Free Speech

Alabama Judge Strikes Down State Law Protecting Confederate Monuments

But the decision seems wrong as a matter of federal constitutional law, because the law regulates only local governments -- and local governments lack any federal constitutional rights against their states.

|The Volokh Conspiracy |

The Alabama Monument Protection Act, enacted in 2017, basically barred local governments from removing and otherwise interfering with (mainly) Confederate war memorials. Last night, an Alabama state judge struck down the statute, on the grounds that it violated the local governments' federal rights of free speech and due process. (Thanks to reader Ramer for the pointer.)

I think the judge was pretty clearly wrong, and I expect the decision to be reversed on appeal, at least as to the federal constitutional claims. Cities and counties have no federal constitutional rights against the states that created them.

The Supreme Court has made this clear in many decisions, most recently in Ysursa v. Pocatello Educ. Ass'n (2009):

"Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities." They are instead "subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." State political subdivisions are "merely … department[s] of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit." Trenton v. N.J. (1923)….

[Any] analogy [between private corporations, which have constitutional rights against state governments, and municipal corporations] is misguided. A private corporation is subject to the government's legal authority to regulate its conduct. A political subdivision, on the other hand, is a subordinate unit of government created by the State to carry out delegated governmental functions. A private corporation enjoys constitutional protections, but a political subdivision, "created by a state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." Williams v. Mayor of Baltimore (1933); Trenton v. N.J. (municipality, as successor to a private water company, does not enjoy against the State the same constitutional rights as the water company: "The relations existing between the State and the water company were not the same as those between the State and the City").

So if Alabama sought to require private landowners, whether individuals, nonprofit corporations, or for-profit corporations, to mantain existing monuments (Confederate or otherwise) on their property, that likely would violate the landowners' First Amendment rights. But just as the Alabama Legislature has the power—at least from the perspective of the federal Constitution—to restrict speech by Alabama state agencies, so it has the power to restrict speech by Alabama city and county entities, which are treated under the federal Constitution as a form of state agency.

And this is so regardless of the references in various Supreme Court decisions to the government's power to engage in "government speech," e.g., in choosing which monuments to put up (Pleasant Grove City v. Summum (2009)) or what designs to place on license plates (Walker v. Sons of Confederate Veterans (2015)). That doctrine states that the First Amendment doesn't stop governments (including local ones) from discriminating based on viewpoint in selecting their own speech. But it doesn't protect them from rules imposed by their higher-ups in the state government structure. So a state may ban cities from putting up Confederate monuments, or may ban them from removing such monuments, without violating the cities' First Amendment rights.

Now state constitutions might, if the drafters so chose, give cities or counties or both some autonomy with respect to the state legislature. Indeed, they may give branches of the state government some such autonomy. But that's a matter of state constitutional law, not of cities' or counties' First Amendment rights. (The decision doesn't seem to discuss any state constitutional claims, but I'm not sure whether some might have been brought or might still be raised on appeal.)

Finally, note that there's a much more serious, and unsettled, question whether the federal government may restrict state and local entities' rights. But that's because state governments are indeed separate sovereigns, and not just "political subdivision[s]" "created by [the federal government] for the better ordering of government."

Advertisement

NEXT: N.Y. Bill Would Violate Gun Rights, Free Speech Rights, and Privacy

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Yes, it’s pretty clearly wrong and will be overturned.

  2. The Alabama monuments act was the work of some “very fine people,” I gather.

    Those Alabama representatives should be able to do that work because bigots have rights, too.

    1. Well, even prostitutes have rights. That’s why it should be legalized, so that your mom doesn’t have to work in the black market.

      1. “That’s why it should be legalized, so that your mom doesn’t have to work in the black market.”

        Easy there. Arthur is a child of the progressive agenda.

        1. I never mind unvarnished conservative expression. It enhances the marketplace of ideas. And, in general, makes conservatism less popular, especially among young Americans.

          1. Yup. By the end of 2020 we’ll be scraping the progressive agenda off of Ocasio-Cortez’s mattress, amirite?

    2. I’d rather have Robert E. Lee as a leader than Barack Obama, Nelson Mandela, Cynthia McKinney, Marion Barry, or any other black Democrap.

      1. Well, you’re a racist piece of shit, so that’s not particularly surprising. And if you think Robert E. Lee is still around to lead, you’re pretty dumb too.

        1. Looking in the mirror, again?

          1. Nope, right at your inane posts. I can’t read stuff written backwards. Well, I can, but your posts certainly aren’t worth the effort.

            1. Thank you, Conspirators, for bringing conservative thought to a broader audience.

              1. And yet he’s still a more valuable contributor than you.

  3. I like confederate monuments. Mainly because their presence infuriates progressives. Things that bring akin and suffering to progressives are largely good.

    1. I like them because they’re old-fashioned, even antique. They’re part of the archaeology of a place.

      1. How long must one wait, and how outrageous must be what the monument represents, before it turns into radical Islamists in Afghanistan destroying outrageous, offensive, ancient statues, offending the rest of the world?

        I’m fine with tearing them down, as was done with Russian dictators and Saddam statues. They represent recent or ongoing oppression, as opposed to ancient statues.

        1. Recent, as in not during the lives of most people currently living?

          1. When nobody is alive who was alive during World War 2 you can put the Hitler statues back up.

            1. Nobody who was alive during the Civil war is still alive now. And these are “Civil war” monuments. That some of them were erected during Jim Crow doesn’t change who they’re statues of.

              I don’t see this as fundamentally different from ISIS destroying archaeological sites. Some people only have one response to things they disapprove of: Destroying them.

              1. Because these statues aren’t archaeological sites? They do represent some fossilised attitudes, though. Hey Brett don’t go taking that gone-off milk out of your fridge and throwing it away, that’s what ISIS do to old things they don’t like.

            2. There is a big difference to me between putting up a new statue and taking down an old statue.

      2. Actually most aren’t as old as you think. Only a handful were erected in the immediate aftermath of the Civil War. A few more were erected between 1900 and the start of WWI. The majority were erected in the 1950s and 1960s as a direct response to the civil rights movement.

        1. I’m well aware of that, but even us farts who were born in the 1950’s are dying out now. And it’s still the fact that everybody who was alive when the people portrayed committed their offenses are now dead.

          Basically, I don’t like destroying monuments. If they wanted to move them to a special park, that would be one thing, but destroy them? Got no use for people who think like that. Raise money for counter-monuments, if you want to start a conversation. Destroying the monuments isn’t conversation, it’s censorship.

          1. The ones erected as a middle finger to the Civil Rights movement don’t exactly sound like the sort of ‘archaeology of a place’ the same way one erected even in the early 1900s would have been.

            1. We’re talking about statues erected about the time I was born, and I could go on SS in a couple years. That’s maybe not ancient history, but it’s history.

              Put up a statue of Harriet Tubman or someone comparable, next to them, for contrast. People whose only answer to ideas they disagree with is censorship and destruction disgust me.

              1. There are no hard-and-fast bright lines we can do for stuff like this.

                Statues aren’t history – we’re doing no violence to historical understanding by taking them down. But they can feel like history, or invoke it. Like the art they are.

                And to me (and I recognize this is idiosyncratic, but it all is – which is why democratic methods are so important here), what’s invoked by later statues is different than what’s invoked by contemporaneous or at least status looking to the legacy of the Civil War, versus statues that look the same but were looking at a symbol of segregation forever.

                Certainly those who get super mad about their legacy and ancestors’ honor when people want to take down Confederate statues are motivated by more than academic concerns. They get a vote, but I’m not going to be particular sympathetic to their particular cause.

                1. Statues aren’t history – we’re doing no violence to historical understanding by taking them down.

                  Not true. Statues–their form, what they represent, the time period they were put up–have been an important part of a civilization’s material culture for millennia.

                  1. Yeah, and all the ancient statues that survived were put up, moved around, taken down, altered, replaced or broken down during the lifetime of the cultures that createde them, because at the time the cultures were living and growing and changing, not ossified rigid dead weights. Since these confederate statues are still part of a living culture, they get to be part of the flux. They can be sacrosanct antiquities in a few millennia, when all this is dust, if they last.

                    1. Yeah, and all the ancient statues that survived were put up, moved around, taken down, altered, replaced or broken down during the lifetime of the cultures that createde them, because at the time the cultures were living and growing and changing, not ossified rigid dead weights

                      I’m sure the Head of Antiquities in Syria that was slaughtered by ISIS right before they started destroying ancient statues would have been surprised to hear this retarded hot take that there’s a timeline on when statues can be considered part of a living or dead culture.

                    2. Once they’re antiquities dug up out of the sands it’s not that difficult to suggest the culture that created them is long gone. Maybe you should find a Native American archaeological site that’s being threatened by development? Throw your body at the bulldozers.

              2. Slavers disgust a lot of people, too, which is why they don;t like the statues, but you do you.

                1. Slavers disgust a lot of people, too, which is why they don;t like the statues, but you do you.

                  Mount Rushmore must absolutely trigger you, then, shitlib.

                  1. It’s pretty fucking disgusting all right.

        2. Actually most aren’t as old as you think. Only a handful were erected in the immediate aftermath of the Civil War. A few more were erected between 1900 and the start of WWI. The majority were erected in the 1950s and 1960s as a direct response to the civil rights movement.

          This is disingenuous and dumb (and historically totally wrong).

          Monuments, memorials, and remembrances increase at the semicentennial and centennial of the war.

          1. Yes, yes, Georgia redesigned its flag to commemorate the 91st anniversary of losing the fucking war. Which confederate monument went up in 1961 for the centennial of the war? How many went up in 1965 for the centennial of the end of the war? Compare those numbers with how many went up the year George Wallace defied the feds?

            Of course monuments went up around the semicentennial because the lost causers were right in the middle of trying to rewrite history. But it wasn’t just because they were nostalgic.

      3. Cover up whatever placard exists and ask 100 local citizens to name the person. If less than 50% can get it right, the statue stays.

        1. I’d do the opposite. It goes unless 51% can get it right.

    2. I like Confederate monuments for the same reason progressives hate them. They venerate our ancestors and honor the dead.

      1. Do any conservatives still wonder why they lost the culture war and must comply with liberal-libertarian preferences in modern America?

        Stay obedient, clingers, and you can whine as much you want.

        1. Yup. After we remove the monuments to the bigots in the south, we can head to DC and gut the FDR memorial. No memorials for those who sent the Japanese to internment camps!

          1. You will then experience the double standard. Asians are not a special victim group and have no standing in this fight.

            1. Woodrow Wilson was arguably more important to the progressive movement than FDR, but he’s getting his name ripped off stuff on campuses.

            2. Will conservatives end up defending FDR’s statue?

              1. Will shitlibs?

                1. Probably, since their principled position is that monuments to treasonous confederates should be taken down, and FDR wasn’t a treasonous confederate. The question is whether conservatives will stick to their stated position, which is that removing monuments is wrong because, uh, history. FDR is as least as much a part of American history as Jubal Early.

      2. Confederate monuments are almost all products of the very deliberate attempt to rewrite Civil War history known as the Noble Cause movement. So leave them up or remove them as you see fit, doesn’t really matter. As a progressive, they don’t bother me. A nice bit of statuary is always welcome.

        1. It’s not “rewriting,” it’s correcting. Remember, history is always written by the victors, and always to their benefit.

          1. It’s not “rewriting,” it’s correcting.

            Oy.

        2. Lost Cause, not noble cause.

      3. There’s an interesting controversy brewing in Palo Alto, where they are trying to change the name of a local school. It was named after some eugenicist, and they would like to name it after WWII hero Fred Yamamoto. This is causing tension with some local Chinese immigrants. They are not fond of the name Yamamoto, and their previous experience has caused them to be suspicious of this type of revisionism.

        1. One starts to suspect the safest policy would be to never name anything after anybody.

        2. It was named after a man who essentially invented Silicon Valley. He happened to believe in eugenics

      4. Dead traitors should not be venerated.

        1. So Washington, Franklin, Jefferson and all those other insurrectionists should have their Monuments torn down?

          1. Treason doth never prosper? What’s the Reason?

            1. For if it does prosper, none dare call it treason.

          2. If someone erected monuments to them in the UK, yes, those should probably be torn down.

        2. Then we need to demolish the Lincoln Memorial.

          1. But the United States won the war. You live in the United States.

      5. And celebrate slavery.

    3. Agreed. I like buying 30 round magazines and open carrying my Glock 17 for that reason as well.

      1. You get to be disaffected, mutter bitterly, and engage in inconsequential displays of objection to liberal-libertarian progress.

        The liberal-libertarian mainstream gets to call the shots and observe your compliance with its preferences as America improves.

        I am content.

  4. In a couple of years worth of absurd legal decisions, this is not even the most absurd this week (see the federal census question from New York), but I am pleased to read Eugene Volokh’s dissection of it. The judge was so embarassed by it that he did not release it until five minutes to midnight on his last day on the bench. I look forward to a judge ruling that a pro-life city does not have obey a pro-choice state law because it interferes with its freedom of expression, and the SPLC congratulating the court.

  5. The detailed legal arguments are beyond my ken. But the First Amendment simply says Freedom of Speech, and that to me precludes any distinction about who is speaking, whether it be private individuals, businesses, charities, non-profits, or … governments. Regardless of how various penumbras can be contorted, or what ancient precedents insist, it seems to me philosophically wrong to make this arbitrary distinction that local governments get less free speech than other governments, or businesses, or people.

    1. A good analogy is to think of it like this; children don’t have many rights because they are wards of their parents and their parents are the responsible party in the government’s eyes. No kid can say he has a right to not be punished for not cleaning his room, and isn’t held responsible for paying income taxes. Likewise because cities and counties exist at the whim and discretion of the states, they likewise don’t have rights. Tomorrow, Illinois could theoretically say “Chicago, you are no longer a city and are merged with Cook County” and the city would have no recourse.

      Admittedly it is not a perfect analogy, because courts have granted various rights to children, but the idea stands.

      1. Thanks. It makes sense for some aspects of local governments. If I think of it as parents forbidding their children from hanging Confederate flags in their bedroom windows, it sort of makes sense.

        But cities have their own tax collection and budgeting process which fully supports them, unlike children with after-school jobs. They have their own police and firefighters, libraries, hospitals, welfare, and so on.

        And freedom of speech is a fundamental enumerated right.

        I guess that’s why IANAL.

        1. IANAL either, but I am in local government, and this issue comes up frequently, especially with regards to “home rule”. How’s this analogy then, cities and counties are more like sub-contracters that do the job of police and firefighting, etc. that the state cannot do all by itself. The origin of cities in America in the first place (usually), was enough people getting together and petitioning the state for a right to exist and having it granted within certain limits. And counties are, especially the further west you go, part of a deliberate creation on the part of territories and then state governments, which defines all their powers and borders. If it wasn’t for the state, counties wouldn’t exist, whereas states are sorta co-equal members of the federal compact. At bottom, the states call the shots for local governments, for good or ill.

          1. The states existed first, and are the primary sovereign, and created the federal government, and they said, along with the people, here are some powers we give you, which does not involve telling us how to do our internal business, aside from limited and well-defined exceptions, like guaranteeing all states have a representative form of government, but again this is a mandate from the states (and the people) themselves.

            For the federal government to canopener a state and take direct control of state entities is a grotesque violation of this principle.

            You’re seeing contemporary fights over this in some trying, under Obama, to use the FCC to override states in allowing cities to set up their own wifi, or deny the fcc to outlaw states implementing net neutrality, or various states having district drawing done by an entity other than the legislature, suggesting not a representative (portion) of government but the SC allowed because it was still an election of officials of sorts. (Too much of a strech as implemented, IMO, but could be saved with more of a regular election design.)

            1. The states existed first, and are the primary sovereign, and created the federal government,

              None of that is right.

              1. An argument can me made that post Civil War that this Krayt is not correct, but let me ask you then, if the federal government was NOT an invention of the states, then how do you explain away the fact that it was states were the pre-existing political organizations during the American Revolution as a legacy of British efforts at governmental organization, and that it was states that sent delegates to the constitutional convention, and states that ratified the constitution, thereby creating the federal government?

              2. Wow. Out of curiosity, are you American? Because grade school history in the US teaches how the states were recognized by foreign powers, formed a confederation, then (when that proved untenable) formed the union. They called it the United States because they were independent states uniting under a common government. They gave up a portion of their sovereignty to the US (while retaining what was not delegated) by ratifying as law a document they called a “constitution”.

                1. Don’t rely on grade school history, then? First, it was the people, not the states. (It’s right there in the preamble!) Second, even if it were the states, there were only 13; the other 37 most certainly did not form the U.S., but instead were created by the U.S. And of course the federal government, while (in theory) one of powers limited in scope, is supreme over the states.

                  The Articles of Confederation worked the way you describe. But we abrogated those. The U.S. is not a confederation of independent states.

                  1. “First, it was the people, not the states. (It’s right there in the preamble!)”

                    No, it was the states. Article VII is much more instructive than the Preamble. “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”

              3. Well, the states, at least the original 13, did exist before the federal government. And while the people created the federal government, they did so acting through the states.

                So, really, the only part of that that’s arguably wrong is the idea that the states are the primary sovereign. That would be the people, in America.

    2. A simpler way to think of it might be this – the BOR says “the freedom of speech” cannot be abridged. To be abridged, an entity would have to have freedom of speech in the first place. So the question is does a local government entity (not the government OFFICIALS, which is a different question) have freedom of speech? And the answer is no. Regarding my paranthetical, the federal government could not forbid local officials (or state officials, or federal officials, although federal employees makes a tougher case) from advocating for the removal of confederate monuments.

      The state law here is simply cabining the power its local governments (which are the creation of the state) are permitted to exercise.

    3. Think of them as corporations.

  6. Agreed that the ruling is bogus as agencies like town councils, mayors, or whomever don’t get carte blanch to do as they wish. However if the voters of such a city or county had voted to either remove said monuments or not spend their tax dollars to maintain them I think it would be up to the state to either provide another locale or take over the responsibility of paying to maintain it should the state decide it wants it to stay.

    1. Seems like a reasonable position to take as a matter of state law. I’m not sure that the federal government generally or the first amendment in particular has any role to play here.

  7. Interesting how quickly right-wingers abandon all their notions of the wonders of decentralized government as soon as some local government does something a nutjob state legislature doesn’t like.

    1. Let me help. The “right-wing” critique is of the relation between the federal government and the states. Creations of the state (cities) have never been considered sovereign. They are the product of the state and controlled by the state. To the extent that the right-wing critique extends towards “city rights” it’s when in opposition to federal authority and they are merely a proxy for the state itself at that point.

      1. Local rule is a virtue or it isn’t. Your pedantic legal argument is not normative.

    2. Interesting how lefties continue to make the same bullshit objections despite having the concept of federalism explained to them time and time again.

      1. I just hope right-wingers keep clinging to bigots’ monuments, because America’s young people are watching and there is even more liberal-libertarian progress to achieve..

        1. Both things can be true:
          1. This was a poor ruling and should (and likely will) be overturned.
          2. The Alabama law protecting Confederate monuments is dumb and the legislature should scrap it.

        2. “I just hope right-wingers keep clinging to bigots’ monuments, because America’s young people are watching and there is even more liberal-libertarian progress to achieve..”

          Yet another liberal moron incapable of actually reading and understanding the post he is allegedly responding to.

          Such a sad, empty life you lead.

        3. You keep trying to invoke this as a magic talisman (talk about bigoted superstition) but Generation Z is still coming for you, and your future is far different than what you are trying to convince yourself of.

          1. You sad, pathetic, empty, little man, point to anything in the post you responded to that supports the monuments. Anything.

            1. You were responding to bigoted, half-educated, right-wing Mini-Me.

              The way to distinguish us is that my middle name is Libertarian.

              1. You were responding to bigoted, half-educated, right-wing Mini-Me.

                Who’s still twice as smart as Arthur L. Hicklib. (the “L” stands for Lickspittle)

      2. Caphon and jph12,

        Spare me the pompous patronizing bullshit. I don’t need your help.

        I understand the legal constitutional distinction you are making. I know the state government has the power to do what it did.

        So what? Can you read? That’s not what I’m talking about. Federalism advocates don’t just say, “Those are the rules.” They typically make arguments about how great decentralized government is, communities making decisions for themselves, etc. Those aren’t based on the Constitution, but on normative ideas about how government should operate.

        My point is that many, including, apparently you two, are happy to forget all that when it suits you.

        1. “Spare me the pompous patronizing bullshit.”

          Pretty whiny for someone whose initial post was nothing but pompous patronizing bullshit.

          “I don’t need your help.”

          Obviously you do.

          1. If you can’t understand criticism of your ideas, that’s OK. Maybe you’re not very bright.

            But I made a fairly clear statement – not bullshit – to which neither you nor caphon have made a remotely intelligent response.

            There’s a reason for that, of course, which is that you don’t have one, and prefer to ignore the issue and spout BS instead.

            1. No, you spouted some ignorant bullshit and engaged in childish name calling. My response gave you exactly the respect you deserve.

        2. Spare me the pompous patronizing bullshit. I don’t need your help.

          True, you produce plenty of that on your own with every shitpost.

    3. Conservatives do seem to have romantic notions about state and local governments. Likewise, progressives’ panties tingle when it comes to grassroots democratic community activism and local citizen boards.

      For libertarians, the point of devolving government power to the lowest level possible is that it makes it easier to move if your “leaders” become too intolerable.

      Centralize that garbage in Washington DC and most of us are screwed, unless you’re a Niskanen Center welfare-state loving douche like Will Wilkinson who speaks fluent Canadian and has dual citizenship.

      1. Conservatives do seem to have romantic notions about state and local governments.

        But nothing like their affection for Confederate flags, monuments, and organizations.

        Why?

        1. Why do you and your ilk have an affection for gay relationships?

          1. A serious answer, is the left wing types often look at the world through an oppressor-oppressed lens. For now, gays are “oppressed”…unless they are gays that defend strength and masculinity, then they are just suffering from false consciousness or some such.

            1. That’s a good answer.

              1. Here is a good podcast where this idea is spelled out in more detail: http://www.econtalk.org/kling-…..-politics/

            2. Actual answer: because there’s nothing wrong with gay relationships.

              1. If you think there’s nothing wrong with a man inserting his penis into another man’s butt, the problem is with you.

                1. Well, I have to give you credit. Redirecting a comment thread about a state law concerning removal of confederate monuments into a discussion of anal sex is no small feat. But we all had confidence in you.

                2. Clearly the problem is yours, but if you want to concern yourself with what other people do with their penises, that isn’t very small government of you.

          2. Because the filthy commie is a turd burglar.

            1. Calling the other side gay, haw haw.

            2. You seem to have lost your command of screen names, Bigoted Right-Wing Mini-Me.

      2. a Niskanen Center welfare-state loving douche like Will Wilkinson who speaks fluent Canadian and has dual citizenship.

        Well said.

  8. The thing is, in the long run this hardly matters, because the iconoclasts are on the march, and they don’t actually care what laws say. In this sort of social environment, laws are paper barriers, and you can’t surround every monument with armed guards 24/7. And it’s a ratchet effect; You have to win protecting the monuments every single time, the iconoclasts only have to win once for any given monument.

    I’m taking my son to DC this summer to see the national monuments before they’re bombed. Even they’re not guarded enough to survive long term.

    1. Go to the FDR monument. I think it’s one of the better monuments. It’s kind of hidden next to the Jefferson memorial.

      Make sure you go to the Archives. I was so excited, the guards had to tell me three times not to touch the glass with the DoI and Constitution.

      La Tasca is a nice Spanish restaurant on 7th St.

      1. “Go to the FDR monument.”

        The concentration camp guy? When are we tearing that one down? Bigots and their monuments, I tell ya.

    2. Used to give tours of the Capitol as a lowly intern.
      The Library of Congress is my favorite building in all of DC.

      When the Capitol was built it was all about neoclasical austerity to show how non-royal we were. When the Library was built, we decided to show the world how much we were into learning. It’s a sumptuous riot of content in a away nothing else in DC is.

      (honorable mention to WW-2 and Lincoln).

      1. Maybe we should all meet at George Mason ASSOL (Antonin Scalia School of Law).

        We’ll get Prof. Bernstein to buy lunch.

        1. Conservatives don’t like that formulation. They also don’t like the use of ASSOLEs (Antonin Scalia School Of Law educator). They seem to believe that people should be called what they wish to be called.

          Sometimes. They make allowances for “Democrat Party” and “Democrat legislators,” for example. And, of course, they see things differently with respect to uppity women (Ms., hyphenated names) and transgendered people.

          1. You took the one example of a cross ideological comment thread of good will, the first in a while, and sh*t all over it. Nice job.

        2. “Maybe we should all meet at George Mason ASSOL (Antonin Scalia School of Law).”

          Another moron thinking he’s clever by still using a joke that was played out almost two years ago. Such a sad state of affairs.

          1. My, my… you’re certainly grouchy today.

            Whatsamatta?

            Don’t like the general direction our country is going and there’s nothing you can do about it?

            1. Not grouchy at all. Merely responding in kind to a bunch of condescending douchebags who are not nearly as clever as they think they are. You used a two-year old joke that was mildly amusing when it actually applied. That is truly sad.

        3. “Maybe we should all meet at George Mason ASSOL (Antonin Scalia School of Law).

          We’ll get Prof. Bernstein to buy lunch.”

          OK, corn’s on Prof B.

    3. You hysterical child.

  9. If I were king of my state, I’d make it illegal for any government to be in in the monument erecting business in the first place. On top of that, I’d make it illegal for government property (roads, bridges, parks, etc) to be named after people. Simple names like 1st, 2nd, 3rd, Main, North, Hwy 34, East [city name] Park, and Chickenscratch Rd will do.

    The obvious grey area would be when a road is named Chickenscratch right about the time the powerful and charismatic former school superintendent Carl Joseph Chickenscratch dies.

    1. I would make it a law that no government property could be named after someone who hasn’t been dead at least ten years, that way we can suss out anything to make them not worthy of the name, it prevents people with egos from naming things after themselves, and it prevents a named place being cringe-worthy if the person ruins their reputation at some point.

  10. Ordinarily I’d be pretty down for the culture war that people seem quite eager to get into here. And we’re due for another Lost Cause ‘it was about independence not slavery’ throwdown.
    And once you get past the anti-virtue signaling group affinity wankery, there’s some interesting points being made (PoxOnBothYourHouses makes at least an arguable point, and SIV has a good opening salvo for those who want to dive in)

    I’m weak so I’ll probably dive in later today, but this early I’m feeling all legalish and whatnot. And for all my federal courts experience, I was previously unaware of this pretty interesting legal issue. It looks like specific carve-out for one group, which at first blush seems arbitrary. I can’t help but wonder if the logic that what’s created by a government at any level it can be destroyed by the same and thus has no organizational rights is extendable. Which would apply to anything chartered – police departments, non-cabinet agencies (UIP etc), unions, etc?

  11. Not seeing how it violates due process. The Alabama statute has a process for submitting waiver requests to the committee.

  12. I see that a government entity (city, county, etc.) created by a state doesn’t have Constitutional rights. What I don’t understand is how states that were created by the federal government (California or Alaska vs. New York or Virginia) have Constitutional rights against the federal government.

    1. Equal footing doctrine.

      Every state that’s been admitted has explicitly been admitted with a guarantee of equal status. (Violated, IMO, by the huge amount of land that was kept when some of the western states were created.) And while the Constitution doesn’t explicitly guarantee this, there’s no constitutional text that distinguishes between states on any basis, so you’d have a really hard time justifying not treating them the same.

  13. I think it’s important to leave statues of Confederate leaders up, to serve as both a reminder and a warning of what can happen when overly-race-focused Democrats obtain power.

  14. Eugene writes: “…if Alabama sought to require private landowners, whether individuals, nonprofit corporations, or for-profit corporations, to mantain existing monuments (Confederate or otherwise) on their property, that likely would violate the landowners’ First Amendment rights.”

    So does this mean the Federal (Copyright Act 106A) and state (e.g. California, Massachusetts, New York) Artists’ Moral Rights laws are unconstitutional? They prohibit individuals and governments from intentionally defacing or destroying works of visual art (in the case of destruction, “of recognized quality”). Or does it hinge on the defendant’s subjective intention in defacing or destroying?

    1. Why would a law requiring private landowners to do something have anything to do with a law prohibiting individuals from doing something?

      1. I believe vrkboston is referring to the provision of the VARA that can prohibit property owners from defacing or destroying visual art installed on their premises, even if they own both the art and the premises.

        And the proposed law could just as easily be written to prohibit the removal of existing statues, rather than requiring that they be maintained.

Please to post comments

Comments are closed.