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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, Public Memory
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Thursday, May 19, 2022
Public Monuments, Public Memory
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. Kermit Roosevelt My goal in this brief reflection
paper is to present the topic in a way that facilitates discussion. That is, I
want to highlight some of the issues that I think are important, to suggest
answers to questions I think can be answered, to suggest—like Sandy—that some
questions simply may not be susceptible to general answers, and to draw some
parallels between our topic—public memory and public monuments—and other legal
issues. To start with, what do I
think we’re talking about here? I understand this topic as being about the construction
and destruction of what I think people mean by public memory. We construct
physical objects in public space, and we name them, and what we choose to
display and what names we give to spaces or objects creates a shared narrative
about the past: it’s how we agree to remember things. Why do we do this? There
are different reasons, some of which can be opposed to each other, and one of
the things that Sandy’s work here does really well, I think, is to refuse to
oversimplify the issues. So I tend to talk about public memory as serving a
value of unity—of giving us things that we agree on as a way to move forward.
But there are two counterpoints to keep in mind when we talk about unity. One,
which is an important and recurrent point, is that what looks like unity or consensus
is often just unity among a group strong enough to exert control and a
suppression of dissent. And I think when people look back fondly on a time when
a particular, relatively triumphalist story of American history was dominant,
they’re looking back on broader consensus among whites and a suppression of
dissent. But the second point is that public monuments and public spaces can
actually contribute to diversity, because local majorities or even smaller
groups can use that space to advance their views. So you can have a public
forum kind of effect, although I think generally that’s less common. And perhaps
it tends to happen with less salient issues: no one objects if a local bowling
league wants to put up a statue of their champion bowler, but a race-focused
group might get more pushback. On controversial issues, people tend to want
victory for their side, rather than diversity of viewpoints, and if we’re
creating national narratives, we need something shared. What is there to say
about public monuments from that perspective? Some principles I hope can
command general assent. First, there is a
difference between education and celebration. Monuments are primarily for
celebration, not education. That means that taking down a monument is not
erasing history. It is ending celebration. Erasing history is something that
happens in the realm of education, like editing people out of history books or
removing material from school curricula. This seems like a very obvious point,
but people who want to preserve monuments (Sandy gives the example of Robin
Winks) often blur the distinction. This distinction also
explains why contextualization may not be a good strategy. If the point of monuments
is to celebrate, a contextualized monument—like the short-lived both-sides
Liberty Place monument—isn’t doing its job. It might be viable as a political
compromise, but fundamentally, contextualization is part of education, not
celebration. And an argument that sounds in education (“We should make sure
that multiple viewpoints are heard on this divisive issue”) is not appropriate
for celebration. Celebration is government speech, and it is neither necessary
nor desirable for the government to give equal time to both sides when it is
articulating the values it finds admirable. Contextualization might
change the meaning of a monument—an example is the addition of “Fearless Girl”
to the Wall Street “Charging Bull.” But that is probably better understood as the
creation of a new monument that happens to use part of the old. (The creator of
“Charging Bull” complained that the addition distorted his work, and the city
agreed to remove it.) Similarly, one could imagine leaving the toppled statue
of a dictator lying in a public place. That again is the creation of a new
work, and putting up a contextualizing plaque beside the erect monument (“Some
people believe this tyrant was not a heroic leader”) would not serve the same
purpose. The difference between
education and celebration also shows up in the struggles over public education,
where the same people who want to preserve statues in the name of historical
accuracy want to exclude discussions of racism or oppression on the grounds
that they will make white students feel bad. I sometimes describe this position
as the view that children should learn history from confederate statues, not from
teachers. And you could say that supporters
of statues and opponents of discussions of racism in public school (often but
not always the same people) are making a category mistake in both cases:
they’re attributing an educational, rather than an ideological function to
statues and an ideological, rather than an education function to curriculum
decisions. But while that’s tempting, I think it’s actually not quite right.
What considering the anti-CRT movement in conjunction with the pro-statue
movement should suggest is that in both cases the struggle is about what values
we want to express, endorse, and inculcate. It’s about who should feel
comfortable and included by our public expression. So the mistake is not saying that an American history
centering 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. That’s a mistake that you could make from any perspective, I
guess, and in a variety of different ways. But generally speaking it’s made in
a particular way, which is to take the status quo as a neutral given. Taking
the statue down is pushing an ideology, leaving it up isn’t. Changing a
curriculum to include more discussion of racism is ideological, keeping it the
way it has been isn’t. Status quo neutrality connects to a bunch of other mistakes—the
normalization of whiteness, the normalization of Christianity, the normalization
of racial hierarchy—that we see pervasively in law and culture. So to some
extent, debate about public memory runs parallel to debates about the
establishment clause, or affirmative action, or equality jurisprudence more
generally. And an implication of that is that maybe some of the principles
or lines of argument developed in those contexts can be useful. So here are
some thoughts that might not command general assent, but that I think are worth
considering. Can statues be unconstitutional? I think the answer to that
is clearly yes. I’ve had interesting discussions with my students, who
increasingly seem to think that the government can’t take a position on
abortion—it can’t, for instance, put up a billboard saying “Choose life.” I
wouldn’t go that far myself, but I do think there are some billboards the
government can’t put up. “Choose Jesus” is the obvious one, which Sandy
discusses, but I think “White power” is also prohibited. And I think that if
there are viewpoints the government can’t endorse explicitly, it also can’t
endorse them implicitly, although of course there are questions about what
rules judges should use to decide whether the government has crossed the line. So who should decide whether monuments stay or go? What I
just said suggests that in some cases the answer should be judges, at least in
that judges should be able to order the removal of monuments that express a
prohibited view. But we might want judges to be restrained in doing that, and
there are surely many instances of controversial monuments that wouldn’t fall
under even a less deferential approach. (I think the constitutional status of
traditional gender roles is an interesting question: the Supreme Court has
suggested that the government can’t adopt laws that promote them, by giving
people economic incentives to conform, but could it endorse them? Can it put up
a “Happy Homemaker” statue?) So who among political actors should decide—or,
more precisely, at which level should the decisions be made? Here I tend to favor lower levels of decisionmaking because
I believe there’s a value to pluralism. There’s no Olympian perspective, as
Sandy said—actually, we should try to stay close to the ground. There’s a value
to local control because decentralized decisionmaking about public expression
will probably maximize public satisfaction. You can get diversity, and you can
satisfy the people most directly affected by particular public expressions—or
at least a majority of them. And I think that some attempts to take away local
decisionmaking might be unconstitutional via something like the Hunter/Seattle
doctrine. As a baseline presumption, different groups should have an equal
ability to affect public expression, and moving the decisionmaking power up a
level of government in order to disempower a local majority should be suspect. (This
is independent of which viewpoints I like and dislike, but I realize I’ve given
myself an out by saying that some expression is just prohibited.) The last question, which I’ve been thinking about a lot,
though without reaching any firm conclusions, is more specific. How should we
think about the Confederacy? From one perspective, I think the answer is clear:
it’s a society organized around slavery, which went to war to defend slavery,
and it should be condemned for that. But how as Americans do we come to terms
with that, how do we look back on a society from which many of us are
descended? I want to say one preliminary thing about that. The
difficulty involved in admitting that your ancestors did bad things is something
that’s talked about a lot in the context of white Americans descended from
slaveowners. But that discussion neglects the fact that there are a lot of
Black Americans descended from slaveowners, who have had to deal with that
issue in a starker way. The poet Caroline Williams wrote a very powerful New
York Times op-ed about it, titled “My Body is a Confederate Monument.” The
first line: “I have rape-colored skin.” But turning to white
Americans, because a broadly-accepted solution has to be accepted by whites,
how should we encourage people to think about the Confederacy? In trying to
come up with analogies, I find myself oscillating between two. First, the Vikings. There
are plenty of Viking statues in Norway and Denmark, and even some in England
and Ireland. People celebrate Vikings, even though the Vikings pillaged and
murdered and enslaved innocents. And it’s not just the descendants of the
Vikings who do it; it’s also descendants of their victims and people who are
descended from both. So that’s one model. The other model is the
Nazis. Of course there are no Nazi statues in Germany, and the Nazis are not
publicly celebrated. I think there are a lot of interesting factors to consider
in deciding whether the Confederacy is closer to the Nazis or to the Vikings:
it matters how long ago these people lived and flourished, in part because it
matters whether the values they fought for are still engaged in a struggle
today. It matters whether they won or lost. It matters whether the statues are
among their descendants or the descendants of their victims, or both. These probably aren’t
the only factors. But if you think about them, I guess my conclusion is that
things might be different in the future, but right now we are treating the Confederates
too much like Vikings and not enough like Nazis. Kermit Roosevelt is
the David Berger Professor for the Administration of Justice at the University
of Pennsylvania Carey Law School. You can contact him at
krooseve@law.upenn.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 |