Confederate Monuments and Punitive Preemption: The Latest Assault on Local Democracy

Abstract

This white paper, commissioned by the Local Solutions Support Center, considers the use of state “statue statutes” to prevent local governments from removing Confederate statues and other Confederate symbols. The debate over Confederate iconography has been hugely divisive and in some cases has led to violence, as in Charlottesville in August 2017. These controversies have also generated litigation over the ability for local governments to remove Confederate statues in the face of restrictive state laws. This white paper discusses the history of Confederate monument building, the nature of the laws that restrict their removal, and the types of legal challenges that have been brought both by parties seeking the removal of statues and those contesting those removals. Statue statutes are a particularly high profile example of the “new” state law preemption. States are increasingly overriding local decision-making across a whole range of policy areas. These preemptive laws undermine local democratic processes and stifle local political and policy innovation. In the case of Confederate monuments, these laws force local governments to engage in expressive conduct that is anathema to local majorities.

Keywords: preemption, Confederate monuments, statue statutes, states, cities, First Amendment, Equal Protection