Confederate Monuments and Local Government Law

On September 8, 2021, the commonwealth of Virginia finally removed its sixty-one-foot-tall statue of Robert E. Lee. For more than 130 years, it towered over Richmond's Monument Avenue, until a combination of activism and political mobilization laid the groundwork for its removal. The story of the monument—from its origins to its demise—is also a legal story that should be of interest to state and local government scholars. The construction and destruction of the monument raise issues ranging from special legislation to local power to the interface between private law and public policy.

Special Legislation, General Legislation, and the History of Virginia Monuments

The history of erecting Confederate monuments can itself be a story for local government wonks. Others have aptly told the story of these monuments as both representations of ideological movements and as pieces of individual cities' or states' histories. But there is an interesting legal history behind Virginia's monuments, one with interesting lessons on the transition from special legislation to general legislation (and its consequences).

My own research in Virginia state records has found that beginning in 1871, the Commonwealth's general assembly began receiving requests from locals' representatives pertaining to counties, cities, and various private associations erecting monuments to Confederate leaders or war dead. The Commonwealth responded to these requests with special legislation, numerous acts empowering individual localities and entities to erect monuments in particular spots. The first of these requests evidently came from the Lee Monumental (sometimes Monument) Association, the group eventually responsible for the Robert E. Lee monument just removed last week. In 1871, the general assembly passed an act incorporating the Association and authorizing it to raise money to purchase a suitable plot for the proposed monument. While the act provided that the land so acquired would be held "sacred to the purposes of the association"—a restriction appearing to bind the association, not other actors—it said nothing else restricting future removal of the statue.

In 1876, another monument-related request came in from Westmoreland County, Virginia, a fairly small and not terribly populous county in Virginia's Northern Neck region. This time, the general assembly passed an act incorporating a Ladies Memorial Association and authorizing the county to grant the Association the "privilege" of erecting monuments either to their war dead or to Lee. But the act contained a curious proviso: in addition to authorizing the erection of a monument, it provided that "it shall not be lawful thereafter for the authorities of said county, or any other person or persons whatever, to disturb or interfere with any monument so erected." It is unclear why this ban on removing Confederate monuments appears in the Westmoreland act, but not in others either before or after. Was there a reason why the Ladies Memorial Association was worried the monument wouldn't last? Despite my detective efforts, I've been unable to find any clear reason (though I did find out that the eventual mon