Confederate Monuments and the Law

Civil War monuments have been in the news lately, so I thought I'd do some research.

One great (and free) starting point is SSRN, a site where scholars can post their papers and researchers can search them. I typed in civil war monument and found North Carolina's Heritage Protection Act: Cementing Confederate Monuments in North Carolina's Landscape, by Kasi Wahlers, posted Nov. 3, 2015. Here's the abstract:

Even in 2015, the North Carolina landscape is densely populated with Confederate monuments, appearing in more than half of the state’s one hundred counties. The state has more monuments honoring the Civil War than any other event, with five Civil War monuments for every World War II monument. Most of these structures were erected between 1890 and 1930 and many are located on public property, commonly found in and around courthouses, town squares, graveyards, and University campuses. In July of 2015, North Carolina enacted the Heritage Protection Act (“HPA”). This law severely restricts the removal, relocation, or alteration of any monument located on public property. While neutral on its face, North Carolina’s Heritage Protection Act was enacted for the purpose of protecting Confederate monuments.

This Recent Development argues that the North Carolina Heritage Protection Act creates a lack of accountability on behalf of the N.C. General Assembly, usurps powers of local governments, and is amorphously vague as to what objects it applies to. Clarification of the statutory language by the General Assembly as well as a provision allowing for the erection of plaques that contextualize these monuments within local history is needed. Analysis proceeds in three parts. Part I of this Recent Development briefly sketches the propagation of Heritage Protection Acts across the South, outlines the North Carolina Heritage Protection Act, and highlights ways the North Carolina statute differs from other states. Part II discusses the confusing nature of this statute and analyzes legislative history to offer insight as to: (1) what role the North Carolina Historical Commission plays, if any, in deciding to permanently remove or relocate monuments; (2) whether this statute applies to county or city owned monuments; and (3) what constitutes a “display of permanent character.” Finally, Part III argues that this statute is in need of clarification and a provision that provides for plaques that contextualize these monuments within their local history. A brief conclusion follows.

That statute explains a sound bite I heard that the Durham city government couldn't have removed the statue recently pulled down by vandals. See David A. Graham, Durham's Confederate Statue Comes Down, The Atlantic, Aug. 15, 2017

The SSRN post didn't include a published citation, but I checked HeinOnline (another favorite source) and found Kasi E. Wahlers, Recent Development, North Carolina's Heritage Protection Act: Cementing Confederate Monuments in North Carolina's Landscape, 94 N.C. L. Rev. 2176 (2016) (HeinOnline is restricted to UW users).

Wahlers cites similar statutes from Georgia, Mississippi, and Tennessee in a footnote (n. 29). The statutes, often called Heritage Protection Acts, cover any military monuments (not just Civil War, even though that might be the aim).

For some other articles about monuments honoring Confederate figures, see

• Blake Alderman, Comment, Baltimore's Monumental Question: Can the Heightened Social Conscience Against the Confederacy Rewrite the Constitutional Right to Due Process?, 5 U. Baltimore J. Land & Devel.131 (2016)
• Stephen Clowney, Landscape Fairness: Removing Discrimination from the Built Environment, 2013 Utah L. Rev. 1
• David Lowenthal, On Arraigning Ancestors: A Critique of Historical Contrition, 87 N.C. L. Rev. 901 (2009)
• Robert Justin Lipkin, Down with Flags, Statues, and Monuments: Cultural Memory in a Deliberative Democracy, U. Chi. L. Sch. Roundtable 239 (2000)

(Links are to HeinOnline.)

More on Baltimore's monuments, with a lot of historical context: Alec MacGillis, A Stealth History Lesson in Baltimore, ProPublica, Aug. 16, 2017.

And there's a whole book, too: John R. Neff, Honoring the Civil War Dead: Commemmoration and the Problem of Reconciliation (2005). (It's at Suzzallo and Allen Libraries, but did you know that you can request that a book be sent to you here in the law library with a couple of clicks and your NetID? Pretty slick!)

If you wonder why a statue of Robert E. Lee represents more than a tribute to a brilliant general, watch Was the Civil War About Slavery?, a short video featuring a history professor from West Point.