In recent years, communities across the United States have accelerated decisions to remove Confederate monuments. Many removals have been successfully completed with the cooperation of the property owner and public authorities. But others, especially in Southern states, have been more challenging. In nine states, “statue statutes” can prevent or inhibit any changes to Confederate monuments, even where the property owner (often, a local government) seeks removal.
Deborah R. Gerhardt’s Law in the Shadows of Confederate Monuments presents an enriching account of the tensions created by state statue statutes, and it offers a new idea to resolve them.
At the outset, Gerhardt characterizes these laws as “‘preservation’ laws,” rightly using quotation marks to signal that they sit outside of what preservation law is normally thought to encompass. Their drafters have tried to coopt preservation terminology, giving statue statutes titles like “memorial preservation,” “cultural heritage,” and “memorial protection.”
But in fact, established preservation laws reject the notion that a specific history or time period be given special treatment – or even that the statues are protectable to begin with. Normally, only those places deemed to satisfy broad, public criteria evaluating their significance and their material integrity will be protected. In virtually all cases, designation criteria exclude commemorative works that merely memorialize some prior event or historical figure. The rationale for this exclusion is that commemorative works are not themselves historic, but rather interpret history. Statue statutes’ protection for a narrow category of commemorative works thus runs contrary to established preservation law.
That said, the argument for protecting these statutes has some basis in international cultural heritage norms. Gerhardt notes a global inclination disfavoring destruction, reminding readers of the international outcry that met the looting of the Baghdad Museum and the destruction of temples in Syria, among other events.
But, as she explains, American Confederate monuments differ from these other cultural artifacts. She argues that Confederate monuments “amplify a message of legal inequality…[and] impose constant reminders of the nation’s refusal to confront systemic racism.” (P. 16.) She cites to research explaining how the exaltation of Lost Cause ideology has negative health consequences, primarily psychological harm.
Given that context, Gerhardt argues, Confederate monuments deserve greater scrutiny. And yet, in nine states, these monuments have earned greater protection.
The article deftly leads the reader through the legal issues raised by statue statutes, logging the variety of ways in which communities have tried to smooth the removal process. It gives full treatment to the highly-publicized debate in Richmond, Virginia, which resulted in the city’s removal of several prominent statues on Monuments Avenue after modifications to the Virginia statue statute. In Tennessee, the City of Memphis sold the land on which one of its Confederate monuments stood to a private party, circumventing the state law that, at the time, only prohibited monument removal on public land.
Additionally, a county in North Carolina reviewed historical property records to successfully argue that a Confederate statue sitting on public property stood subject to a revocable license. The City of New Orleans received a court order declaring several public statues to be public nuisances, given the psychological harm they imposed on the city’s majority-Black residents. Other towns have invoked the public nuisance theory, too, though not always successfully, as Emily Behzadi’s recent article chronicles.
Both anti-statue local governments and pro-statue groups have also, largely unsuccessfully, raised First Amendment challenges. For example, courts rejected arguments from Lakeland, Florida, and Birmingham, Alabama, that statue statutes infringed on local-government speech. They have also rejected Confederate sympathizers’ First Amendment claims because their allegiance to the Lost Cause cannot be considered speech.
Of the various examples included in the article highlighting the fraught legal landscape, the one that stuck with me most was Gerhardt’s fascinating account of the tug-of-war over the “Silent Sam” statue on the campus of her institution, the University of North Carolina. The war ultimately ended in the statue’s removal, but not without several lawsuits, student arrests, and the resignation of the chancellor. That account underscores the need for guidance outside of the current state-local framework for making decisions about monuments.
Gerhardt focuses her search for such guidance on federal laws that could be interpreted to preempt state statue statutes. The article considers, then rejects established federal historic preservation laws, including the National Historic Preservation Act, as possible frameworks for mediating disputes. These laws impose obligations on federal agencies to consider historic resources in making decisions and do not address non-historic commemorative works nor offer guidance for resolving non-federal issues. The article also evaluates, then dismisses the power of federal copyright law to support monument retention, given that many monuments were factory-made and that any artists’ rights to protect their artistic works from demolition have long expired.
Instead, the article proposes that the federal Civil Rights Act of 1964 be considered a vehicle for challenging existing monuments. Among other things, the Act prohibits race-based and color-based exclusion from participation in programs receiving federal assistance, and it prohibits race-based and color-based discrimination. The Act enables private parties to claim a racially hostile environment, and caselaw interpreting the Act confirms that visual imagery can contribute to a racially hostile environment.
The article succinctly explains how a legal theory based on the Act might be treated by a court. Like the recent public nuisance suits, a Civil Rights Act suit would focus on the impact of the monuments. Additional research on such impacts may be needed to better support the claim, but I give Gerhardt credit for advancing a novel idea.
I will close by noting that this area of scholarship has been active. Over the last few years, legal scholars have published over a dozen articles (and students a half-dozen more) about Confederate monuments. Please give them a look. And for a reader interested in an expanded, non-law-review treatment of these issues, I highly recommend Erin L. Thompson’s book, Smashing Statues: The Rise and Fall of America’s Public Monuments.
Note: This Jot was written and submitted before Professor Bronin’s public service leave from Cornell University, and it does not represent an official statement by or constitute an official publication of the U.S. Advisory Council on Historic Preservation.
