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

Local Solutions Support Center, October 2019

Virginia Public Law and Legal Theory Research Paper No. 2019-54

18 Pages Posted: 2 Oct 2019 Last revised: 21 Jul 2020

See all articles by Richard Schragger

Richard Schragger

University of Virginia School of Law

C. Alex Retzloff

University of Virginia School of Law

Date Written: October 1, 2019

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

Suggested Citation

Schragger, Richard and Retzloff, C. Alex, Confederate Monuments and Punitive Preemption: The Latest Assault on Local Democracy (October 1, 2019). Local Solutions Support Center, October 2019, Virginia Public Law and Legal Theory Research Paper No. 2019-54, Available at SSRN: https://ssrn.com/abstract=3462746

Richard Schragger (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

C. Alex Retzloff

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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