While everyone else is beginning to talk about quantitaive legal history -- thanks to the magic of what Brian Leiter calls book google's latest cool toy -- I suppose I should be talking about quantitative public constitutionalism. I'm thinking here of using concordance software to measure frequency of key words in public addresses (and other public discourse) on constitutional issues. But instead of that I'm stepping back into the lounge to talk about a new paper that I'm working, on constitutional ideas in cemetery dedication addresses. (Hence the image of the Concord burying ground, which frames this 1830-ish picture of Concord on the day the American Revolution began.)
I want to use addresses given at the dedication of cemeteries (which were particularly common from the establishment of Mount Auburn in September 1831 through the Civil War) to map constitutional ideas in circulation in the public. I suspect that you're familiar with one dedication address, a short one given in a small town in south-central Pennsylvania in November 1863.
But there were a lot of others -- beginning with Justice Joseph Story's 1831 address at Mount Auburn outside of Boston. Several constitutional themes appear repeatedly in the addresses. The most prominent was the importance of cemeteries as schools of patriotism. Virtually all the addresses had some reference to the lessons that visitors would learn from the rural (garden) cemetery, how they would be inspired. You may recall that the 1820s and 1830s was also a period when we were building monuments to the Revolutionary generation -- the cornerstone of the Bunker Hill monument was laid in 1825, for instance -- and celebrating the lessons that we learned from them. (Want to read some of these addresses? Many are available in full text on book.google.)
The rural cemeteries -- often built on the outskirts of cities -- were places where the concerns of the marketplace were tempered. Cemeteries mitigated the upheaval of the 1830s and 1840s wrought by technology -- like the railroad, the canal, the telegraph, and the printing press -- the loss of individual connections to family, to place of origin, and to nature. In fact, cemeteries were middle grounds between wild nature and the impersonal, heartless city -- they were constructed gardens that presented a pastoral, sublime world. They brought order out of the wilderness, just as technologies like law and steam brought order out of the chaos of the natural world. Rural cemeteries appealed to the Whig sense of order and sentiment.
In many ways the cemeteries connected us -- obviously -- to the past. They were often built on places of historic importance (one in Brooklyn, for instance, was built within sight of a Revolutionary battlefield); Fort Hill in central New York was built on the site of a Native American town. Events sometimes generations ago had already hallowed the ground where the cemeteries were planted -- as Lincoln said at Gettysburg. But the cemeteries were not just backward looking; like the United States, they were forward looking as well. The cemetery was part of an attempt to turn death from something to be feared into an almost celebration of continuing life. It also reminded us that though every person died, the society continued. Thus, in the cemetery we see one piece of a growing interest in perpetual Union. The cemetery was a metaphor for the Union. Along those lines, of the cemetery as a metaphor for larger society, most of the rural cemeteries were private corporations (though at least one was funded by a municipality). They served as illustrations of the role that private corporations could play in creating public benefits.
But the cemeteries were connected in a more direct way to constitutional law and property -- they were (as Dirk Hartog showed in his book on New York City and as Blanche Linden demonstrated somewhat more recently in her book on Mount Auburn) a response to the urban cemeteries filling up and posing health hazards.
One of my favorite cemetery pieces comes, though, just before the war, from Amory O. Mayo -- a Unitarian minister who had given the dedication address at Green Hill Cemetery in Amsterdam, New York in 1858. Mayo wrote a book called "Symbols of the Capital: Or, Civilization in New York." There he talks about all sorts of progress in New York state -- the Erie Canal, artists, the appeal of the higher law over the Fugitive Slave Act of 1850 -- and he concludes the book with New York's rural cemeteries. Cemeteries in Mayo's mind were place of the progress of civilization.
The problem with all of this is to understand what it says about constitutional thought -- it works at a high level of generality, but how do cultural symbols (cemeteries, monuments, landscape art, and graduation addresses) relate to law? Partly they are all pieces of the creation of the American republic -- a nation based on principles of the market and Christianity. They help us understand what it was that Americans before the war wanted our nation to be, what they thought it was, and how they attempted to shape our nation. The next step in this process of recovery of those ideas is to better understand how they shaped our nation as we moved towards Civil War -- to see how the impulses towards Union were countered with counter-impulses towards separation, in part through economic concerns and in part through a different vision of what our Union ought to be.
I'm preparing this paper for a symposium in March that Aaron Wunsch has put together to coincide with a wonderful exhibit he curated at the Library Company of Philadelphia, "Building a City of the Dead: The Creation and Expansion of Philadelphia's Laurel Hill Cemetery." (And now that I'm back from Philadelphia, here is a podcast of my talk.)
Both illustrations are linked to the National Gallery's website, which owns those images.