Leaders in the city of Birmingham, Alabama, had long looked askance at the Confederate monument in Linn Park, a granite obelisk soaring more than 50 feet in the air near downtown. In a city with a bloody civil-rights history and a nearly 75 percent African American population, the memorial seemed like a provocation even before violent protests broke out in Charlottesville, Virginia, where leaders want to remove a statue of Robert E. Lee.
“With the condonement by the president of the activities that took place, or the moral equivalency of hate speech, we felt that things were beginning to get out of hand and that we needed to speak up and speak out against all the hate groups,” Mayor William Bell told me Friday. “We felt that the best thing for us to do was to end this controversy by covering up our monument so it would not be used as a focal point for any hate speech.”
Why didn’t they just have city workers haul the statue out, the way mayors in Baltimore and New Orleans did? The statue stands in a public municipal park, and the mayor and the city council agreed that the statue was both improper and a threat to public safety. But in May, the Alabama Legislature passed a law that bars the “relocation, removal, alteration, renaming, or other disturbance of any architecturally significant building, memorial building, memorial street, or monument located on public property which has been in place for 40 or more years.” That meant Bell couldn’t have it removed, and when the mayor decided to erect a barrier around the monument, blocking it from public view, the state attorney general promptly sued him and the city for violating the law.
Across the South, citizens are rising up and demanding that their towns and cities remove Confederate monuments. And in many of those cities, local officials are reckoning with the fact that they don’t actually have the power to do that. Alabama’s is the newest, but several states also have laws on the books that are designed to prevent the removal of Civil War memorials. In North Carolina, South Carolina, Tennessee, Georgia, and Mississippi, statues are protected by laws that preempt local governments from removing them. And the standoff in Charlottesville was catalyzed by a Virginia state law that prevented local authorities from removing the Lee statue, as they’d desired. (On Tuesday, workers draped a large black tarp over the statue.)
These laws touch a range of thorny issues, and not only about the contested place of Confederate monuments in modern American society. Like many recent preemption laws passed in states across the country, but especially in Southern states like North Carolina, they pit conservative state legislatures against cities that tend to be more liberal and more diverse. That in turn raises the question of when cities and towns should be able to exercise local control and make their own decisions. It also creates clashes in which local authorities are barred from taking steps they believe are necessary to protect their citizens and constituents.
Safety is one of Bell’s chief concerns. As the Charlottesville incident shows, Confederate statues can become a rallying point for violent groups, including white supremacists and the KKK, and the mayor doesn’t want to provide a ready-made setting for a replay in Birmingham.
“For the good of public safety, it behooves us to not allow that monument to become a focal point for potentially aggressive behavior by hate groups,” he said. Charlottesville Mayor Mike Signer, writing after the protests in his town, argued that however freighted the statue there was before the August 12 protests, it had become far more troublesome afterward. “It will never be possible again for the Lee statue to only tell the story of what happened here during the Civil War and the Jim Crow era,” he wrote. “Its historical meaning now, and forevermore, will be of a magnet for terrorism.”
The corollary to the public-safety argument is that if a statue can’t be removed but is likely to draw attention, it imposes a cost on local communities that must pay to protect them, sometimes using measures as expensive as an around-the-clock police presence.
In Durham, North Carolina, last week, a crowd toppled a statue, standing in front of the old county courthouse, that honored Confederate veterans. That guerrilla action produced several strains of argument. Those in favor of tearing down the monument demanded to know why the county hadn’t done so earlier. Those who were against it demanded to know why the protestors hadn’t pursued legal avenues first. The answer to both questions was the same: There was no ready legal avenue. That’s because in 2015, the Republican-dominated General Assembly passed a law that made permanent removal of monuments illegal unless approved by an act of the legislature.
After the Durham incident, Governor Roy Cooper, a Democrat, called on the legislature to repeal the monument preemption law. And the legislature—which shortly after Cooper won a tight and contested election stripped him of a range of powers—responded, in effect, fat chance.
“In my opinion, rewriting history is a fool’s errand, and those trying to rewrite history unfortunately are likely taking a first step toward repeating it,” state Senate Leader Phil Berger wrote on Facebook. “Two years ago, the state Senate unanimously passed a bill that tried to reduce the politics in making these decisions. I believe many current members of the Senate would be hesitant to begin erasing our state and country’s history by replacing that process with a unilateral removal of all monuments with no public discourse.”
But while Republicans have a stranglehold on the General Assembly, North Carolina’s cities are heavily Democratic, meaning there will be intense clashes over the law. Take Silent Sam, a memorial to Confederate veterans on the campus of the University of North Carolina. As the historian Kevin Kruse, a Carolina alumnus, notes, at its dedication in 1913, the Confederate veteran Julian Carr, another UNC graduate who became a major Confederate veterans-group leader, boasted about the time he “horse-whipped a Negro wench” to defend “the Anglo-Saxon race.”
The city governments in Chapel Hill and in adjacent Carrboro (which was renamed for Carr at his behest) have both called for Silent Sam to come down, and many current and former UNC students have joined the call. But because it’s on public property, at the state’s flagship public university, it falls under the 2015 law. UNC Chancellor Carol Folt has been largely reticent about the monument. Under her leadership, the university in 2015 renamed a building that honored William Saunders, a UNC grad who was a Confederate soldier and Klan leader, though it decided against a call to rename it for the African American author and folklorist Zora Neale Hurston.
On Monday, ahead of a planned protest, Folt wrote to the university community. “We are always concerned about safety on the campus and if we had the ability to immediately move the statue in the interest of public safety, we would,” she said. “However, while we will continue to explore all options, the University currently does not have that unilateral authority or legal ability to do so. And the University must obey the law.”
Cooper, also a UNC grad, wrote to university officials the same day, saying that he believed the statue could be removed on the basis of public-safety concerns. (Duke University used public safety as an excuse to take down a small statue of Robert E. Lee in the entrance to its chapel, but as a private institution, it’s not subject to the same restrictions.) But UNC said that while it wants to remove the statue for security reasons, it doesn’t buy Cooper’s claim that it has the legal authority to do so. On Tuesday a crowd of hundreds gathered for a protest at the statue. A large contingent of police, from several local departments, was deployed to guard the statue and erected fences around it. Three protesters were arrested.
Folt may be wise to tread lightly—she’s caught in a vise. On one side stands a crowd of angry students, alumni, and others who see the statue as a symbol of white supremacy that glorifies a treasonous revolt against the U.S. government. On the other stands the General Assembly that already tends to view UNC with suspicion and loathing as an incubator of liberalism.
Even if there were no public-safety threat, though, why won’t conservative legislatures allow local communities the autonomy to make their own decisions?
“At the end of the day, that's a municipal park,” Bell says. “The municipal government should have say-so over what it allows in its park, what it can put up or take down, and how it uses the park. I just don't believe [the monument] should have a place of prominence on public space that African Americans, the Jewish community, the Hispanic community, and all minorities that it's an affront to, being supported by their tax dollars.”
The presence of preemption laws can produce nonsensical results. In Memphis, which is nearly two-thirds black, Mayor Jim Strickland and other leaders have for years been trying to remove a statue of Nathan Bedford Forrest, a Confederate cavalry general and early Ku Klux Klan leader. In 2015, the city council voted to remove the statue, but they were blocked under a 2013 law that requires any removal of a monument on public property to be submitted to the Tennessee Historical Commission. The commission rejected the request. The city continues to battle with the commission over removing the statue. Yet even as the state prevents Memphis from tearing down the statue, Governor Bill Haslam, a Republican, has come out in favor of removing a bust of Forrest from the state capitol.
As Republican legislatures around the nation have passed preemption laws, they have offered a wide range of rationales, from the importance of insuring a uniform business climate across states to the straightforward (and largely correct) assertion that state governments can do what they want. In the case of memorial preemption laws, lawmakers tend to cite the importance of preserving history, rather than trying erase it.
That argument is weak on several counts. For one, removing Confederate statues in no way precludes the teaching of the Civil War. For another, the statues in question are not mere historical markers: They are celebrations of the losing side in a war to defend white supremacy, and many of them were placed years after the fact.
“I'm not seeking to destroy it or do any damage to it itself,” Bell says of Birmingham’s statue. He said he’d prefer to return the statue to the United Daughters of the Confederacy, which funded it in the first place, though he said the city had not managed to find anyone at UDC who could authorize that. But he also noted that Birmingham has a museum that includes a Klan robe—but it is placed in its historical context. But the language of some state laws makes it illegal to alter the statues by adding new context, although that isn’t possible in the case of every monument.
“In Auschwitz, in places like this, they still maintain those ovens to tell the story of the attempted annihilation of the Jewish people,” Bell says. “This monument that’s here in Birmingham does not tell the true story of what the Confederacy stood for: It was the suppression of people simply because of their color. It was a defiant act against the United States government.”
Birmingham’s statue dates to 1905. That’s similar to many of the nation’s Confederate monuments , which largely went up in two big waves: one around the turn of the century, as Southern states stripped blacks of rights they had gained after the Civil War, and the second in the 1950s and ’60s, during the heart of the civil-rights movement. In other words, they came out of eras when white supremacy was asserting itself aggressively. It may be no coincidence that several of the laws protecting the monuments—including Alabama in 2017, North Carolina in 2015, and Tennessee in 2013, along with unsuccessful attempts at legislation in other states—have come in the last few years, as racial tensions have been at the fore of the national conversation.
One problem with the statue preemption laws is that they seem to respond to a world as lawmakers would like it to be, not as it is. A statute can prevent officials like Carol Folt and William Bell from removing Confederate monuments, but it is unlikely to change minds of left-leaning electorates in cities like Chapel Hill and Birmingham, nor will it deter activists from trying to take matters into their own hands. (The people who pulled down the statue in Durham seemed well aware they’d face legal consequences.)
The laws also don’t account for the full range of possibilities in a messy world, though. In Durham, county officials are still trying to determine what they are legally obligated to do with the toppled statue, which crumpled, seemingly irreparably, when it hit the ground. The law doesn’t indicate whether they must replace it, repair it, or can simply leave it as is. In Birmingham, Bell faces an even more peculiar dilemma. He’s obligated to request approval to alter or move the statue from a state-run commission, but the commission hasn’t even come into existence yet.
“They don't have their first meeting until September or October, so there's no one for us to go to to ask permission to do anything,” he says. “We feel we're unable to comply with the law, because the mechanism to comply does not exist.”
So for now, the city has decided to leave the wood panelling up around the statue.