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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Monumental Questions on Art and National Identity
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Sunday, May 22, 2022
Monumental Questions on Art and National Identity
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. Deborah
R. Gerhardt For more than two decades, Written in
Stone, has provided a thoughtful foundation for wrestling with the
persistent presence of monuments to the Confederacy in the American public
landscape. The interdisciplinary tribute to Professor Levinson’s work on public
memory sparked provocative debate on the meaning of public monuments and their
role in creating collective identity. However, there was one point on which the
participants all agreed: Professor Levinson asks the best questions. To honor
the beginning of Professor Levinson’s sixth decade of teaching, this essay will
revisit some of them as he would want us to, empathetically and from multiple
perspectives. When teaching
Art law—especially in the South-- one must confront many difficulties in
discussing Confederate monuments. Studying their place in the American civic
landscape requires the courage to engage in conversation about institutional
racism, history, and collective identity. A multiplicity of viewpoints and
lived experiences contribute to the challenge. While some celebrate Confederate
monuments as memorials honoring personal sacrifice or Southern identity, others
see persistent reminders of family trauma from kidnapping, slavery, and
inequality. Some may pass by historic monuments without a thought as though their
presence in the Southern landscape emerged as naturally as the azaleas,
magnolias, and live oaks. Visitors from abroad may be surprised to encounter so
many monuments to a defeated regime. Prompting students to question whether
their presence is a contemporary choice is paradigm shifting enough. How does
one encourage a generation steeped in cancel culture to say out loud why these
monuments were erected and why some seek to keep then in place? We all have
books that change us by forging paths into uncharted territory where we
discover whole new ways of seeing. Professor Levinson’s iconic book, Written
in Stone, is one of mine. It gave me a provocative list of questions to inform
my teaching, my scholarship and perhaps most meaningfully, my perception of how
public art informs and reinforces our collective identity. Professor Levinson is a great teacher in the
Socratic tradition. He does not proselytize. Instead, he encourages us to hold tough
issues up and turn them to make sure we are looking at the challenges from
different perspectives. In doing so, he models great empathy for opposing
points of view. He encourages his readers to see both how the harmful effects
of these towering symbols feed the desire to take them down, as well as the
counterarguments for preserving history and culture. His telling of Lost Cause mythology
recognizes the falsity revealed so expertly in David Blight’s Race and Reunion,[1]
but Professor Levinson makes an important additional contribution. He asks us
to reflect on what it would feel like to lose one’s defining narrative and to
think about such attachments to tradition with fairness and empathy. He shows
us that history is more than a collection of facts—it is a set of stories meant
to be retold to help us define ourselves as a community. In a nation obsessed
with innovation and reinvention, Professor Levinson
illustrates the particularly American impulse to find heroes, (or failing that
to invent them) by quoting the famous line from Who Shot Liberty Valance: “When the legend becomes fact, print the
legend.”[2] By encouraging us to consider how often we share stories to forge
connections, we can see more clearly how repetition of a legend may reinforce its
power, whether or not it is grounded in truth.[3] Nonetheless, he never abandons the search for
historic truth. Professor Levinson has faith that our views will be better
informed if we learn to take our cameras and attach multiple lenses, including
those that defy time and geography. Sometimes, it helps to step back, refocus,
and look from a distance. Towards that end, Professor Levinson situates
controversial public art in the international history of iconoclasm so we can
see that the impulse to deface, remove and destroy is firmly embedded in human
nature. Throughout history, people have destroyed irreplaceable symbols of
cultural identity, from the legendary works of the classical Roman sculptor Lysippos to the Binyamin Buddhas.[4]
Accounting for that history can help us see that America’s debate is less
exceptional than one might initially suspect. Because destruction can result in
catastrophic loss of cultural treasures, Professor Levinson asks us to question
whether recontextualization is generally preferable. Instead of sanitizing
history with removal, Professor Levinson asks if students today and tomorrow
might be better served if Confederate monuments were relocated from public
squares to museums (as in Zimbabwe) or parks of fallen heroes (as in Budapest and Moscow).[5] By
handing us the lens of political science Professor Levinson challenges us to
examine the choice to elevate political leaders on pedestals. In such cases,
politics may motivate choices more than aesthetics or cultural saliency. Public
monuments reflect how “those with political power within a given society
organize public space to convey (and thus to teach the public) desired
political lessons.”[6]
Political change often leads to the toppling of monuments to the defeated
regime. “States always promote privileged narratives of the national experience
and thus attempt to form a particular kind of national consciousness, yet it is
obvious that there is rarely a placid consensus from which the state may draw.”[7] In
this way, Professor Levinson invites us to ask whether monuments can work as
cultural icons for more than some of us. Because victors win the right to
decide what will be elevated on pedestals, is it ever possible that a unifying
lesson will be communicated, taught, and modelled? Is the power to erect
nothing more than the spoils of war, with the winner able to fly their flag, or
elevate their hero, and pull down the colors and idols of those who lost? Are
public monuments nothing more than yesterday’s political propaganda rewinding
on an endless loop? They tower over our public spaces to make it clear who had
power when they were erected, but also, importantly, who holds power today.
Seen in this way, it is not surprising that when viewed from a distance, many
American public squares honor larger than life soldiers, but that when one
walks closer, we see that those in the North honor union soldiers while public
squares in the South elevate Confederates. While cultivating empathy, Professor Levinson
cautions us to be careful about the lens of post-modernism. If that perspective
is our only way into history, we may no longer discern the difference between
objective truth and counter-factual historic interpretation. We must remember
that public monuments are often financed by those with rhetorical agendas.
Although Written in Stone was originally published in 1998 and revised
in 2018, it is particularly salient today as Russia denies the nature of its
attack on Ukraine and threatens to imprison anyone who calls it a “war.”[8] Written
in Stone questions whether the desire to destroy public monuments to a past
regime is a similar totalitarian impulse that “should be resisted even (or
especially) when its claims seem most compelling?”[9] We
are asked to confront whether removal and destruction of Confederate monuments
is an “act of the clearest Stalinism, of intellectual vandalism.”[10]
Put in that way, even someone convinced that Confederate monuments must come
down, may pause to take seriously the claim that removing public art may be a
“Stalinist” attempt to erase history that should be avoided at all costs. And
yet, that view can seem hopelessly myopic when held up to the light of
contemporary culture, still adjusting to shifts in its vision of racial
inequality after the murder of George Floyd. When public art elevates slave
holders in a nation striving towards racial equality, the disconnect between
the imagery of our public spaces and contemporary values becomes impossible to
avoid. The monumental landscape of the United States tells a
story in which nearly all of those worthy of celebration are white men.[11]
In the United States, of the 50 people most often featured in public monuments,
only 10% are Black or Indigenous and only 6% are women.[12]
Half of these elevated figures owned slaves.[13]
In 2022, an American student is more likely to encounter a monument to Robert
E. Lee than Benjamin Franklin, Thomas Jefferson, Alexander Hamilton or Martin
Luther King.[14] These
facts invite us to question whether our civic landscape expresses a message
that resonates with contemporary values, heroism, and national identity. This observation leads to the central questions from Written in
Stone. Which, if any, monuments in our national landscape provide citizens
with a unifying national vision? If each state and locality create their own
civic religion, does our nation have any unifying heroes or values to inspire
public art?[15] And given the government
speech doctrine, how do Southern communities find a way to honor equality when
state preservation laws prohibit the removal of Confederate monuments? When I
proposed the idea of relying on federal Civil Rights laws as a vehicle to
prompt removal of objects that create a hostile work or educational
environment,[16]
Professor Levinson encouraged me to reflect on how that lens might be the most
counterproductive of all. Even though he teaches at our nation’s leading law
schools, Professor Levinson regards the role of law in resolving questions of
public honor with deep humility. He understands that litigation can make an
entrenched divide deeper. In musing on the issue
of creative destruction, Professor Levinson noted in our correspondence that it
is “not surprising that the losers in any such
destruction, whether buggy whip manufacturers or Confederate sympathizers, will
feel victimized. But that obviously doesn’t mean that the destruction shouldn’t
take place!”[17] He cautions the winners
not to shame those who lose to avoid thwarting their goal of creating community
around unifying values. Citing the work of Steven Levitsky & Daniel
Ziblatt, Professor Levinson wrote me
that when a conflicted society shares a public space, “a considerable amount of ‘forbearance’ is
necessary, on all sides, and I fear that legalization of controversy works
against such forbearance.”[18] Throughout or nation, but especially
in the South, while
some demand that the “heroes” of Southern secessionism deserve to be honored
with public memorials, others insist that in a nation that values equality,
anyone who fought to preserve slavery should not be afforded public honor. Bridging that gap will not be easy, but being wired for positivity, I believe that if
we proceed carefully, remember that Written in Stone taught us to carry
a full bag of lenses, and continue to discuss these difficult questions, our nation can find a way to work together
to slay this dragon. If we can't
agree on politics or even history, maybe our public planners can find ways for
us to have more shared joy-- like what we feel at Chicago's Cloud Gate, known
affectionately as “the bean”—where we see ourselves, the Chicago skyline and
those around us reflected playfully as we walk in and around it.[19]
In elevating heroes, perhaps we can start with cultural icons instead of
politicians. Can we agree we feel proud to be the nation of Dolly Parton, Louis
Armstrong, Aretha Franklin, Bruce Springsteen, and Hank Aaron? After that,
perhaps finding shared values and public servants (like Sojourner Truth) to
honor may feel more attainable. I know I am not
alone in feeling
patriotic at the Lincoln Memorial, inspired by the Statue of Liberty, and deeply moved in shared loss at the Vietnam
Veteran's memorial. Surely, our contemporary artists must be capable of forging
from our melting pot more public spaces that bring us together to reflect
on all that gives us joy and meaning. Deborah
R. Gerhardt is the Reef C. Ivey II Excellence Fund Term Professor of Law at the
University of North Carolina School of Law. You can contact her at
dgerhardt@unc.edu. [1] David Blight, Race and Reunion: The Civil War in American
Memory (Harvard
University Press 2001). [2] Sanford Levinson, Written
in Stone: The Meaning of Public Monuments and Whether They Remain or Go,
108 Ky. L. J. 641, 664 (2020). [3] Sanford Levinson, Written in Stone: Public Monuments in Changing
Societies 54 (20th anniversary ed. 2018). [4] Deborah Gerhardt, Law in the
Shadows of Confederate Monuments, 27 Mich.
J. Race and L, 1, 8-11. [5] Levinson, Written
in Stone, supra note 3, at 58-61; see also, Kaushik Patowary, The
Graveyard of Fallen Monuments, Amusing
Planet (Nov. 4, 2015), https://www.amusingplanet.com/2015/11/the-graveyard-of-fallen-monuments.html;
Lucian Kim, What
To Do With Toppled Statues? Russia Has a Fallen Monument Park, NPR (July 21, 2020),
https://www.npr.org/2020/07/21/892914684/what-to-do-with-toppled-statues-russia-has-a-fallen-monument-park. [6] Levinson, Written in Stone supra
note 3, at 7. [7] Id. at 7-8. [8] Prominent Opposition Activist
Faces Up To 15 Years in Prison for Sharing Information About the War in Ukraine,
Amnesty International (Apr. 22,
2022),
https://www.amnesty.org/en/latest/news/2022/04/russia-prominent-opposition-activist-faces-up-to-15-years-in-prison-for-sharing-information-about-the-war-in-ukraine/ [9] Levinson, Written in Stone, supra note 3, at 54. [10] Id.
at 58 (quoting Robin W. Winks, A Place
for Liberty Monument, Times-Picayune, B7 (Aug. 17, 1992)). [11] See Monument Lab, National
Monument Audit, Andrew Mellon
Foundation, at 11, https://monumentlab.com/monumentlab-nationalmonumentaudit.pdf. [12] Id. [13] Id. [14] Id. [15] Levinson, Written in Stone, supra note 3, at 74. [16] Gerhardt, supra note 3, at 80. [17] See Sanford Levinson, Political Change and the ‘Creative Destruction’ of Public Space, in Cultural Human
Rights 341-351 (2008). [18] See Steven Levitsky & Daniel
Ziblatt, How
Democracies Die, pp. 212-13 (1st
ed. 2018). (explaining that American Democracy “has relied upon two norms
that we often take for granted—mutual tolerance and institutional forbearance.
. . . [to] tell politicians how to behave, beyond the bounds of law, to make
our institutions function.”). [19] About the Cloud Gate, Millennium Park Foundation,
https://millenniumparkfoundation.org/art-architecture/cloud-gate/ (last visited
Apr. 24, 2022, 11:20 AM).
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