How Devolved is Too Devolved?: A Comparative Analysis Examining the Allocation of Power Between State and Local Government Through the Lens of the Confederate Monument Controversy

Abstract

At various critical junctures in our nation’s history, lawmakers have struggled to strike the proper balance between centralization and delegation of authority. Recently, the debate over whether to remove Confederate monuments has again brought to the fore this centuries-old struggle. Beginning in 2000, state legislatures throughout the South enacted statutes primarily designed to protect Civil War monuments, which in the South predominantly pay tribute to the Confederate cause. Recent attempts by Southern localities to remove Confederate monuments have revealed the inadequacy of these recently-enacted statutes. Virtually every state legislature that has successfully passed a statute on the topic has produced a law that entirely prohibits removal of Confederate monuments by localities, save certain extreme exceptions. Conversely, in those states where no statute addresses the issue of removal, the decision is left entirely to individual localities, as state officials have no legal authority on the matter. Both arrangements fail to provide for the proper allocation of authority between state and local government. In failing to do so, the respective governmental responses fall short in realizing the attendant policy benefits of proper allocation of authority. The statutory responses of two states, Georgia and Kentucky, provide a useful lens through which to analyze the effects of improper allocation of authority and, on the other hand, to consider the potential benefits of the proper allocation of authority. In light of these considerations, this Note suggests a model statutory approach that provides a process for both protection and removal of Confederate monuments and, by striking the proper balance, allows for meaningful political engagement at both the state and local level