The South Will (NOT) Rise Again: The Religion of the Lost Cause Meets the Politics of Confederate Monument Removal

According to the Supreme Court’s rulings in Pleasant Grove, Utah v. Summum (2009) and Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015), there is a fundamental difference between government speech, where a governmental entity expresses its own political views on its property, and private speech on government property, where the government only facilitates a place for private actors to speak. One key difference is the anticipated duration of the “speech.” No matter how long-winded an individual orator might be, at some point the orator will become fatigued and stop. Thus, even when speaking on government property, such speech is temporary and, by definition, a classic example of the government facilitating private speech. Conversely, however, if the government decides to erect a monument, because the statue’s duration is presumably infinite, it becomes government speech, with the obvious check of the voting public. Prior to passage of the Voting Rights Act of 1965, many municipal governments engaged in political speech by allowing the erection of Confederate monuments on their property, as an attempt to lionize the Confederate dead, consistent with the religion of the Lost Cause. Since the Voting Rights Act’s passage, however, the ability to participate in the political process has expanded to Blacks, and other citizens, who want to tear down Confederate monuments of a bygone era. Inasmuch as there has been a steady interest in Confederate monument removal for decades, the interest received national attention in 2015, after the Mother Emanuel AME Church shootings, in Charleston, South Carolina, as well as in 2017, around the time of the “Unite the Right” Rall in Charlottesville, Virginia. Never has the interest been so peaked, however, as during the 2020 #BlackLivesMatter protests, after the horrific murder of George Floyd. At the time of this writing, eight state legislatures—Alabama, Georgia, South Carolina, North Carolina, Mississippi, Tennessee, Kentucky, and Virginia—have heritage protection laws, also know as “statue statutes,” that preclude municipalities from removing Confederate monuments. At best, these laws force municipalities to engage in compelled speech. At worst, however, the laws defy the Supreme Court’s logic in Pleasant Grove, by denying municipalities the right to engage in government speech. This Article calls on those respective legislatures to repeal their “statue statutes.”

Duke Scholars

Author Jay Augustine