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.