October 02, 2017

Editor’s Choice

A curated selection of short articles on contemporary topics.

Civil War Statuary

A Civil War historian at the University of California Davis, Professor Gregory Downs, considers the history lessons implicit in these monuments. These comments also were reported on PBS television:

The memorials to the Confederacy, in general, celebrate two historical crimes: (1) a treasonous effort to establish an independent nation dedicated to preserving and extending slavery forever and (2) the late-19th-century effort to deny basic rights of contract and movement to former slaves via murder, rape, arson, and intimidation in the decades after the close of the Civil War.

Most of the monuments were erected in that period of Jim Crow to mark not just the Lost Cause of the Confederacy but also white supremacists’ triumph in wresting control over state and local governments and enacting a regime of racial segregation and oppression.

While individuals in both eras—secession and Jim Crow—possessed interesting and even admirable qualities, the causes the memorials commemorated were, as Ulysses S. Grant wrote, “one of the worst for which a people ever fought.”

Additionally, the memorials proclaim a vision of the South that ignores the fact that four million slaves were Southerners too, and deserving of representation. When people now say the memorials reflect the history of the South, they are excluding black Southerners from the story of the South that they claim to venerate.

The challenge of the memorials arises from two contradictory facts: (a) celebrating terroristic regimes like the Confederacy and Jim Crow is abhorrent and (b) tearing down the memorials may induce amnesia about how bad those regimes were.

Some historians therefore have argued that we should keep the memorials and add large, clear historical explanations of slavery, secession, and the pernicious uses of the memorials to celebrate Jim Crow, supplemented by counter-memorialization of more-admirable Southerners, black and white. Generally I agree with this as a goal.

On the other hand, some of the memorials are so painful that their historical value is minimal compared to the pain they cause. It is hard to argue that communities should bear the burden of such pain for the edification of others.

Only by engaging carefully with many people on the ground can we hope to decide which of these two methods is most responsive to their needs and most conducive to building, at last, more accurate and inclusive public understandings of the history of the Civil War, Reconstruction, and Jim Crow.

• Public opinion on the question of removing these statues from public places is divided, and some commentators see an attempt to shift the debate to treatment of controversial historical figures more generally: http://nymag.com/daily/intelligencer/2017/08/the-debate-over-removing-confederate-memorials-continues.html?utm_source=eml&utm_medium=e1&utm_campaign=sharebutton-t.

• National Review Editor Rich Lowry sees the issue as allowing memorials to the Confederacy to be coopted by modern day white supremacists. This piece not surprisingly generated a rebuttal in the same magazine, along with many other pieces on the subject, some pro-removal, some con: http://www.nationalreview.com/article/450470/charlottesville-virignia-robert-e-lee-statue-remove-right-decision-confederate-monuments-museums.

• The controversy seemingly has not affected the “building boom” in recent years for new (and relocated) Civil War monuments on private land: https://www.nytimes.com/2017/08/30/us/confederate-monuments.html.

• The former Confederate States capitol of Richmond, Virginia, has considered the unique circumstances of Civil War statuary in that city, making the question of removal more complex than in most places. http://wapo.st/2iB3fR2.

• A Loudon County, Virginia, member of the Board of Supervisors offers a different approach: Add memorials to stand along the others, to commemorate other aspects of Civil War history: https://www.washingtonpost.com/opinions/a-confederate-soldier-in-this-virginia-town-should-not-stand-alone/2017/09/08/38419288-927c-11e7-8754-d478688d23b4_story.html?utm_term=.5ce91aab4435.

• Much of the controversy on this topic concerns whether Robert E. Lee was simply a “good soldier” and not really sympathetic to the South’s cause. This essay, recently reprinted in the N.Y. Times Book Review, considers both sides of that argument: https://nyti.ms/2vE5GmY.

• Adding to the question of whether statues are appropriate even on private property, the controversy now includes whether to treat public and even private cemeteries as candidates for removing soldiers’ and others’ tombstones and memorials: https://nyti.ms/2yfz98S.

Free Speech on the Public College Campus

• In case you missed it, here’s a discussion between Natalie Shutler, a New York Times columnist, and Dean Edward Chemerinsky, University of California Berkeley School of Law, on historical attempts to control use of a public college campus for free speech that some would call hate speech: https://www.nytimes.com/2017/09/13/opinion/berkeley-dean-erwin-chemerinsky.html.

• In a related article, the Times assembled the responses of some college administrators as to steps they proposed to prepare for and counter the violence that sometimes attends free speech demonstrations: https://www.nytimes.com/2017/09/08/us/politics/colleges-racism-charlottesville.html.

• Some of us were taken aback at the symbolism of the torches held by white supremacists at a rally on the grounds of the University of Virginia at Charlottesville for which the university had issued a permit. The university decided to investigate how that came to be, and this is their brief report: https://response.virginia.edu/system/files/public/observations-improvements-uva-response.pdf.

Land Use in Houston, Texas, Before and After the Flood

• “The notion of Texas as an urban model still rankles many of those who think of themselves as urbanists.” So says a report by the Center for Opportunity Urbanism on why and how Houston and S.E. Texas cities can be considered models of urban development: http://opportunityurbanism.org/wp-content/uploads/2016/12/TheTexasWayOfUrbanismReport-8.pdf.

• The link between Houston’s urban design and exposure to flooding—too much impervious surface: https://www.theatlantic.com/technology/archive/2017/08/why-cities-flood/538251/.

• To the same effect, some wonder if urban development in Houston has been out of control: https://www.washingtonpost.com/graphics/2017/investigations/harvey-urban-planning/?tid=a_inl&utm_term=.e2732023d7e1.

• So, should Houston adopt an urban growth boundary? https://www.nytimes.com/2017/08/30/us/houston-flooding-growth-regulation.html.

• Does the National Flood Insurance Program incentivize rebuilding in flood prone areas? https://www.washingtonpost.com/opinions/after-harvey-flood-insurance-needs-reform/2017/08/30/0a04b88e-8d02-11e7-8df5-c2e5cf46c1e2_story.html?utm_term=.1d9db3908c6a.

• Meanwhile, Texas congressional reps have mixed feelings about funding levels for the National Flood Insurance Program: http://www.politico.com/story/2017/08/28/harvey-flood-insurance-hensarling-hurricane-242114.

• The controversy continues as Louisiana’s Congressman rejects any limits on use of flood insurance proceeds to rebuild in the same flood-prone location: http://www.politico.com/story/2017/09/23/steve-scalise-jeb-hensarling-god-message-floods-243055.

• National Flood Insurance Program “reform” is not a new topic, but the last effort washed out with the aftermath of Super Storm Sandy: http://nymag.com/daily/intelligencer/2017/08/harvey-makes-and-breaks-the-case-for-flood-insurance-reform.html?utm_source=eml&utm_medium=e1&utm_campaign=sharebutton-t.

• Here is commentary and a report just issued by the Baker Institute at Rice University on the question of whether federal funds should be used to purchase flooded private properties: https://www.washingtonpost.com/business/economy/as-flooded-houston-neighborhoods-dry-out-residents-wonder-are-they-worth-the-risk/2017/09/14/cc9e983c-93ed-11e7-aace-04b862b2b3f3_story.html?utm_term=.3525567f9ed3.

• Here’s the report: https://www.bakerinstitute.org/media/files/research_document/03d3e4fe/BI-pub-Blackburn_Harvey-090617.pdf.

State Incentives to Lure Industries and Jobs

• There can be more to the story than simply the offering of financial incentives to bring new industry to town. Wisconsin offers a very recent example: http://www.jsonline.com/story/news/politics/2017/09/20/provisions-wisconsins-foxconn-law-could-unconstitutional-legislatures-attornonpartisan-analysis-find/684418001/

• This memo from the Wisconsin Legislative Counsel addresses the provisions of the new law that direct the judiciary to give preferential review of any court decision affecting the company that the company appeals. It attempts to answer a “separation of powers” constitutional question: foxconn_legcouncil.pdf

Reading this Newsletter in print? Hyperlinks to the articles are included in the online version, at www.americanbar.org/groups/state_local_government/publications/state_local_law_news/.