On October 3, 2017, the Memphis City Council moved to postpone their vote on the removal of the statues of Confederate general Nathan Bedford Forrest and Confederate president Jefferson Davis from downtown Memphis. The vote was postponed until October 17, after the Tennessee Historical Commission had met to either approve or deny Memphis’ previously submitted application to remove the statues. The commission’s rejection would be a binding decision for Memphis City Council, and the commission had denied this application from Memphis before.
In this essay, I consider this protracted political conflict between Memphis City Council and the Tennessee Historical Commission in light of the principle of democratic accountability. I ask whether these government bodies are held appropriately accountable either horizontally (by peer institutions) or vertically (by citizens). I also ask which group of citizens—residents of Memphis, or residents of Tennessee—should ultimately be able to hold institutions accountable for decisions made about these statues. I argue that in the current institutional set-up, democratic accountability is lacking.
The political conflict surrounding Confederate statues in Memphis“Although the city council had twice unanimously voted to remove the statues, the commission had twice declined to grant the waiver required to carry out the removal.”
Before examining the larger issue of democratic accountability in these institutions, it is necessary to understand the ongoing political debate regarding the removal of Memphis’s Confederate statues. The October 2017 statue removal application was the third time Memphis had made such a request. Although the city council had twice unanimously voted to remove the statues, the commission had twice declined to grant the waiver required to carry out the removal. On its third and final reading before the council, the statue ordinance had again been set to pass with the full support of all council members. This particular ordinance served as the council’s response to the nationwide movement to remove Confederate statues from public spaces, as well as to an August 19, 2017, protest in front of the Forrest statue. However, the battle surrounding these monuments of historical figures began long before August 19.
The creation of the Tennessee Historical Commission
The clash over Confederate statues partially grows out of a difference in political party alignment: Memphis, a Democratic city, resides in a Republican state. The state legislature therefore resists the removal of Confederate statues despite public support at the municipal level. This difference in party support has created a long-running conflict over the removal of the statues. In 2013, the Tennessee House of Representatives passed the Tennessee Heritage Protection Act, which states that no monument erected in honor of any historical figure or event can be renamed or rededicated without approval from the Tennessee Historical Commission. The Tennessee Historical Commission consists of 24 members appointed by the governor, as well as five ex-officio members. The 24 appointed members serve five-year terms and are divided equally among the three divisions of the state: West, Middle, and East.
In response to the passage of the Heritage Protection Act, Memphis quickly changed the names of three of its parks before the law went into effect. Confederacy Park, Jefferson Davis Park, and Nathan Bedford Forrest Park became Memphis Park, Mississippi River Park, and Health Sciences Park, respectively. For two years, there was a brief ceasefire. Then, in 2015, the Memphis City Council voted to remove Forrest’s statue from the park altogether. However, at this point the city council needed approval from the commission—something it would not have needed before the passage of the Heritage Protection Act. A year later, in 2016, the Tennessee Historical Commission denied Memphis’ application to remove the statue, citing the Tennessee Heritage Protection Act.“At this city council meeting, the council’s attorney brought up an additional hurdle: the possibility that the historical commission would not hear Memphis’ application at their next meeting.”
The conflict between these institutions continued into 2016 when the Tennessee House of Representatives updated the Tennessee Heritage Protection Act with the stipulation that a historical monument could not be renamed or removed without a two-thirds majority vote from the Tennessee Historical Commission; previously, a renaming or removal had required a simple majority. This brings us to the Memphis City Council’s third round with the historical commission and the October 2017 meeting described above. This was the meeting at which the city council resolved to postpone a planned vote regarding statue removal until after the historical commission had met to make a decision regarding Memphis’ application. At this city council meeting, the council’s attorney brought up an additional hurdle: the possibility that the historical commission would not hear Memphis’ application at their next meeting.1Allan Wade, Memphis City Council attorney, Memphis City Council meeting, October 3, 2017. The attorney assured the assembled crowd that every legal strategy was being used to ensure the application’s hearing and that further legal action would be taken if the application was not heard. In the end, the commission did hear the application and voted against it.
Despite this ruling, Memphis found another route to remove the statues. Exploiting a legal loophole stating that the Heritage Protection Act only applies to historical monuments in public spaces, Memphis sold the parks to a nonprofit organization on December 20, 2017. The statues were removed that same night.
What does this series of interactions say about the state of democratic accountability in Memphis and Tennessee? What does it mean when one government entity is ready and willing to use legislation to undermine another? Why does the council, which is directly elected and held accountable by Memphis residents, not have the authority to rename its public spaces; and why can an unelected state-wide body block the city council’s wishes? The struggle between the Memphis City Council and the Tennessee Historical Commission exposes an undemocratic aspect of Tennessee’s current institutions: lack of vertical accountability.
Holding the historical commission accountable
Joseph Schumpeter defined democracy as “that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote.”2Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper & Brothers, 1947), 250. The members of the Tennessee Historical Commission did not acquire power through a struggle for people’s votes. If American democracy is built on checks and balances, we need to ask: Where is the check on the historical commission? Without some kind of check, a core principle of democratic procedure is lost: accountability, and the answerability and punishment it ensures.3Ellen Lust and David Waldner, Unwelcome Change: Understanding, Evaluating, and Extending Theories of Democratic Backsliding (Institute of International Education/USAID, June 11, 2015), 3.
Accountability flows in two directions: horizontal and vertical. Horizontal accountability is the classic system of checks and balances, in which democratic institutions hold each other accountable.4Lust and Waldner, Unwelcome Change, 3. One could argue that the historical commission is keeping the Memphis City Council accountable to the Tennessee Heritage Protection Act. But who keeps the historical commission accountable? The commission’s decisions are binding and final, and the commission also seems unwilling to listen to fellow institutions and political leaders—thus showing itself resistant to informal checks and balances. For example, when conversations concerning the removal of certain monuments took place in more parts of Tennessee than just Memphis following the 2015 Charleston, NC, shooting, Governor Bill Haslam and US Senator Bob Corker, both Republicans, called for the removal of a bust of Nathan Bedford Forrest from the state capitol building. The commission’s response was to amend the Heritage Protection Act through the state legislature, adding the previously mentioned two-thirds requirement. If horizontal accountability is not applicable to the commission, maybe vertical accountability is?“If democracy is characterized by accountability, then in this case democracy and accountability can only be strengthened by creating a closer connection between citizens and the local—rather than state—government.”
As the appointer of the commission’s members, the governor can be held accountable by citizens. However, this accountability is not only indirect, it is also dispersed: the governor is held accountable by all citizens in Tennessee rather than those in Memphis specifically. In the Memphis case, the statues are in city-owned parks. Vertical accountability was exhibited when the council heard from citizens on both sides of the debate, and subsequently was subject to reelection. Whether a citizen is happy or unhappy with the council’s decision, the election enables citizens to hold each council member accountable to that decision. As previously mentioned, no members of the historical commission, except the governor, are elected. Additionally, the only mention of replacement of a commission member before the end of their term, in Tennessee law, is due to death or retirement. Therefore, there is little to no vertical accountability of the historical commission. Furthermore, it is the city that must bear the costs that the decision imposes, regardless of whether that is the cost of removing the statues or the cost of their further protection and maintenance. If democracy is characterized by accountability, then in this case democracy and accountability can only be strengthened by creating a closer connection between citizens and the local—rather than state—government.
The implications of lacking accountability
It is worth taking a step back to re-emphasize that we are talking about a historical commission here. While this essay is part of a series that deals with democratic erosion, I am not arguing that the Tennessee Historical Commission is eroding democracy through consolidating power by purposely eliminating checks and balances. The historical commission cannot take away voting rights or civil liberties, nor can it legislate. In other words, we will not be ruled by this commission any time soon. However, this example can be used as a tool to help us consider when appointed positions and institutions are justified in a democratic system.
Most appointed positions, such as executive cabinets or courts, act in an advisory capacity or interpret laws and the constitution. Additionally, both are subject to different forms of checks and balances. However, unlike the historical commission, the president’s cabinet, for example, is subject to horizontal accountability. Cabinet secretaries can be impeached by Congress. In this essay I have argued that a sufficient level of checks and balances is not found in the Tennessee Historical Commission. There is no check on the waivers granted or not granted by the commission, and no method for replacing commission members before they reach their term limit.
I make this comparison to say that it is not the mere existence of appointed positions that could make a democratic system less democratic. Indeed, it seems infeasible for citizens to vote on every office in government. Moreover, some positions must be appointed so as to protect them from electoral pressures; protection that is necessary to maintain other aspects of democracy, such as the protection of rights. Rather, the lesson to be learned from the examination of the Tennessee Historical Commission is to ensure that some form of accountability on appointed positions exists. To create horizontal accountability in the historical commission, for instance, its decisions should be voted on by the state legislature before enactment. To ensure vertical accountability, we should strive to secure a close connection between the deciding government entity and the affected citizens. When the cost for the statues falls on the city, so should the power to decide their fate. A democracy is marked by a system of checks and balances; to maintain an appropriately accountable democratic system, each government entity must be held accountable by its peers and to its citizens.