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The Confederacy lives in NC law. Why respect that?


Those at UNC-Chapel Hill who are pushing to remove the Confederate monument Silent Sam from our campus landscape are hitting a wall called the law. The law, we are told, keeps all of our state’s historical monuments in place. The law, we are told, takes decisions from campus hands and places them in the hands of state commissioners. The law, we are told, must be respected.

There is no doubt that our state’s law on historical monuments, Section 2.1 of Chapter 100 of the General Statutes, must be followed. But must it be respected? Let’s look at our state’s laws touching on the historical memory of the Civil War and Jim Crow.

Section 2.1 of Chapter 100 came in late July 2015, as Confederate flags and monuments around the South were coming down in reaction to Dylann Roof’s murderous rampage in a black church in Charleston, S.C. The law forbids removal of any “object of remembrance” from public property unless a state commission approves it, and lays down a number of conditions for any removal. Among other conditions, any removed object has to go to “a site of similar prominence, honor, visibility, availability, and access” as its original site.

That law doesn’t mention the Confederacy, but the circumstances of its enactment leave no doubt about the “remembrance” the General Assembly wanted to preserve.

Other laws explicitly reference the Confederate cause. Section 10 of Chapter 100 authorizes counties, cities, and towns to join memorial organizations for, and spend public money to build memorials to, “the soldiers who fought in the War Between the States.” Yes, that is how this N.C. law refers to the Civil War. The law was passed in 1919, at the height of Jim Crow. It is still on the books.

Section 9 of that same chapter authorizes county officials to use public funds to build “substantial iron fences” around monuments that were “erected to the memory of our Confederate dead” in courthouse squares. The General Assembly passed this law in 1905 and has never repealed it.

Confederate memory lives on in other sections of our laws as well. Our list of official public holidays — in section 4 of Chapter 103 — includes Confederate Memorial Day and Robert E. Lee’s birthday.

Our statutes also make provision for General Lee’s daughter. Section 44 of Chapter 136 directs the Department of Transportation to “look after the care and keeping the grounds surrounding the grave of Miss Anne Carter Lee, daughter of General Robert E. Lee, in Warren County.” That law dates from 1939. The General Assembly reviewed and changed it as recently as 2001. They left the protection of Miss Lee’s grave untouched.

Veneration of the Confederacy lives on in one more provision. In Section 4 of Chapter 65, our state corrections agency is “authorized and directed to furnish … such prisoner’s labor as may be available, to properly care for the Confederate Cemetery situated in the City of Raleigh, such services to be rendered by the State’s prisoners without compensation.”

Let me translate: North Carolina allows inmates to be used as slave labor to tend to the graves of Confederate soldiers. This has been the law in our state since 1927. The General Assembly amended the language of the statute in 2012 to update the official name of the state’s corrections department, but did not repeal the law.

We are told that UNC’s Confederate monument must stay on campus because a statute requires it. But our statute books themselves build their own landscape of legal monuments to the Confederacy. Is it any wonder that so many find the law so hard to respect?

Eric L. Muller is the Dan K. Moore Distinguished Professor at the UNC School of Law.
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