As COVID-19 continued to infect record numbers of Americans, President Trump spent the Independence Day weekend doing what he does best: ignoring the unnecessary deaths his incompetence caused, while riling up unmasked and socially proximate crowds of blindly loyal supporters with his usual fare of falsehoods and divisive name calling. The vitriol Trump spewed at Mt. Rushmore and the South Lawn a few days ago has already mostly disappeared into the gaping maw of the news cycle memory hole, but if Trump has his way, one of his other proclamations will have a more lasting impact.
On July 3, Trump issued an Executive Order calling for the creation of a “National Garden of American Heroes” to be populated by at least 30 or 31 statues of notable Americans. I say “30 or 31” because it is unclear from the Order whether “Orville and Wilbur Wright” each gets his own statue or whether they must share a conjoined one. I say “at least” because the Executive Order states that the display “should be composed of statues, including statues of” the listed individuals but does not preclude the inclusion of others.
The Executive Order sets 2026—the 250th anniversary of the signing of the Declaration of Independence—as the target date for the opening of the national statue garden, but it hardly guarantees the existence of the garden by then or ever. The only real action authorized by the Executive Order is the creation of a task force to study how to create the garden. A future administration could kill the project, and although the Executive Order suggests that money could be taken from existing appropriations, Congress could limit the use of future funds.
Accordingly, we should recognize the Executive Order for the distraction that it mostly is. Ignoring the fact that most recent protests concerning monuments have focused on statues honoring Confederates and similarly problematic figures, the Trump administration seeks to paint protesters as unpatriotic by ostentatiously including true champions of justice in its roster of the statue-worthy. By implication, anyone who thinks that Stonewall Jackson and Nathan Bedford Forest ought not to be honored with statues must also want to tear down the Washington Monument and must even oppose statues for Harriet Tubman, Frederick Douglass, and Martin Luther King, Jr.—all of whom make the Order’s Top-30 list.
The Executive Order contains a patently false claim of justification. It states: “Because the past is always at risk of being forgotten, monuments will always be needed to honor those who came before.” Yet if you travel the Muslim world, you will find nary a statue of any human form, especially not of the prophet Muhammad, because Islam considers the erection of statues (and other depictions of the human form) as tending to lead to idol worship. Does the absence of statues mean that Islam’s roughly two billion adherents around the globe have forgotten or failed to honor Muhammad?
Of course not, because statues are not the only nor even the best means of remembering and honoring the past. Books—holy and otherwise—are an obvious and superior substitute. They are superior because words can tell the complex story of the human beings worth honoring in a way that a figure seated on horseback cannot. Even if a statue, like a picture, is worth a thousand words, many stories require still more words to convey.
Who’s In? Who’s Out?
Although misbegotten from the outset, Trump’s proposed statue garden and its Top-30 list nonetheless prompt interesting discussion in much the same way that the compilation of other all-time greats lists does. Who was the greatest center in the history of basketball? Bill Russell, who won the most championships as the defensive centerpiece of the Celtics? Wilt Chamberlain, whose single-game and single-season records in both scoring and rebounding testify to how he changed the game? Kareem Abdul-Jabbar, the all-time NBA scoring leader and undoubtedly the greatest college player ever? Such arguments are fun and essentially unresolvable because they are as much about the criteria of evaluation as about the candidates.
Likewise with respect to Trump’s Top-30 list, although some of the choices made by whoever compiled the list are curious—a bit like including Brad Daugherty, an excellent but not Russ/Wilt/Kareem-level talent, as the lone NBA center on an all-time-greats list. Consider that six Presidents make the list, but the only one who served after Abraham Lincoln is Ronald Reagan. Yes, Reagan outspent the Soviets to win the Cold War and made some limited progress in reining in the modern administrative state, but does he really deserve to rank ahead of Franklin Delano Roosevelt, who defeated the Nazis and built the social welfare safety net that Reagan tried to dismantle?
Similarly, we can grant Top-30 honoree Joshua Lawrence Chamberlain’s heroism at Gettysburg, while wondering how he tops the omitted Civil War Generals Ulysses S. Grant and William Tecumseh Sherman. Was the latter left off the Top-30 in deference to Georgians’ sensitivity? If so, how do we square that judgment with the Executive Order’s acknowledgment that none of the statue-worthy “will have lived perfect lives, but all will be worth honoring, remembering, and studying”?
That statement is almost certainly meant to explain the list’s inclusion of George Washington, Thomas Jefferson, Henry Clay, and Dolley and James Madison, who all held people in slavery. Yet insofar as the Top 30 on the list are a starting point rather than an end point, additional enslavers and even Confederate generals might be added. The Order defines an eligible “historically significant American” as one who “contributed positively to America throughout our history.” Defenders of the Lost Cause may argue that by that standard, Jefferson Davis and Judah Benjamin, who both served in Congress before committing treason, should merit statues in the national garden. Will the Trump administration hold the line against Confederates? What about other once-revered figures whose failings can no longer be easily ignored, like Christopher Columbus? The Executive Order specifically identifies him as an example of a “historically significant American,” even though he does not make the initial Top 30.
Examining the Top-30 list’s strange inclusions and omissions could provide hours of entertainment. Here’s another oddity: the Order recites that “scientists and inventors” can receive statues, but with the exception of Thomas Jefferson and Benjamin Franklin—who were both much better known for their contributions to other fields—it includes no scientists or inventors. If you were in charge of the statue garden, which scientists and inventors would make the cut? Albert Einstein became a U.S. citizen after fleeing Europe, so he seems like an easy choice. So too Thomas Edison. How about Steve Jobs, who was not a scientist, nor even much of an inventor (as opposed to a popularizer of the inventions of others), but whose entrepreneurial and technological vision was transformative?
Judges and Justices
Or finally, consider jurists. The Executive Order announces that “judges and justices” can be historically significant Americans. The Top-30 list includes only one: the late Justice Antonin Scalia.
Acknowledging Scalia’s impact on statutory interpretation, Justice Elena Kagan said in 2015 that “we’re all textualists now.” Yet it is easy to overstate Scalia’s influence on the law. As Professor Neil Buchanan and I argue in a forthcoming Cornell Law Review article, the brand of textualism that the Court has endorsed is so far removed from the ostensibly determinate rule-bound approach that Scalia and others championed as barely to count as distinctive. More broadly, as Professor Jamal Greene observed in 2016 in the Harvard Law Review, “the Court Justice Scalia left seem[ed] to be neither more originalist nor more rule oriented than the one he joined.”
To be sure, Scalia was surely an important figure in his time, but seen in historical perspective, he is the Brad Daugherty of judges and justices—a top player, even an all-star in many seasons, but hardly the Greatest of All Time (GOAT).
Who is the GOAT? A case could be made for Chief Justice John Marshall, whose statue already sits in the Supreme Court and whose opinions in the first decades of the nineteenth century fortified the national government and the Court’s role as constitutional arbiter.
Or how about Joseph Story, Marshall’s successor as consolidator of the nation’s and the Court’s authority? In addition to his many important decisions, Story’s three-volume Commentaries on the Constitution of the United States was and remains extremely influential.
Neither Marshall nor Story is an uncomplicated hero, however. Marshall, a Virginia planter, was an enthusiastic enslaver. Steven Spielberg lionized the New Englander Story in his 1997 film Amistad, which celebrated Story’s role in an 1841 case involving a slave ship, but Story’s legacy will remain indelibly tainted by his opinion the very next year in Prigg v. Pennsylvania, where he endorsed a maximalist view of the Constitution’s Fugitive Slave Clause and Congress’s power even in free states to vindicate what Story called the “just rights of the owner to reclaim his slave.”
Oliver Wendell Holmes, Jr., is another candidate GOAT. His book The Common Law and his article The Path of the Law remain foundational texts for understanding the real drivers of judicial decision making. As a justice, his dissents in Lochner v. New York and some free speech cases late in his career were deeply persuasive and ultimately prophetic. And only Marshall and Justice Robert Jackson (best known for his dissent from the infamous Korematsu decision) could rival Holmes as a prose stylist. “Even a dog distinguishes being stumbled over and being kicked,” Holmes wrote in The Common Law. A thrice-wounded Civil War veteran, Holmes said of the framers in Missouri v. Holland that “it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.” One could fill a book with Holmes aphorisms.
Unfortunately, that book would include “three generations of imbeciles are enough,” which Holmes wrote for the Court in the 1927 case of Buck v. Bell, approving of the forced sterilization of a woman the state and Holmes described as “feeble minded.” That sentiment was characteristic of Holmes’s worldview. As Professor Albert Alschuler explored in his 2000 book Law Without Values, Holmes was no mere follower of contemporary opinion but a leader in the Social Darwinist and eugenics movements.
Of course, as the Trump Executive Order says, it would be impossible to find anyone who led a perfect life, but that very fact suggests that, as Professor Buchanan opined last week on my blog, honorific statuary inevitably verges on idolatry. At least as applied in this context and prospectively, America might do best to follow the Muslim custom. We don’t need and should not want more statues.
