The Confederate monuments controversy: What the law says; what historians say

Chapel Hill became the latest front in a battle over Confederate monuments Tuesday night, as hundreds gathered to protest the statue of ‘Silent Sam’ on the campus of the University of North Carolina.

The statue of a Confederate soldier, erected in 1913 as a tribute to UNC students who fought for the South during the Civil War, has drawn controversy for decades. But in the wake of deadly violence at a white supremacist rally over the Robert E. Lee statue in Charlottesville, VA and the toppling of a Confederate monument in Durham last week, the push to remove the statue has taken on new urgency.

This week Gov. Roy Cooper joined a number of Democratic and Republican governors of southern states who called for Confederate monuments to be removed from state grounds.

“Some people cling to the belief that the Civil War was fought over states’ rights. But history is not on their side,” Cooper wrote in a statement on the issue. “We cannot continue to glorify a war against the United States of America fought in the defense of slavery. These monuments should come down.”

But in North Carolina, a 2015 law complicates the matter.

Statues and statutes

The relevant section of the statute (100-2.1. Protection of monuments, memorials, and works of art) reads: “A monument, memorial, or work of art owned by the State may not be removed, relocated, or altered in any way without the approval of the North Carolina Historical Commission.”

The law further states, in subsection (b): “An object of remembrance located on public property may not be permanently removed and may only be relocated, whether temporarily or permanently, under the circumstances listed in this subsection and subject to the limitations in this subsection. An object of remembrance that is temporarily relocated shall be returned to its original location within 90 days of completion of the project that required its temporary removal. An object of remembrance that is permanently relocated shall be relocated to a site of similar prominence, honor, visibility, availability, and access that are within the boundaries of the jurisdiction from which it was relocated. An object of remembrance may not be relocated to a museum, cemetery, or mausoleum unless it was originally placed at such a location.”

But critics of the law believe that subsection leaves an opening for at least temporary removal or relocation.

The relevant portion reads:

“The circumstances under which an object of remembrance may be relocated are either of the following:

(1)        When appropriate measures are required by the State or a political subdivision of the State to preserve the object.

(2)        When necessary for construction, renovation, or reconfiguration of buildings, open spaces, parking, or transportation projects.

(c)        Exceptions. – This section does not apply to the following:

(1)        Highway markers set up by the Board of Transportation in cooperation with the Department of Environmental Quality and the Department of Natural and Cultural Resources as provided by Chapter 197 of the Public Laws of 1935.

(2)        An object of remembrance owned by a private party that is located on public property and that is the subject of a legal agreement between the private party and the State or a political subdivision of the State governing the removal or relocation of the object.

(3)        An object of remembrance for which a building inspector or similar official has determined poses a threat to public safety because of an unsafe or dangerous condition.  (2015-170, s. 3(c); 2015-241, s. 14.30(c).)”

Cooper referenced that subsection of the law Monday, telling UNC officials they have the power to remove the ‘Silent Sam’ statue “building inspector[s] or similar officials” determine there are “threats to public safety.”

Enrique Armijo, a constitutional law professor at Elon University School of Law, said the law’s ambiguity makes conflict almost inevitable.

What is “a site of similar prominence, honor, visibility, availability, and access?” And who determines that? The university? A local government? The General Assembly? The North Carolina Historical Commission?

“This is what happens when you pass laws too quickly and in heated response to events,” Armijo said. “It’s passing a law because you want to be able to go back and say you passed one. But it can be so filled with ambiguity that nobody knows how to apply it.”

If Cooper’s interpretation is correct, Armijo said, protesters have an incentive to continue to turn up the intensity of protests and possibly to topple statues themselves as they did in Durham.

“The leverage here is that if you’re for the statue coming down, show up prepared to take it down,” Armijo said. “That creates a clear threat to the object or to public safety. That creates the trigger that would allow the university or a municipality to take them down.”

UNC officials declined to remove the statue this week, citing competing interpretations of the law. They called on the governor to convene the Historical Commission to take up the issue.

The Historical Commission

The North Carolina Historical Commission is a 17-person board, under the Department of Cultural Resources, whose members are appointed by the governor and serve six year terms. Many of its members are history professors or professional historians. The commission “advises and assists the Secretary of Cultural Resources and oversees the rules and regulations for acquisition, disposition, preservation, and use of materials of historical, archaeological, architectural or other cultural value.”

The current commission has six non-voting or emeritus members. The board has two Black members – both appointed by Cooper in July, along with two white members – one of whom was a reappointment. The full list of members can be found here.

Current members of the board have not been eager to sound off on the issue as the controversy comes to a head. Former members have been more open.

Dr. Harry Watson is the Atlanta Alumni Distinguished Professor of Southern Culture at the University of North Carolina, an expert on the history of North Carolina and the American South.

He was also, until his term recently expired, a member of the North Carolina Historical Commission.

Watson was on the board in 2015 when the General Assembly gave the body the responsibility for decisions about removing monuments. There were concerns about the ambiguity of the law from the beginning, Watson said.

“I remember that we complained loudly that the first version of the statue was written vaguely so that we had no idea what we were actually being told to do,” Watson said. “Some of those issues were ironed out in the final version of the statute. But some things are still vague.”

Politicians tend to frame even controversial issues in stark black and white terms. Historians, Watson said, do not always see things the same way.

Not all Confederate memorials are necessarily equal in quality or as genuine “objects of remembrance,” Watson said. Many of the Robert E. Lee statues outside of Southern courthouses were cheap, mass-produced statuary made by foundries that produced both Northern and Southern monuments. Many of them are not monetarily valuable and don’t have much in the way or aesthetic merit.

‘Silent Sam,’ by contrast, was financed by UNC alumni and the United Daughters of the Confederacy as a tribute to students of the university who fought and died in the Civil War. It was created by prominent Canadian sculptor John A. Wilson, who also created the famous Pennsylvania Volunteer monument in Philadelphia. It cost $7,500 in 1913 – which is more than $185,000 today.

But whatever the cost or significance of the monuments, Watson said the conversation around them has shifted – and so, Watson said, has his view on them.

“For a long time I was a qualified defender of ‘Silent Sam’ and the other monuments, saying that the best thing that could happen to these monuments would be for them to stay and be used to give us a teaching opportunity,” Watson said. “I thought you maintain controversy, maintain discussion, have an ongoing probe of what these statues mean and what the Civil War was all about. Looking around us…that hasn’t worked out too well.”

“It seems to me that if they’re not fulfilling that purpose and are not likely to fulfill that purpose, they don’t have a useful purpose,” Watson said. “Or any useful purpose is far outweighed by their un-useful purposes and they should come down – ‘Silent Sam’ and all the rest.”

History as politics

Historically, Watson said, the argument that most Confederate monuments in the South are about history and not white supremacy simply doesn’t hold up.

“If you look between 1900 and 1920, you have the great majority of them in that time frame,” Watson said. “The reasons are quite clear: usually broadcast in the dedication speeches.”

In the Jim Crow era, in the wake of the Plessy v. Ferguson decision in 1896 and the Wilmington Massacre in 1898, Watson said that America was in the nadir of post-war race relations.

“Beginning in the 1890s and going on into the 1900s, the South had gone through a political cataclysm wherein the white majority figured out ways to strip black men of their rights – and the right to vote – without provoking a Northern reaction,” Watson said. “As a result, black men were driven out of politics across the South.”

The monuments were party of “the white South taking a victory lap,” Watson said.

“They were saying that they had in effect now won the Civil War,” Watson said. “They were saying, ‘We’ve reclaimed our homeland, we can dictate racial relations without interference – and now we should put up these statues to remind us and everyone else that this is what the Civil War was all about and now we’ve won.”

Dr. Laura Edwards is Peabody Family Professor of History in Trinity College of Arts and Sciences at Duke University. The really disturbing part of this controversy to historians, she said, is the way in which well documented history is rewritten to support political positions.

“The reason that these monuments didn’t go up immediately after the Civil War is that these Confederate figures weren’t particularly popular after the war,” Edwards said. “These were a bunch of white leaders who led their region to treason and undermined their region, limiting the opportunities of most people in the South going forward – including white people.”

It wasn’t until the period of the 1890s through the 1920s that they came to be rehabilitated, Edwards said – and documents and press accounts from the period make it clear why.

“Everybody who supported it was open about the fact that they were monuments to white supremacy,” Edwards said. “This glorification of the Confederacy is a historical memory that was reconstructed. These monuments were not only about racism but they were about white supremacy in a way that eventually reached its apotheosis in Nazi Germany.”

That, Edwards said, is why you see groups like the Ku Klux Klan and Nazis supporting and defending the monuments now.

“Those Confederate monuments – what they did at the time was they passed off politics as heritage,” Edwards said. “That’s dangerous – and it just got exploded in Charlottesville. It really laid bare the actual terms of the debate here rather than obscuring it in this glossy heritage argument.”

“When Klansmen and neo-Nazis come and march in support of this, you realize it is about a particular kind of heritage,” Edwards said. “But it’s not one that most of us want to carry into the future.”