Micah J. Schwartzman

Charlottesville’s Monuments Are Unconstitutional

CO-AUTHORS Nelson Tebbe


On Wednesday, the city of Charlottesville, Virginia, shrouded two of its Confederate monuments in black. City officials would like to remove the statues of Robert E. Lee and Thomas “Stonewall” Jackson altogether, but they are currently under a court order blocking the removal of one statue, and they are likely to face similar legal obstacles to removing the other. A Virginia law appears to deprive Charlottesville of legal authority to alter its Confederate monuments. Many other cities face similar state laws prohibiting the removal of monuments.

So far, the lawsuit over Charlottesville’s monuments has focused on arcane issues of state law. But there are larger constitutional principles at stake—most importantly, that the government is prohibited from conveying messages that denigrate or demean racial or religious minorities. While private citizens may engage in hate speech under existing law, the government may not demean racial or religious minorities without running afoul of the guarantee of equal protection contained in the 14th Amendment. Unlike limitations on hate speech, which remain controversial, this rule against racialized government speech should enjoy widespread support.



Micah J. Schwartzman & Nelson Tebbe, Charlottesville’s Monuments Are Unconstitutional, Slate (August 25, 2017).

More in This Category