar years trying to retake possession of their estate.

Mary Lee felt a growing outrage. In a letter to a friend, she wrote: “I cannot write with composure on my own cherished Arlington.” The graves “are planted up to the very door without any regard to common decency….If justice and law are not utterly extinct in the U.S., I will have it back.”

Her husband, however, kept his ambitions for Arlington hidden from all but a few advisers and family members. He explained to a Washington lawyer friend who offered to take on the case for free: “I have not taken any steps in the matter under the belief that at present I could accomplish no good.” But he encouraged the lawyer to research the case quietly and to coordinate his efforts with Francis L. Smith, Lee’s trusted legal adviser in Alexandria. To his elder brother Smith Lee, who had served as an officer in the Confederate navy, the general admitted that he wanted to regain the possession of Arlington and particularly to terminate the burial of the dead which can only be done by restoring the land to the family.

To gauge whether this was possible, Smith Lee made a clandestine visit to the old estate in the autumn or winter of 1865. He concluded that the place could be made habitable again if a wall was built to screen the graves from the mansion. But Smith Lee made the mistake of sharing his views with the cemetery superintendent, who dutifully shared them with Meigs, along with the mystery visitor’s identity.

While the Lees worked to reclaim Arlington, Meigs urged Edwin Stanton in early 1866 to make sure the government had sound title to the cemetery. The land had been consecrated by the remains buried there and could not be given back to the Lees, he insisted, striking a refrain he would repeat in the years ahead. Yet the Lees clung to the hope that Arlington might be returned to the family – if not to Mrs. Lee, then to one of their sons. The former general was quietly pursuing this objective when he met with his lawyers for the last time, in July 1870. The prospect does not look promising, he reported to his wife. The question of Arlington’s ownership was still unresolved when Lee died, at 63, in Lexington, on October 12, 1870.

His widow continued to obsess over the loss of her home. Within weeks, Mary Lee petitioned Congress to examine the federal claim to Arlington and estimate the costs of removing the bodies buried there. Her proposal was bitterly protested on the Senate floor and defeated, by a vote of 54 to 4. It was a disaster for Mary Lee, but the debate helped to elevate Arlington’s status: no longer a potter’s field created in the desperation of wartime, the cemetery was becoming something far grander, a place senators referred to as hallowed ground, a shrine for “the sacred dead,” “the patriot dead,” “the heroic dead” and “patriotic graves.”

The plantation the Lees had known became less recognizable each year. Many original residents of Freedmen’s Village stayed on after the war, raising children and grandchildren in the little houses the Army had built for them. Meigs stayed on, too, serving as quartermaster general for two decades, shaping the look of the cemetery. He raised a Greek-style Temple of Fame to George Washington and to distinguished Civil War generals by Mrs. Lee’s garden, established a wisteria-draped amphitheater large enough to accommodate 5,000 people for ceremonies and even prescribed new plantings for the garden’s borders (elephant ears and canna). He watched the officers’ section of the cemetery sprout enormous tombstones typical of the Gilded Age. And he erected a massive red arch at the cemetery’s entrance to honor Gen. George B. McClellan, one of the Civil War’s most popular—and least effective—officers. As was his habit, Meigs included his name on the arch; it was chiseled into the entrance column and lettered in gold. Today, it is one of the first things a visitor sees when approaching the cemetery from the east.

While Meigs built, Mary Lee managed a farewell visit to Arlington in June 1873. Accompanied by a friend, she rode in a carriage for three hours through a landscape utterly transformed, filled with old memories and new graves. She recorded: “My visit produced one good effect. The change is so entire that I have not the yearning to go back there and shall be more content to resign all my right in it.”  She died in Lexington five months later, at the age of 65.

With her death, her hopes for Arlington lived on in her eldest son, George Washington Custis Lee, known as Custis. For him, regaining the estate was a matter of both filial obligation and self-interest: he had no inheritance beyond the Arlington property. On April 6, 1874, within months of his mother’s funeral, Custis went to Congress with a new petition. Avoiding her inflammatory suggestion that Arlington be cleared of graves, he asked instead for an admission that the property had been taken unlawfully and requested compensation for it. He argued that his mother’s good-faith attempt to pay the “insurrectionary tax” of $92.07 on Arlington was the same as if she had paid it.

While the petition languished for months in the Senate Judiciary Committee, Meigs worried that it would “interfere with the United States’ tenure of this National Cemetery, a result to be avoided by all just means.” He need not have worried. A few weeks later, the petition died quietly in committee, attended by no debate and scant notice.

Custis Lee might have given up then and there if not for signs that the hard feelings between North and South were beginning to soften. Rutherford B. Hayes, a Union veteran elected on the promise of healing scars from the Civil War, was sworn in as president in March 1877. Hayes hardly had time to unpack his bags before Custis Lee revived the campaign for Arlington – this time in court.

Asserting ownership of the property, Lee asked the Circuit Court of Alexandria, Virginia, to evict all trespassers occupying it as a result of the 1864 auction. As soon as U.S. Attorney General Charles Devens heard about the suit, he asked that the case be shifted to federal court, where he felt the government would get a fairer hearing. In July 1877, the matter landed in the lap of Judge Robert W. Hughes of the U.S. Circuit Court for the Eastern District of Virginia. Hughes, a lawyer and newspaper editor, had been appointed to the bench by President Grant.

After months of legal maneuvering and arguments, Hughes ordered a jury trial. Custis Lee’s team of lawyers was headed by Francis L. Smith, the Alexandrian who had strategized with Lee’s father years before. Their argument turned upon the legality of the 1864 tax sale. After a six-day trial, a jury found for Lee on January 30, 1879: by requiring the “insurrectionary tax” to be paid in person, the government had deprived Custis Lee of his property without due process of law. “The impolicy of such a provision of law is as obvious to me as its unconstitutionality. Its evil would be liable to fall not only upon disloyal but upon the most loyal citizens. A severe illness lasting only ninety or a hundred days would subject the owner of land to the irreclaimable loss of its possession.”

The government appealed the verdict to the Supreme Court—which ruled for Lee again. On December 4, 1882, Associate Justice Samuel Freeman Miller, a Kentucky native appointed by President Lincoln, wrote for the 5 to 4 majority, holding that the 1864 tax sale had been unconstitutional and was therefore invalid.

The Lees had retaken Arlington.

This left few options for the federal government, which was now technically trespassing on private property. It could abandon an Army fort on the grounds, roust the residents of Freedmen’s Village, disinter almost 20,000 graves and vacate the property. Or it could buy the estate from Custis Lee—if he was willing to sell it.

He was. Both sides agreed on a price of $150,000, the property’s fair market value. Congress quickly appropriated the funds. Lee signed papers conveying the title on March 31, 1883, which placed federal ownership of Arlington beyond dispute. The man who formally accepted title to the property for the government was none other than Robert Todd Lincoln, secretary of war and son of the president so often bedeviled by Custis Lee’s father. If the sons of such adversaries could bury past arguments, perhaps there was hope for national reunion.

The same year the Supreme Court ruled in Custis Lee’s favor, Montgomery Meigs, having reached the mandatory retirement age of 65, was forced out of the quartermaster’s job. He would remain active in Washington for another decade, designing and overseeing construction of the Pension Building, serving as a Regent of the Smithsonian Institution and as a member of the National Academy of Sciences. He was a frequent visitor to Arlington, where he had buried his wife, Louisa, in 1879. The burials of other family members followed—among them his father, numerous in-laws and his son, John, reburied from Georgetown. Their graves, anchoring Row 1, Section 1 of the cemetery, far outnumbered those of any Lee relatives on the estate.

Meigs joined his family in January 1892, age 75, after a brief bout with the flu. He made the final journey from Washington in fine style, accompanied by an Army band, flying flags and an honor guard of 150 soldiers decked out in their best uniforms. His flag-draped caisson rattled across the river, up the long slope to Arlington and across the meadow of tombstones he had so assiduously cultivated. With muffled drums marking time and guidons snapping in the chill wind, the funeral procession passed Mary Lee’s garden and came to a halt on Meigs Drive. The rifles barked their last salute, “Taps” sounded over the tawny hills and soldiers eased Montgomery C. Meigs into the ground at the heart of the cemetery he created.

In 1900, Congress authorized Confederate remains to be interred at Arlington National Cemetery and designed a special section for them – known now as Section 16. (More below)  In 1906, with President William Howard Taft’s approval, the United Daughters of the Confederacy (a hereditary organization of Southern women) began raising funds to erect a memorial in the Confederate section, and in 1914, the Confederate Memorial was erected.

The Tomb of the Unknown Soldier was dedicated on November 11, 1921, with interment of the Unknown from World War I. President William Howard Taft was buried at Arlington in 1930, making him one of only two presidents buried here. President John F. Kennedy became the second on November 25, 1963. For years after President Kennedy’s televised state funeral, the number of requests for burial at Arlington grew exponentially. By the 1980s, to prevent the cemetery from running out of space, the U.S. government authorized expansion and established new regulations to restrict eligibility for in-ground burial. Columbarium courts were also created for above-ground inurnments.

Today, approximately 400,000 veterans and their eligible dependents are buried at Arlington National Cemetery. Service members from every one of America’s major wars, from the Revolutionary War to today’s conflicts, are interred at ANC. As a result, the history of our nation is reflected on the grounds of the cemetery.

[This section comes almost entirely from The Smithsonian Institute website –  Robert M. Poole, “How Arlington National Cemetery Came to Be,” Smithsonian Magazine, November 2009. https://www.smithsonianmag.com/history/how-arlington-national-cemetery-came-to-be-145147007/   

Section 16 –

The history of the Confederate Memorial embodies the complex and contested legacy of the Civil War at Arlington National Cemetery, and in American culture generally.

By the early 1900s, it had become tradition to establish a new section at Arlington for the dead from a particular war, followed by a commemorative monument. In Section 22, the Spanish-American War Monument and the Rough Riders Monument were erected to honor the many soldiers and sailors from the Spanish-American War buried there, memorializing that conflict. After fallen World War I service members were repatriated and buried in Sections 18 and 19, the Argonne Cross was erected in Section 18.

Following in this fashion was the creation of a Confederate section and the addition of its Memorial. Unveiled in 1914, the Confederate Memorial was designed by noted American sculptor Moses Jacob Ezekiel, a Confederate veteran and the first Jewish graduate of Virginia Military Institute.

However, to understand more fully why Confederate graves are at a former Union cemetery, and to interpret the memorial’s symbolism, it is necessary to delve more deeply into historical context. By the turn of the twentieth century, Arlington had become a truly national cemetery, a transformation that occurred amidst reconciliation between North and South, enduring racial inequality, and a new war. Reconstruction, the U.S. government’s efforts to punish the South and to re-build the former slavery-based society and transform the body politic in those states effectively ended in 1877 (when they ratified the Fourteenth Amendment). That year, President Rutherford B. Hayes agreed to withdraw federal troops from Southern states, allowing for sectional reconciliation but also the systemic disenfranchisement of African Americans, enforced by white violence and racial segregation in the South. In 1898, mobilization for war against Spain, and the United States’ expanding global power, reinforced a sense of national unity, at least among many white Americans.

In this context, the U.S. government reassessed its policies on Confederate burials. Although the Tomb of the Civil War Unknowns likely contained the remains of both Union and Confederate dead, Arlington had been a U.S. Army cemetery, and for years after the Civil War, Confederate veterans could not be buried there. However, on December 14, 1898, four days after the Spanish-American War ended, President William McKinley kicked off his “Peace Jubilee” nationwide tour with a speech in Atlanta in which he proclaimed, “in the spirit of fraternity we should share with you in the care of the graves of Confederate soldiers…. Sectional feeling no longer holds back the love we feel for each other. The old flag again waves over us in peace with new glories.”

Notably, this “spirit of fraternity” did not include African Americans. In 1871, a group of black soldiers had petitioned the War Department to relocate the graves of hundreds of United States Colored Troops (USCT) from the “Lower Cemetery,” where they were buried alongside former slaves and poor whites, to the main cemetery near Arlington House, where white Civil War veterans lay at rest. The War Department denied the petition. Arlington National Cemetery would remain segregated until 1948, when President Harry S. Truman desegregated the armed forces by executive order.

Meanwhile, the United Confederate Veterans (UCV) identified Confederate graves around the Washington, D.C. area and successfully petitioned the government to have those remains transferred to Arlington. On June 6, 1900, Congress appropriated $2,500 for the removal and reinterment of Confederate remains. By 1902, 262 Confederate bodies were interred in a specially designated section, Section 16. Unlike the orderly rows in the rest of the cemetery, graves in the Confederate section were arranged in concentric rings. Their headstones also looked different: while having the same dimensions as regular government headstones, the Confederate headstones featured pointed tops. The cemetery added more Confederate graves over the years, eventually totaling more than 500.

On June 7, 1903, the first Confederate Memorial Day ceremonies were held in Arlington’s Confederate section. President Theodore Roosevelt sent a floral arrangement, beginning a tradition continued by nearly every U.S. president. In 2009, President Barack Obama modified the tradition, sending two wreaths: one to the Confederate Memorial, the other to Washington, D.C.’s African American Civil War Memorial, in honor of U.S. Colored Troops.

The Confederate Memorial offers an opportunity for visitors to reflect on the history and meanings of the Civil War, slavery, and the relationship between military service, citizenship and race in America. This Memorial, along with the segregated United States Colored Troops graves in Section 27, invites us to understand how politics and culture have historically shaped how Americans have buried and commemorated the dead. Memorialization at a national cemetery became an important marker of citizenship — which, in the post-Reconstruction era, was granted to white Civil War veterans, Confederate or Union, but not to African American soldiers who had served their country. In such ways, the history of Arlington National Cemetery allows us to better understand the complex history of the United States.

As bad, as absurd, as unconscionable, as disrespectful, and as insulting as this decision to remove the Confederate Memorial at Arlington National Cemetery is, the broader issue is that the government, both federal and state, is giving into the WOKE narrative that Confederate statues serve to remind everyone of our most evil failure as a nation – slavery – and as such, they must all be removed from public areas. Government is on a campaign to erase our American history. I personally believe that the era of the War of Northern Aggression (aka, the Civil War), including the hostilities before and after, are the most important years of our nation’s history. It was a contest of wills: the Northern States and their belief that government can do anything it wants (tyranny), including the discriminatory taxing (protective tariffs) and plundering of the South for its own benefit versus the Southern States, which fought in self-defense in order to defend their legal and rightful decision to secede from the Union and in a very real sense, to defend the principles articulated and established in our most founding of documents – the Declaration of Independence.

A report released in 2021 found that 168 Confederate symbols were removed across the United States in 2020, virtually all of them following the killing of George Floyd by Minneapolis police officers. Only one of the symbols was removed prior to Floyd’s death, when Virginia renamed Lee-Jackson Day in April as Election Day. Ninety-four (94) of the Confederate symbols removed in 2020 were monuments, compared to 54 monuments removed between 2015 and 2019. The SPLC found 2,100 public Confederate symbols remain, 704 of them monuments. None are safe.

In 2015, Dylann Roof, a white supremacist, fatally shot nine Black worshippers at the historic Emanuel African Methodist Episcopal Church in Charleston, S.C. The church was not his original target; he originally intended to shoot up a nearby college campus. The massacre sparked discussion and, in some cases, reconsideration of Confederate flags and symbols across the South, starting with South Carolina lawmakers voting to remove the flag from statehouse grounds. Communities increasingly looked beyond flags to reexamine statues, monuments, city seals, street names and even state holidays. There could be nothing on public land that could remind us of slavery which might prompt and inspire white supremacists to go out and kill blacks.

Is racism more of a problem in 2022-2023 than it was in the twentieth century (the 20th century refers to the years 1901-2000) ?  Absolutely NOT.

A renewed push to remove Confederate monuments came in August of 2017, after the “Unite the Right” rally in Charlottesville, Va., which turned deadly when a speeding car plowed through a crowd of anti-racism protestors, killing one person and injuring others. What the press has negligently refused to disclose is that the man driving the car, James Alex Fields Jr., was 20 years old, a liberal, and drove into the state from Ohio. More recently, the nationwide reckoning with racism and police brutality, sparked by Floyd’s killing in May, prompted waves of protests across the country over the summer and a push to reexamine the legacy of racial injustice in the United States. Dozens of Confederate monuments were removed or replaced in the weeks and months that followed, either by local decrees or forceful protesters.

Virginia’s statue of Confederate Gen. Robert E. Lee was removed from the U.S. Capitol in late December after more than 100 years, to be replaced by a statue honoring civil rights activist Barbara Johns.

The question remains – Are we tearing down Confederate monuments or are we standing idly by while the government erases history ?

With the narrative of the left that there is systemic racism in the United States and the continuing move to remove Confederate statutes and the names of Confederate generals and soldiers and with the federal lawsuit to block the demolition of the Confederate Memorial moving forward, I encourage everyone to please contact your US congressmen and congresswomen and let them know that the Memorial MUST NOT be removed from Arlington – a national cemetery. No Confederate monument, statue, memorial, name, etc should ever be removed. It reflects a time in our history that certain individuals want to emphasize and re-emphasize. Abraham Lincoln believed that secession was unlawful and that the union was intended to be perpetual. He publicly re-emphasized these beliefs when he took his oath of office in 1861. He gave several reasons, among them being the fact that states were physically unable to separate. Their borders were contiguous. He believed that secession would cause the weakened government to descend into anarchy and that to prevent any movement to secede and divide the country, all Americans should be friends towards one another, rather than enemies. In his opinion, secession would destroy the only democracy in existence and prove for all time – to both future Americans and the world – that a government of the people could not survive. When war finally came, on April 16, 1861, Lincoln characterized it not as a war, but as an insurrection. He did this to ignore the issue of secession and all it entails (establishing a new sovereign country, denying the federal government its bounty from southern tariffs, etc) and to establish in the minds of the American people and the Northern troops that the government was fighting a rebellious south (not a newly-created Confederate nation, not an enemy) to squash their issues with the northern states. Legally, I suppose, he used such language to invoke power under Article IV, section 4 of the Constitution: “The United States shall guarantee to every State in the Union a Republican form of Government, and shall protect each of them against invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”  He, of course, was wrong.

The point is that during the years of the great war (1861-65), Lincoln never considered the southern states to have legally seceded but merely were in a state of rebellion. As such, all the soldiers, from both sides, were considered “Americans” – not enemies but friends fighting over deeply-held beliefs. According to Lincoln’s own articulation, both the Union and Confederate soldiers were, in one way or another, serving and fighting in the United States military for “American” ideals.

Respect for Southern dead is not something they care about. Yet 44% of today’s United States military are recruited in the South.

It’s sadly ironic that the government confiscated the property of a Confederate general, Robert E. Lee even before the outcome of the War of Northern Aggression and now wants to rid it of its grand 109-year-old memorial to Confederate soldiers.

Individuals who wish to receive details on this lawsuit can send an email to defendarlington@gmail.com.


The Naming Commission (and the Reports it issued to Congress, August – September 2022) – https://www.thenamingcommission.gov/home

Gene Kizer Jr, “A Lawsuit to Stop the Destruction of the 109-Year-Old Confederate ‘Reconciliation Memorial’ in Arlington National Cemetery, Charleston Athenaeum Press (blog), February 23, 2023. Referenced at: https://www.charlestonathenaeumpress.com/defend-arlington-v-austin-et-al-23-cv-441-entire-complaint-a-lawsuit-to-stop-the-destruction-of-the-109-year-old-confederate-reconciliation-memorial-in-arlington-national-cemetery/   (Includes the Complaint filed)

Jacqueline Feldscher, “Arlington’s Confederate Memorial Should Go, Commission Says,” Defense One, September 13, 2022.  Referenced at: https://www.defenseone.com/policy/2022/09/arlingtons-confederate-memorial-should-go-commission-says/377103/#:~:text=The%20Naming%20Commission%2C%20which%20was,avoid%20disturbing%20the%20graves%20nearby

“Section 16,” Arlington National Cemetery. Referenced at:  https://www.arlingtoncemetery.mil/Explore/Monuments-and-Memorials/Confederate-Memorial

Rachel Theisman, NPR, February 23, 2021.  Referenced at: https://www.npr.org/2021/02/23/970610428/nearly-100-confederate-monuments-removed-in-2020-report-says-more-than-700-remai

Robert M. Poole, “How Arlington National Cemetery Came to Be,” Smithsonian Magazine, November 2009.  Referenced at:  https://www.smithsonianmag.com/history/how-arlington-national-cemetery-came-to-be-145147007/   (this article was adapted by Mr. Poole from his book HALLOWED GROUND). Lolita C. Baldor, “Panel Advises Removal of Confederate Statue at Arlington,” AP News, September 13, 2022. Referenced a

About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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2 Responses to Tearing Down Confederate Monuments or Erasing American History?

  1. David Smith says:

    Hah! Staunch Republican Conservative railing against erasing history?! Have you been to Florida lately?

  2. J MAN says:

    Diane, another well stated and well researched piece of writing. Your gift for the written word is amazing. Keep it up . . . dang the detractors!

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