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States Are Using Preservation Laws to Block the Removal of Confederate Monuments
Fallen confederate statue of Demopolis, AL. Photo by Jahi Chikwendiu/The Washington Post via Getty Images.

Fallen confederate statue of Demopolis, AL. Photo by Jahi Chikwendiu/The Washington Post via Getty Images.

Removal of Dr. J. Marion Sims statue in Central Park, New York City. 2018. Photo by Malcolm Pinckney/NYC Parks.

Removal of Dr. J. Marion Sims statue in Central Park, New York City. 2018. Photo by Malcolm Pinckney/NYC Parks.

It can seem like every week another statue celebrating a Confederate general or controversial historical figure comes down somewhere in America. Just this month, cities including Fort Myers, Florida; Richmond, Virginia; Arcata, California; and New York City took steps to remove statues that critics say are tributes to, and celebrations of, figures who perpetrated the subjugation of minorities.

This ongoing national reckoning suggests these progressive critics and local coalitions are winning a culture war against those who claim to defend monuments by arguing that they are culturally important and pay homage to figures who, despite all else, are historically significant. But in response to this revisionist movement, some conservative state legislatures have passed or bolstered cultural heritage laws that make it difficult, if not impossible, for local cities to remove or rethink these controversial monuments.

Much of the current national soul-searching, particularly around Confederate memorials, is rooted in recent tragedy, according to David Dinielli, deputy legal director of the Southern Poverty Law Center (SPLC)’s LGBT Rights Project. “After white supremacist Dylann Roof’s brutal mass murder at Mother Emanuel in Charleston, South Carolina, and the coordinated alt-right march in Charlottesville, our nation has begun to grapple with the public symbols of the Confederacy in a way we haven’t seen in this generation,” he said.  

William McKinley statue in Arcata, CA. Photo via Wikimedia Commons.

William McKinley statue in Arcata, CA. Photo via Wikimedia Commons.

In the aftermath of these tragedies, many communities have come around to the idea of removal. In these cases, the thorniest challenge is not reaching the decision, despite the ensuing public protest. In many cases “they want the monument down and they want to move on, so to speak,” said Derek Alderman, a cultural and historical geographer and University of Tennessee professor. However, Alderman added that “there’s been a general questioning of how we remember American history for quite a while.” Indeed, some states grappled with an earlier iteration of this debate in the early 2000s, around the time that Georgia removed the Confederate flag from its state flag, and South Carolina moved a Confederate flag that flew above its statehouse dome to the statehouse grounds.

And yet there are cities willing to do the hard work of not only reconsidering a monument, but also deciding what might fill its place. Take the town of Demopolis, Alabama, which waded into the national Confederate monument debate by accident. In July 2016, a police officer fell asleep at the wheel and hit a statue of a Confederate soldier that stood in the middle of a traffic circle. The statue fell and broke, prompting a period of debate and reflection for the town, which was covered extensively by the Washington Post.

Demopolis ultimately decided not to repair and restore the statue, but instead to replace it with a more holistic memorial: an obelisk to commemorate the dead in all wars. But between the time the statue fell and the townspeople decided on what to do next, Alabama passed a law preventing the alteration of any memorial that has been standing for at least 40 years. So the town’s project has ground to a halt.

While the accidental toppling of the Confederate monument in Demopolis was exceptional, the subsequent legal wrangling was not. Once a community decision has been made about a controversial monument, officials often have to deal with public preservation laws designed to impede the removal of historic monuments. Efforts to remove statues in places like Baltimore and Memphis have proven no more straightforward than what happened in Demopolis, Alabama.

Nathan Bedford Forrest statue in Memphis, TN. Photo by Ron Cogswell, via Flickr.

Nathan Bedford Forrest statue in Memphis, TN. Photo by Ron Cogswell, via Flickr.

Many celebrated Baltimore’s swift removal of four controversial Confederate statues last August following the white supremacist march in Charlottesville, but only very particular legal circumstances enabled Baltimore to take quick action. The city had a public safety clause in its local preservation law, and at the time of removal, there was a direct threat to public safety—white supremacists who marched in Charlottesville were threatening to demonstrate in Baltimore next, noted William Cook, associate general counsel at the National Trust for Historic Preservation. And even still, Cook added, the city’s decision was “bolstered” by a special committee that spent nearly two years reviewing Confederate memorials in the city.

Memphis found a creative way around Tennessee’s 2016 amendment to the state’s “historic preservation” law, which protected memorials and monuments on public land from alteration or removal. The city sold two public parks to a private nonprofit that was created for the sole purpose of revoking the parks’ public land status, and as soon as the sales went through, the city removed two Confederate statues in those parks. Last week, the state of Tennessee slapped Memphis with a $250,000 cut in funding for doing so.

Several other states have similar rules on the book. Some laws date to the early 2000s, while others, like those in North Carolina and Alabama, were passed following the June 2015 shooting at Charleston’s Mother Emanuel Church and the subsequent debate over Confederate symbols. “The states that passed those laws took an extraordinary leap into attempting to quash local government decisions regarding their treatment of Confederate monuments,” said Cook.

Aldo Pero and George E. Crone, Jefferson Davis, 1963, at Confederate Park in Memphis, TN. Photo by Thomas R. Machnitzki, via Wikimedia Commons.

Aldo Pero and George E. Crone, Jefferson Davis, 1963, at Confederate Park in Memphis, TN. Photo by Thomas R. Machnitzki, via Wikimedia Commons.

F. Wellington Ruckstuhl, Confederate Soldiers and Sailors Monument, 1903, splashed with red paint in Baltimore, MD, 2017. Photo by Eli Pousson, via Flickr. Courtesy of Baltimore Heritage.

F. Wellington Ruckstuhl, Confederate Soldiers and Sailors Monument, 1903, splashed with red paint in Baltimore, MD, 2017. Photo by Eli Pousson, via Flickr. Courtesy of Baltimore Heritage.

Cook recently presented on the legal issues surrounding Confederate memorial removal at the Lawyers’ Committee for Cultural Heritage Preservation conference in Washington, D.C., and brought up Demopolis, Alabama. (Cook is on the board of directors of the committee.) “This case captivates me because we’ve been talking about this need for public dialogue, for communities to be inclusive and collaborative,” Cook said at the conference. Here, Demopolis had done exactly that, and yet a solution remains elusive nearly two years after the statue’s fall.

“The culture may have started to shift in the national conversation, but communities and states are being left behind, and some are even being gagged,” as Dinielli, the SPLC attorney, put it.

These preservation laws could ultimately be reversed through legislative action, or if a community successfully challenges them in court as overreach. But while Demopolis, for example, may be able to pursue that kind of case, Memphis might not, since it sought to work around the law by privatizing the park land where the monuments stood.  

“There really is no one-size-fits-all approach to solving the legal questions in regards to monument removal, and there’s no single answer to the question of what comes next,” said Cook.

Indeed, deciding how to replace or contextualize Confederate monuments is difficult, even without the legal hurdles. Joshua Inwood, associate professor of geography and a senior research associate at the Rock Ethics Institute at Penn State, noted that the need for Americans to grapple with the past extends beyond Confederate monuments. “We have never really reconciled America as a broader world power with some of the things that went into making America a world power,” he said.

And across the country, cities and towns are taking steps to address their past and begin that long process of reconciliation—if their states will let them.

Naomi Shavin