Kopf: Shall We Demolish The Monument To Chief Justice John Marshall?

In 1901, James Bradley Thayer wrote a short biography of Chief Justice John Marshall. (You can download the book here for free.) At the end of this little book, Thayer, a legal giant in his own right, beautifully describes a monument to the greatest Chief Justice in our nation’s history.

Thayer writes:

On the west side of the Capitol at Washington, midway between the staircases that ascend from the garden to the great building, and a little in advance, there is a colossal bronze figure of Marshall by the sculptor Story, the son of the great man’s colleague and friend, —placed there in 1884. It is a very noble work of art, worthy of the subject and the place. The Chief Justice is sitting, clothed in his judicial robe, in the easy attitude of one engaged in expounding a subject of which he is master. The figure is leaning back in the chair with the head slightly inclining forward; the right arm rests on the arm of the chair, with the hand open and extended; the left hand, holding a scroll, lies easily on the other arm of the chair. The crossed legs are covered by the gown, while low shoes and buckles, and hair gathered in a queue, speak of life long habits. The solid and beautiful head, and the grave and collected dignity of the features and the whole composition are very noble, satisfactory, and ideally true.

Thayer concludes his description of the monument this way:

The figure, standing, would be ten feet high. It sits seven feet high, and is raised upon a suitable pedestal, decorated with marble bas-reliefs of classical designs. These, if the truth were told, might well be spared, but the statue itself will fitly commemorate for many ages one of the greatest, noblest and most engaging characters in American history.[i]

(Italics by Kopf.)

In 1820, the U.S. Revenue Cutter Dallas seized a slave ship, the Antelope, sailing in international waters under a Venezuelan flag with a cargo of 281 African slaves, some of the claimed owners being Portuguese and Spanish. The U.S. Supreme Court heard five days of arguments before packed audiences.

Marshall himself delivered the unanimous opinion declaring the slave trade a violation of natural law but not the law of nations. Since the international slave trade was illegal in the United States (while enslaving blacks already in the United States remained lawful for decades thereafter), slaves bound to America were released, but because slavery was legal in Portugal and Spain, slaves “belonging” to those owners were returned to bondage.

One cannot dispute that the Chief Justice declared that the international slave trade (and presumably slavery writ large) was morally wrong. In the Antelope case he writes, “That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission.”

Clearly, slavery made the Chief Justice itch. But the Chief Justice’s tepid intellectual antipathy for slavery did not mean that he was an abolitionist. Indeed, he owned slaves, and upon his death he bequeathed all his slaves but one to others. He granted freedom (if the slave chose it) to his manservant Robin, who served Marshall throughout his life, and gave Robin the sum of $100 to make his way to Liberia.[ii]

Still further, in a letter to a man who owed him money, the Chief Justice suggested that Marshall’s debtor pay off a debt that Marshall himself owed to a third person and that the man do so with slaves. The 1807 letter, using his title as Chief Justice, reads as follows:

I have long owed Mr. Colston money which has been heavy on me & which I have struggled hard to pay, but have not yet entirely succeeded. He is now urgent with me to pay him as he wishes to increase much his stock of negroes. I have in this situation of things been induced to give him an order on you for $2,000. I have not stated a time of payment, knowing that if you and Mr. Colston meet you can readily agree on that, as I suppose he will not be unwilling either to take negroes or wait until you can without inconvenience pay him the money…

It is well known that Chief Justice Marshall, for better or worse, gave the federal judiciary the power to declare what the federal laws and Constitution mean. He gave us judicial review. And, ironically, without that power Brown v. Board of Education and so much more could never have come to pass.

So, in the current craze to do away with memorials to monsters,[iii] what shall we do with the monument to Chief Justice John Marshall, the greatest Chief Justice in our history? Because I am a white man of a certain age, you can guess my answer.

But I wonder what you think?

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] Now, it is located at the Supreme Court, 1 First Street, Northeast, Washington, D.C.

[ii] Frances Howell Rudko, Pause at the Rubicon, John Marshall and Emancipation: Reparations in the Early National Period?, 35 J. Marshall L. Rev. 75, 77-79 (2001). Marshall added: “[I]f he does not go thither I give him fifty dollars shuld it be found impracticable to liberate him consistently with law and his own inclination, I desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may be always treated as a faithful meritorious servant.”

[iii] Chief Justice Roger B. Taney, author of the 1857 Dred Scott decision, succeeded Chief Justice Marshall. Taney’s statue has now been removed from Maryland’s State House according to a Washington Post article. The article has a video clip showing workers stealthily taking the statue down in the dark and early morning hours of August 18, 2017. That got me thinking about Justice Oliver Wendell Holmes, Jr., perhaps the greatest legal mind in America’s history. In 1927, Holmes wrote the 8–1 majority opinion in Buck v. Bell, a case that upheld the Virginia Sterilization Act of 1924. The opinion is wonderfully short, and it is the ultimate expression of legal realism. Holmes pithily put it this way: “Three generations of imbeciles are enough.” I wonder whether we should remove his gravestone from the Arlington National Cemetery for this offense to the present-day sensibilities of those who are woke.

41 thoughts on “Kopf: Shall We Demolish The Monument To Chief Justice John Marshall?

  1. delurking

    No historical figure is perfect. We decide whether they should be honored in a public place or not by momentarily setting aside their moral failures and judging them based on their contributions. Marshall’s contributions are worth honoring. For many of the statues that have been recently been removed from places of honor, if you set aside their moral failures there is nothing to honor. Pericles had slaves, too.

    1. SHG

      Yours are either totally novel thoughts that never dawned on Judge Kopf, or painfully obvious nuance that experience demonstrates will be ignored by the self-righteous mob, just as they demanded the eradication of words that bore no connection to slavery (such as “headmaster” or the surname “Lynch”) because they divorced anything remotely resembling thought or reason from their blind fury and outrage. So which do you think it is?

  2. James

    Judge Kopf, I wonder you aren’t (slightly) pulling legs. Yes, the younger zealots will no doubt turn attention to Justice Marshall for his slave-owning habits, but older heads will not condemn everything to achieve one thing…as I’m confident you know.

    The distinction between the calm regard for Marshall and the frenzied denunciation of say, R.E.Lee’s statue is a distinction between a man who honored his Constitutional oath of office by serving his country (faults and all, his and the country’s) and one who denounced that oath and took up arms against his country.

    1. Richard Kopf


      With respect, I am not buying the moral distinction you seem to draw. The analogy is also inapt for purposes of deconstructing my post.

      On the night of April 19, 1861, Colonel Robert E. Lee resolved to resign his commission in the US Army. He wrote two letters. The first was a brief letter to the Secretary of War resigning his commission in the US Army. The second was to his commanding officer and mentor, General Winfield Scott.

      Lee served under Scott during the Mexican War and respected him as a leader and a friend. In this letter, Lee explained his reasons for his resignation and thanked General Scott for his kindness. Only a few days earlier, Scott had sent him to the office of Francis Blair, where Lee was offered command of the US Army. Lee declined this offer and in this letter, explained his decision to General Scott.

      Here is the letter:

      Arlington, Washington City, P.O
      20 Apr 1861

      Lt. Genl Winfield Scott
      Commd U.S. Army

      Since my interview with you on the 18th Inst: I have felt that I ought not longer to retain any Commission in the Army. I therefore tender my resignation which I request you will recommend for acceptance. It would have been presented at once but for the struggle it has Cost me to separate myself from a Service to which I have divoted all the best years of my life, & all the ability I possessed. During the whole of that time, more than a quarter of a century, I have experienced nothing but kindness from my superiors & the most Cordial friendships from any Comrades. To no one Genl have I been as much indebted as to yourself for kindness & Consideration & it has always been my ardent desire to merit your approbation. I shall carry with me, to the grave the most grateful recollections
      of your kind Consideration, & your name & fame will always be dear to me. Save in the defense of my native state shall I ever again draw my sword. Be pleased to accept any more [illegible] wishes for “the Continuance of your happiness & prosperity & believe me

      Most truly yours,

      R E Lee

      Lee was not dishonorable. On the contrary, he did the honorable thing from his perspective. He did not violate his oath. Having resigned his commission, he was no longer bound by that oath.

      More importantly, my post concentrated on judges for a reason. So, if we are to compare apples to apples, let us talk about Chief Justice Marshall and Chief Justice Taney. Would you allow Marshall’s statue to stand while favoring the removal of Taney’s statute? If so, why? If not, why not?

      All the best.


      1. James

        Judge Kopf,
        With respect, Lee’s rather famous letter of resignation (as much of his behavior post-war) proves the man was not, as some would have him, a scoundrel or a moral degenerate. His honor was, I would suggest, demonstrated by his refusal following surrender to take up arms again rather than in his original oath breaking phrased as a resignation. (This is a distinction that West Point seems to make creating a Lee Hall and Lee Gate but refusing to erect a statue to the renowned general)

        But point taken about apples and justices. Personally I would leave the statues of both Chief Justices (as well as Mr. Justice Holmes’ tombstone), etc.

        1.) The number of military monuments seems to grow geometrically while those of artists, educators, even justices and judges require one to stop and think for examples.

        2.) Chief Justice Marshall’s statue merits its placement to my mind, while Chief Justice Taney’s placement other than the Maryland state house doesn’t phase me in the least. If we are to compare Marbury with Dred Scott, I would favor remembering both and their authors but not somehow as decisions of equal Constitutional merit as the former led to a genuine, if often maligned and fragile, balance of Constitutional powers while the latter became a casus belli.

        My hope is that we do not now, or as a counter-protest later,see statues of Chief Justices, federal and state, springing up in cities. perhaps advertising new fast food dumps or used car lots.


      2. David

        To answer your question (though not directed at me), I disagree with removal of the Chief Justice Taney statue. Not least because he was fulfilling his duty to the United States and the Constitution by reaching what he considered to be the correct decision, regardless of how later legal minds condemned it, and even though given the date of the statue I suspect the motives of those who commissioned it.
        Statues of Robert E. Lee etc., however, are monuments commemorating his opposition to the United States. If there were a statue honouring him or any other Confederate soldier for their actions in support of the US rather than the Confederacy – either before the war, or afterwards – that was not merely pretextual, that would be different (even if the vox populi saw no difference). For instance, Gen. Longstreet postwar as a supporter of Reconstruction.

    2. Rojas

      A distinction without a difference. The goal, as stated, is to remove the symbols of white supremacy that plague our nation. This is the course of Manifest Destiny todays SJWs have set upon.
      The great emancipator was an earnest colonizer. It’s just a matter of time until his likeness is struck from public spaces as well.

      1. PseudonymousKid

        Why is that goal unworthy? If the mob wants the symbols removed because the context has changed, they should be allowed to. If that wasn’t the case, we wouldn’t be very democratic or representative, would we? People can recognize the unremarkable idea that historical figures aren’t complete saints and still want statutes or namesakes removed from public places.

        Don’t stop teaching the good and bad, and then let the mob decide. Otherwise we’re tossing democratic notions out of the window. If it’s too close to call, flip a coin. That’d be as fair as anything else. So the prevailing notions don’t reflect yours. Tough. Go out and convince people that they are dumb. It sometimes works. Sometimes, though, we just end up failing our parents miserably.

          1. PseudonymousKid

            Yes. I meant “mob” as a placeholder for “popular sentiment” or something like it. It’d be interesting to see how many people actually care whether the statue stays or goes. Don’t spoil the question, give the option in a poll of “IDGAF” and let’s see. Time to take the bumper rails off our lane and let the ball really roll.

            Make decisions on behalf of the mob, our fellow citizens, and it starts smelling more like an autocracy. But maybe that’s how it should be and political philosophy ended with Plato’s Republic.

  3. Erik H

    Those statues should be replaced; the replacements should be people who have never done anything wrong. Until suitable replacements can be found, the originals should remain.

  4. Billy Bob

    Anyone who wears a robe down to the ankles in order to cover up civilian attire and “send a [non-too-subtle] message” to those under civilian law–taking precedence over natural law–should never be made into a statue. Statues are for brave men who wear the uniform of war and ride horses into battle, scabbard in hand.

    Otherwise, nicely done. From an aesthetic point of view, the statue of Marshall is impressive indeed. He is nicely posed with a sincere demeanor. We trust he meant well in life, and for that we are grateful. Let existing statues remain,… unless they are a danger to the public safety?!?
    Finally, General Lee was a West Point graduate; he thought he was doing the right thing, but in the end,
    surrendered gracefully. For that one act alone, he is to be honored with a statue somewhere, but not necessarily Baltimore.

      1. Billy Bob

        But was it black-colored? Had to ask! If not,… well the imagination runs wild.
        Regarding the commentaries below,… well let me say this about that: We’re “speechless”, which is more/less than we can say about RGK. He’s a player, I’ll give him that much. What’s this all about, really, anyhow? Some statuaries somewhere offending some folks? Puhleeeze!
        I think I smell something burning on your stove. Better check on it.

  5. Lawrence Kaplan

    Robert E Lee may not have violated his oath, but he took up arms against his country in support of the Condederacy which was established for the purpose of preserving and defending the institution of slavery. The statues in his honor, honor him for that. By contrast, it is entire appropriate that Washington and Lee University bears his name, for it honors him as an educator.

    1. Paul

      The mental gymnastics used to vilify and condemn Lee in totality are almost as amusing as those used to glorify in totality. It’s almost as if people back then were complex multi faceted human beings capable of doing both wrong and right living in much different times with different norms. Nah that can’t be right. They were white males after all.

  6. Michael

    The call to remove monuments and statues and idols from public places is not about art. While the statues are frequently aesthetically beautiful, fine art is not left in a public square to be subjected to the elements and spray painted by teenagers – it is largely kept in a museum. And people make art concerning all sorts of vile figures up to and including the devil himself, but not all it is considered suitable to be place in front of city hall. It also isn’t about history – of course everyone should learn about Lee, Marshall, and all sorts of other historical figures good and bad in their history classes and in literature. We teach children about all sorts of nasty historical figures without needing to show them a statue of them. A statute in a public square is not about those things – it is about who we as a society choose to recognize, honor, and idolize publicly.

    Imagine you are a slave-descended African American. To that person you are essentially saying, “this man is worthy of be idolized and honored even though he owned your ancestors.” If a very thoughtful, eloquent, or charismatic person were alive today who also owned slaves, I doubt anyone would seriously argue that the slave-ownership was anything other than disqualifying with regard to giving that person a place in public life, a political position in this country, or honoring and respecting his ideas. And yet there is this sense of outrage over even suggesting that having been a slave owner should disqualify you from having a statue on public property.

    I’m not advocating for this policy – but I do think everyone should step back and think about at least how hurtful a full-stop rejection of it must be to some people whose ancestors were most injured by slavery. You are saying we should tolerate the slave owner because of his other merits. I don’t know what’s wrong with the opposite proposition – that slave ownership is inherently immoral and evil and those who did it don’t get to be deified in our public squares no matter how significant their other social contributions were. Acknowledging that place in history does not require necessarily that we honor those people.

    While your relationship to Marshall as a historical figure is to his legal scholarship and judicial contributions, there are likely people alive today whose primary relationship to him is that he bequeathed their great great great great grandparents in his will to someone along side some nice silverware or furniture. While I assume from the tone of your post that you consider removing this statue to be absurd, surely you can see how to some people honoring a man with such a history is equally absurd.

    1. Richard Kopf


      The public square holds a unique place in our history. Monuments to judges and others placed in such places many years ago serve as mirrors of that time–not this time.

      I am against efforts to erase history despite the fact that the men (and they are mostly me) had feet of clay and despite the fact that these statues wound those whose descendants were grievously wronged by the men depicted in the statuary.

      I do think that present day efforts to remove those statues is absurd. Like a child covering her face and proclaiming, “I can’t see you,” those who clamor for the removal of these old statues desire to sanitize that which cannot be sanitized. Such behavior exchanges serious thought for an excess of emotion. In my opinion, that is not good for the polity.

      All the best.


      1. Michael

        How is keeping (or for that matter, the making of) these statues not an exercise in exchanging “serious thought for an excess of emotion”? I don’t see what purpose a statue like this serves beyond its emotional value – nostalgia, aesthetics, honor for the man himself, etc. I simply reject that having the statue itself has any historical value, and if it does placing it in a public square, as opposed to a museum, certainly has no impact on its historical significance.

        That being said, again I wouldn’t personally advocate for the removal of this particular statue, because of the historical context around which it came to be there and the fact that the subject of it is certainly worthy of regard as a jurist of great historical significance. But if a decision were somehow made nationwide that we would no longer have statues in public places honoring any person who owned slaves, I wouldn’t lose a minute of sleep over it. There’s a reason conquerors frequently tear down the public monuments to the old regime upon taking over – the removal itself is a statement that whatever the thing being removed is no longer to be valued or honored or respected.

        So I think where I disagree with the premise of your post is with respect to the hypothetical reason for the removal of the statue in the first place. Slavery was evil and barbaric and its effects are still with us today. So if, hypothetically, that were the reason for tearing down Marshal’s statue then so be it. I’m sure we could find actions or views where me might reasonably disagree about whether the bad act or view outweighs the positive societal contributions. Should we tear down a statue of Kennedy because he had affairs? Probably not. But when it’s something like purporting to own other human beings I just don’t see much grey area.

        And the frequent retort to all that is, “he was just a man of his era.” But that’s something you say when someone finds a picture of you wearing bell bottoms, not when you were treating fellow human beings as property.

        1. SHG

          Having stated your position (and don’t bother Gertruding about how you wouldn’t do it, as no one gives a shit), Judge Kopf replied. Restating your position at length doesn’t make it any more persuasive. It’s a values issue, where the unduly emotional believe the value of protecting anyone from emotional pain is greater than anything else, including history. We got it. Your adoration of victimhood is fine, but your feelings and emotions are yours, no one else’s.

          Marshal was a chief justice. Taney was a chief justice. Whether their lives or decisions fail to meet your pain threshold is a fine metric for you (and others who share your feelings), but your argument is that people’s hurt trumps history. Restating it passionately doesn’t make it a stronger argument, and your pretending it’s anything other than a value judgment is disingenuous.

          You wouldn’t lose sleep. That’s fine. But you are not the center of the universe. Your tiny moment of existence doesn’t make history disappear. Your feelings are no more consequential than anyone else’s. That’s why your argument failed to persuade anyone who wasn’t already on your team. On the bright side, many have lost control of their emotions and would destroy all of American history before Brown v. Board, so you’re not alone.

          1. Michael

            Other than the monetary cost of removing any given statue, it’s a value judgment on both sides. I see you arguing to the contrary in a separate thread, but if the only feelz involved were those of a bunch of dead people on the other side, this wouldn’t even be a debate – plenty of people alive today (yourself included) have as much an emotional attachment to these statues as anyone on the other side arguing for their removal.

            The only historical significance of the statue is that a bunch of people gave a shit enough to build a statue at some point, which is nothing more than a fun bit of trivia for a footnote in a history book: “Even though this guy was in many respects a real asshole, they used to have a statue of him down by where the Krispy Kreme is now. That thing stayed there for decades, but then everyone agreed to tear it down, due to the aforementioned assholery.”

            1. SHG

              …but if the only feelz involved were those of a bunch of dead people on the other side, this wouldn’t even be a debate

              This is an unfortunately narcissistic grasp of the world. There are a great many things that existed long before I got here, and for the most part, they hold not particular emotional attachment other than that they exist. When one doesn’t view oneself as the center of time and space, one respects what came before. Once we destroy the artifacts of history (much as ISIS did in destroying thousand year old temples, or Pol Pot and the Khmer Rouge in Cambodia), they’re gone. We can’t go back in time and recreate them because someone’s transitory feelz were hurt one day when 100 years from now society regrets the destruction.

              This is an exceptionally bad time to make irreparable decisions of destruction. Emotions are far too high, well beyond hysteria, and reasoning is at best facile if not disingenuous. Five years ago, the notion of destroying historical artifacts would have been considered nuts. Only a narcissist wouldn’t realize that this can very well change again, that today’s feelz aren’t necessarily tomorrow’s, and that once done, destruction can’t be undone. Your assumption that your feelz reflect some irrefutable majority belief may not be accurate. Maybe the majority of Americans still think this all nuts today.

            2. Michael

              I live in Dallas. We have a great museum about the Kennedy assassination. We do not have a statue of Lee Harvey Oswald in front of city hall.

              If a statue placed in a position of prominence in a community offends a great many people, but nevertheless has some historic or artistic significance, put it in a museum. Then people can choose to confront unpleasant history or not as they see fit. Learning about/from the past is different than idolatry.

              I have no idea whether that is a majority held view or not. I’m not sure whether that, my narcissism, or my affiliation with the Khmer Rouge have much bearing on the matter.

            3. SHG

              So nobody decided to erect a statue to Lee Harvey Oswald, and you learned absolutely nothing from that either. Too bad.

  7. Jake

    “—placed there in 1884”

    This is the most important detail in your post, when it comes to my perspective regarding your closing question:

    “What shall we do with the monument to Chief Justice John Marshall, the greatest Chief Justice in our history?”

    The date tells me this statue is not one of the cheap, ‘White Bronze’ (yes they were really marketed that way) mass-produced statues erected in town squares and outside schools by filiopietistic, neo-confederate hate groups, decades after the civil war ended. Most of the white-bronze pieces were put up during Jim-Crow and then during the Civil RIghts movement. I’ll leave it to you to imagine why.

    Thus, my perspective is this: Should we forget our past? Of course not. Statues, songs, and paintings honoring the lives and service of men and women from any era, representing any thread in the tapestry of American history should exist, in museums. They should also have plaques, sharing a fair account of their lives, good and bad. In short, we should all be educated to the truth of these remarkable lives.

    As for cheap simulacrum, erected with a glossed over history as an inflammatory stunt: Knock ’em all down. Every last one of them.

  8. B. McLeod

    Already the statue decriers have moved on to Washington and Jefferson and (Theodore) Roosevelt. Surely at some point they will find out about John Marshall, and go after his statue as well. Also, Lincoln’s (because Lincoln once admitted in writing that he was willing to save the Union without freeing a single slave, if he could). FDR’s will presumably have to go as well, because he participated in diplomatic negotiations at meetings with Saudi royalty who were attended by their slaves. We probably should stop pointing this stuff out, because the forces of political correctness would probably never feel inclined to pick up a book to learn any of it on their own, and so will only know which statues to pull down if someone tells them.

  9. Jonathan Levy

    Rather than tearing any statues down I think*, as Ethan Kylte and Blain Roberts argued in the Atlantic in June, 2015, we’d be better served supplementing them with new markers and new monuments. Jake has a fair point, that the timing of these monuments erection suggest they went up in celebration of Jim Crow and in opposition to the civil rights movement. As those despicable #crits say, however, the author’s intention isn’t the last word on the meaning.

    *I know that SHG doesn’t care what I think, but his honor asked.

  10. Richard Kopf


    I am all for adding historical context to explain old statues. However, that was not enough in Maryland. I am convinced that such “context” will never be enough for those who prefer emotion over reason.

    There were two placards near or on the Taney statue before it was taken down in the dark. One contained information about the Chief Justice and a second with information about the Dred Scott decision. Still, further, additional context had earlier been added when a statue of Thurgood Marshall, the country’s first black Supreme Court justice, was erected at the State House in the 1990s.

    All the best.


    1. Jake


      With regards to this comment: “I am convinced that such “context” will never be enough for those who prefer emotion over reason.”

      All of the greatest debates, it seems to me, are born out of the urge to avoid one of the only three fears every human being struggles with: The fear you won’t get what you want, the fear you will lose what you have, or the fear of what other people think of you. You and others have feelings about the removal of statues, other people have feelings about them remaining. It seems to me, the real question is, whose feelings are more important? And why?

      Now I suppose your next move will be to tell me you are not arguing your feelings. You believe that removing those statues is an attempt to erase history and this is objectively bad. But, of course, that assertion is not objectively true. Removing some statues, can not and will not erase history. Particularly this particular thread.

      I might also point out that it seems that what you want, and what your interlocutors in this debate want, what you value, is an accurate portrayal of American History. I bet a great many African and Native Americans would love to sit down with our countries leaders and have a good faith conversation about what that truly looks like.


      PS- For a great look into the horrors of American History in the south, I was amazed to visit a small museum in Knoxville called the East Tennessee Historical Society, where artifacts of the Confederacy and Southern Hate Groups are presented with complete and total honesty about their origins.

      1. SHG

        I’m going to jump in to point out an issue in your otherwise interesting comment. The decision to erect the statue was made long ago (and, as you’ve already established, it’s not one of the late model white bronzes). At that time, the feelz occurred. Some group felt strongly enough to erect it, and presumably, it had sufficient support of the people at the time. The decision to do so was the moment when feelz came into play. And the feelz to erect the statue prevailed.

        Now you argue that today’s feelz are to the contrary, and that Judge Kopf’s argument is that his feelz about it trump yours. That’s not an accurate statement. The view is that once erected, it should presumptively remain absent a reason to remove it that trumps the feelz of its erection. So the burden isn’t on history to prove the value of a monument to each new generation, but on a new generation that wants to alter a prior generation’s monuments to suit their feelz. Carry on.

        1. Jake

          Thanks for pointing out the lack of clarity in my comment Scott. I, perhaps erroneously, believed Judge Kopf had opened the discussion up to other statues, including the one in Maryland specifically referenced in the comment I am replying to.

          However, I further challenge the notion that it is objectively true that, once erected, a statue is presumed to remain forever. Much like I reject the idea that, once written, history is assumed to have been 100% completely and accurately portrayed. It takes time for society to come to terms with its biggest mistakes.

          Of course, I may also be misunderstanding your reply as well, somehow feelings about removing an erection got slipped in there.

            1. Richard Kopf

              SHG and Jake,

              In the interests of modesty, I am not commenting on this thread any further. I can’t ’cause I am laughing too hard.

              All the best to you both.


  11. Anon

    What do I think? Well, the open extended hand, and the easy attitude engaged in expounding a profound legal thought in the Roman style chair– yes, that’s exactly the right pose and attitude to assume when you sit for the sculptor found to chisel yourmomunment. Finding the right artist will be the difficult part, I don’t think Joseph Story’s son is available any longer. Don’t worry about any group pulling it down, the plan is to use it t replace some of the monuments being removed. The question is whether it will replace Justice Taney, or Justice Marshall. Maybe the answer to all this monument stuff is to let every generation erect its own monuments and respect every preceding generations memorials–even if only as a marker of a historical epoch, and not an expression of agreement with the sins of that period. Then again, the folks who put all this statuary up a hundred years ago no longer care. How much does all this taking down of statues stuff cost? And how much will it cost to erect new memorials? Finally, don’t agree to hold a rolled scroll when you sit. It would look undignified to future generations. A book perhaps, a gavel would be better. Just my opinion.

    1. Richard Kopf


      My recent mugshot in a piece I wrote for Law360 reviewing Judge Posner’s new book is proof positive why it would be artistic malpractice to depict me in any piece of artwork.

      All the best.


  12. losingtrader

    You should insist your statue be coated with something really slick so it doesn’t look like Marshall –he appears to be pooping out new opinions regularly.
    As to comparing and contrasting photos, I think yours looks like the real exterminator.

  13. maz

    If the anti-statuary movement is concerned about undue veneration of public officials whose legacies have proven more toxic than their obituaries would have led one to expect, they should start with renaming FBI headquarters or that airport across the river from Washington. Why take it out on low-hanging fruit?

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