fbpx

Destroying Monuments—and Constitutions

John Ruskin once said that “great nations write their autobiographies in three manuscripts: the book of their deeds, the book of their words, and the book of their art.” Unfortunately, our most public book of art—the statues and monuments that record our deeds—is being shredded. What began as the vandalization and destruction of statutes related to the Confederacy has become a more general assault on icons from Columbus to the Founders to abolitionists.

Institutions and places that serve historical memory have also been separated from their former names. Woodrow Wilson no longer graces the public policy school at the university at which he was president before becoming U.S. President. Washington and Lee likely will soon become Washington University and perhaps even Washington will disappear. And as Josh Blackman notes, the two law schools named after Chief Justice John Marshall are considering jettisoning the name of the justice assessed as the greatest by the consensus of legal historians.

These stirs have not been unique to the United States. David Hume’s name has been removed from a tower at the University of Edinburgh, despite his being that university’s most illustrious graduate. During his life, he was denied a professorship because of his atheism, and now a more recent religious enthusiasm wants to dishonor him anew. Amusingly, the building now reverts to commemorate George III, a king who opposed getting rid of the slave trade and had a few other flaws, perhaps better recognized on this side of the Atlantic.

Monuments and public memorials have a family resemblance to constitutions, the most important book of words for any great modern nation. Like monuments, constitutions celebrate the core values of society. Unlike the passing debates of ordinary politics, constitutions are to endure and link the present to the past. Both memorials and constitutions embody what Burke meant when he said that a society is the “partnership. . . between those who are living, those who are dead, and those who are to be born.” And, like a constitution, memorials use a historical moment to provide ballast against both passing whims and weighty ideas that may have a delusive plausibility but soon dissipate. A constitution is designed to protect Peter Sober against Peter Drunk. But public reverence and gratitude for the great and good of the past may help prevent us from getting drunk in the first place.

And like constitutions, monuments and memorials have similar enemies—impassioned crowds and elites that want to bypass the appropriate political processes, sometimes working separately and sometimes together. Mobs riding a wave of protest inspired by Black Lives Matter recently destroyed a statue of George Washington in Portland and many others. They did so to express their view of present injustices, heedless of the harm it did to the fabric of society. But sometimes elites were complicit too. Portland’s Mayor Ted Wheeler has created a culture of impunity that empowers mobs to vandalize monuments. When a statute of an elk that memorialized Portland’s relation to the pristine West was vandalized, he had it removed rather than restored. In my own city of Chicago, Mayor Lori Lightfoot refused to defend statues of Christopher Columbus against protestors. Instead, she ordered them taken down in the dead of night without any vote of the city council.  

There is thus a broad similarity between the way constitutional provisions and monuments are wrongly discarded. In constitutional law, social movements, like those in favor of abortion or same-sex marriage, argue that the provisions of the old Constitution must be rejected insofar as they stand in the way of recognizing some new value. A few elite justices on the Court ratify its victory in constitutional law. Lest one think that this is too cynical a description of the way constitutional law gets made, some law professors celebrate social movements and their elite blessing at the Court as a sound process of constitutional fabrication.

A deliberative process for reconsidering memorials tempers polarization and is likely to lead to more principled decision-making about which memorials to take down.

This method of making law permits judges to determine which social movements get to modify the Constitution, thus creating political polarization and a sense of alienation from those who do not agree with the favored movements. The better way of making constitutional law is through the amendment process of Article V that requires substantial and lengthy debate and ultimately consensus before adding to or subtracting from our fundamental law.

And a similar, broadly democratic process should be used for removing and adding memorials. It is true that some people may no longer seem worthy of public honor given new discoveries about their lives or new views of what is honorable. But just how dishonorable their actions were and how those actions should be weighed against the totality of the lives is best determined by a more deliberative process than can be afforded by angry crowds or by a few political actors seizing the crisis to make political points.

A deliberative process for reconsidering memorials also tempers polarization that ensues from the disappearance of monuments that have represented some people’s values for as long as they can remember. The debate also is likely to lead to more principled decision-making about which memorials to take down. For instance, some statues that no one wants to take down are of men, like Martin Luther King, who did great things yet had substantial flaws that are clearer to us in the present day than they were at the time they were erected. Deliberation forces us to consider principles that should apply to the maintenance of all memorials. It is likely to lead us to the sensible position that we should not destroy or remove memorials to people when they were erected to help us remember the sound principles they embodied, even if they had personal flaws.

Universities too should try to engage all their constituencies and not just give into the most fanatical students before renaming venerable parts of their institutions. A university is not just for current students and faculty, but also for the alumni who are nurtured by it and then support it. Moreover, alumni bring a greater range of perspectives than can be found in youthful students and insular professors.

Of course, there are memorials, like some Confederate ones, that were erected to honor figures who did not improve the nation. Moreover, some of these memorials have a problem that also resembles a problem with our original Constitution: when the decision was made to build them, African Americans were largely excluded from the process. And it is not just an acute problem. As Mike Rappaport and I have noted, our original constitutional failure has been followed by constitutional correction through the amendment process. Everyone now has the same civil rights as the adults who framed our fundamental law. But there has not been a sufficient correction for the exclusion from a decision to put up monuments to those who fought at least in part to keep those excluded as slaves.

Nevertheless, it would be prudent to engage in the same full democratic deliberation before taking down monuments even to the Confederacy. African Americans can now fully participate in that process and the deliberation respects the attachment of some to monuments to their ancestors. Moreover, this process will help us embrace principles that prevent the wholesale burning of our public book of art and memory.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 01, 2020 at 07:43:40 am

Professor McGinnis is correct that a broadly democratic deliberative process would lead to more thoughtful results in monument removal, though not always different ones. On the much more important matter of the Constitution however, the sins, distortions and injustices introduced by slavery continue to shame us. The Electoral College and the Senate (key parts of Levinson’s Undemocratic Constitution) remain. What of those? The failure to remove the EC in the Sixties was the plain work of segregationists.

read full comment
Image of Anne Norton
Anne Norton
on October 01, 2020 at 09:13:41 am

"The failure to remove the EC in the Sixties was the plain work of segregationists."

Blacks, including leadership in the NAACP, were a part, and a critical part, of the resistance to the amendment in question. It was much more complex than what you're suggesting. That complicating fact also reflects why, in principle, the founders instituted the electoral college in the Constitution. It had nothing to do with racial politics excepting for the 3/5 compromise which was not a central issue, strictly understood, to the then debate. That can be challenged, but the electoral college itself was the larger compromise at issue and its impetus had nothing to do with any racially sensitive considerations. At any rate the 3/5 compromise itself was superceded via the price paid in blood known as our Civil War, and legislatively via the Constitutionally instituted amendment process.

read full comment
Image of Michael Bond
Michael Bond
on October 01, 2020 at 10:57:22 am

How odd. Slavery does not "continue to shame" me. Or most other Americans either. Not at all. The comment only servers as an example of banal propaganda. Only a tiny handful of wonks believe that stuff. No one reading that is going to be influenced by it. I have to wonder why the wonks bother to write stuff like that. I am aware however that a lot of internet commentary is bought and paid for by communist governments, socialists, and other statist riff raff.

read full comment
Image of Scott Amorian
Scott Amorian
on October 01, 2020 at 16:12:00 pm

If you take someone whose entire experience with automobiles is playing Grand Theft Auto, load them up with Jameson and stick them behind the wheel of a Lamborghini, it would not be shocking if the car ends up crashed into a tree. A certain type of "thinker" would, of course, attribute the mishap to a defect in the machine, an appalling failure to have a real Lamborghini perform the same as it does in the world of computer graphics and reset buttons.

An analogous situation arises with respect to the Constitution. If the people charged with governing according to the principles described in the Constitution produce results that run afoul of some ideal, it is tempting to blame the Constitution rather than those doing the governing. A Constitution cannot guarantee the competence, wisdom or virtue of those who who govern according to the document's terms. It should surprise no one that our republic's experiences under the Constitution reflects the mores, attitudes and occasionally exigencies of particular times. The Constitution provides for the gradual changes in these factors by prescribing the method of amendment. It should also surprise no one if the apparatus of government is entrusted to mediocre and unprincipled people, the results will be disappointing.

The distress often expressed by the Constitution's academic critics arises because they, like the driver trained on computer games, mistake models and theories for reality. They confuse "study" with experience, and writing theses and papers for solving real-world problems. These problems are fraught with uncertainty, inconvenient facts, competing goals and as Harold MacMillan observed, the unpredictability of "events." Self-appointed elites know what the outcome should be, how the world should work, and what people should think, and each of these coincide with their own theories. However, academic theories are not ultimately tested by competing theories, but by reality.

read full comment
Image of z9z99
z9z99
on October 01, 2020 at 18:59:03 pm

Or as some now unknown sage once quipped:
"A theory so STUPID only an academic could propose it!"

Also correct on the deleterious effects upon both the understanding of the Constitution and its' practice as a result of mediocre officials.
I would say that you, me Dear Z, are being far, far too generous. Mediocrity alone is insufficient in itself to produce such a warped phenomenology as we observe in our "Wokesters" AND in our elected representatives.
NO - it takes corruption, not of the purse alone but also of the soul. It takes self-serving, self aggrandizing narcissistic halfwits whose sole point of orientation is "Where do I get the next vote and how do I do this without offending too many people."
Serve the Republic! Observe the Constitution!
In the now immortal words of the Nitwit from Napa, Nancy Pelosi "Are you kidding me?"

Yet, let us not forget that WE (at least far too many of us) vote for these miscreants.
To my mind, this is a classic case of the Low seeking the gratification of their Low motives by employing / electing similarly Low oriented / motivated individuals in a politics of morbid symbiosis.

read full comment
Image of gabe
gabe
on October 01, 2020 at 10:04:07 am

Our constitution was designed by and for adults. Accordingly it concously minimizes the impacts of populist volatility.
Our House members have terms limited to two years, our presidents only serve four, our Senators are given six, our oft-maligned central bank governors serve , I believe, fourteen years and our various federal judges are chosen for life. These graduated terms have nothing to do with race, but everything to do with minimizing the tyrany of a temporary majority, an item that caused much concern during the original drafting process and still concerns us today.

The famous 3/5th rule was not an effort to minimize minority representation, rather it was a compromise designed to limit the voting impact, at the time, of the more populous southern states. The South wanted to count slaves wheras the North didn't want them counted at all. The founding fathers, as well as the conservative coalition of today, still deeply distrust the whims and volatility of the general population, a group they see as being easily swayed by populist politicians.

George Washington claimed that the constitution was designed to delay everything. Whether his statue in Baltimore deserves being splashed with red paint is really not about him owning slaves. Its more about seizing power. The recent defacing of the University of Virginia proves that Thomas Jefferson enjoys the same lack of respect by, we hope, a minority of the student body. The tepid response of the school administration is a typical bureaucratic response. The argument that any disciplinary action would broach constitutional guarantees of free speech ignores long standing statutes that define destruction of public property a crime. As one critical alumnus pointed out in a letter to the UVA president, his term in office is finite, history (and its monuments) are not.
On the other side of the Atlantic, the Cambridge president's reply to a demand by an exchange student from Africa that the school remove a statue of Cecil Rhodes met a far different response.

read full comment
Image of Eric Smith
Eric Smith
on October 01, 2020 at 10:05:20 am

Important issue. The respectable author of the post, presumes, that, I quote:

".....some statues that no one wants to take down are of men, like Martin Luther King, who did great things yet had substantial flaws that are clearer to us in the present day than they were at the time they were erected. "

Well, some feminists, would be happy to take down the statute of such person. I quote from "The Conversation"(and see links therein):

"The most damaging memos describe King witnessing a rape in a hotel room. Instead of stopping it, handwritten notes in the file say he encouraged the attacker to continue. King was once thought of as a saint beyond reproach. After his death, it eventually emerged that he was a womanizer. If these FBI memos are accurate – and I have good reason to believe they are – we now have to ask the unthinkable: Was King an abuser? And what might this mean for his legacy?"

Here:

https://theconversation.com/im-an-mlk-scholar-and-ill-never-be-able-to-view-king-in-the-same-light-118015

And that is why, no one should take down nothing. For too many reasons, but one not mentioned:

And it is, that history should be learned. Learned by future generations. One of the utmost important means to learn history, is by studying and observing artistic monuments. History has to do with neutral and objective study of events took part in the past. This has nothing to do with subjective perception.

By the way, International law, considers it, as war crime ( in international conflict). And recently, one African, has been indicted and punished for it.

I shall leave later links....

Thanks

read full comment
Image of El roam
El roam
on October 01, 2020 at 11:48:29 am

Karl Marx and Howard Zinn will never die so long as fools can read.

Vive la Marx and Lenin and Stalin and Mao and Zinn and Obama.

Lang lebe Klassenkampfen.
Vive la critical race theory.

Without them, without it, what would college prof's teach? What would their students learn?

read full comment
Image of paladin
paladin
on October 01, 2020 at 12:29:45 pm

Comment of mine, bearing link, has been deleted it seems. God knows why and how. Here again:

Here (war crime mentioned):

Ahmad Al Faqi Al Mahdi

Alleged member of Ansar Eddine, a movement associated with Al Qaeda in the Islamic Maghreb, head of the "Hisbah" until September 2012, and associated with the work of the Islamic Court of Timbuktu. Arrest warrant: 28 September 2015.

Charges: Found guilty as a co-perpetrator of the war crime consisting in intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012. Sentenced to nine years' imprisonment, the time spent by the suspect in detention being deducted from the sentence.

Here:

https://www.icc-cpi.int/mali/al-mahdi/Pages/main.aspx

read full comment
Image of El roam
El roam

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.