May 28, 2012
Today was Memorial Day in the US. There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation. There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries). It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues. [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.] Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.
For this post, though, I'll go back to the origins of the holiday. Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century). In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory. In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:
The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.
Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues. And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:
Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.
Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory. And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement. This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history. As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:
The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.
Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS. The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States." [What a long way from Kelo that was!] Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):
Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.
The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.
So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways. I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.
May 28, 2012 in Caselaw, Constitutional Law, Eminent Domain, Environmentalism, Federal Government, First Amendment, Historic Preservation, History, Houston, Politics, Property Rights, Race, Scholarship, State Government, Supreme Court, Takings | Permalink
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