Many municipal leaders have concluded that Confederate monuments are indefensible. They celebrate a traitorous rebellion against the United States government that arose to protect slavery, and today, they strike a message of exclusion against African American citizens, even as they use those same citizens’ tax dollars to maintain them.
Over the last few months, local officials in some jurisdictions have simply acted to remove monuments. In Birmingham, Alabama, another majority-black city saddled with a Confederate monument the local government detested, the city council and mayor decided in August to simply cover up a monument, drawing a lawsuit from the state government and more than $3 million in fines to date. In Durham, North Carolina, where state law prevents removal of monuments, a crowd of protesters gathered and tore down a statue commemorating Confederate soldiers that sat on the lawn of the former county courthouse.
The removal of the Forrest and Davis statues in Memphis is a step forward, but the method by which it was done is likely to draw legal challenges, whether from the state government or from the Sons of Confederate Veterans, which has battled any attempts to remove the statues. That could produce some curious legal questions: For example, if the city’s sale were to be overturned, could it be forced to put the statues back up? (In Durham, there’s been discussion over whether the county could be required by state law to purchase and erect a new statue to replace the crumpled one protesters tore down.)
Memphis’s strategy also raise other uncomfortable questions. While the state law shows little respect for local control and protects racist symbols, it is also the law. The city’s sale of the parks is designed to follow the letter of the law while brazenly flouting its spirit.
“It’s important to remember what I’ve said all along: I was committed to remove the statues in a lawful way. From the beginning, we have followed state law—and tonight’s action is no different,” Strickland wrote in a note Wednesday. “The Historical Commission was not the only legal avenue.”
The distance between righteous civil disobedience and risky breakdown of rule of law is not as wide as it might seem, however, and it’s easy to imagine ways in which such a procedure could be abused. What if local authorities defied state or federal authorities to erect a pro-Confederate statue? That’s not so far-fetched: After the Supreme Court’s Brown v. Board of Education ruling, state and local authorities thumbed their nose at the federal government by privatizing public functions. Rather than allow black students, public schools closed, with private “segregation academies” opening to teach white students. (Many of these schools remain open.)
Ideally, Memphis’s action will provide a warning to state governments that continue to defend Confederate monuments. Preemptive laws represent an effort to thwart local decisionmaking about what sort of heritage a community honors. Memphis, Birmingham, and Durham show that when the state government stands in the way of local will, citizens have a range of options for fighting back.