After the Charleston shooting in 2015, all across the old Confederacy memorials, monuments, flags and other symbols of the South’s Confederate history came under renewed and severe assault. It seemed that the last vestiges of that heritage might be swept away in a paroxysm of politically-driven outrage and media-hyped efforts to purge the landscape of those symbols.
In many ways North Carolina became ground zero for these efforts. But the Tar Heel State also witnessed a pushback from defenders of the state’s heritage who organized successfully and were able, for the moment at least, to fend off the worst of those attacks. Most significantly, working with a conservative and Republican General Assembly, the state’s Sons of Confederate Veterans division, was able to secure passage of one of the nation’s strongest Monuments Protection Laws [NC General Statute 100-2.1].
Passed almost unnoticed and with minimal opposition in 2015, that legislation has proven to be a major road block for the social justice warriors intent on a cultural and historical “cleansing” of the Old North State. Indeed, the frustration of many of the more exalted and self-proclaimed Marxists has resulted in direct action such as the violent destruction of the Durham, NC, monument to Confederate veterans by gangs associated with the Communist Workers World Party. [see, “8 now face charges in toppling of Confederate statue in Durham”]
The razor-thin election of Democrat Roy Cooper as North Carolina’s governor in 2016 brought new impetus to efforts to “do something” about the hundreds of monuments honoring North Carolina’s some 125,000 Confederate veterans and their sacrifices. The Cooper administration selected as its primary target perhaps the most prominent and visible of all such monuments in the state, three iconic monuments on Capitol Square surrounding the state’s historic 1840 State Capitol: the Henry Wyatt Monument, the Monument to North Carolina Women of the Confederacy, and the giant Confederate Monument facing Hillsborough Street.
But how to get around–to get past–the 2015 Monuments Protection Law?
Although offering strong protection for all of North Carolina’s historic monuments, markers and symbols on public property, the Monuments Protection Law did permit certain, very specific and limited exemptions for road construction, for repair, and because of public safety. It was those exemptions to which Governor Cooper and his team looked.
Given authority to receive and review such proposed exemptions is the North Carolina Historical Commission, which has purview in such cases [cf. North Carolina G.S. 100-2.1; G.S. 143B-63-65; and G.S. 121-12]. And it was to the Commission at its meeting on September 22, 2017, that Cooper’s administration made its proposal to take down the three monuments on Capitol Square and relocate them to the Bentonville Battlefield, near rural Newton Grove. The governor made his proposal based in an interpretation of the 2015 law, specifically section G.S. 100-2.1 (C) (3), which permits exceptions to the law if, “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.”
At its September 2017 meeting the Commission deferred all action; instead, it named a select committee of its members to examine the law and history, and to collect comments and opinions of academics and the public, and to report back at a full meeting in April 2018. A public hearing was held on March 21, 2018, at which monument supporters greatly predominated. And over 7,000 comments were collected by the end of March when the comment period was closed.
The North Carolina Division of the SCV contracted with a prominent constitutional attorney to prepare its case defending the location of the monuments under state law, and many others weighed in with strong arguments.
The following is a prepared statement I submitted (slightly edited) to both the members of the North Carolina Historical Commission and its select committee:
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Despite all the debate over the meaning and history of the monuments, the primary consideration here is a legal one. If Governor Roy Cooper’s proposal to remove the three targeted monuments from Capitol (Union) Square cannot be legally entertained under the Monuments Protection Act of 2015 [G.S. 100-2.1], then all subsequent debate and discussion, while certainly important and significant in defining meaning and history, will remain secondary to the specific question before the Commission, and the Commission will be incapable of acting on the proposal.
Let’s take a closer look at the law. It was enacted with very specific provisions incorporated into its sections affecting all of North Carolina’s existent historic “objects of remembrance,” monuments, works of art, and memorials situated on public property, protecting them from hastily and rashly considered or politically motivated action. The language and intent of the legislative authors actually recalls the originally proposed Monuments Protection Bill of more than a decade ago, proposed by the late Senator Hamilton Horton of Winston-Salem. Let us also recall that the 2015 legislation was passed unanimously by the North Carolina Senate.
With particular reference to the role of the North Carolina Historical Commission detailed in Section 100.2.1 (a), while the General Assembly specified that the Commission must give its approval prior to any removal, relocation or alteration of any monument, the Commission is also strictly limited in its possible action, as the law states, “except as otherwise provided in subsection (b) of this section.”
That subsection (b) clearly states: A monument on public property may only be relocated, either permanently or temporarily, if either of the following two conditions apply:
(1) For the preservation of the monument (in the sense that natural or physical decay, or other natural effects are causing it damage);
(2) When public construction projects, highways, etc. would impact it in its present location.
But, if either of these two reasons are invoked, then the following rules must apply:
***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;
*** And, an object of remembrance may not be relocated to a museum, cemetery, or mausoleum unless it was originally placed at such a location.
The three exceptions to this section are contained in subsection (c):
*Concerning highway historical markers;
*Relating to private monuments placed on public property where there is a legal, written agreement governing potential removal or relocation;
*And in regard to a monument where a building inspector/equivalent official has determined that the monument has become a public safety hazard (through natural physical effects).
Let me summarize. Except for, (1) preservation or needed repair to monuments on Capitol Square, or (2) because of road and/or building construction that would affect them detrimentally, or (3) due to certification that a monument represents a clear public safety hazard because of its intrinsic physical condition, the North Carolina Historical Commission is not empowered legally to approve or initiate any action in regard to monuments under G.S. 100.2.1. Moreover, if permanent relocation is proposed, the new location must be “of similar prominence, honor, visibility, availability, and access that are within the boundaries of the jurisdiction from which it was relocated.”
Governor Cooper’s proposal for removal and relocation is submitted under this third exception, suggesting that the monuments represent a clear public safety hazard. Yet, his proposal directly contradicts the considered legal view of the very legislators of the General Assembly who enacted the 2015 law. In interpreting a law it is the intent and meaning invested by the legislators that must be considered the benchmark and standard for interpretation. This is long-standing constitutional jurisprudential practice, confirmed and sanctified by our judicial system.
In the specific case of Governor Cooper’s proposal, both President Pro-Tem of the North Carolina Senate, Senator Phil Berger, and Speaker of the House, Representative Tim Moore (with the concurrence of two dozen additional House of Representatives legislators), that is, those who enacted the law, have publicly stated in the strongest terms, more than once, that the governor’s proposal does not fulfill the conditions nor does it fulfill the intent laid down in the third exception (Cf., Senator Phil Berger’s full statement, “Berger Calls on Cooper to Withdraw Unlawful Request to State Historical Commission,” published on September 21, 2017, and Speaker Tim Moore, on September 22, 2017, as quoted by WRAL-TV, “Legislative leaders warn Cooper, commission on statue removal”).
The key wording of the law in exception three includes “public safety hazard.” That is, that a monument has become a physical hazard to the public; it does not mean that members of the public, for instance, demonstrators, have become a “hazard to the monument.” This later case is a situation of potential vandalism, and not a natural “public safety hazard” envisaged or covered by the law.
Additionally, the proposed relocation of the monuments to the Bentonville Battlefield cannot in any way satisfy the requirement that the new location be of equal prominence and visibility as the North Carolina State Capitol. Although a State Historic Site, Bentonville is off the beaten track and lacks the much greater visibility, access, and prominence of the North Carolina State Capitol. During the biennium, 2012-2014, the State Capitol building was visited by 191,730 visitors, while Bentonville was visited by 91,665, less than half the number for the Capitol (Biennial Report, 2012-2014. The North Carolina Office of Archives and History. Raleigh: North Carolina Department of Cultural Resources, 2015, p. 95). But the number for the State Capitol does not factor in the hundreds of thousands of citizens who walk through the grounds of the Capitol each year and thus are able to view the monuments on the grounds.
Senator Berger’s summary words on this point to the governor (September 21, 2017) are definitive and must be considered as such: “The North Carolina Historical Commission does not even have the authority to grant your request, and it would likely lose in court if and when North Carolinians sued over the removal of the monuments….The North Carolina Historical Commission cannot legally grant your request.”
Additionally, there is confirmation of this legal opinion from the attorneys of the University of North Carolina at Chapel Hill, who, when importuned to submit a similar proposal to the North Carolina Historical Commission for the removal of the “Silent Sam” monument at the University under the third exception of a “public safety hazard,” rejected the request. To quote from a report and legal opinion cited in The News & Observer (“UNC trustee leaders defend Folt for not removing Silent Sam Confederate statue,” August 25, 2017): “Through advice from its legal counsel and that of the UNC system, university leaders reached the conclusion that they do not have the authority to take down the monument.” I should also point out that this opinion is shared by even those who wish the monuments removed. The Greensboro News-Record, no defender of the monuments, in a prominent editorial (“Monuments hold a protected place,” January 18, 2018), admitted that Senator Berger’s legal interpretation, as lawgiver, and the intent of the law, make it practically impossible to remove the monuments using the reasoning of the governor.
Given this essential and fundamental information, the governor’s proposal to remove the three monuments that memorialize the experiences of as many as 125,000 North Carolinians in the brutal conflict of 1861-1865 does not satisfy the conditions clearly set down in law.
A second consideration, and one that I expect will draw much more comment, concerns the erection and meaning of the monuments. There are numerous references collected on the ncpedia and by docsouth web sites, offering details surrounding the erection of those monuments. That debate, like all debate regarding our national and state iconography, will in all likelihood continue to rage. But, and I say this with over thirty years of detailed research and investigation into those symbols erected by our ancestors, there is one overriding fact that should be understood: over the past history of our state, the facts haven’t changed; but the interpretations have.
One hundred years ago prominent “establishment” historians such as Charles Beard and Avery Craven, and North Carolina’s own R. D. W. Connor (the nation’s first National Archivist) could variously envisage the 1861-1865 war as essentially about economics or perhaps constitutional principles, fought by good and sincere men on both sides. In recent years, opinion has reflected the views generally of those leftist historians such as Eric Foner, that the war was specifically and uniquely about slavery and racism. But the essential facts haven’t changed, even if much of historical opinion has.
In examining in detail the contemporary accounts presented for why those monuments were erected, including newspaper accounts, speeches and memoirs, the overwhelming sentiment expressed by such organizations as the Ladies’ Memorial Association (later the United Daughters of the Confederacy) and the United Confederate Veterans is one to honor the veterans, many of whom were dying off during that exact period. I would suggest that this has been a consistent practice in American history—South and North, usually forty or fifty years after the conclusion of a major conflict: erecting monuments and other symbols to honor its wizened veterans, most in their 80s or 90s. It occurred after World War II and more recently after the Vietnam conflict (e.g., the Vietnam Monument on Capitol Square).
The accusation has been made that those who erected the monuments did so to celebrate racism and its triumph legally, specifically in the form of Jim Crow legislation. However, certain researchers have also pointed out that the suggested congruence and symmetry between the enactment of Jim Crow legislation and the erection of monuments to the Confederate dead are misplaced and historically questionable, as researcher Michael Armstrong, in an investigative essay for The Abbeville Institute, published on October 11, 2017, has detailed. (“Why Were Confederate Monuments Built?”)
The example that is uniformly cited to prove a racist origin is a racially-hateful remark made by Julian Carr at the unveiling of the “Silent Sam” monument at UNC-Chapel Hill. Yet, Carr’s comments, which are discordant with the rest of his 3,200 word speech, are contextually out of place. While they do represent a racially-charged aside, they stand out as real exceptions to the meaning invested by the organizers and supporters of that monument, a meaning that is quite clearly to honor veterans and their sacrifices, and not to celebrate slavery or the evils of racism.
The issues surrounding the erection of the monuments and the individuals and groups responsible, and the views and attitudes of those persons, I would suggest, should also be seen in historical context. Even among some of those not identified as staunch defenders of Confederate heritage, there is a recognition that removal and/or relocation of symbols of our past presents considerable and serious dangers for a full understanding of our history. In reference here, I would cite three thoughtful essays by noted and prominent writers, each highly respected across this state and nationally.
The first is by Professor Peter Coclanis, the Albert R. Newsome Distinguished Professor of History at UNC-Chapel Hill (“Julian Carr did wrong, but also a good deal right“). Dr. Coclanis and journalist Rob Christensen (“The complex origins of Confederate monuments), take a much more nuanced and careful view of the historical period and of the life and work of Julian Carr, pictured these days as a bigoted, reactionary racist, but who, in fact, was much more complex, a “progressive” individual much devoted to the improvement of the lives of all North Carolinians. And the third item is by Pulitzer Prize-winning Tar Heel Edwin Yoder (“A misguided name-changing cult among UNC schools”), in reference to the renaming of Saunders Hall at UNC-Chapel Hill, once again stressing the contextual complexity and the error of judging past history with a single reductionist and presentist historical viewpoint as the only measure.
Let me add to this consideration the opinion of Professor Alfred Brophy, the Reef C. Ivey II Professor of Law, University of North Carolina-Chapel Hill, who in a long, heavily-documented essay, specifically on the renaming of the William Simkins dormitory at the University of Texas (“The Law and Morality of Building Renaming”), despite sharing a belief that Confederate monuments may project a hurtful imagery and symbolism to portions of our population, believes that the existence of such symbols in positions of prominence may be of greater value than their relocation or removal:
To continue the analogy to regime changes and monuments that attempt to establish a controversial interpretation of history, one might think of Confederate monuments. When they were placed in the late nineteenth and early twentieth century, one purpose—in addition to honoring family members—may have been to establish a pro-Confederate history. They put that version of history in conspicuous places. But I wonder if politics—150 years after the Civil War began—has so changed that the monuments are not so much about organizing political space. Maybe the monuments have themselves become a testimony to history and part of the historical landscape rather than a positive effort to remake how we think about history…. That particular exercise in forgetting points out the reason why I have come full circle, back to my youthful opposition to renaming. As I see the calculus now, removal of a name threatens our memory of the past.
And he adds an example closer to home, in respect to a dormitory named for Justice Thomas Ruffin on the UNC campus. Ruffin defended slavery from the state’s highest judicial bench, yet Professor Brophy, weighing the pain and hurt occasioned by his decisions, also believes: “I think we should keep his name on the dormitory on the University of North Carolina campus because it is part of our history and because we should remember that there was a time when his ideas were triumphant… I hope that those who ask for changes will also investigate whether the cause of promotion of knowledge of our past is best accomplished by removal of a name or whether removal facilitates, instead, the process of forgetting.”
Let me suggest, in conclusion, that the real reason for this proposal has nothing to do with finding a better or more appropriate place for the targeted monuments. Rather, it involves politics and a particular ideological interpretation of the factual record that these monuments—their presence—equals a defense of slavery, and, in fact, racism. If this is the standard that is now adopted for memorials, then nearly every monument on Capitol Square must, logically, be removed, including the monuments to Presidents Washington, Jackson, Polk, and Johnson, and to the North Carolina governors, all of whom could be considered racists or defenders of racism. Even the Vietnam Veterans monument has become a target, as there are those who see American involvement in Vietnam as an example of “racism.”
Our question, then, must be: where would such a process inevitably end? Already plaques honoring George Washington (e.g., Christ Church, Alexandria, Virginia) have been removed, and efforts are underway to banish Christopher Columbus and Father Junipero Serra (in California) and rename our military institutions that bear the names of Confederate generals. And Presidents Jefferson and Jackson have also begun to suffer erasure and exile. The list seems to increase almost daily.
Certainly, it is understandable given the torturous history of race relations in this nation that some of our citizens may feel offended by those symbols. Yet, for millions of Tar Heel citizens—an overwhelming majority in every poll taken on this issue—those monuments are memorials to real ancestors, flesh and blood men and women who suffered and died, and not icons celebrating slavery or racism. (For the polls, see: Elon University, Meredith College, and Marist College.)
The Monuments Protection Law was enacted precisely to prevent such rash action as is being proposed—action which would denude us of a full understanding and representation of our history. We may not like what we see, we may find parts of our past hurtful, even offensive; each of us may find this or that event or person not to our liking. Yet, would it not be much better to take a broader view, and incorporate those memorials and symbols into our instruction and the education we provide to our citizens?
That is the true and wise spirit of North Carolina and the spirit that, I would suggest, mirrors the overwhelming sentiment of the citizens of this state, as well as enacted law.
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The original date for a consideration of the select committee’s report to the full North Carolina Historical Commission was to be sometime in April of 2018; that month has long past, and May will soon be past as well, but thus far there has been no news of a scheduled meeting of the Commission. Various explanations and rumors continue to surface as reasons for this delay: first, that the enormous number of comments and their consideration has caused the postponement. Then, some have speculated that the Commission, which still has a majority of members appointed by Republican Governor Pat McCrory, may be waiting for new appointments. Finally, others have suggested that the Commission members, like the attorneys for the University of North Carolina system, comprehend that they cannot take positive action on Cooper’s proposal and are looking for ways to compensate for a negative decision (perhaps additional signage around existent monuments?).
In any event, the future decision of the North Carolina Historical Commission and whatever legal (or legislative) action that may follow will have enormous consequences not just for the Tar Heel State but for monument and heritage defense all across the South.
