Hey, maybe the Confederate flag is unconstitutional

That leads to the question, then, of whether government speech that tells African Americans they are inferior – and perhaps that the era of slavery was right – violates the equal protection clause of the Fourteenth Amendment.

This is a stretch of current equal protection doctrine, which is concerned with tangible questions like funding rather than speech.

However, if a state legislature passed a statute proclaiming African Americans are inferior I can imagine that such a bold and vicious statement might rise to the level of a violation of the Fourteenth Amendment’s promise that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

Now take a further step: does the Confederate battle flag or a monument to the Confederacy tell African American citizens that they are inferior? And if so, does that violate the equal protection clause of the Fourteenth Amendment?