Wednesday, May 18, 2022

Ideas without Authors: The Founding and the Founders

Guest Blogger

This post was prepared for a roundtable on Public Memory and Public Monuments, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Jonathan Gienapp

History and memory are different, yet sometimes the difference between them can seem vanishingly small. In the United States, like no doubt elsewhere, historical study often rubs against potent forms of public memory, so much so that studying the nation’s past can feel like an exercise is combating, correcting, or amplifying the popular symbols and narratives that shape understanding of it in the present. The connections between history and memory become especially tight, and fraught, when attention turns to the American Founding—where history and public memory are so intertwined that it can seem fruitless to make out the difference. From the beginning, the history of the American Revolution and the Constitution have often been little more than struggles over how each is remembered.

Little has changed. The Founding still orients so much of the nation’s memory politics. Like all nations, the United States relies on shared symbols and stories to carry on, ones that invariably offer an account of where the nation has been and where it might head. But unlike other nations, in the United States these symbols and stories always seem to return to the nation’s beginnings. A pilgrimage to the nation’s capital quickly reveals the importance of the nation’s origins to its symbolic landscape. Travelers make their way across the National Mall to monuments commemorating its venerated Founders and to the National Archives to glimpse the nation’s founding documents—the Declaration of Independence and the Constitution. Combined, these symbols and artifacts constitute the core of American civil religion, serving as the basis for Americans’ shared memory and collective identity as a people distinct from others, and offering the common historical materials through which Americans can critique or venerate.

Few scholars have deepened our understanding of these distinct pillars of American civic religion and memory—the nation’s sacrosanct monuments and its sacred scripture—as much as Sandy Levinson. Our great student of American civic faith, Sandy has helped us see how the nation’s present and future so often rest not so much on what happened in its past but on what it has chosen to remember and forget. In honor of Sandy’s storied scholarly career, and all he has taught me through his enormous erudition, probing scholarship, and infectious intellectual curiosity, I will briefly reflect on the relationship between the two distinct aspects of American civic memory that he has studied in depth: public monuments and foundational texts.

Monuments and venerated texts are often treated separately, but they share similarities. We might not think of the Declaration of Independence or Constitution as monuments, yet in certain respects, of course, each are. Like other monuments, they are material manifestations of cherished principles and values, objects of historical memory, belonging, and identity that are meant to stand for something enduring and significant. They provide publicly sanctioned links between past and present, and as means of venerating that past, they each run the risk of orienting us backwards and inhibiting change—of resisting democracy’s latent urge to move forward. In this regard, Sandy’s work on public monuments and Americans’ scriptural devotion to the Constitution dovetail seamlessly—elegantly capturing the peculiar tension of American public life: almost limitless fealty to the “people’s” righteous authority set alongside unthinking reverence for people long dead.

This theme especially comes into focus if we consider debates over the Jefferson Memorial and constitutional originalism. Here we find an intriguing parallel: each debate reveals a peculiar unwillingness to separate ideas from authors, a reluctance that underscores a broader instinct to harness democracy by tethering it, and the ideals that sustain it, to the visions of particular historical figures.

When Americans debate their Founding, it never takes long for Thomas Jefferson to seize the limelight. Long regarded as the mirror of America for how he has seemed to capture the ideals, possibilities, paradoxes, and failings of the nation, it is no exaggeration to suggest that no American historical figure has towered over the scene quite like him. As James Parton wrote in 1874, “If Jefferson was wrong, America is wrong. If America is right, Jefferson was right.” Of course, a major reason why Jefferson has continued to dominate public memory and debates over it is due to the issue of race. Not only was he a large slaveholder who proved unwilling to free the vast majority of those he held in bondage, but he also famously (or infamously) fathered multiple children with one of those enslaved women, Sally Hemings. Here, in intimate terms, Jefferson’s contradictions capture for so many the deeper contradictions of the nation itself: the critic of slavery and principal author of the Declaration of Independence’s soaring commitment to human liberty kept most of his children and their mother in bondage. The racial reckoning sweeping the nation has, thus, made talking about Jefferson, and especially his union with Hemings, difficult and timely. And as calls intensify to remake America’s memorial landscape—to change or even tear down those public monuments that prop up a certain exclusionary vision of the nation’s past—Jefferson himself has been targeted.

Student activists at the University of Missouri have repeatedly called for the statue of Jefferson that resides on their campus (an homage to the fact that the university was the first founded in the Louisiana Purchase territory acquired during Jefferson’s presidency) to be removed. Other activists, including one of Jefferson’s own white descendants, meanwhile, have called for the Jefferson Memorial in Washington, D.C. to be taken down. Last fall, direct action was taken in New York, as Jefferson’s statute was removed from the City Council chamber.

Amidst this rising debate stands an interesting question: What is the relationship between cherished ideals and the flawed people who have been said to author them? I have witnessed this struggle firsthand. At Stanford, I teach an introductory seminar on Thomas Jefferson and his legacy, during which I invite students, fresh to college, to wrestle with Jefferson’s ideas, accomplishments, and failures. Invariably we talk about how he is memorialized, and what should come of the national monument commemorating him. Often, the conversation parallels those taking place across the nation. One common defense for maintaining the Jefferson Memorial—advanced in my class as well as leading op-ed pages and letters to the editor of major news outlets—is that it’s less a monument to Jefferson than to the worthy national ideals he helped establish. As principal author of the Declaration of Independence, he helped write America’s enduring creed. We remember Jefferson, the argument goes, in spite of his personal failings and abhorrent views on racial difference, not because of them. To counter this common claim, it is often asked why the monument should not simply stand for the ideals in question? Why must Jefferson have any association with them at all? Why must the ideas be tethered to the man? What’s interesting is how instinctively many seem to resist this proposal, suggesting that the ideas cannot be fully understood apart from Jefferson’s original ownership of them.

Perhaps, as Sandy himself has suggested, it’s as simple as nations need heroes, and can’t cope without them. Or perhaps the work of public memory, in particular, demands actors with intentions, protagonists who set the world in motion. After all, we have a much harder time seeing impersonal forces like institutional and structural racism than we do racist people. Of course, there is more to this struggle than merely the relationship of a so-called author to the ideas commonly associated with them. In this case, some Americans’ unwillingness to tear down a Jefferson monument is likely based on more direct loyalties to the man or what he is believed to represent. But, nonetheless, I’m struck by how often the debate seems to turn on a curious puzzle: the idea the American Founding cannot be disentangled from the Founders. They come as a package deal.

There is a striking parallel between this debate and the one over constitutional originalism. For years now, most originalists have privileged original public meaning (what the Constitution’s words communicated to an average reader at the time of ratification) over the original intent of the document’s framers. What matters is the words, not those who wrote them. Yet, in practice, that separation has proved difficult, if not impossible. Originalism’s rhetorical and political appeal is inseparable from the ongoing veneration of the men most responsible for it. But even if it could be so separated, there would remain the interesting fact that originalists still place enormous weight on particular individuals in the constitutional past. Even though the theory of public meaning originalism seems to democratize constitutional meaning—by nominally placing equivalent weight on what ordinary people took the Constitution to mean as any venerated Founder—in practice, those who take their place in the constitutional pantheon dominate originalist analyses. As Jack Balkin has argued, originalism is as much a theory of constitutional memory as it one of interpretation. Originalists choose to remember a cast of characters, texts, and events that matter are often notably small. As it turns out, a Constitution untethered from original constitutional visions, is compatible with a host of competing readings and can be pulled in several distinct directions. Cabining that constructive potential, and keeping the original Constitution in line with certain visions of limited national governance, federalism, and individual liberty, is easier if the authority of certain figures is relied upon to shape the acceptable possibilities.

Accordingly, many originalists continue to privilege James Madison, placing undue weight on his writings and interpretations, and especially the constitutional middle ground he appeared to stake out between devoted nationalists, like Hamilton, and more fervent defenders of states’ rights, like Jefferson. More recently, originalists have grabbed hold of Madison’s views on liquidation—on how constitutional ambiguity ought to be settled through practice—sometimes giving off the impression, unwitting or not, that he stands in for the Founding generation. Rather than attending to the cacophony of voices at the Founding, including those outside the formal halls of power, originalists are more comfortable with a constitutional world that is exceedingly cramped. One finds a similar tendency surrounding their treatment of the Reconstruction amendments, where John Bingham, principal author of Section One of the Fourteenth Amendment, and a small coterie of radical Republicans are routinely elevated above the scores of others who comprising the congressional majority, never mind the political public, at the time, with the effect of establishing Section One as the heart of the amendment and Bingham’s forward-looking vision (which the Supreme Court would soon betray) of the amendment’s ultimate meaning. The free-for-all of original public meaning is circumscribed by assuming that certain people matter more—both then and now.

As with defenders of Jefferson, thus, we find a reluctance to sever original constitutional meanings from original constitutional authors, to allow democratic ideals and authority to swing free of a certain historical custody. We find an interesting marker of the very tension at the heart of American democratic memory that Sandy has done so much to elucidate. The ideals of our Founding are worth celebrating and enforcing, but not quite on their own. Monuments solely to authorless ideas, like free-floating constitutional meaning, leave us adrift. In yet another domain, the death of the author appears premature. Our true foundations are not our Founding, but our Founders, or so one might be forgiven for concluding. How this works with democracy is an open question. Given Sandy’s established position on the Constitution’s undemocratic character, it seems only fitting to end with that problem. Considered in tandem, public monuments to the nation’s so-called “Founders” and the venerated texts they laid down, reveal a common instinct to root ideas in people, suggesting a particular way in which the authority of the past is often deployed and negotiated in the present. What that means for the project in self-government is worth pondering.

Jonathan Gienapp is an Assistant Professor of History at Stanford University. You can contact him at


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