On Overstating the Case for Confederate Monuments

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

The Robert Edward Lee statue in Emancipation Park
The Robert Edward Lee statue in Emancipation Park

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.

Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two.

Who gets honored in community space ought to be a democratic conversation for each generation. Before the revolution, George III was King. After the Revolution, George III did not represent what America means anymore to the majority of Americans, so statues to him had to go. Similarly, if the representatives of the public and private will in twenty-first century America have arrived at the decision that the twentieth century images of those who committed treason and insurrection to protect nineteenth century chattel slavery no longer deserve public places of honor because those communities see themselves as dedicated to egalitarian democratic values, then it does not follow that for some sense of static history the statues should not come down. That would privilege the ideology of the nineteenth century over the reality of the voices of the twenty-first. (And, as evidence is showing, the statues at issue now went up precisely to signal the ascendancy of white supremacy, both in the 1920s at the height of Jim Crow and 1950s in mass resistance to the racial integration demanded by Brown v. Board of Education.)

One may object that the judgments of history are cruel. The vicissitudes of the future may be such that one day, Martin Luther King, Jr. memorials and street names may be arbitrarily torn down, that today’s egalitarian heroes may end up tomorrow’s villains. The people who win this argument today and see the statues torn down, the argument goes, will end up losing the argument tomorrow. That slippery-slope reasoning misses the point. To quote Hamilton the Musical, once you and I are extinct, neither of us has control over “who tells our story.” That’s just the reality. All we can do is live our lives now in a way that makes our values clear and be content to let history be the judge of that.

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

As to that, all I can say is those folks have a lot of convincing to do. I think I have made clear that I’m not persuaded by this. But, in the spirit of free speech, those who support the statues get to make the argument. And short of turning the protest to violence—which they did—they even get to light their citronella tiki-torches and march in Charlottesville, Boston, and wherever else. And those of us who disagree should do so, and peacefully point out the error of their ways. (Remember: the First Amendment may protect your right to object from state sanction, but it doesn’t protect you from the consequences of disagreement.)

But as the supporters of letting the legacy of the Confederacy continue to be central to our twenty-first century places of honor make that argument, my advice is to not overstate the claim by saying the removal of the Confederate generals’ statues erases history. That argument will likely cost you a lot of your audience. And they won’t forget.

Keeping Up With Atiba: SEALS 2017 Tropical Storm Edition

First of all—I’m happy to be back on the blog and sharing my work. I’ve taken time away from sabbatical, and over the next few weeks I’ll be sharing big events and projects coming up. But I wanted to kick off this post-sabbatical post by sharing what I’m up to at the Southeastern Association of Law Schools 2017 Annual Conference (SEALS).

So, I’m writing this from 30,000 feet as I look out of the window over the Florida coastline. I can see ocean, beach, and clouds, and my first reaction is—sun, shore, and scholarship—three of my favorite things.

My second thought: I’m flying into a tropical storm!

The delays caused by the storm have been minor, the storm should cross over today and move out tomorrow, so I’m hoping it will not dampen what promises to be an exciting conference. (And frankly, after attending these for years, I thought it only a matter of time before hurricane season caught up with a conference usually held in Florida in August!)

I wanted to highlight specifically the discussion groups and panels I’ll be involved in—if you can make it through the rain, stop by and dry off.

My SEALS Conference Schedule, In Brief

Monday, July 31

  • 3:00 PM: Beyond the Socratic Method in Trusts and Estates

Thursday, August 3

  • 9:00 AM: Reforming the Presidential Selection Process
  • 1:00 PM: Inside the Mind of the Outside Reviewer

Saturday, August 5

  • Book Projects and Publication in Election Law

SEALS: The Details

Today – Monday, July 31 – at 3:00 PM, I will be participating in a discussion group on teaching innovation in Trusts & Estates Law. In particular, I hope to discuss my work regarding how I have used social media and outside-the-box teaching materials to enliven my intro Trusts & Estates class. Here’s the abstract:

Discussion Group: Beyond the Socratic Method in Trusts and Estates

Many trusts and estates courses have historically focused their teaching techniques on the traditional Socratic method, and much of trusts and estates scholarship has focused on the development of doctrine within the field itself. This discussion group will explore pedagogy that is expanding the ways of teaching and studying trusts and estates and related doctrines. The discussion group will address: 1) innovations in teaching, including both skills and doctrine; and 2) incorporating concepts from Elder Law, Family Law, Property, and Professional Responsibility into Trusts and Estates — and vice versa.

I will be presenting at two events on Thursday, August 3:

First, at 9:00 AM, I will be discussing my proposal for a National Primary Day (to unify all primaries on one day) as a means to improve the presidential nomination and selection process. This is part of the Constitutional Law Workshop sponsored by SEALS:

Discussion Group: Reforming the Presidential Nomination Process

This panel discusses the nature of the presidential nomination process and how it might be changed, improved, or reformed. Presidential candidates are winnowed though party primaries, and this winnowing process is controlled by the two major political parties, receiving little influence from ordinary voters and citizens. The timing of our presidential primaries, how our party primaries are conducted, how party convention delegates are chosen, and how the votes of delegates are counted are all issues that parties decide on their own. This panel examines the presidential nomination process, how it unfolds, the role that political parties play in it, and how American citizens might have more of an influence over it going forward.

Second, at 1:00 PM, I will be discussing the Promotion and Tenure process on a panel entitled “Inside the Mind of the Outside Reviewer.” The goal of our workshop is to give attendees a perspective on the process of and importance of the external review process to the overall process of gaining tenure and promotion. Read more in the abstract:

Inside the Mind of the Outside Reviewer

In the promotion and tenure process, mentors stress to junior faculty the need to create a scholarly agenda, to find an original niche in their field, and to place their work well. However, what is not often discussed is one very important data point in the tenure decision, the external reviewer. This panel will discuss the role of the external reviewer in the tenure process, the expectations that external reviewers have, and the strategies that pre-tenure faculty can implement early on to succeed in this critical part of the tenure evaluation process.

Saturday, August 5 at 1:00 PM, I’ll be moderating a discussion group on current book projects in the Election Law field. (I will be presenting my book proposal on voter fraud ideology and American democracy).

Book Projects and Publication in Election Law
As the recent election cycle has shown, issues surrounding election law remain germane to the public concerning the American political process. Election law, as a field, has continued to address these issues through not only scholarship and public intellectual engagement, but also through historical and contemporary book-length works that have examined key cases and issues in the field. This discussion group explores the development of this branch of book-length election law scholarship and provide an opportunity for election law scholars currently working on book-length projects to discuss their current work.

And in the coming days and weeks, I’ll write more about my book and other ongoing projects (including my Boden Visiting Professorship at Marquette University and [new addition] my upcoming TEDx talk this November. Stay tuned!

ICYMI: download the Podcast of My Voting Rights Discussion on the Legal Eagle Review


As I noted last week, I joined NCCU Law Professors Irving Joyner and April Dawson for a discussion of the history and future of voting rights on the Legal Eagle Review radio show on WNCU. The show aired this past Sunday night. In case you missed it because you were perhaps getting ready for the train wreck that was the Oscars, the podcast of the show is now up, and you can download or stream it here: http://www.wncu.org/podcasts/legal-eagle-review-podcast-0226/ .

I will be discussing the History and Future of Voting Rights on the Legal Eagle Review Radio Show *This Sunday at 7 PM*

img_0774.jpgThis Sunday, February 26, at 7 PM ET, I will be the guest on the Legal Eagle Review radio show on WNCU-FM. I will be talking about the history of voting rights with NCCU Law Professors Irving Joyner and April G. Dawson. The discussion will emphasize the parallels between the past of racial voter suppression and the present, the impact of the Shelby County v. Holder decision on the enforcement of voting rights, and the possible futures for voting rights in the Trump era.

Tune in at 90.7 FM in the Durham, NC area or listen to the livestream here.

WRAL’s “On The Record”to Discuss Voter Fraud

screenshot-2017-02-18-18-30-35I will be on WRAL-TV (Raleigh, NC viewing area) tonight at 7:00 PM on their news and discussion show “On The Record” I will be discussing recent controversies and American elections, including the recent comments by the President concerning the existence of illegal votes and other issues related to voter fraud. For those of you not in the area or who can’t watch the show live, the link to the broadcast is here.

As readers of the blog know, a main theme of my election law research considers the ramifications of the narrative of unproven voter fraud. My research on this is here, and my  blogpost in the wake of the November election that discusses the ramifications of Trump’s use of the voter fraud meme is here. And expect more research and writing from me on this issue.

Keeping Up with Atiba: February Edition

Spring Semester: Sabbatical!

For this post, I want to announce my latest endeavor—sabbatical!

I am on leave from the West Virginia University College of Law this semester, and though I’ve been traveling last month, I am now living Durham, NC for the rest of the semester.

Specifically, I am spending this semester as a visiting scholar at the Duke University School of Law. I will use this time to work on a number of projects, including

  • starting a long-term project on the theory (-ies) regarding race conscious remedies in modern civil rights law and their interrelationship with American democracy;
  • starting a project to amplify public engagement by law professors in this important time for issues of constitutional and civil rights law; and

I am appreciative to Duke Law, and in particular, Dean David Levi, Associate Dean for Faculty and Research Guy-Uriel Charles, Academic Affairs Assistant Elizabeth Brooks, and the staff of the Law School and the J. Michael Goodson Law Library for accommodating me.

My office is cozy but useful. And in case you’re worried that I’m off and about without supervision, know that I’ll be under the watchful eye of President Richard Nixon (or at least his portrait).

painting of Richard Nixon hung on the wall outside Atiba Ellis's research carrel

Summer & Fall: Conferences and A Visiting Professorship

As you can see, I’ll be busy in Durham this spring (when not watching basketball!). As publishable products from these projects emerge, I will share them here. And to the extent I have additional engagements on voting rights issues, race and the law issues, and other matters of general interest, I’ll share them here too. So, stay tuned.

One last note: planning for my summer and fall has already started. I’m looking ahead to several conferences this summer and fall (including the Law & Society International Meeting; the Southeastern Association of Law Schools 2017 annual meeting, and LatCrit 2017).

Most important—this fall of 2017 I will be the Boden Visiting Professor of Law at the Marquette University School of Law. This will offer further opportunities for public engagement and teaching that you may find interesting. More on this later.