Confederate Monuments and State Constitutions

More than 150 years after slavery ended, southern states are still debating whether it is appropriate to continue celebrating white supremacy and slavery through monuments and other public symbols — and make the descendants of enslaved people contribute their tax dollars to the effort.

Over the last few years, courts in North Carolina, South Carolina, and Virginia have considered state constitutional challenges to the presence and maintenance of symbols glorifying the Confederacy on public land. Those arguing for removal have relied on varying constitutional provisions — from equal protection clauses to “home rule” principles to clauses prohibiting the misuse of taxpayer funds.

But courts have overlooked critical ways that state constitutions — both those currently in effect and those first ratified at the end of the Civil War — should inform the analysis.

A full picture of the legal status of Confederate monuments requires us to dive into the history of southern state constitutions, with a specific focus on their commitments to — and later explicit though sometimes brief repudiation of — slavery and white supremacy. In many states, there is a strong argument that in the years after the Civil War, celebrating the Confederacy violated state constitutions that had been rewritten as a condition of readmission to the Union and contained clear commitments to both the Union and to racial equality. These commitments persist in some southern constitutions today while others, such as South Carolina’s, repudiated them as part of later white supremacist backlash.

This context points to additional arguments that could strengthen challenges to historic symbols glorifying white supremacy in some states. It also leaves southerners to consider whether our state constitutions today fully and adequately reflect the ideals of human equality that inspired the American Revolution.

Post-war constitutions guaranteed loyalty to the Union

The Declaration of Independence is famous for declaring that all men are created equal and have unalienable rights. Many state constitutions include similar language, and courts have at times pointed to that language in their rulings. But when southern states first wrote constitutions during the founding era, they rejected those ideas and explicitly protected slavery and endorsed white supremacy.

North Carolina’s 1776 constitution, for example, refused to say that all men were created equal or commit to the concept of unalienable rights. Other states specifically excluded enslaved people from any provision embracing human equality and unalienable rights. Georgia’s 1777 constitution limited voting to white males. As time went on, constitutions for southern states entering the Union forbade legislatures from emancipating enslaved people without their owners’ consent.

Confederates seceded from the Union to further these constitutional commitments to slavery and white supremacy. Confederate Vice President Alexander Stephens accused the founders of accepting racial equality and asserted, “Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.” He bragged that the Confederacy was “the first, in the history of the world, based upon this great physical, philosophical, and moral truth.” Secession ordinances southern states drafted to justify leaving the Union echoed his reasoning.

After losing the war, southern states had to draft new constitutions to be readmitted to the Union. Delegations to southern constitutional conventions frequently included large numbers of Black people and formerly enslaved people; a majority of South Carolina’s 1868 constitutional convention was Black and about half had been enslaved.

The constitutions these conventions produced made loyalty to the Union and racial equality core constitutional commitments. For example, North Carolina’s 1868 constitution declared that “all attempts from whatever source or upon whatever pretext, to dissolve said Union, or to sever said nation, ought to be resisted with the whole power of the State.” It asserted that “every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and that no law or ordinance of the state in contravention or subversion thereof, can have any binding force.” Finally, and for the first time in state history, its constitution declared that “all men are created equal” and abolished slavery.

Confederate monuments as racist backlash

Monuments to Confederates emerged soon after the war, but they were more focused on mourning dead soldiers than glorifying the Confederate cause. That changed in the 1890s after white supremacists overthrew Republican governments in southern states, including through terrorism and electoral fraud. They embarked on a wave of monument building to celebrate white supremacy and remind Black people of the campaign white southerners had waged to defeat efforts to achieve Black equality during Reconstruction.

As part of that counter-revolution, white Democrats again rewrote southern constitutions. At South Carolina’s 1895 constitutional convention, Ben Tillman urged white delegates to “unite as brothers” to establish a constitution ensuring that “we will not have to appeal to [Black Americans] as arbiters of our fate.” The resulting new southern constitutions virtually eliminated Black people from the political process through a combination of literacy tests coupled with grandfather clauses, felon disenfranchisement, and physical intimidation — largely nullifying the 15th Amendment to the U.S. Constitution, which granted formerly enslaved men the right to vote.

Other constitutional revisions reiterated the same ideals that inspired the Confederacy. South Carolina in 1895 and Virginia in 1902 removed provisions forswearing secession, declaring allegiance to the United States, declaring all men equal, and even abolishing slavery. Although North Carolina, South Carolina, and Virginia have since rewritten their constitutions again, only North Carolina’s explicitly repudiates secession, emphasizes loyalty to the United States, and bans slavery.

Southern Black people in the 1890s understood the building of monuments glorifying the Confederate cause to be a part of the same white supremacist backlash that prompted the adoption of new state constitutions and the rollback of civil rights in the South. Three Black city council members in Richmond, Virginia voted against providing appropriations for a monument to General Robert E. Lee. A newspaper reported that “an old colored man, after seeing the mammoth parade of the ex-Confederates . . . and gazing at the rebel flags, exclaimed, ‘The Southern white folks is on top — the Southern white folks is on top!’” Another wave of monument building and Confederate flag flying swept the South during the Civil Rights movement kicked off in 1954 with Brown v. Board of Education, the U.S. Supreme Court decision that declared racial segregation in schools unconstitutional.

Litigation over Confederate monuments in North Carolina

After George Floyd’s murder in 2020 prompted a renewed focus on racial justice, an increasing number of Americans questioned whether it is appropriate to maintain monuments to Confederates or fly the Confederate flag. In North Carolina, South Carolina, and Virginia, the question was put to the courts.

The most recent case came out of North Carolina. In March 2021, the North Carolina NAACP and several other entities sued Alamance County seeking removal of a monument to a Confederate soldier outside its courthouse. The plaintiffs argued that refusing to remove the monument amounted to race discrimination by celebrating white supremacy. Moreover, they said, displaying a monument publicly celebrating white supremacy outside a courthouse discouraged racial minorities from utilizing the courts by suggesting that the legal system was hostile to them, thereby violating North Carolina’s guarantee of open courts. Finally, they said that maintaining the monument was a misuse of taxpayer resources, as maintaining such monuments costs taxpayers across the nation millions of dollars a year. 

A North Carolina law provides that “an object of remembrance located on public property may not be permanently removed” or relocated absent specific conditions, such as being physically damaged. The law defines an “object of remembrance” as one that “commemorates an event, a person, or military service that is part of North Carolina’s history.” A North Carolina appellate court found this law forbade local officials from removing the monument — regardless of whether officials had a racist intent in building and maintaining it. The court further found that using law enforcement resources to protect the monument qualified as a suitable “public purpose” to justify tax expenditures. And it found no constitutional violation because the courthouse was physically open and trials were regularly held.

But the court never mentioned that North Carolina’s constitution requires “every citizen of this state” to show “paramount allegiance to the Constitution and government of the United States.” The case is similarly silent on the state constitution’s requirement that the state resist with its “whole power” any and “all attempts, from whatever source or upon whatever pretext” to “dissolve the Union.” Plaintiffs who wish to challenge such monuments in the future should force courts to confront these constitutional provisions.

Virginia removes the Lee Statue

A conflict over removal of a Confederate monument played out differently in Virginia. In June 2020, then-governor Ralph Northam announced his plan to remove a prominent monument to Lee wearing his military uniform and riding on horseback in Richmond’s Monument Avenue. Those who saw it were meant to be inspired by the alleged heroism and nobility of a man who engaged in what the U.S. Constitution defines as treason. The plaintiffs, owners of nearby properties, challenged the governor’s removal, citing an 1889 law authorizing Virginia to accept the donation of the Lee monument from a private entity when it was complete and guaranteeing that the state would “hold [the Lee Monument] perpetually sacred to the monumental purpose to which it has been devoted.” Virginia’s governor in 1890 then signed a deed promising that Virginia would “faithfully guard [] and affectionately protect” the monument.

The Virginia Supreme Court in Taylor v. Northam rejected the plaintiffs’ arguments, holding that the monument was a form of government speech: no less than people, governments have freedom to express their values, it said. The 2021 decision cited expert testimony explaining that the Lee monument was a statement of white supremacy, “erected as a symbol of defiance to Reconstruction, and an unapologetic statement regarding the continued belief in the virtue of the ‘Lost Cause’ and in the Confederacy’s pre-Civil War way of life, including the subjugation of people of African descent.”

Since Virginia’s government had free speech rights, it was free to repudiate white supremacy by removing a monument just as a private citizen would have the right to repudiate white supremacy by taking down a Confederate flag or removing a Confederate monument from their property. No deed or piece of legislation could permanently give away the government’s speech rights.

But there was also another potential argument against the validity of the 1889 law: When the Lee monument was built, Virginia’s 1868 constitution prohibiting secession, declaring loyalty to the United States, and abolishing slavery was still in force. Glorifying a man who committed treason against the United States to defend slavery was, at the very least, in severe tension with the constitutional texts that bound Virginia’s government at that time. The court was silent on this history.

A South Carolina compromise reaches the state high court

The same year the Virginia Supreme Court permitted the Lee monument’s removal, a decades-long controversy over Civil War monuments and the Confederate flag’s placement on the dome of the South Carolina State House reached that state’s supreme court.

The state legislature first approved flying the Confederate flag from the capitol building as a response to the Brown ruling. After protests throughout the 1990s, the legislature in 2000 codified a compromise, requiring the state to remove the flag but prohibiting the removal of Civil War monuments. The law also imposed a supermajority voting requirement to change any of its provisions.

In 2020, a group of community leaders sued, arguing the statute violated the state constitution. The plaintiffs included prominent public servants along with the wife of reverend and former state senator Clementa Pickney, who was murdered in the racially motivated mass shooting at Mother Emanuel African Methodist Episcopal Church in Charleston in 2015.

The plaintiffs argued that the legislation prohibiting removal of monuments was unconstitutional “special” legislation — a law that applies to only a subset of persons or things without a legitimate justification — because it only targeted certain monuments but not others. For instance, they said, the legislation protected monuments to Black and Native American people but did not protect a monument to victims of anti-Asian discrimination. The plaintiffs also argued that the legislation violated the state constitution’s “home rule” provisions by preventing towns and municipalities more familiar with racial dynamics in a particular area from making decisions about Confederate symbols that accommodated the desires of their local populations. Finally, they said the supermajority voting requirement unconstitutionally restricted the legislature’s future ability to amend or repeal the statute.

The South Carolina Supreme Court agreed that the supermajority voting requirement was unconstitutional, but rejected the remaining claims. The court explained that the law was not unconstitutional special legislation because it was a reasonable attempt to accommodate competing concerns about how to handle Confederate symbols specifically. The court also said “home rule” principles barred the legislature from passing laws for a particular county but did not prevent the legislature from limiting the authority of local governments across the state in various ways.

Unfortunately, the constitutional arguments that belonged in the conversation over Confederate monuments in North Carolina and Virginia cannot even be raised in South Carolina. Even today, its constitution still does not ban slavery, declare that “all men are created equal,” or emphasize loyalty to the Union. These omissions testify to the tragic power the slaveholding Confederacy still holds over several state constitutions governing millions of slave descendants.

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The current discussion about Confederate monuments provides an important opportunity — not just for courts to consider state constitutional provisions that have been too long neglected, but for southerners to embrace our nation’s highest ideals of human equality and to consider whether our state constitutions truly reflect them. Southerners who might read their state constitutions and come away dissatisfied should remember: state constitutions are far easier to amend than the U.S. Constitution is. Perhaps the surest path to the vision of human dignity and equality these monuments offend is not the lawyer’s brief but the constitution drafter’s pen.

Marcus Gadson is an assistant professor of law at Campbell University. Margaret Ireland contributed research to this article.