WE ARE ALL GROWING OLD TOGETHER: MAKING SENSE OF AMERICA'S MONUMENT-PROTECTION LAWS.

• Author: Bray, Zachary

ABSTRACT

Monuments and the laws that protect them divide Americans today as never before. American attitudes toward monuments have always been a blend of affection, insecurity, and suspicion. But Americans are now more invested in the built and natural monuments that surround us: to be for, or against, protecting certain monuments has now become a shorthand for one's stance on a host of cultural and political issues. These changing attitudes have thrown American monument-protection laws into sharp relief. And many local, state, and federal legislators and executive officials have taken advantage of this opportunity to exploit America's patchwork of monument-protection laws, exacerbating already-fraught monument conflicts for short-term political gain.

Contemporary conflicts over American monuments are particularly difficult to resolve for a number of reasons. Part of the problem is a lack of agreement about what does or should count as a monument, which is compounded by both the extreme diversity of American monument-protection laws and a persistent rural-urban divide that helps fuel many contemporary American monument conflicts. In addition, American monument-protection laws too often are considered in isolation, which undermines the possibility for achieving any kind of consensus or settled outcome after individual monument conflicts.

These factors complicate public discourse about monuments, monument-protection laws, and the conflicts that inevitably arise from both. They also complicate every effort to study American monuments and the laws that protect them. The absence of any meaningful shared discourse, let alone consensus, makes American monument conflicts particularly difficult to resolve, as the losing side tends to find the application of American monument-protection laws to be profoundly arbitrary. But in fact, many recent conflicts arising from America's diverse monument-protection laws follow similar patterns--even though the political coalitions shift dramatically, depending on what sort of monuments are at stake. This Article reframes the debate over American monument-protection laws by considering Confederate statue statutes, the National Historic Preservation Act, and the Antiquities Act of 1906 together. It analyzes recurring patterns of conflict that arise out of each statutory and regulatory system and proposes repeal of the statue statutes and reforms to the Antiquities Act.

INTRODUCTION I. THE EVOLUTION OF AMERICAN MONUMENTS AND THE BIRTH OF AMERICAN MONUMENT-PROTECTION LAWS A. Revolutionary Skepticism and Early Conflicts over American Monuments B. The Growth of American Monuments and the Roots of American Monument-Protection Laws II. THE POWER OF PASTNESS: BUILT MONUMENTS IN AMERICA AND THE LAWS THAT PROTECT THEM A. The Many Fatal Flaws of the Statue Statutes B. Historical Monuments and the NHPA 1. Contemporary Monument Controversies and the NHPA 2. The Development of the NHPA and Its Protected Monuments 3. Monument Protection and the NHPA Today C. A Critical Comparison of the NHPA and the Statue Statutes III. UNSURPASSED IN WONDERS FROM EARTH TO SKY: AMERICAN NATIONAL MONUMENTS AND THE ANTIQUITIES ACT A. The Evolution of National Monuments and the Antiquities Act B. A Critical Comparison of the Antiquities Act, the NHPA and the Statue Statutes CONCLUSION INTRODUCTION

In the past few years, monuments and the laws that protect them have become one of the most persistent sources of conflict in America. Shortly after the deadly violence triggered by Confederate monuments in Charlottesville, Corey Stewart, a candidate in Virginia's 2018 senatorial elections, defended the monuments against "the lunacy of taking them down." (1) According to Stewart, monuments and monument-protection laws represent "the new social issue of the twenty-first century," providing him and others with a political opportunity because monument protection creates "the same amount of guttural reaction and concern that the pro-life movement generated forty years ago." (2)

The intensity of Stewart's enthusiasm for using violent monument conflicts as an opportunity for political gain is unusual--even unsettling--but many more thoughtful observers also have noted the growing significance of monuments and monument-protection laws in American public life. Like Stewart, Cornel West saw something new emerging from the turmoil over the Charlottesville monuments and the laws that protect them from removal. (3) For West, who participated in demonstrations against the Charlottesville monuments, the distinctive feature of the conflict was a "raw hatred" expressed by the extremists who marched and fought to celebrate the monuments, a hatred that he had never seen "coming from so many people." (4) What Stewart and West both saw in Charlottesville was a particularly acute example of a broader trend. Across America, a wide range of natural landmarks, historic memorials, and the laws that protect them have become focal points for demonstrations, threats, and occasional violence from monument opponents and supporters alike. (5)

Although battles over American monuments have grown particularly sharp in recent years, American attitudes toward monuments have always been a blend of affection, insecurity, and suspicion. In an 1843 address at Brown University, Rhode Island's Chief Justice, Job Durfee, gave voice to the American yearning for monuments in a relatively young country, urging his audience, "O! let us build monuments to the past." (6) Durfee thought that what America needed was a host of new monuments to "tower on mound and mountain ... and in our public squares" as tangible reminders of the country's "social mind." (7) And filling up the country with monuments was only the beginning of the job. As Durfee reminded his audience, the network of monuments he envisioned would need to be carefully protected against alteration or "sacrilegious violence" that might disrupt the transmission of "our idea of liberty and law" to future generations. (8) Other Americans in the mid- to late nineteenth century echoed Durfee's sentiments, expressing similar enthusiasm for natural as well as built monuments. For example, Oliver Wendell Holmes noted that the huge elm trees in public squares or village greens were often the most significant monuments for many American communities. (9) Indeed, his own first sense memories were bound up with the monumental elms on Cambridge Common, which had "entered into [his] young life as truly as the milk that made its blood." (10)

But for some Americans, especially early in the country's history, these monumental impulses were an un-American distraction from the commitment to industry and innovation responsible for the country's character and good fortune. (11) In an 1825 memoir commissioned to celebrate the completion of the Erie Canal, congressman and former mayor of New York Cadwallader D. Colden wrote that communal infrastructure improvements like canals would be the "proudest monuments" in America, rather than natural objects or ruins of the past. (12) Colden believed that America was uniquely capable of producing great works like the Erie Canal because it was free from "scenes indicating present decay, and foreboding constant deterioration." (13) Instead of focusing on the built or natural landscape as something to be preserved, Colden and many others thought that "every object" in American life should remain "new, youthful, and vigorous," directing the country forward to "the promised sunshine of the future." (14)

While American attitudes toward monuments have long been mixed, in the past few decades enthusiasm for monuments has had the upper hand. (15) Thanks to recurring waves of both monument designation and monument-protection laws, we have fulfilled Justice Durfee's vision: now we have monuments, and lots of them."' Our landscapes and lives are freighted with the weight of these monuments, the laws that protect them, and the conflicts that inevitably arise from both. (17)

A few short examples show how contemporary fights over monuments in America are often intertwined with laws originally designed to protect monuments from modification or removal. In New York, shortly before his reelection in the fall of 2018, Governor Andrew Cuomo moved to protect the monument in Columbus Circle--a monument which has been the subject of several protests and studied for potential removal by a city commission. (18) Across several southwestern states, prayer runners from a number of Native American tribes united to protest President Trump's 2017 reduction of the Bears Ears National Monument, (19) while large corporations called the monument reduction an "illegal" theft of protected land. (20) In 2016, an Oregon sheriff threatened armed conflict with federal authorities if President Obama designated the Owyhee Canyonlands as a national monument. (21) And in some southern states, monuments to the Confederacy and protective "statue statutes" have provided flashpoints for violent demonstrations by racist extremists, (22) harking back to the eras in which many of these monuments were originally constructed. (23)

Of course, not every American monument is a source of controversy. Many are sources of community pride or distinction, (24) touchstones of collective memory, (25) or merely part of the visual and mental backdrop of their neighbors' daily lives. (26) Moreover, it would be wrong to suggest that fights over monuments are an entirely new feature of American life: as Part I will show, the history of American monument conflicts is older than the history of the United States. But the frequency, intensity, and visibility of conflicts over monuments in America today is something new in our history, as participants in these conflicts have observed. To be for, or against, protecting certain types of monuments has now become a shorthand for one's stance on a host of cultural and political issues.

Part of the problem...