How Devolved Is Too Devolved?: a Comparative Analysis Examining the Allocation of Power Between State and Local Government Through the Lens of the Confederate Monument Controversy

• Publication year: 2018

How Devolved is Too Devolved?: A Comparative Analysis Examining the Allocation of Power Between State and Local Government Through the Lens of the Confederate Monument Controversy

W. Davis Riddle
University of Georgia School of Law, davis.riddle@uga.edu

How Devolved is Too Devolved?: A Comparative Analysis Examining the Allocation of Power Between State and Local Government Through the Lens of the Confederate Monument Controversy

Cover Page Footnote
J.D. Candidate, 2018, University of Georgia School of Law. I wish to thank Associate Dean Lori A. Ringhand for her support in framing and improving this Note and my family for their continued support in all that I do.

HOW DEVOLVED IS TOO DEVOLVED?: A COMPARATIVE ANALYSIS EXAMINING THE ALLOCATION OF POWER BETWEEN STATE AND LOCAL GOVERNMENT THROUGH THE LENS OF THE CONFEDERATE MONUMENT CONTROVERSY

W. Davis Riddle^*

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At various critical junctures in our nation's history, lawmakers have struggled to strike the proper balance between centralization and delegation of authority. Recently, the debate over whether to remove Confederate monuments has again brought to the fore this centuries-old struggle. Beginning in 2000, state legislatures throughout the South enacted statutes primarily designed to protect Civil War monuments, which in the South predominantly pay tribute to the Confederate cause. Recent attempts by Southern localities to remove Confederate monuments have revealed the inadequacy of these recently-enacted statutes. Virtually every state legislature that has successfully passed a statute on the topic has produced a law that entirely prohibits removal of Confederate monuments by localities, save certain extreme exceptions. Conversely, in those states where no statute addresses the issue of removal, the decision is left entirely to individual localities, as state officials have no legal authority on the matter. Both arrangements fail to provide for the proper allocation of authority between state and local government. In failing to do so, the respective governmental responses fall short in realizing the attendant policy benefits of proper

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allocation of authority. The statutory responses of two states, Georgia and Kentucky, provide a useful lens through which to analyze the effects of improper allocation of authority and, on the other hand, to consider the potential benefits of the proper allocation of authority. In light of these considerations, this Note suggests a model statutory approach that provides a process for both protection and removal of Confederate monuments and, by striking the proper balance, allows for meaningful political engagement at both the state and local level.

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Table of Contents

I. Introduction..........................................................................371

A. TENSIONS COME TO A HEAD............................................371
B. THE MONUMENTS...........................................................373

II. History and Background of Delegation of Power from State to Local Government in Kentucky and Georgia............................................................................377

III. Passage and Substance of the Statutes That Control Removal of Confederate Monuments........................381

A. GEORGIA'S STATUTE: O.C.G.A SECTION 50-3-1................. 382
B. KENTUCKY'S STATUTE: KY. REV. STAT. ANN. SECTIONS... 385
C. LEGAL PROCESS TO REMOVE IN OTHER SOUTHERN STATES..........................................................................388

IV. Legal and Policy Arguments Concerning the Delegation of Authority to Localities...........................................391

A. ARGUMENTS AGAINST DELEGATION OF AUTHORITY........391

1. Centralized Authority is Necessary to Protect Against the "Mischiefs of Faction.".....................................391
2. There is a Policy Need for Statewide Uniformity of Regulation for Certain Significant Issues.............393

B. ARGUMENTS IN FAVOR OF DELEGATION OF AUTHORITY .. 395

1. Centralized Government Lacks the Ability to Adequately and Quickly Address Important Issues...................................................................... 395
2. Increased Local Authority Fosters Civic Involvement............................................................ 398
3. Delegating Authority to Localities Allows for Increased Innovation and Experimentation .......................... 399

V. Why Southern State Legislatures Should Reassess Statutes Passed in Response to Concerns of Confederate Monument Removal to Allow for Greater Delegation of Authority to Localities and Clearer Processes.........................................................400

A. BALANCING CONSIDERATIONS........................................401
B. RECOMMENDED MODEL APPROACH.................................403

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VI. Conclusion..........................................................................405

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I. Introduction

"With the terrorist attack, these monuments were transformed from equestrian statues into lightning rods." - Charlottesville, Virginia Mayor Mike Signer.¹

A. TENSIONS COME TO A HEAD

Recent events and controversies in the South concerning Confederate monuments have brought to light centuries-old social tensions, compelling state and local authorities to search for the proper policy response.² These tensions are the product of years of repugnant racial beliefs and policies, and the intermittent attempts to rectify these evils.³ Pivotal moments throughout American history—such as the Civil War, the second-era Ku Klux Klan of the 1920s,⁴ and the Civil Rights Movement⁵ —have resulted from such tensions and contribute to modern-day perspectives on racial issues. Today, these tensions remain. As one black American from Mississippi put it: "What's happening in Charlottesville, that's not shocking. That's been happening.

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Whether a statue is standing or a flag is waving, it's been happening. They just showing it on the news now."⁶

It is undeniable that the past three to four years have seen a renewed and intense public debate centered around Confederate monuments, which many consider to be symbols of white supremacy.⁷ This renewed attention can likely be traced to the 2015 murder of nine black churchgoers by a white supremacist in Charleston, South Carolina.⁸ In the following days and months, many leaders throughout the South called for removal of not only flags but also prominent monuments erected in remembrance of the Confederate cause.⁹ These calls sharply intensified in the fall of 2017, after the tragedy in Charlottesville, Virginia, where a white nationalist rally in opposition to a plan by the city to remove a prominent statue of Confederate general Robert E. Lee escalated into violence.¹⁰ Clashes between white nationalists and counter-protestors, left one dead and at least thirty-four people wounded.¹¹

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Two state troopers also died while monitoring the situation when their helicopter crashed.¹²

B. THE MONUMENTS

As of 2016, there were approximately 718 Confederate monuments and statues in a total of 31 states, with a total of 90 monuments in Georgia and 41 in Kentucky.¹³ In the absence of controlling federal authority, state and local authorities are left to their own devices to craft the proper policy response.¹⁴ Local leaders faced with demands for monument removal are prompted to first consider whether removal is the desired response.¹⁵ If answering in the affirmative, these leaders must then consult the proper legal process for effecting such removal.¹⁶ However, upon deciding that removal is in fact the desired response, many of the Southern leaders most inclined to act quickly to remove—officials from more liberal cities and towns¹⁷ —are, upon consultation of the relevant legal processes, "reckoning with the fact that they don't actually have the power to [remove the monuments]."¹⁸

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Beginning in 2000, state legislatures throughout the South enacted statutes which protected war monuments, including monuments dedicated to commemorating the Civil War (or the "War Between the States" as many legislatures preferred to call it).¹⁹ In the South, these monuments predominantly pay tribute to the Confederate cause.²⁰ Though these statutes vary considerably, each contains a broadly-worded provision providing for protection of these controversial Confederate monuments.²¹

Tennessee's statute, the Tennessee Heritage Protection Act of 2016, typifies the language used in these statutes:

Except as otherwise provided in this section, no memorial regarding a historic conflict, historic entity, historic event, historic figure, or historic organization that is, or is located on, public property, may be removed, renamed, relocated, altered, rededicated, or otherwise disturbed or altered.²²

This language clearly indicates that these statutes were passed in response to concerns by Southern state legislatures that Confederate monuments would become the subject of public contempt and subsequent calls for removal.²³

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These concerns that Confederate monuments would be removed due to public pressure were not without merit. In April 2017, the Southern Poverty Law Center found that "at least 60 such publicly funded symbols of the Confederacy have been removed since . . . [2015 when] a white supremacist . . . kill[ed] nine black parishioners at a church in Charleston, South Carolina."²⁴ The statutes and the impetus behind their passage have come under close scrutiny due to these recent tragic events.²⁵ Additionally, some politicians who supported the statutes have conceded that they were passed in large part to protect Confederate monuments, which has only served to amplify public awareness.²⁶

Public discourse has naturally centered around whether removal of these Confederate monuments is proper in light of their controversial history.²⁷ This Note does not seek to pass judgment on the moral quandaries and arguments present with...