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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 Public Monuments and Shared Meanings
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Tuesday, May 24, 2022
Public Monuments and Shared Meanings
Guest Blogger
Sanford Levinson This post was prepared for a
roundtable on Public Memory and
Public Monuments, convened as part of LevinsonFest 2022. First
things first: I am extremely grateful to Richard Albert and Ashley Moran, the
organizers of the entire “Levinsonfest” project, and to the participants in
this particular session on public monuments.
My views on public monuments are decidedly not “written in stone,” as it
were. I find the issues presented by
public memorialization and celebration to be genuinely complex, and the one
thing I’m confident of is that there is no algorithm or its equivalent, an
abstract political theory that can simply be applied to concrete examples, that
will enable us to answer the questions posed.
After all, and crucially, it is not only a question of what particular
historical figures or events “we,” as a very limited set of individuals, might
wish to honor, but also a much different question of what “forbearance,” if
any, we owe people and communities with whom we might heatedly disagree as to
who is worthy of public honor. We are
not, after all, deciding what posters to put up in our private lawns. We are arguing about who gets to control the
use of public space, which almost by definition forces us to confront what we
mean by “the public.” Is it a unitary
entity capable of speaking in one voice or, instead, a concatenation of often
fractious sub-entities who are characterized by vigorous disagreement about
what the Supreme Court has sometimes called “issues of public concern.” I
use the word “forbearance” quite self-consciously, for it is a central term in
Steven Levitsky’s and Daniel Ziblatt’s book How Democracies Die. If, as they argue, almost all countries
are in fact significantly pluralistic and contentious, then a democratic system
will be preserved only if winning political coalitions forbear from taking
advantage of every last drop of what might be perfectly legal power. One name for this is “compromise,” though the
attractiveness of any such actual practice itself has in effect become part of
the contemporary cultural and political wars.
Lawyers may be addicted to notions of “consistency” or even “coherence”
that are in tension with the practical exigencies of maintaining public
peace. That might require the potential
sacrifice of both of these otherwise attractive ideas. “Blessed may be the peacemaker,” but not
necessarily because the terms of the peace can necessarily pass muster in an
academic seminar. So
I turn to the particular papers that Balkinization—another recipient of my
gratitude—has been kind enough to publish.
To do full justice to the comments would require a far more substantial
essay of my own than I (or my readers) have time for. So I will offer some general comments, hoping
that they, like all of the “Levinsonfest” events, generate conversation and
argument, since I am fully confident that I have nothing to say that will
achieve genuine “closure” with regard to the issues that are raised. Jonathan
Gienapp raises an interesting question at the outset: Why do we honor individuals (or
discrete collections of human beings) at all, rather than the abstract ideas
that they are presumed to stand for? If
one simply memorializes “courage,” “justice,” “liberty,” or whatever we might
wish to honor, rather than associating these abstract ideals with particular
persons, then, at the very least, we are never at risk of being embarrassed by
the actual complexity of those persons.
It is one thing to debate the presumed meaning of the Declaration of
Independence, for example, a common interest of both Gienapp and Kermit Roosevelt
(though Roosevelt in fact argues that we should liberate ourselves from our
collective infatuation with the Declaration).
It is another thing to believe that one must honor Thomas Jefferson as
the primary author of that document.
After all, that transforms the conversation from trying to figure out
what “life, liberty, and the pursuit of happiness” might actually mean to
considering the fact that Jefferson was a devoted, even if a somewhat
ambivalent, slaveholder who, notably, had several children with an enslaved
person who was herself the enslaved half-sister of Jefferson’s wife (to whom he
had apparently unwisely pledged, on her death bed, that he would never
remarry). Similarly, any public
recognition of Bill Cosby, a noted philanthropist regarding the importance of
education, today inevitably gets caught up in the fact that he was a systematic
sexual predator. And so on. Might we not be better off if our national
capital were, say, “Liberty,” rather than “Washington”? I note that the most popular name for new
schools in Florida, at least when I was writing Written in Stone back in
the 1990s, was “Manatee”; it was no longer propitious to name schools after
political figures given the polarization that was present even then. I do not anticipate that there will be many
schools named after any of our recent presidents. I
personally doubt that we could truly excise individuals from receiving public
honor. For one thing, inasmuch as many
institutions, including state universities, depend on generous donors who quite
obviously wish to be recognized by having buildings and entire schools named
after them, it might be extremely costly to adopt such an austere Gienappian
principle. Ironically or not, Stanford
University, where he teaches, recently renamed a principal thoroughfare named
after Junipero Serra, one of the Catholic priests who colonized California and
attempted to convert “heathen” Native Americans. It is now named after Jane Stanford, the wife
of Leland Stanford (and the mother of Leland Stanford, Jr., the actual honoree
of his father’s decision to create Leland Stanford Jr. University, from which
I’m happy to have received my law degree).
But, as with my own undergraduate university, Duke, there is certainly
reason to raise some questions about the specific personae of the Stanford
family or of Washington Duke, the founder of American Tobacco Co. And Harvard is now wrestling with how much of
its campus needs to be renamed following the disclosure that many of its
honorees were altogether complicit in slavery. Randall
Kennedy is fond of quoting Balzac’s statement, “Behind every great fortune lies
a crime.” That is, I suppose, an empirical
question, but I suspect that it is substantially true. And I contributed to our Zoom discussion one
of my own favorite quotes, Brecht’s “Unhappy is the land that needs a
hero.” Even if that is true, can we
really imagine any lands that in fact do not believe they need heroes to
commemorate and memorialize? Perhaps it
is simply true that all lands are in some profound sense “unhappy,”
representing, perhaps, the exile from Eden. Roosevelt
notes that “if we’re creating national narrative, we need something
shared.” And Deborah Gerhardt, too, is
concerned about creating an American society that can truly share a narrative
about, say, the American Civil War and its causes, let alone the aftermath of
Reconstruction. In my remarks, I
borrowed some valuable slides from Prof. Zack Bray, who has done invaluable
work on the legal regulation of public monuments, dealing with the landscape in
particular at the Little Bighorn National Monument (nee the George Armstrong
Custer National Monument). There space
is now shared by monuments not only to Custer and to the Lakota Sioux,
defenders of their homeland, whom I had learned as a young lad sixty years ago
had ”massacred” the brave American soldiers, but also to the Crow scouts who in
fact collaborated with Custer against their own traditional enemies, the
Sioux. So, at the very least, one must
learn to stop referring to Native Americans as themselves a single community; the
more than 500 existing officially recognized tribes include many traditional
enemies. Fragmentation is everywhere,
and students of monuments must take account of it. The
most volatile paragraph in all of the essays is surely contributed by
Roosevelt: “So the mistake is not
saying that an American history centering on slavery is indoctrination. It is indoctrination. But all education is indoctrination. The mistake is supposing that there is any
version of American history that isn’t indoctrination.” (emphasis added). I described this, not snarkily, as the triumph
of a “post-modernist” view of epistemology and education that I myself
substantially share. It requires, quite
obviously, the rejection of naïve “correspondence theories” of truth that allow
us confidently to distinguish between “what really happened” and
“indoctrination.” Here, especially, a
full discussion would take a book (or many books). But, at the very least, one must recognize
the implications for American education in general if its practitioners,
including those protected by “academic freedom,” freely concede that all assertions
about the American past are substantially ideological, i.e., at best distinctly
partial truths in the service of what are political ends. The Texas legislature, among others, strongly
suspects this is true and, as a result, is trying to use its legal powers to
rein in what teachers can teach their presumptively vulnerable students. I
am absolutely delighted to have both Anna Saunders and Aleksandra
Kuczynska-Zonik, neither of whom I had previously known, as participants in
this discussion. They underscore the
fact that monuments and memorialization is indeed a universal reality, whether
or not there are universal answers.
Kuczynska-Zonik’s discussion is especially poignant at the present
moment, when the human disaster that is the completely unjustified invasion of
Ukraine by Russia is being used as an excuse/reason even further to forget the
fact that “the West” was allied with the Soviet Union, at least after June
1941, against Nazi Germany and that, more to the point, the War would never have
been won without the almost unimaginable sacrifices of the truly brave Soviet
peoples. I write these words during the
week in which Russia commemorates the end of the Great Patriotic War and takes
note of those sacrifices. And, of
course, the conclusion of the War was followed by Western-tolerated Soviet
hegemony in what we might call the Warsaw Bloc countries, including Poland, the
focus of Kuczynska-Zonik’s extremely interesting work. It is overdetermined, perhaps, that the
Polish landscape would have been dotted by monuments to a variety of Soviet
heroes and their Polish allies, just as one can as easily understand the
determination of many contemporary Poles to efface their landscape of such
monuments. I have reservations about
excluding Russian athletes from various competitions. Should we have similar reservations about
encouraging an historical amnesia about what was in fact an alliance of
world-historical importance with regard to overcoming the Nazi menace? Anna
Saunders offers valuable insights into the problems attached to German
historical memory. There are, for
completely understandable (and altogether defensible) reasons, no monuments to
overt Nazis. (It might be worth noting,
though, that The Foreword, a Jewish newspaper published in New York, has
recently published an essay noting the presence of monuments in Denmark of
minor figures who had collaborated with the Nazis during World War II.) But what about systematic remembrance of the
Allied demolition of Dresden in February 1945? I strongly doubt that Dresden views that
episode in saturation fire-bombing as “just punishment” for their complicity
with Nazi leaders. And I assume that
many of do not view the episode as the Allies’ finest hour, even in a so-called
“good war.” “with
respect to their relationship to American values, slavery and racism are
anything other than deviations from, betrayals of, or failures to live up to,
the authentic founding principles of the United States, which include liberty
and equality.” Moreover, teachers are expressly prohibited
from “require[ing] an understanding of The 1619 Project.” Frankly, I can imagine a German patriot
suggesting that the relatively few years of Nazi governance represent
“deviations from, betrayals of, or failures to live up to” the Germany heritage
of the Enlightenment. There are ways
that one might dispute this, obviously, but it is more plausible than trying to
explain to American students that literally centuries of systematic
discrimination, including chattel slavery, can best be understood as “failures
to live up to the authentic founding principles of the United States.” As Roosevelt argues, the most enduring
“founding principle” might well be to do whatever is thought necessary to
create “national unity,” at least among economic and political elites. In any event, the United States has never
come close, as a country, to confronting its past, whatever may be said of
brilliant individual historians (such as Jonathan Gienapp). Our national propensity, when offered a
choice between “legend” (or self-serving ideology) and “truth” (whatever
exactly that might mean) is to go with the legend. So
let me conclude with Deborah’s own conclusion, in which she addresses the
all-important problem captured in our national motto, E pluribus unum,
out of pluralism, unity. How do we do
that in a country that is so fractionated, not least, of course, because the
most commendable part of our national history over the past 75 years or so has
been a move toward an inclusiveness. Whether measured by the Voting rights Act
of 1965 or, indeed, the repeal that same year of the despicable Immigration Act
of 1924 that attempted to make the United States a truly white, Christian
nation by keeping out immigrants from countries viewed as “the Other,” the
United States is today a far more truly diverse country than I think I found
imaginable when growing up in North Carolina in the 1950s. But that commendable diversity is not without
a political price, for it means that many more groups, with their own political
identities and agendas, now demand a place at bargaining tables—and in places
of public commemoration and honor. Deborah
describes herself as “being wired for positivity,” and she offers several
suggestions as to how “our nation can find a way to work together to slay this
dragon” of antagonistic acrimony. “If we
can't agree on politics or even history,” she writes, maybe our public planners can find ways for
us to have more shared joy… Perhaps we
can start with cultural icons instead of politicians. Can we agree we feel
proud to be a nation that raised Dolly Parton, Louis Armstrong, Aretha
Franklin, Bruce Springsteen, and Hank Aaron? 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. This
is certainly interesting, though I wonder how many Republicans besides Chris
Christie are so fond of Bruce Springsteen’s lyrics that serve as powerful
critiques of important aspects of American ideology, including, of course,
“Born in the U.S.A.” The Trump
Administration certainly taught us that there is no longer any shared
interpretation about the meaning of the Statue of Liberty, especially for those
who take seriously Emma Lazarus’s poem about welcoming the “wretched refuse” of
the teeming shores far away. I share her
sense about the magnificence of Maya Lin’s Vietnam memorial, but it was
extremely controversial at the time,
ultimately accompanied (or desecrated) by a much more conventional war
memorial that did not simply evoke the powerful sense for many of us, when
viewing Lin’s creation, of so many American lives lost in vain (not to mention
the many more lives lost by Vietnamese in what they call “the American war”). But these questions are not meant to dismiss
her plea to think about how we might in fact create some sense of a country
that is united around things that might be capable of giving all of
us “joy and meaning.” H.W. Auden
ultimately renounced his famous line, from “September 1939,” that “we must love
one another or die” and requested that it not in fact be reprinted. So be it.
But surely it is correct that we must achieve some sense of shared
purpose and membership in a United States of America or drift every more
definitely at best into a country full of alienated people who have engaged in
their own version of “inner emigration” out of any notion of public life or,
more ominously, into civil war. To ask
for “joy” may be too ambitious, but perhaps it will be possible to achieve a
shared notion of citizenship in what the Constitution terms a “republican form
of government.” That would certainly be
an achievement in itself. Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr.
Centennial Chair in Law at the University of Texas Law School. He is also a
Professor in UT’s Department of Government and a Visiting Professor of Law at
Harvard Law School. You can contact him at slevinson@law.utexas.edu.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |