Monuments of folly: How local governments can challenge confederate "statue statutes"

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Abstract

Monuments to the Confederacy and former Confederate figures have been prominently displayed in parks, courthouse squares, and other public spaces of many American towns and cities for many years. Their history is inextricably linked with patterns of institutionalized racism, including but not limited to the rise of Jim Crow and resistance to the integration of public schools. In recent years, the continued display of these monuments has given rise to intense controversy and outbreaks of violence. In response, some local governments have sought to remove or modify Confederate monuments in public spaces, but in several states, local governments face statutory restraints on removing or modifying these monuments. More specifically, some local governments must reckon with statutes designed to preserve the public display of these monuments in places of honor and respect. These "statue statutes" are frequently described as "impossible" barriers for local governments that wish to modify or remove Confederate monuments. This Article argues that the conventional wisdom about the statue statutes is wrong. Contrary to their reputation, these statutes are so poorly drafted that many local governments could remove or modify Confederate monuments in public spaces, should they wish to do so. Although the statue statutes will prove less effective than many have supposed, it would be best to get rid of them altogether. This Article begins by explaining why this should be done: it reviews the myriad arguments in favor of repealing the statue statutes or striking them down as unconstitutional. But the process of rooting out the statue statutes altogether will take time-perhaps a great deal of time-and the prospects of success, at least in the short term, are uncertain at best. In the meantime, local governments that wish to tear down Confederate monuments must figure out how to do so within the statutes' constraints. This Article explains how this can be done: it shows that the protections that the statue statutes ostensibly afford Confederate monuments in public spaces are far weaker than many suppose. As this Article shows, local governments in many jurisdictions with statue statutes have far more freedom to move, modify, or get rid of Confederate monuments in public spaces than many have supposed. This Article concludes by explaining why arguments for the present frailty of many statue statutes complement arguments for their abolition. Those who wish to get rid of statue statutes and move, modify, or get rid of the monuments the statutes protect should take what actions they can under the existing statutes even as they work to get rid of the statutes altogether.

Original languageEnglish
Pages (from-to)1-54
Number of pages54
JournalTemple Law Review
Volume91
Issue number1
StatePublished - Sep 2018

Bibliographical note

Funding Information:
* H. Wendell Cherry Associate Professor of Law, University of Kentucky College of Law. I would like to thank the University of Kentucky College of Law for supporting this research with a summer research grant. A draft of this Article was presented to the February 2018 Real Property Law Roundtable on “Bridging the Urban-Rural Divide” at the Texas A&M University School of Law, and I am grateful for the many suggestions that I received during that conference. Special thanks go to Lisa Alexander, John Blevins, Vanessa Casado Perez, Nestor Davidson, Ann Eisenberg, Sharon Finegan, Adam Gershowitz, Blake Hudson, Lee Kovarsky, Audrey McFarlane, Timothy Mulvaney, James Nicholson, Melynda Price, Alan Romero, Rich Schragger, Nadav Shoked, Jessica Shoemaker, and Joseph Singer for their helpful comments and suggestions regarding the ideas and arguments expressed here and in earlier drafts. All remaining errors are my own.

Publisher Copyright:
© 2018 Temple University. All Rights Reserved.

ASJC Scopus subject areas

  • Law

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