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).