Judge Rules Virginia’s Confederate Statues Protected by State Law

Statue of Gen. George Henry Thomas, Virginian and Union General, in Thomas Circle – Washington, DC.

Court case. Circuit Court Judge Richard E. Moore has ruled that the City of Charlottesville cannot remove statues of Robert E. Lee and Thomas “Stonewall” Jackson. The judge determined that these are war memorials protected under Virginia state law. Articles describing the decision can be found here, here and here. As the Roanoke Times writes …

“The Monument Fund filed suit in March 2017, claiming the Charlottesville City Council in 2016 violated a state code section that bans the removal of war memorials when it voted to remove the statue of Lee. The suit was later amended to also include the Jackson statue.

The defense recently has focused on the question of whether the statues constitute monuments. Recent motions by the defense have sought to have a jury make the determination.”

Dillon’s Rule. Virginia has a strict implementation of Dillon’s Rule. This means that a high percentage of political power within the Commonwealth of Virginia rests with the state government rather than the localities. This political philosophy has been used by the state to micromanage localities for decades. One example is a section of Virginia law titled, “Memorials for War Veterans”. The law allows localities to construct memorials for war veterans but not to remove those same memorials. This section of Virginia code was the basis for the suit over the two statues in Charlottesville.

Controversy. Opinions across Virginia are divided over whether memorializing the Civil War, the Confederacy and/or Confederate combatants represents historical preservation or the racist philosophy of those who erected the statues. Judge Moore doesn’t care so far as the law is concerned. As Judge Moore wrote in his opinion,

“I believe that defendants have confused or conflated 1) what the statues are with 2) the intentions or motivations of some involved in erecting them, or the impact that they might have on some people and how they might make some people feel. But that does not change what they are.”

Don Gathers, who chaired a blue ribbon committee to study the question of Confederate statues in Charlottesville disagrees. He said, “Just because something is legal, doesn’t mean it’s right or it’s moral. I’m fearful what this has done is given the vile evilness that descended upon us in August of 2017 to come back.”

Commentary. Judge Moore seems clearly correct in his interpretation of the law.  Lee and Jackson are depicted in military uniforms so it’s hard to understand how these are not war memorials. However, that is a minor point compared to the larger moral and philosophical issues at play. First, Virginia does not honor the historical memory of the U.S. Civil War. That would require statues of people like Virginian George Thomas, a U.S. Army general at the outbreak of the Civil War who fought with distinction for the Union. Virginia’s focus is clearly on the Confederacy rather than the Civil War overall or even the role of Virginians in the Civil War. This singular focus on the losing side, which clearly had the preservation of slavery as one of its goals is immoral. Telling the whole historical story could be seen as instructive while telling only one side is not.  Second, the General Assembly of Virginia continues to operate more like a politburo than a reasonable state government. What possible place does the General Assembly have in telling the City of Charlottesville what statues it must display when those statues can only be seen from within the city?

— Don Rippert. 

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19 responses to “Judge Rules Virginia’s Confederate Statues Protected by State Law

  1. Almost all of these so-called “monuments”were put up during the Jim Crow wera (long after the Civil War) by the United Daughters of the Confederacy. In addition Schools, and other public buildings and highways were named for the likes of Jefferson Davis.

    Black folks have put up with these symbols of hate for decades.

    So yes, they passed a law – and made no excuses for what they did and judges have to follow it – just like the judges before them upheld Jim Crow laws before.

    I don’t have a problem with Dillion – every state has some version of it – i.e. laws that apply state-wide. I’d hate to live in a state where localities can decide things like licenses to practice medicine or be a civil engineer or have it’s own version of SOLs.

    • There are variants of Dillon’s Rule / Home Rule. As always, Virginia is multiple standard deviations from the mean in favor of strict Dillon’s Rule adherence. Power corrupts and absolute power corrupts absolutely. Our General Assembly has close to absolute power and is close to absolutely corrupt.

    • The Dillon Rule does not refer to laws that apply statewide. Simply, it says that local governments have only those powers that the state explicitly provides them or can be reasonably inferred from the explicit powers. The opposite is home rule–local governments are free to exercise whatever powers, e.g. taxes, zoning, etc., within their boundaries they feel are needed. Many states allow local home rule. Of course, as you point out, states do carve out some areas in which statewide consistency is needed, such as medical and law licenses.

  2. Great post Don. Yes, the law allows for this preservation. I grew up in Richmond, I lived with the culture then regarding the south, lost cause, confederacy, race relations, Byrd passive resistance, integration of my HS (Hermitage, Henrico County, 1969, 15 years after Brown vs Board of Ed and 9 years ahead of “Remember the Titans” I lived that in the summer of 1969).

    These statues were a specific post-war continuing strategy by southerners from the lost cause – fighting the battle of segregation and subjugation in a different way (continues today). https://segregationinamerica.eji.org/report/confederate-icongraphy.html

    • Jim:

      I grew up in Fairfax County (Groveton HS 1977). We had a statue of a fallen Confederate soldier facing south with the names of Confederates who died engraved on the pedestal – in Alexandria. I always thought that was odd since Fairfax County and Alexandria voted against succession on the critical second vote of April 17, 1861. Interestingly, Henrico voted against succession on April 17 as well. When the war started 40% of the military officers from Virginia fought for the Union. I can understand Virginia’s fascination with the US Civil War but glorifying the Confederacy is both historically inaccurate and morally wrong. Virginia’s future was badly retarded by the Civil War.

      • Dear Don,

        I seriously doubt your 40% figure of Virginia U.S. military officers siding with the North. What is your source?

        You declare that supporting the Confederacy was “morally wrong”, from where do you derive your ethics? “The Civil War” is a misnomer, and it was the North’s invasion of the South that wrecked that devastation. So much for “consent of the governed.”

        Sincerely,

        Andrew

  3. Dear Jim,

    I have tended to stay out of this topic, more so than previously, because the nature of the opposition I have encountered is that of cold hatred that admits nothing good in their opponents, the Confederacy, etc. In spite of this coldness, they are no less fanatical than the Iranian Shi’ite militants who, beginning in the later 1970s, would step out into the streets of Teheran and elsewhere there were cameras, shouting, “death to America! Death to Carter!” With such people all talk is wasted. Those of us who reverence the Confederates, Virginia, and the South, will just need to wait for this fanaticism to burn itself out; and they might be a long time. Maintaining one’s composure and peace of soul is crucial. By God’s strength, I will not let them bring me down to their level, or worse. Psalm 37 comforts me in this.

    Sincerely,

    Andrew

    • Andrew:

      First of all – I wrote the article not Jim Bacon. Perhaps you are appealing to our blogmaster rather than the article’s author. I understand reverence for the South and Virginia. I struggle with reverence for the Confederacy. I could even understand reverence for the US Civil War but that’s not what’s revered in Virginia. The reverence is exclusively for the Confederacy. Never mind that many Virginia counties and cities voted against succession. Never mind that 40% of the military officers from Virginia fought for the Union. Never mind that brave Virginians like Gen Thomas and Adm Farragut were brilliant military leaders for the North. No, never mind all that. Virginians want an antiseptic fairy tale of gallant men on handsome steeds marching off to the clarion call of “Virginia”, “Dixie” and the Confederacy. In reality, both side stubbornly and stupidly led hundreds of thousands of Americans to their death in an immoral war that should never have been fought.

      In Easton, MD (Talbot County) there was a statue of “the Talbot boys”. These were men from Talbot County who fought for the Confederacy. Over time people naturally objected to that statue in The Free State. Did they tear it down? No, they erected a statue of Frederick Douglass (another Talbot County native son) right next to “the Talbot Boys”. That seemed to me to be a good idea. There are two sides to the story of the US Civil War. Presenting only a glorified picture of one side (the Confederacy) seems wishful thinking or willful intimidation to me.

      Don.

      • Dear Don,

        You did not answer my questions: Where did you obtain this 40% figure and from where do you derive your ethics, after all, you must have some basis other than a mere whim to denounce as immoral, supporters of the Confederacy.

        Sincerely,

        Andrew

        • https://opinionator.blogs.nytimes.com/2011/04/19/the-general-in-his-study/

          This reference is also cited in the Wikipedia article about Virginia in the Civil War.

          Remember that at the outbreak of war the state now known as West Virginia was part of Virginia. Also remember that the population of the heavy slaveholding areas of Virginia was significantly represented by slaves who were not eligible for military service. A look at population distribution of white males in Virginia in 1860 will show a high concentration in the western areas of the state at that time.

          • Andrew Roesell

            Thanks for the article, Don. It was interesting. I do not disdain those Southern Unionists. They made their call based on their conscience. I wish that people today would try to allow the same leeway to those on the Confederate side as well. Many people don’t understand that people were citizens of the United States because they were citizens of their various States. It used to be said, too, that, the United States ARE, rather than is.

            Sincerely,

            Andrew

      • I treasure my 19th century oil portrait of Admiral David Farragut Farragut, hero of Mobile Bay, who later oversaw construction of the Mare Island Naval shipyard that birthed US Navy sea power throughout the Pacific Ocean so dear to the heart of my family for generations. Hopefully, too, I will find a Benjamin Stoddert to make a matched pair in my dining room, along with the other great American commanders William Tecumseh Sherman, U. S. Grant, Stonewall Jackson, and Robert E. Lee, among the great military personages in World history.

  4. Saw this two days ago in Avignon. The destruction of the statues over the front door of a medieval church was done by the French Revolution (the ultimate bloody leftists) and the French have left the headless statues in place (the lower one of Jesus.) Perhaps as reminder of a grievous error? Perhaps as a warning to later generations?

    • That point made, I’d be fine if the GA repealed or amended that law to give local authorities control over statues on their own property. But given the law as it stands, and the failure of previous efforts to amend or kill it, the judge ruled as he had to.

      “Reverence” for the Confederacy and the political drivers behind it is a free choice, but a disturbing one. As noted, history is full of some real bastards all around the world, and there is no effort in France to ignore the Revolution, the Terror or Napoleon’s dictatorship. There are probably more monuments to Jefferson in France than in the U.S. Found one in all places near a small Roman temple in Vienne, a secondary influence for the architecture of our Capitol, similar to Nimes.

      • Dear Steve,

        One does not have to revere how the Confederacy was founded, namely the purposeful destruction of the bi-regional Democratic Party, to respect those who served it. I don’t respect the American Revolutionaries’ attacks on stamp officers, or, “sons of liberty” who intimidated and killed Loyal subjects to the Crown for voicing their opposition to mob rule and attacks on lawful government, nor the war that they waged, but I do respect the U.S. Constitution and its drafters and our Republic. I also respect the valor and sincerity of the men who fought for American independence in their firm belief that their existed a conspiracy by the Crown to destroy their liberties, though I disagree with the actuality of such a thing. I will let God judge us.

        Sincerely,

        Andrew

  5. djrippert:

    Do you have any evidence that “Virginia is multiple standard deviations from the mean in favor of strict Dillon’s Rule adherence” I’ve written several articles on Dillon’s Rule, and I’m probably the most cited authority on Dillon’s Rule (except for Dillon himself), and I’ve never seen it. I’ve seen claims that Virginia is one of 7 or 8 “strict adherents” to Dillon’s Rule (out of the 39 states that use it- as shown in my study), but I’ve never seen any evidence of how this was determined. I would really like to know. Dillon’s Rule is blamed for lots of things, but it’s really meaningless. The state legislature can do almost anything it wants. Only if it is unclear does Dillon’s Rule even come into play.

    • I will admit to poetic license on the “multiple standard deviations” comment. In retrospect, I probably shouldn’t have used a precise statistical term to put forth a qualitative argument.

      I know of no statistical way to measure adherence to Dillon’s Rule other than whether home rule is specifically spelled out in a state’s constitution. In states where home rule provisions are spelled out in the constitution the state legislature can’t do whatever it wants. In other states the legislature may lean more toward self-governance or toward centralized control. I look at the actions of our state government vs localities. Laws which prohibit the removal of relatively small statues by localities and laws which prohibit using local funds to subsidize sporting venues are indicative to me of a Nanny State that is practicing a strong version of Dillon’s Rule.

      This is a pretty good article at a high level …

      https://pilotonline.com/news/government/politics/virginia/article_7b9dcc6d-e8ea-5d0f-858b-a542d3c1fe99.html

      I suppose if I were to create a report card for strictness of adherence to Dillon’s Rule I’d start with transportation and road management. What percentage of local roads are managed by the state vs the localities? I might add the ability to impose local taxes and then the level of oversight regarding the spending of those taxes. The management of things like curriculum in local public school districts would be an A item on my list.

      It seems to me, no matter how you cut it, Virginia uses a strict implementation of Dillon’s Rule relative to other states. Additionally, Virginia’s regions are very diverse – from urban densities in core NoVa to very rural areas in the south and west of the state. How does it help Virginians to have a centralized General Assembly managing such diverse needs?

  6. If you got any local elected official drunk or high on weed, he or she would tell you that, when push comes to shove, they love the Dillon Rule. Its existence gives them the best excuse for rejecting the desires of their constituents. “The Dillon Rule prevents us from _______.” Hell, I was in the audience when then Chairman of Fairfax County BoS Gerry Connolly said the Dillon Rule prevents Fairfax County from turning down zoning requests or getting fair proffers.

    And, of course, the multi-degreed audience generally ate it up. As he was leaving, I gave Connolly a knowing wink. He returned it.

    • If Virginia had a history of honesty and ethical behavior in its state legislature this would be less of a problem. However, since the mid-1800s we have no such history. This legislature made not only the incredibly stupid decision to secede from the Union but to serve as the capital of the Confederacy as well. African-Americans were dis-enfranchised, schools were closed rather than de-segregated, Harry Byrd perverted democracy as a petty tyrant, etc. Some say those days are behind us but are they really? Dominion continues to funnel vast sums of money to our legislators (often through “safe” politicians for life who then mask the money trail by making large contributions to PACs). We have legislators using campaign contributions for personal costs. A recent governor (McDonnell) left office under a cloud of suspicion and shame. The man our legislature appointed to manage the Tobacco Indemnification Fund stole from that fund. I’m still not sure who pocketed all the Rt 460 money but the whole episode still stinks to high heaven.

      Gerry Connolly is a very slippery eel. The SAIC Metro stop was one example. I don’t consider him an honest or authoritative source for governmental structure.

      This November I expect the Democrats will take control of the state legislature. We’ll see if the “New Democratic Party” is more interested in democracy and home rule than the phony baloney big government Republicans who have been running this state for the last 25 years.

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