THE CONSTITUTION THROUGH THE LENS OF VISUAL ARTS MASTERPIECES
CLE Credit: 1.0 Thursday, May 12, 2016 12:00 p.m. - 1:00 p.m. Cascade Ballroom B Kentucky International Convention Center Louisville, Kentucky
A NOTE CONCERNING THE PROGRAM MATERIALS
The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.
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Kentucky Bar Association TABLE OF CONTENTS
The Presenter ...... i
Chapter One: Opening ...... 3
Chapter Two: Introduction to Visual Arts ...... 7
Chapter Three: The Visual Arts Lens and the Constitution ...... 15
Chapter Four: Visual Storyteller of the Constitution: Norman Rockwell...... 19
Chapter Five: To Establish Justice: Brown vs. Board of Education ...... 26
Chapter Six: We the People: Robert Duncanson's Abolitionism ...... 29
Chapter Seven: Equal Protection and the Idea of a Maturing Democracy ...... 34
Chapter Eight: Equality: Mary Cassatt and the Modern Woman ...... 37
Chapter Nine: Health Care: The Power to Tax and Artful Judging ...... 41
Chapter Ten: Making Presidents and Presidency: George Grey Barnard's Lincoln and Joaquin Sorolla's Taft ...... 45
Chapter Eleven: When Time Has Upset Many Fighting Faiths: World War I, Oliver Wendell Holmes, Jr. and John Singer Sargent ...... 52
Chapter Twelve: We the People: Farney's Song and Native Americans ...... 57
Chapter Thirteen: The Thirteenth Juror: American Constitutionalism and the Jury's Act ...... 61
Chapter Fourteen: Painting a Digital Age Constitution: Privacy and Property ...... 65
Chapter Fifteen: Works of Art on the Art of Work: Winold Reiss ...... 69
Chapter Sixteen: The Rich Mosaic: Religion and Creative Constitutionalism ...... 71
Chapter Seventeen: Closing: The Constitution and Creativity ...... 75
Credits and Bibliography ...... 80
Notes: ...... 82
List of Images and Collections:
Image 01: The Constitution, C. F. Payne ...... 7
Image 02: Architectural Ornament, Louis Sullivan, Art Institute of Chicago ...... 12
Image 03: Christina's World, Andrew Wyeth, Museum of Modern Art ...... 13
Image 04: Sketch of University of Virginia Rotunda, Thomas Jefferson, University of Virginia ...... 19
Image 05: Freedom from Fear, Norman Rockwell, Norman Rockwell Museum ...... 21
Image 06: Freedom from Want, Norman Rockwell, Norman Rockwell Museum ...... 21
Image 07: Freedom of Worship, Norman Rockwell, Norman Rockwell Museum ...... 21
Image 08: Freedom of Speech, Norman Rockwell, Norman Rockwell Museum ...... 21
Image 09: The Problem We All Live With, Norman Rockwell, Norman Rockwell Museum ...... 24
Image 10: The Right to Know, Norman Rockwell, Norman Rockwell Museum ...... 26
Image 11: View of Cincinnati, Ohio from Covington, Kentucky, Robert S. Duncanson, Cincinnati Art Museum ...... 33
Image 12: The Bath, Mary Cassatt, Art Institute of Chicago ...... 39
Image 13: William Howard Taft, Joaquin Sorolla, The Taft Museum of Art ...... 46
Image 14: Lincoln, George Grey Barnard, Lytle Park, Cincinnati ...... 50
Image 15: Gassed and Field Sketches for Gassed, John Singer Sargent, Imperial War Museum ...... 56
Image 16: Song of the Talking Wire, Henry Farney, The Taft Museum of Art ...... 61
Image 17: Jury for the Trial of a Sheepherder for Murder, Ernest L. Blumenschein, The Rockwell Museum, Art About America, Corning, New York ...... 65
Image 18: Cincinnati Murals, Winold Reiss, City of Cincinnati ...... 70
THE PRESENTER
Bruce I. Petrie, Jr. Graydon Head & Ritchey, LLP 1900 Fifth Third Center 511 Walnut Street Cincinnati, Ohio 45202 (513) 629-2717 [email protected]
BRUCE I. PETRIE, JR. is a partner in the Cincinnati office of Graydon Head & Ritchey, LLP and concentrates his practice in representing health care organizations, hospitals and physicians, elder care organizations, educational institutions and schools, municipalities, and various private and public sector organizations. He received his B.A., magna cum laude, from Brown University and his J.D. from Northwestern University School of Law, where he was a member of the Editorial Board of the Northwestern Law Review. After law school, Mr. Petrie worked as a law clerk for the Honorable John Grady, United States District Court, Illinois. He is admitted to practice before the United States District Court for the Southern District of Ohio, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court. Mr. Petrie is a member of numerous organizations, including the Cincinnati and Ohio Bar Associations, American Health Lawyers Association, Ohio Council of School Board Attorneys, Beverly Stevens Petrie Fund for Arts Education, Cincinnati Art Club, and Oil Painters of America. In addition, he serves on the Board of Trustees for Ohio River Way and is a shareholder in the Cincinnati Art Museum.
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ii PAINTING A MORE PERFECT UNION: THE CONSTITUTION THROUGH THE LENS OF VISUAL ART MASTERPIECES Bruce I. Petrie, Jr. © Bruce I. Petrie, Jr. 2014. No publication, reproduction or transmission in whole or part without permission of author. Reprinted with permission.
To my father, Bruce I. Petrie, Sr., my friends and colleagues at Graydon Head, and the legal clients who have shown me the inspirations of lawyering.
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2 CHAPTER ONE: OPENING
I didn't start out in law or art thinking there was any real connection between the two. Just the opposite, painting and law seemed to be in different worlds, one of images the other of words, one of quiet brushstrokes the other of courtrooms and briefs, negotiation and legal argument. But after years of practicing law and painting, connections between the two unexpectedly came into view. It started as an intuition while standing in front of canvases, working through the compositions, planning and thinking. It struck me that the law work I was doing on Monday had common ground with the painting I was doing on Sunday.
Once that intuition took hold, I started to keep it in mind as I read law cases and thought about what lawyers and judges do. I read and re-read Supreme Court cases. A picture began to emerge that law and art shared some common ground.
This book is an invitation to see American Constitutionalism, that is, the Constitution and decisions of the Supreme Court, in a different way: through the lens of visual art and the lives of some of its greatest makers. The Constitution is a masterpiece of law that shares common ground with masterpieces of visual art. You may not be used to thinking about law and art together. You may, like I used to, see them as worlds apart. I'd like to change that perception. The principles of art and law we will explore here are far from new. They go back thousands of years. But today, the connections between art and law are obscured. The work of lawyers, judges and courts has become increasingly specialized and complex, and public perceptions of this work are mixed. It's time to rediscover the fundamental interdisciplinary connection between the arts and America's most important law.
Why is it time? Why should we care whether art and law are linked in root ways? The reason is that the Constitution and Supreme Court decisions make a difference in our lives, and art can be a powerful medium for legal understanding. The Constitution impacts our freedom, our rights, our responsibilities as citizens. The judgments of nine men and women impact our free speech, our religion, our privacy, our property, our government and elections, our marriages, our health care, and, yes, even that most ubiquitous of things: our cell phones.
As citizens we need to understand these decisions; and as lawyers and judges we have a calling – not to obscure but to explain, interpret and educate citizens more than we do. This education is important to a democracy where the ideals of government of, by and for the people are and ought to be, who we are. As citizens, seeing law through art may help us better envision the Constitution's purpose of a more perfect Union, not as an abstraction but as a here-and-now commitment that our Nation has inscribed in writing for all the world to see.
Visual art is and has been for millennia a way for people to organize and communicate their most complex and meaningful ideas. There is truth in the saying that a picture is worth a thousand words. A true masterpiece, whether in art or law, speaks to us in a universal way. It makes a point, stirs debate, elicits strong emotions and forceful inquiry. Masterpieces take on hard issues. They deal in matters of consequence to life, liberty and the pursuit of happiness. Masterpieces can influence and change the hearts, minds and behavior of individuals and bend the curves of history, society and culture.
3 But the thing about masterpieces is that they keep reinventing themselves as people in different times, generations, places and manners question and revisit and reapply them. So it is with the Constitution and the perennial creative process of new decisions by the nine justices appointed for their lifetimes to uphold and interpret it. So it is with the greatest painting, sculpture, architecture and other visual arts ever made.
In the four years up to the 1976 Bicentennial, I was lucky to study U.S. history at Brown with three professors who were dedicated to undergraduate teaching and scholarship. College can change us not only through the content of the course of study, but also because in our twenties our minds may be open to new ideas like no other time. Gordon Wood, Jack Thomas, and James Patterson, in classroom lectures, small seminars, and informal get-togethers with students, brought history alive and invited us to the table of American history. Collectively (and not in all the same way since they focused on different eras of U.S. history) these three professors framed up four ideas that have stuck with me.
• First, the idea that ideas matter; that how Americans both ordinary and extraordinary form and are moved by ideas in turn moves and changes history.
• Second, the idea that the diverse intellectual origins of the American Revolution profoundly changed history not just in a political way, but also in a broader social and cultural way among the people.
• Third, that the idea of America, from its beginning, contained a revolutionary dream of perfectibility – a more perfect Union – with a legacy of great expectations.
• Fourth, that such great expectations create tension, discontent and restlessness when reality falls short, a tension that may lead to new ideas, a new synthesis, that in turn gets tested and tried as America keeps inventing itself.
Taken together, these ideas frame up both the dream and the problem inherent in a more perfect Union. The little, qualifying word "more" is an extraordinarily big word in the Constitution's Preamble. The Union would be "more perfect," not perfect. The job of perfecting the Union would be the biggest of experiments, not accomplished by quill-pen calligraphy on four sheets of parchment, or a monarch, or by inheritance of elite rank or position, or by a class of professional politicians or by politics alone.
The more perfect Union would have to happen, if ever, through the people – and what the people create and shape through their involvement in self-government, to be sure; but more profoundly in their culture and society, arts and sciences, education and economy, homes and workplaces. From the very beginning the American Revolution, along with its central dream and problems, went beyond and deeper than politics and so it is to the present day. Seeing America's Revolution and Constitution only through the lens of politics is not only historically incomplete, but it's also not good enough for the road and work ahead to create a more perfect Union. If a nation can be said to have sources of creative energy, then America has a source in the Revolutionary idea of perfectibility and its ongoing gap that only the people, through many works of many kinds, including artworks and law works, can bridge.
4 Today, when information, news and commentary streams to us through hand-held devices, we have access to a plethora of opinion about just about everything. Yet relatively few people read Supreme Court decisions … and frankly it's no wonder. They're often lengthy and hard to follow. Yet they matter, big time.
If we were to look at the Constitution side-by-side with great works of visual art, might we come away with a more approachable and understandable way of seeing what's going on? What makes a visual arts masterpiece? What are the principles? And what if we tracked these principles in the Constitution and Supreme Court cases? Would the picture be clearer?
* * *
The word art can easily sound too grandiose and remote. So can law. Say "art" to an audience, and imagine lots of cartoon bubbles with different captions floating overhead. But art, like law, has a tangible, here and now, presence. A painting, sculpture or building exists in pigment, steel and stone; it is made, shaped, crafted, built.
An image that brings art down to earth is that of a frame. By frame we mean the picture plane or space within the four corners of the canvas. The frame is where the work itself is. It's the practical and functional space the painter has to work within. Basketball is no game without the hoop. The metal circle defines the game. Talking art without the frame is like talking basketball without hoops.
Humankind has been making art longer than we have been making law, though both have ancient inspirations. Among the first paintings we know about are masterpieces still on the walls of caves in France, pictures of deer in chalk by Paleolithic hunters inspired, anthropologists surmise, by the hungry hope that capturing prey in drawing might improve the prospect of catching it for dinner. That was about 30,000 years ago. Among the first laws we know about were from Ancient Egypt in about 3,000 BC.
The 30,000 year story of art is a rich and colorful story, one of the best tellings being E.H. Gombrich's classic The Story of Art. He begins with a provocative idea: "There really is no such thing as Art. There are only artists." Gombrich's insight was that the word art has meant many different things in many different times and places. So he writes: "Art with a capital A has no existence." The same might be said of law: there have been many different laws in many ages of humankind; laws that made sense to people a thousand years ago may be nonsense today.
Law is forever changing and evolving as new law is made, old law is repealed or amended, new cases are decided, old ones reversed. Even the Constitution has been amended 27 times; and the Supreme Court, its nine deciders coming and going, reverses itself and changes its collective mind. Such change, though real, is not something the Court wants to project as its norm. Law values predictability and precedent; Justices intellectualize about stare decisis. Yet at a practical level of head counting, Justices have to find creative ways to do their job of persuading at least a majority of themselves to decide a case between litigants and synthesize their decision with the Constitution, legal precedent, and their own lives, personalities and consciences. Over time, the process is not law with a capital L, but the Constitution at work, through judicial creativity in the persuasive arts of reconciling conflicting and opposing ideas and interests to decide cases. This process which is evidenced in the
5 legal history of the Court since 1790 and its decisions today, is what we'll call America's creative constitutionalism.
Together, the stories of art and law are a mosaic of the lives and creative work of millions of men and women across the ages, stories of invention and reinvention. This book will explore how in both art and law the dreams and problems of a more perfect Union are translated – through the lives and work of (mostly) American artists and through the Constitution and its ongoing interpretation by the Supreme Court. The artists I've selected here all have stories – the new ground they broke, their inspirations, the obstacles and prejudices they faced, the work they struggled to produce, the voice they wanted heard in America and the world. They include:
• Louis Sullivan, whose credo form follows function led to a new American architecture;
• Norman Rockwell, whose paintings of four freedoms and other visions of democracy connected with we the people;
• Andrew Wyeth, who painted the world of a person disabled by polio but enabled by courage;
• Mary Cassatt, who, before women could vote in America, challenged 19th century prejudices at home and abroad against women painters; and, after being the first American woman to join the French Impressionists and challenge the French Salon, returned home to paint visions of new roles for women;
• Robert Duncanson, a self-taught descendent of slaves whose antebellum paintings of abolitionism led to his exile from a Union not yet tested in Civil War, and to international acclaim;
• George Grey Barnard and Joaquin Sorolla, who sculpted and painted new personifications of executive power, the American presidency, and of Union;
• John Singer Sargent, who experienced in World War I an old world colliding with a new one, a world of aristocratic portraiture that had made his fame and fortune colliding with a new world of industrial age warfare;
• Henry Farney and his documentary "Song" to a Native American people pushed out of a frontier that he believed had shaped America's democracy and national character;
• Weinold Reiss, who during America's Great Depression, created works of art on the art of work and celebrated the American worker;
• Ernest Blumenschein, who was inspired by a Taos, New Mexico jury deciding the fate of a sheepherder for murder and painted truths about the Constitutional right to a jury trial.
Side-by-side we will look at the work of creative minds on the Supreme Court: the striking down of de jure segregation in public schools; equal protection applied to
6 marriage; health care and the power to tax; free speech; campaign finance; privacy and property rights; religion.
As we consider artwork and law work, we will follow the thread of five principles of visual art: inspiration, composition, focal point, balance and craftsmanship. We will see how these principles come together in the creative process of art and law, in cases that have shaped legal history and masterpieces that have shaped art history.
By the end, the hope is that we see the artfulness in democracy's most fundamental law. The constitutional commitment to a more perfect Union inspires and needs creative work because the Constitution itself arose from an American people's creation of an experiment that is still unfolding. Our Constitutionalism exists in flesh and blood, in pigment and stone, in colorful lives, in hard problems and imperfect decisions.
It's good for us to look with fresh eyes on the inventiveness that created and keeps on creating a more perfect Union.
CHAPTER TWO: INTRODUCTION TO VISUAL ARTS
Before looking at law through the visual arts lens, we need to set the lens by taking an introductory look at visual arts design, principles and elements. We don't all come to the visual arts and to law using the same words and meanings. So before we start talking law, let's talk visual arts.
Art-speak and law-speak need some introduction, one to the other. Law has its legalisms and art has its art-isms. Our job is to cut through the jargon of both and keep the lens as clear as we can. People vary in their familiarity with visual arts, but all are welcome here.
Hoping to avoid technical jargon, this chapter presents the visual arts lens as having three main aspects:
• Five principles of visual art; • Design as a creative problem-solving process; • Elements of design including medium, form, value, color, texture.
As an example of how these things work together in a masterpiece, we'll look at architect Louis Sullivan's design credo "form follows function" and painter Andrew Wyeth's Christina's World. That will set the stage for introducing law into the picture, i.e. the Constitution and Supreme Court cases.
Five Principles of Visual Art
A masterpiece of visual art is the greatest work that's ever been done. A masterwork is the best work each of us can do. Whether a masterpiece or masterwork, painting involves certain principles. I don't mean rigid rules, since the creative process often defies such rules. What we mean by principles of visual art are those ingredients which,
7 when mixed together by artists working alone or in teams, have produced masterpieces and masterworks for thousands of years.
• The first is inspiration:
Inspiration is the why behind your work. Why you create something. The driving purpose. Inspiration has many sources: life stories and experiences, culture, personality, education, history, economics, biology, politics, survival. The list of inspirations is as long as the countless number of human beings who have, across the millenia [sic], felt inspired to create. Inspiration animates the other four principles.
• The second is composition:
Composition is the overall plan or design of a creative work. Composition is the roadmap the maker wants others to follow in experiencing the work and discovering its meaning for themselves. It's the creative organization that unifies the parts (sometimes conflicting sometimes not) into a whole that is greater than the sum of the parts.
• The third is focal point:
Focal point is the emphasis of the composition. Focal point draws attention to the work and what is most important. Focal point involves selectivity and downplays or discards the unnecessary. Artful simplicity is its first cousin. Setting the focal point is a strategic device that says look here.
• The fourth is balance:
Balance is a quality of the work that involves weighting elements in a manner that fits with the inspiration.
• The fifth is craftsmanship:
Craftsmanship is a quality that conveys care and purpose about the work. It avoids that which detracts from purpose, such as bad varnish or typos. It relates to knowledge and skill in the use of tools, and to the day-to-day details of how work is done and how its inspiration is pursued. Craftsmanship attracts. Work that conveys care in the making says something about the maker and gives a reason why others should care to look.
Design Elements
In addition to the five principles, there are various elements of design.
One is choice of medium. What tools and materials will you choose? The choice of medium involves many different options and a mind-boggling array of materials: oils, watercolors, acrylics, pastel, pencil, canvas, panels, clay, stone, metal and on and on. In addition to medium, other visual elements include form, value, color, texture:
8 • Form – the main shapes, masses, spaces, lines and objects within the composition; • Value – the relative lightness or darkness of the forms; • Color – the relative colors of the composition; • Texture – the surface look or feel.
For the visual artist, each of these design elements represents choices and decisions. For example, making a brushstroke on canvas, may involve decisions about the size, type and shape of the brush, the type of paint, how thin or thick the paint will be, its color, its lightness or darkness, the location of the brushstroke, the shape of the mark, the relationship between this and prior brushstrokes and how it relates to the whole composition. These decisions are analogous to the musician's choice of a note or the writer's choice of a word.
While we have broken down the creative process into various principles and elements, it all needs to flow together as a process. Learning a golf swing involves unbundling the elements, seeing how each makes a difference, and then putting it all together. So it is with design.
Visual Arts Design and Creativity
These principles and elements work together in a process. Sometimes we call this a creative process, sometimes a design process. Seeing them as an integrated, problem- solving process is the key. In the visual arts, design is about problem-solving. The visual artist has to make decisions and choices among many different potential pathways or options. Design is not really synonymous with decoration, although decoration can involve design.
Strong design works. Steve Jobs knew this was true. He used it to revolutionize the computer and other industries. Engineering alone, Jobs knew, would not suffice to put computers in millions of hands. Engineering combined with art and great design would. The problem-solving nature of design ties with a larger thing we call creativity.
Commentator David Brooks, in an article entitled "The Creative Climate", while not writing about the Supreme Court, has made some cogent if not new observations about creativity. Brooks conveyed another writer's (Joshua Wolf Shenk) story of how Paul McCartney and John Lennon created music together. They were different musicians with different personalities and talents: McCartney was meticulous, Lennon was chaotic; McCartney came from a "sunny pop tradition," Lennon from an "angst-ridden rebel" tradition; Lennon could write from depression, McCartney with a lighter heart. The point is that two different and opposing musicians, far from destroying each other, teamed up to make a creative synthesis that changed the music world and popular culture. Brooks writes:
But the Lennon-McCartney story also illustrates the key feature of creativity; it is the joining of the unlike to create harmony. Creativity rarely flows out of an act of complete originality. It is rarely a virgin birth. It is usually the clash of two value systems or traditions, which, in collision, create a transcendent third thing. Shakespeare combined the Greek honor code (thou shalt avenge the murder of thy father) with the Christian
9 mercy code (thou shalt not kill) to create the torn figure of Hamlet. Picasso combined the traditions of European art with the traditions of African masks. Saul Bellow combined the strictness of the Jewish conscience with the free-floating go-getterness of the American drive for success.
Creative people, Brooks writes, "don't flee from the contradictions; they embrace dialectics and dualism." Creativity involves "the opposable mind – the ability to hold two opposing ideas at the same time." (Brooks credits Roger Martin in reference to "the opposable mind.") Brooks ends with Albert Einstein's insight about creativity: "You can never solve a problem on the level on which it was created." Creativity looks for the dialectical tension or opposition between interacting forces or elements, and then searches for a creative synthesis.
Einstein's insights about problem-solving and the dialectic/synthesis nature of creativity in arts and culture (and, as Einstein showed, in science) apply to America's creative constitutionalism. The dialectics and dualism of the Constitution have been there from the beginning: government by the people vs. government by monarchy; rights of the individual vs. rights of the government; power of the legislature vs. power of the judiciary; power of the President vs. power of the legislature and courts. In the history of Supreme Court decisions, justices of many different and conflicting personalities, temperaments, intellectual strengths, backgrounds, and political persuasions have struggled to synthesize in written compositions, by majority vote, decisions in cases and controversies.
In this book we will look at how creative minds work in art and law and the designs they make. There's not one type of creativity in art and law, or one mind. The work itself, the paintings, architecture, sculpture, legal decisions and writings, along with the life stories of the makers is the evidence in front of us. Important works in art and law invite us to look and see and inquire, not as a one-way street but, as in a mirror. We can through masterpieces learn something about the creative spark in each of us. After all, creativity is a connection between people, past and present, people who have sought to forge something new out of different or conflicting forces or ideas that would not necessarily come together without the coalescing force of inspiration and craftsmanship. That kind of creativity is not just for masters of art and law. It's part of the everyday life, work and thought of we the people.
When we look into the law work and artwork ahead, the conflicts that inspire them are often high-stakes and monumental. Revolution and war, struggles and debates, disputes and lawsuits, economic and other loss, discrimination and exclusion, disability and courage. Large creativity arises from large conflict. Inspiration of this type is not sourced by calm and peaceful waters. Inspiration of this type arises when strong currents converge into rock-filled rapids that the mind decides, at some risk, must be navigated. A collision of ideas happens, the creative eye sees it, the pieces can either float away or be gathered into something new. That something new, for the minds and lives that have shaped the history of art and law and shape it today, is something forceful and compelling to those who see it, something that cannot be left alone or unresolved because to do so would come at too high a price, undermining too many ideas or too much work done before. The newly inspired form is not entirely new, but combines old and new sources, and the newly inspired form, more often than not, will be tested, broken and reassembled anew, again and again.
10 Let's turn then, to two lives and their designs: the first an architect who saw in the destruction of the Great Chicago Fire an opportunity to rethink, redraw, redesign and rebuild a new American indigenous architecture; and the second, a painter, who saw within a rural landscape a figure who could crawl but not walk across its fields, and painted her world.
Louis Sullivan: Form Follows Function and the "Seed-Germ" of American Design
You may have heard the expression form follows function. The phrase traces back to Chicago architect Louis H. Sullivan. In 1896, when the skyline of Chicago was changing into its modern form, Sullivan wrote an essay The Tall Office Building Artistically Considered.
As accustomed to office buildings as our eyes have become, it requires some imagination to see the strangeness of such foreign objects in the past. Sullivan gave the strange, new form a natural connection. He explained the case for "tall office buildings" to a public that wasn't used to seeing such new and imposing forms. Sullivan argued that designing a tall office tower in conformity with its function was consistent with the way nature works. In all natural forms, Sullivan said, form follows function:
Whether it be the sweeping eagle in his flight or the open apple-blossom, the toiling work horse, the blithe swan, the branching oak, the winding stream at its base, the drifting clouds – over all the coursing sun, form ever follows function, and this is the law.
Sullivan was formulating a natural law of design that could apply to the design of a bird wing or tree as well as a skyscraper. The credo form follows function connecting the industrial revolution's forms with a nation's natural history. It helped explain a distinctly American design philosophy.
The story of American architecture, including the struggle to create a uniquely American form of architecture, is at home in Chicago. The big-shouldered city (as Carl Sandburg called it) on Lake Michigan was where the modern skyscraper would take its first forms, along with the engineering challenge of constructing tall buildings on ancient geologic sands. The devastating Chicago fire of 1871 had created a clean slate, a fresh canvas, for ambitious construction and architects.
Sullivan, at age 17 in 1873, moved to Chicago to catch the building boom. What he brought with him was ambition, natural drawing ability, an eye for design and architecture and a brilliant intuition and idealism for nature and natural forms. Eventually he would join Dankmar Adler to form the architectural firm of Adler and Sullivan. They had complementary strengths: Adler's strengths were engineering and acoustics; Sullivan's were aesthetic, visionary and compositional. Together they would design in 1889 the Auditorium Building and its 4,200 set theater, hotel and 17-story office tower on Congress and Wabash Avenues. Other Chicago landmarks would include the Chicago Stock Exchange Building in 1894 and the Carson Pirie Scott Department Store (1899- 1904) on State Street. Demolished in 1971-72 amid public controversy, remnants of the Stock Exchange were preserved and reconstructed at the Chicago Art Institute, including the beautiful two-story Trading Room and the great arch, today surrounded by parks and gardens next to the Art Institute.
11 Also preserved at the Chicago Art Institute are the remarkable drawings of Louis Sullivan. Within the twisting and turning natural forms of Sullivan's free-hand (no computers) drawing – what he called ornaments – we can see the inspirations and creative process to germinate a new and uniquely American architecture. The drawings seem to grow like a living and organic thing right in front of your eyes – which was Sullivan's point.
Germination is a natural process that Sullivan wanted to draw and put in stone and steel. This unity between natural form and architectural form was a philosophy that Sullivan would pass on to another Chicago architect who would surpass Sullivan in fame, but was deeply indebted to Sullivan. Sullivan was the first and most influential mentor and inspirational guide to Frank Lloyd Wright who would start his career as Sullivan's drafting assistant.
In sum, inspirations behind Sullivan's art and architecture were: a commitment to creating a uniquely American form of architecture; an aesthetic unity between natural forms and architectural forms; and what he saw as a universal principle in nature and architecture summarized by his words "form ever follows function."
Sullivan believed that America's architecture needed to free itself from old world European influences just as American democracy had done. The American Revolution needed to resonate in its buildings, their forms and functions. He detested Gilded Age architectural designs in America that copied French, Greek or Roman opulence. He was critical of that influence in the temporary grandeur of the buildings in the Chicago Exposition of 1893 and regarded it as a lost opportunity to finally set American architecture apart on a new frontier of design.
His innovations involved use of modern materials, especially steel girders, to bear the weight of taller structures. The height and elegance of America's new skyscrapers, like a new American forest to replace the native one that had been cut and planked into flammable structures, would require unity of form and function. Balance through weight distribution would be a critical function of steel girder construction. Through balancing of weight across steel, the trees of a new American forest would grow in the form of tall office buildings artfully designed.
The tree was both symbolic and design-based for Sullivan. He had a reverence for the natural world and a deep understanding of natural forms. As a boy he spent summers roaming a New England farm and his adult philosophy had a kinship with the New England Transcendentalism of Emerson and Thoreau along with the organic poetry of Walt Whitman. The designs of germination fascinated him. On one of his architectural drawings he wrote "Remember the Seed-Germ" by which he meant remember that architectural design and tall buildings should grow and take inspiration from nature as a plant does from seed. You can see these seed germs growing in Sullivan's designs: in steel, terra cotta and stone; in the hand-drawn ornament that grows up the side and gathers near the sky; in tall, slender linear columns and arching windows suggesting trees.
12 Sullivan also had an eye for the inner geometry of self-similar designs in nature that grew from the "seed-germ." Sullivan saw designs when he looked up from below into a canopy of leaves and light overhead; a design pattern, balanced and unified, would reveal itself. He was onto something. In the 1970s, a mathematician named Benoit Mendelbrot first used the term "fractal" (in Latin, "fractured" or "broken") to describe the concept of fractional dimensions in the geometry of nature. Fractal geometry is now a major branch of mathematics made even more interesting by the computer's ability to generate fractal patterns and images. You can see the fractal insights of Sullivan in the geometric patterns of his architecture and light canopied ceilings.
In his later years, faced with financial loss and a public that had moved on to other tastes in architecture, Sullivan's enormous role in American architecture went unappreciated. The caped, hatted and cuff-linked Frank Lloyd Wright eclipsed his mentor with a flamboyant and turbulent personae and relentless genius. But Wright would not have been Wright, and American architecture would not have a house quite like Fallingwater, without the legacy of Louis Sullivan. Sullivan's enormously influential credo of form follows function was one with his vision to create a native, indigenous American design philosophy – one that engaged both the pragmatism of America and its natural, democratic ideals.
The Visual Arts Lens: A View of Christina's World
Each masterpiece has its own story. The story includes the inspirations of the maker or makers of the artwork, the life story of the artist, the problems encountered, the solutions designed.
At the Museum of Modern Art in Manhattan, Andrew Wyeth's masterpiece Christina's World resides as a one of the most familiar images of 20th century American art. The painting is perhaps more familiar than understood. One of its enduring qualities is its otherness, a mysterious aspect that leaves you unsettled and wondering if you've grasped what you've seen.
13 When speaking to an audience about the painting, I ask for a show of hands: how many of you recognize this painting? A majority of hands go up. Then I ask: how many of you know what the painting is about? The number dwindles, but one says: "My sister has cerebral palsy and we had a print of Christina's World in our house growing up." What he knew is that Christina's World is one of the most powerful images about physical disability ever created by an American artist. The person in the audience had experienced the painting as part of his life and that of his sister and family. Christina's World resides not only at MoMA but outside the museum walls. And there are many Christina's Worlds.
Like all masterpieces, Wyeth's 1948 painting has a story. Wyeth kept a home in Cushing, Maine and the Olson family lived nearby, agreeing to be models for some of Wyeth's work. Anna Christina Olson has been stricken by polio which had left her lower body paralyzed; and when Wyeth observed her in a field, crawling instead of walking, the inspiration had arrived. How to respond to that inspiration would involve many problems, beginning with the practicalities of modeling, which Wyeth handled by enlisting his wife to pose.
Other design issues involved decisions about medium and size. Wyeth chose a rectangular shape for the panel, and not a very large one (about 32" x 47") considering the scale of the composition that would include an expansive field, farm buildings and a figure. It wasn't to be just a landscape or just a portrait. It was to be a "world."
Wyeth chose tempera as his medium – a craft both ancient and, in Wyeth's hands, modern. Tempera is a remarkably durable medium going back in art history to convincing and modern-looking portraits of the dead that Egyptian artists painted on wooden mummy caskets. Tempera consists of pigment that is ground into a power combined with a binder made of a variety of choices: egg yolk, honey, glue, gum agents, water or milk. Tempera requires craftsmanship to handle well, since it involves preparation and use of natural, quirky materials that dry quickly. Modern oil paint is generally easier to use than tempera. (The next time you leave the breakfast dishes out for a while and have to do some extra scrubbing to dissolve the egg yolk on china, think of quick-drying tempera.) While tempera requires craftsmanship, its rewards include precision, layering and durability. Wyeth's choice of tempera also relates to his decision to paint Christina's World on a panel and smaller in scale, since tempera tends to crack if painted on a canvas that flexes, expands and contracts more than a panel.
Wyeth reached back centuries in his choice of tempera, but was doing something very modern in 1948 by reviving an ancient craft for a modern painting – like Picasso's reference to ancient masks in contemporary portraiture. The precision of tempera and panel was Wyeth's way of representing the "world" of another. The world included a seated and twisting figure, dark hair blowing, dress light and belted at the waist, arms and legs oddly arranged; field grass cut short where every blade seems individualized but part of a larger and starker landscape; weathered and grayed structures on the horizon; a two-track road and solitary fence posts. Such a world is both observed and invented with a precision that says: this is real, this is someone's body and spirit world. It's also a made world in tempera on panel.
Wyeth unified all parts of this world into a whole. The figure and landscape work together, and together exceed any individual part. The focal point is the figure in the lower right [sic]– close to the viewer and painted in contrasting lights of the dress and
14 darks of the hair and shadows. (Keep this in mind later when we look at Rockwell's work.) Yet the focal point is tied to the sky, field and buildings by the line of sight, the looking back of Christina, which invites us to see what she sees. The painting is an invitation into the world of another, with Christina as the guide. Wyeth balances all the visual elements – the horizontal field offset with the vertical, leaning figure; the naturalistic colors within a balanced range and hue; the lightness and fragility of the figure; the buildings like counterweights on the line where field meets sky.
Christina's World, in sum, is a masterpiece because of Wyeth's translation of his inspiration into a unified composition with focal point, balance and craftsmanship. The why of his work is to invite us into the world of another person, someone who couldn't walk the fields, but who, from a seated viewpoint, could take it all in from her own vantage point. Wyeth also places us in the field, as if we are walking and standing right there. Wyeth leaves it to the viewer to wonder. Is she at home in this place or not, or both? How did she get here and how will she get back? Why no other things, no blanket, no picnic-in-the-park of French Impressionism? What is she thinking and what would her expression say if we could see her face? And what a powerful compositional decision by Wyeth to hide the facial expression and let the form speak.
The more we look at Christina's World, the more this familiar icon of American art becomes less familiar and more intriguing, challenging and unsettling, causing us to re- think what we do understand and what we don't about Christina's World. It presents us with a world disabled-but-enabled by courage and beauty as stark and fine and difficult- to-handle as the tempera of Wyeth's palette.
There are many Christina's Worlds in a more perfect Union, where the legs can't walk but the eyes and spirit can.
CHAPTER THREE: THE VISUAL ARTS LENS AND THE CONSTITUTION
The American Revolution not only legally created the United States, but created almost everything we Americans believe. Our noblest ideas, our highest aspirations. Our belief in liberty, equality, Constitutionalism, and the well-being of ordinary people all came out of the American Revolution. Whatever glue we have that holds us together is a consequence of the American Revolution.
~ Gordon S. Wood
While a history student at Brown, I listened to Professor Gordon Wood bring the American Revolution to life in the classroom, a teacher and scholar who had done his homework into the primary sources from the Revolutionary Era, read the newspapers, pamphlets, letters and other writings, and had a feel for the language of the 18th century, not only from its extraordinary actors like Jefferson, Adams, Madison, Hamilton, Franklin, Washington and others but also from the ordinary people of the time. Professor Woods' ideas about the Revolution transformed the way we look at its role in our history, society and culture.
The ideas of the American Revolution matter – liberty, equality, Constitutionalism, the "well-being of ordinary people" – not only in the 18th century, but today. Professor Wood saw the American Revolution as a radical shift from the idea of power based on
15 monarchy to ideas based on individual rights. To be sure, the 18th century ideas had unfinished business (i.e. slavery) for a Civil War and Civil Rights movement to come, but the creative radicalism of the Revolution is something to see and appreciate anew even as we look back.
How we look at the American Revolution influences how we look at the Constitution and the idea of a Constitution. The 1776 Revolution inspired this document, especially the rejection of a monarchy in favor of popular self-government. But by 1787 some of the enthusiasms and illusions about a republican form of self-government had given way to a counter-balancing of centralized control and restraint, especially in light of the perceived excesses of the French Revolution. The 1787 climate encouraged a separation and balancing of power within a new federal government and Constitution. Balance, i.e. balancing of power, was a central theme. American Constitutionalism would thus include a system of checks and balances designed to balance power among and between the people and the government (democracy); the states and the federal government (federalism); the separation of powers into three branches (legislative, executive, judicial); legislative bicameralism; the independent judiciary; and presidential veto.
In his research into the intellectual origins of the Revolution and the Constitution, Professor Wood identifies a not always smooth or consistent blend of: classical republicanism going back to ancient Rome; balanced government; separation of powers; and the fact that most of the Founders had been Englishmen moved by the idea of liberty and its protection by English common law (trial by jury, habeas corpus, property rights, fear of standing armies). Supreme Court cases of today still explicitly and creatively use these Revolutionary intellectual origins to garner a majority, decide cases and explain themselves to the world.
Within the long and ancient story of human beings creating forms of government, including many systems of oppression, the U.S. Constitution stands out as an inspired composition about the legal balancing of power in a democracy. It is a composition designed on principles of law rather than whims of monarchs and men. Most significantly, it's also a design that contains within itself the authority and means to evolve and change itself. It has done so in 27 Amendments and thousands of judicial interpretations of its meaning. As Professor Wood notes, "whatever glue we have that holds us together" is a consequence of the ideas of the American Revolution and the Constitution it inspired.
Constitution as Inspired Composition
How does the Constitution look when seen through the lens of the visual arts principles of: inspiration, composition, focal point, balance and craftsmanship?
We've seen that the inspiration or why of the Constitution derives from the American Revolution, its ideas, its radicalism as a departure from monarchy to republic, and also the more limiting ideas of separating and balancing power within a written constitution and framework.
The Constitution is a masterpiece of artful composition. A composition we've seen in Chapter Two has the characteristic of unifying disparate pieces or elements into a whole which is greater than its parts. Unity of composition, whether in words or ideas or visual
16 elements, involves a process of tying together, reconciling and arranging things so that they speak as one. A composition has force and impact because of this one-out-of- many unity. The idea of e pluribus unum aligns with the idea of composition and visual arts principles of design: out of many, one.
A good visual cue for the concept of composition is the American flag, which takes the constituent symbolic pieces of stars, stripes, rectangles and three colors and unifies them into one symbol of one nation: a successful and inspiring design of e pluribus unum. The design is even set by statute at 4 United States Code, Section 1.
The Constitution is a composition both in its design as a supreme legal document and its design for a new democracy, for a more perfect Union. The compositional structure of the Constitution includes:
• A preamble that sets forth the why, the inspiration and ideals of the Constitution; • Seven original articles that set forth a nation's government, separation of powers into three branches, bicameralism, federalism and ratification; • Twenty-seven amendments with the first ten being the Bill of Rights.
The composition takes these constituent parts of preamble/articles/amendments and weaves them together into one cloth. Masterpieces of composition tend to be lean, essential, and to the point. The Constitution is a remarkably short composition given its scope. Such artful brevity resides in other masterpieces like Lincoln's Second Inaugural and Gettysburg Address.
The Preamble
WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Constitution's Preamble uses the word "more" before "perfect." How fundamentally different the composition would be without the single brushstroke "more." The Union wasn't perfect in the 18th century, and isn't today. It tells the citizen reader that the Union is not more perfect than We the People are perfect; but a Constitution may make the Union more perfect than it is.
The Preamble is as artful a composition as has ever been designed about government. Louis Sullivan, we've seen, said form follows function. So it is with the Constitution: its strength as art derives from how its form follows its function, the design principles it uses to introduce a democracy's most important text.
• The Preambles's Design and Function. The Constitution needed to be ratified. It needed to convince, persuade and unify a new nation. The framers worked during a time of divisive and highly-charged politics. The new nation had declared its independence and fought a war, but not yet proven itself. The Constitution needed to be read and readable not by monarchs and scholars but
17 by We the People. It needed an opener that would set out its origin, scope and purpose in a way that would inspire its ratification and keep it alive for "Posterity."
• Inspiration. The Preamble tackles the why head on. The why is spelled out in the six ringing purposes following the words "in Order to." These whys are placed within the narrator's voice: We the People. The Preamble places the People as the sole narrator to explain why we are ordaining and establishing a Constitution. The People narrate the Constitution. Not a king, a parliament, a president, a congress, or a judge. The people are the Constitution's voice.
• Unity of Composition. The Preamble unifies elements of democracy (without using the word democracy) into a whole that is greater than its parts. The elements are: the People, the United States, the Union, Justice, Tranquility, defence, Welfare, Liberty, Posterity. None of these by itself is enough. All are necessary and all are woven together. The unity of composition is present also in its beat and rhythm when read.
• Focal Point. We the People holds the design position of primacy. These are the first words spoken and establishes[sic] who is talking and where the source of authority in a democracy resides. Try taking them from their primary position and putting them anywhere else in the Preamble. That design doesn't work: the three words re-positioned would lose power as a focal point.
The font size (to use a modern term) of the three focal point words dominates the other calligraphy. The focal point is visual as well as ideological. The original calligrapher was Jacob Shallus, assistant clerk of the Philadelphia legislature, who with quill pen engrossed 4,000 plus words on four sheets of parchment along with some typos, inserts, ink splotches and scratch outs. The imperfections of the 18th century calligraphy process add to the aesthetics of the document: the more perfect Union and its more perfect calligraphy are a fit.
• Balance. The balance of the Preamble resides in a variety of aspects. It is only 52 words and is one sentence. It has an economy of expression that is balanced. The weight of the elements (Union, Justice, Liberty, etc.) is balanced against the simplicity and brevity of the design. The sentence has three main parts: the opener (We the People), the whys (in Order to) and the closer (do ordain and establish). This beginning/middle/end design gives the Preamble the balance, equilibrium, strength and classic design of a triangle. The balance has a sound to it as well. Read it out loud and you'll hear the euphony. The words themselves have an integrity of purpose, a truing up, that is part of design balance.
• Craftsmanship. Maybe the best test of the Preamble's craft is to try to write it better yourself. How would we improve it? Or, better yet, imagine it written in the legalese of some of our current legislation: "Whereas, having duly considered those items listed in subparagraphs (i), (ii), (iii), etc., the people through their appointed representatives, etc…."
18 Thomas Jefferson's More Perfect Union
The author of the Declaration of Independence was out of the country on the new nation's business when the Constitution was signed. But perhaps no other Founder embodied the intellectual origins and currents of the Revolutionary Era quite like Thomas Jefferson.
The uniqueness of Jefferson resides not only in his political character but also in his artful eye. He was a masterful visual thinker. In his drawing, his architecture, his writing, his landscape design, his collections of art and objects, his delight in the tangible artifacts brought back to him by Lewis and Clark, Jefferson was thoroughly involved with the visual world and classical visual arts principles. The best evidence of Jefferson-as- visual-thinker is still around for us to visit: Monticello.
Even the pouring rain during a recent visit can't dampen enthusiasm for the architecture of Monticello and the University of Virginia. The architectural genius and polymath who sketched these designs and some 600 in total during his lifetime was the most accomplished visual thinker of all U.S. Presidents. Monticello is a personal museum to his powers of observation and wide-eyed curiosity about the world, including the giant fossils and other tantalizing visual evidence of a new and expanding American continent. His design sketch of UVA's Rotunda is itself a work of art on paper, classically and harmoniously proportioned and inspired by the great Italian architect Andrea Palladio whose book on art and architecture from the 16th century was what Jefferson called his "bible."
But Jefferson wanted America to have its own architecture, inspired by the old world but part of the new – like the Revolution he was helping to lead. Like Louis Sullivan, Jefferson's architecture sought a new world distinct from the old. Jefferson understood form follows function. He wanted an American fingerprint on the blueprint. So he changed Palladio's designs with his own artful eye for red brick, white columns and trim, octagonal shapes, hidden stairs instead of grand staircases, and landscape designed gardens (a first in America) with farm-to- table vegetables and native plants. Jefferson's architecture was an idealized metaphor for the new republic of reason, order and balance that he and fellow revolutionaries were risking their lives to create. It speaks to how important this architecture-as-metaphor was to Jefferson that of the three life accomplishments he listed on his own gravestone at Monticello he included the University of Virginia but not the Presidency.
CHAPTER FOUR: VISUAL STORYTELLER OF THE CONSTITUTION: NORMAN ROCKWELL
Norman Rockwell was the most popular visual storyteller in the history of 20th century American art. Through the medium of paintings reproduced on 318 Saturday Evening Post covers, each seen by an average of four million people, the collective story
19 Rockwell told was that of a more perfect Union. He painted the American Dream, as author and painter Thomas S. Buechner wrote in his 1971 book Norman Rockwell: Artist and Illustrator (to this day, incidentally, still the most insightful pictorial biography on Rockwell.) Rockwell's Post covers told America its story. They took on the monumental and confusing social, cultural, political and economic events of the 20th century and gave them meaning within the larger story of America. His visual stories conveyed idealism and perfectionism, both in the technical craftsmanship of Rockwell's painting but also thematically, a quality which led both to his popular appeal and his snobby rejection by some denizens of "fine art" who condescendingly dismissed him as a mere illustrator, unsophisticated and superficial compared to the allegedly deeper waters of abstract expressionism.
But Rockwell's more perfect Union ran deep: in his success and humility; in his connection to America's need to harmonize its we-the-people dreams with imperfect reality; in his outreach beyond elite circles and into the living rooms, barber shops, offices, schools, places both private and public where ordinary people would hold his Post covers in their hands and smile, feel, think. His masterpieces had emotional scope, from wit and humor to outrage, from the constitutional visualization of Four Freedoms to a painting of a young African American schoolgirl surrounded by federal marshals, thrown objects and racial slurs being escorted into a public school.
Norman Rockwell did what every masterful storyteller does: he made sure he knew his audience well. He stayed close to them, moved to a small town, invited them actually and figuratively into the frames of his painting. He didn't just idealize America, any more than his audience did. A keen observer, his perfectionism didn't wear blinders and was American in its dialectic and restless creativity. Within the compositions of his prolific career, were the contradictions, problems and fears which he knew his audience felt; but Rockwell stepped back and said here it is, both the democratic glue that holds us together and the stuff that threatens to unglue us – be it economic depression, foreign despotism, the evil of Hitler, racial supremacy, governmental deceptions, injustice at home or abroad. This was and is Rockwell's Constitution, in his own time, in his looking back to first sources, in his current and future appeal.
Four Freedoms
On January 6, 1941, President Franklin Roosevelt firmly gripped both sides of a lectern dotted with microphones to deliver his State of the Union address. His legs weakened by polio, this was a Christina's World of a different, but related, type. World events were threatening a more perfect Union like never before. The Great Depression at home was being eclipsed by the dangerous and fearsome events abroad: the German blitzkrieg was on and even Great Britain was reeling from the advance of totalitarianism across the globe. FDR's mastery at dealing with national fears had served the Union during its most dire economic times. Now he would need to show the nation why a world war was worth fighting, why Americans should sacrifice life itself in this ordeal.
Artful composition involves reduction to essential things, emphasis, brevity, inspired arrangement of essential parts, the power to move people not just intellectually but emotionally. FDR's composition chose a classical, four-cornered simplification: Four Freedoms. The alliterative square, the four corners, would be easier for the people to hear, remember and spread. Four Freedoms: Freedom of Speech, Freedom of Worship, Freedom from Want and Freedom from Fear. These were the reasons, these
20 were the ideals, these were the inspirations that a people would need to sustain them in the coming sacrifice.
The first two, the freedoms "of" speech and religion, were linked to the Constitution's First Amendment. The other two, the freedoms "from" want and fear, while not textually in the First Amendment, were brought within the Constitution's scope as freedoms. Want and fear were legacies of the Depression experience, and FDR knew he needed to name them for the people. He would not just name them, he would join them in the four- cornered frame with the Constitution's speech and religious freedoms. In this way, he unified four elements, put them in the same picture plane, gave them equal stature, made them speak as a powerful voice of freedom in four different and related forms.
21 Norman Rockwell's four paintings Four Freedoms translated into visual art form the words of FDR. Both FDR's verbal version and Rockwell's visual version share the inspiration, composition, focal point, balance and craftsmanship that make masterpieces. Not by their design alone were they masterpieces, but also by how successful the design was in reaching and inspiring people around a massive war effort. Rockwell's paintings were made into millions of copies and sent all over America and the world. The U.S. Treasury Department used them in selling over $132 million of war bonds and toured the original paintings to 16 cities and over 1.2 million visitors. They rallied the people into a more perfect Union of support, resources, ideas and emotions that would be needed to win the war – a cause Rockwell jumped into with all his creative energy and commitment. He would create an American Everyman GI character named Willie Gillis whom America would love and relate to as the common person of democracy fighting for the Four Freedoms.
Rockwell translated the Four Freedoms not through abstraction but through the realistic and detailed faces, hands, clothing, gestures, expressions and gatherings of the people. The settings in his four compositions are near, familiar and intimate: a town meeting, a group in prayer, a bedroom with parents tucking in their children at bedtime, a dinner table at Thanksgiving. Each one contains the duality of a more perfect Union: the ideal side-by-side with a keenly observed and rendered realism.
In Freedom from Fear, there is the loving gesture of tucking in, the white sheets and father's white shirt, the peaceful boys, the parental unity and familial togetherness around that which is most important to them: their peace. Having thus painted "freedom from," Rockwell also painted fear in the room – the detailed rendering of a newspaper headline BOMBINGS and HORROR HIT held by the father with his glasses off, the wrinkles of his face and shirt reflecting an end-of-day world weariness. Adjacent to the headline, in the corner foreground, is a hauntingly stricken doll, blank-eyed and akimbo on the floor in an echo of the bombing, a reference to the fallen to come. The duality of lights and darks of the composition – the black recesses of the room, the light from the stairs, the white bed – create an atmosphere and mood that feels both safe and vulnerable as a world of light engages a world of darkness.
In Freedom from Want Rockwell changes the mood, knowing that somber tones need a counterpoint. Always balancing, he had a sense of the too much. He painted a scene of joy and abundance, smiling eyes and family engagement, a robust turkey and glistening table of white china. There is a prim formality, the grandfather's suit and tie, grandmother's apron and hair pulled back, as the ceremonial carving is about to begin. But the expressions around the table suggest something else is going on. One family member, the balding character to the upper left with lightness bouncing off his forehead who is speaking though cupped fingers, has uttered a funny, inside comment that everyone gets because it's such a wacky Uncle Bill thing to say. The youngest face at the table looks at him with a "that was fun" expectancy that more good humor is coming. Freedom from Want is not only a physical world of bodily comfort, turkey and bountiful table, but a spirit world of wellness and freedom to crack a joke, smile and laugh.
Freedom from Worship paints a picture of diversity and tolerance with the words "Each According to the Dictates of His Own Conscience." The key is the word conscience: the painting looks at the seen and unseen co-existing. The skin tones and colors are varied. Some hands are folding, some are not. Some are older and some are smoother. One hand holds a chin in a thoughtful gesture suggesting a conscience of a nonbeliever.
22 Another conscience holds a prayer book, another a rosary. Rockwell is painting consciences, not Judeo-Christian unanimity; his subject is tolerance of variable consciences and the freedom to worship or not. The painting is a calligraphy of gestural and detailed lines, the wrinkles of hands and face and strands of hair in braid and clasp, suggesting the many lines, weaves and layers of human conscience.
Rockwell's models were friends and neighbors and in Freedom of Speech he assembled a group of citizens for a town meeting, the main speaker being a local gas station owner. A technical perfectionist, Rockwell painted and repainted the composition in at least four versions until he was satisfied after about six months. His narrator is a single figure speaking up in a public meeting. No microphones, none of the technology of speech that was yet to come. The well-worn jacket is frayed at the cuffs and darkened with oil from hands and the gas station. The annual report for the meeting is stuffed in his pocket. He speaks without notes, unblinking, straight ahead, hand resting on common pine, Lincoln-like and solitary, encircled by a black background in the classic portraiture technique of emphasizing face and figure. Others are listening, and we are invited to listen visually. Rockwell places us in the meeting, with one audience member turning his head and looking right at us.
After the Four Freedoms, Rockwell suffered a professional and personal loss that, for a visual artist, was devastating. His studio, along with paintings, reference materials, sketches and the physical evidence of years and hours of labor burned to the ground. He would overcome the loss, and, as part of his recovery, even draw a cathartic illustration about the fire. The painter of Four Freedoms understood the contingent context of the perfectibility his brush sought.
The Problem We All Live With
In 1964, when America seemed the antithesis of a more perfect Union, Rockwell painted a powerful vision of disunity in a democracy, telling America that racism and desegregation were not someone else's problem, not the South's problem, not a black problem or white problem, not a remote problem, and not even "a" problem. It was "The Problem We All Live With." Within a horizontal, oil-painted canvas of 36" x 58", Rockwell composed "The Problem": a wall covered with "nigger," "KKK" and smashed, blood-red tomatoes; four headless federal marshals marching in a line; and a six-year old girl whose skin, dress and shoes are painted in stark contrast of black and white.
It was ten years after the Supreme Court outlawed de jure segregation in its landmark decision of Brown vs. Board of Education. But Rockwell knew the difference between de jure and de facto desegregation. The Brown decision had changed the law but not solved the problem we all live with. That problem, in Rockwell's civil rights masterpiece, was one that we the people would have to solve.
The photographic images of the civil rights movement were and remain black-and-white evidence: the fire hoses and dogs, the angry white mobs, the chaos, the arms linked in solidarity. But Rockwell designed his painting to put the viewer in the crowd. There is no visible crowd. We are it. It's our problem.
He took the adults out of the picture – or at least full pictures of adults. The four he included are decapitated by the top of the canvas – headless enforcers of authority. When reason goes, here's what you get: mindless force. Rockwell smashed
23 conventional figurative composition by cutting the enforcer's heads off. What Rockwell decided to leave out – the mob, the adults, the heads – empowered what he left in. He defined the mob not by figures but by an inanimate and metaphorical wall – a wall of racism and resistance with slur and stain.
What is left for us to see is in the focal point. He used the full repertoire of pictorial methods of emphasis. He made the focal point a child – the only full human presence carrying symbols of reason: a book and ruler. He placed her near the painting's visual center. He maximized contrast by using his lightest lights and darkest darks to compose her. (Recall Wyeth's use of lights and darks in making Christina the focal point.) His blacks and whites were thematically unified with the contrasts of racism. The white dress, stoic expression, careful hair, and innocent presence of childhood are a small and heart-rending hope, surrounded by potential defeat of a democracy of, by and for the people.
The potential defeat would be, as political philosophers going back to Aristotle had imagined, the traditional vulnerabilities of classical republicanism: popular rule can turn into chaos which leads to authoritarianism. Rockwell's visualization of these threats connects with the founding debates of the Revolution and Constitutionalism, between those who rejected monarchism for popular rule versus those who rejected republicanism as a mob rule needing centralized authority. The Problem We All Live With frames a historical and modern question: would the problem be solved by the people's reason, or would the problem be solved by force?
The child, place and circumstance are real: Ruby Bridges entering an all-white school in New Orleans on November 14, 1960. In the boldness of his pictorial strategies and the meticulous realism of his brush and oils, Rockwell the trusted storyteller, the troubadour of so many perfect compositions that could warm the popular heart with optimism and flattery, presented the people with a nightmarish vision of American disunity that connected with the root debates of its founding.
24 The Right to Know
We are the governed, but we govern too. Assume our love of country, for it is only the simplest of self-love. Worry little about our strength, for we have our history to show for it. And because we are strong, there are others who have hope. But watch closely from now on, for those of us who stand here mean to watch those we put in seats of power. And listen to us, you who lead, for we are listening harder for the truth that you have not always offered us. Your voice must be ours, and ours speaks of cities that are not safe, and of wars we do not want, of poor in a land of plenty, and of a world that will not take the shape our arms would give it. We are not fierce, and the truth will not frighten us. Trust us, for we have given you our trust. We are the governed, remember, but we govern too.
These words accompany a remarkably prescient painting by Norman Rockwell The Right to Know that appeared in the August 20, 1968 edition of Look Magazine, a presidential election edition during one of the most chaotic and consequential Presidential elections in American history, ending with Richard Nixon in the White House. The composition shows a large group of citizens, a we-the-people mosaic of American diversity, young, old, rich, poor, men, women, black, white, workers, students, suits and ties, a hippy couple, a mother and child . . . and a self-portrait of Rockwell himself. The citizens face a turned and empty chair of a government official, a chair Rockwell invites us to sit in (government is the people), with the perspective of what would be seen if the chair were filled.
The painting is a warning about governmental deception and a stand up for we-the- people's right to know. America's constitutional crisis of Watergate in 1972-74 was still some four years away, a crisis that involved the right to know, a President's attempt via "executive privilege" to prevent the public and a prosecutor from knowing the content of incriminating tapes, and the Supreme Court's refusal to allow an American President to place himself above the law. The original oil painting is today in the collection of the Norman Rockwell Museum in Stockbridge, Massachusetts and an oil study for the painting is in the collection of the Columbus Art Museum (which holds a number of Rockwell works including Soda Jerk). The Right to Know is a courageous painting, one of the least well-known of Rockwell's works but one of his more powerful, one that is not really a departure from his genre but a natural extension of his World War II era Four Freedoms into the context of 1968 America, when another very different war, the Vietnam War, was dividing the more perfect Union. The Right to Know was constitutionally linked for the deeply patriotic Rockwell to the freedoms that had been the inspiration, the why, of the war he had so fervently supported against Nazi totalitarianism.
The Right to Know painted in 1968 foreshadowed in its creative constitutionalism one of the most important decisions of the United States Supreme Court in June of 1971 in the case of New York Times Co. vs. United States, refusing to enjoin the media and the public's right to know about the Pentagon Papers. In words that ring with the right to know foreseen in Rockwell's painting, Justice Black wrote: "Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell." Three years later in June of 1974, the Court
25 in United States vs. Nixon weighed the constitutional issues involved in the conflicting power and interests of the executive branch and the judicial branch, a President refusing to turn over tapes and an ongoing criminal prosecution. The Court ruled that under the Constitution, even a President cannot withhold evidence in a criminal prosecution, and the executive privilege was not absolute. Rockwell spoke in images and pigment and the Court spoke in words, but whether images or words, both took on fundamental constitutional conflicts during times of chaos and crisis and created out of the conflicting forces a picture both new and old about what a more perfect Union means. Distrust of monarchy, of rule by king, was a driving inspiration of 1776, and no President or government would be king.
The Justices put their names on their written opinions; Rockwell did too, and more: he painted himself into we the people. (Can you find him?)
CHAPTER FIVE: TO ESTABLISH JUSTICE: BROWN VS. BOARD OF EDUCATION
The situation faced by the Supreme Court in 1954 was anything but a perfect Union. The country was deeply divided on questions of race. Racial segregation of public schools was mandated in seventeen states and four states allowed local schools to impose it. The separate but equal doctrine was the law of the land, a law that accepted the idea that black children could be excluded from all-white public schools without injury to any Constitutional notion of equality. By past precedent of the highest court in the land, the more perfect Union envisioned by the Constitution did not extend to outlawing segregated public schools.
But in the eyes of some, like counsel for the plaintiffs and future Supreme Court Justice Thurgood Marshall, the separate but equal doctrine collided with the Constitution's protections. In Marshall's mind, separate but equal and a more perfect Union could not co-exist. The reasoning tied back to the intellectual origins of the American Revolution, ironically so considering the 18th century's views of slavery. In classical republicanism, success of popular self-government rested on the education, enlightenment and virtue of the people. Those with little faith in such dreams preferred monarchy or some other system that could substitute the judgment of the few for the perceived collective ignorance of the many. Conversely, faith in self-government led logically to the centrality of public education and a well-informed electorate. The interdependency of democracy
26 and public education would be the synthesis idea arising from the collision that Marshall and the Supreme Court saw, the collision between segregation and the Constitution.
In 1954 the Court faced a divided country and a divided set of ideas over whether separate but equal was constitutional. These deep divides on a national scale were joined with other divisiveness both personal and ideological within the Supreme Court itself. In this the sixtieth anniversary year of the most important decision of the Supreme Court in 20th century legal history, there are three things about Brown vs. Board of Education that strike a note: its brevity, its unanimity and its tone. Brown certainly was not an easier case to decide or decision to write than the cases and controversies before today's Supreme Court, which often result in much longer and less tonally restrained writings.
Brown University historian James Patterson, in his book Brown vs. Board of Education: A Civil Rights Milestone and Its Troubled Legacy, notes that Chief Justice Earl Warren "mended a badly fractured Court in 1953-54." With his talent for harmonizing, he wrote a short opinion (only 13 paragraphs plus footnotes) that persuaded unanimity from some of the most willful judicial minds the Court has ever seen (Frankfurter, Douglas). Patterson cites a memo that Warren wrote to fellow justices noting his draft was "prepared on the theory that [it] should be short, readable by the lay public, non- rhetorical, unemotional, and, above all, non-accusatory." Earl Warren was a Court unifier. Without his diplomacy and artfulness, his talent for consensus, the unanimity that accompanied the Brown decision would probably not have happened. Without that, an already racially divided Union would likely have divided further.
Most significant was Brown's art in uniting form and function. Chief Justice Warren had more than his fellow justices in mind – he was mindful of the "lay public." After all, Warren's opinion was founded on the principle that public education "is the very foundation of good citizenship." So Brown itself would be publicly educational and readable. Striking down de jure segregation and the separate but equal doctrine would be controversy enough without a divisive and unreadable judicial novelette. The function was to unify, or to take the first step in mending disunity; so the deliberate form would be populist.
We might pause here and comment that today's Supreme Court decisions are, in my view, often longer than they need to be. The visual arts principle of craftsmanship and form following function means that less can be more, that strong design uses just that which is important and necessary to accomplish the purpose, that superfluity can distract and weaken design, that artful selectivity is the craft of composition. So Supreme Court decisions should strive to be more readable, more mindful of function and form for its we-the-people audience, more responsive to the needs not only of the litigants and lawyers, but to the public and civic discourse role of these most important compositions that must not only decide but educate. There may be a cause and effect relationship between the opacity of book-length legal decisions and the quality of public discourse that doesn't read the cases because they seem so formidable.
Brown was a bold stroke. Warren's opinion does not bog down in page after page of distinguishing prior legal precedent. Rather, the Chief Justice said up front that the Court's decision was a break with stare decisis, and that past legal precedent would not be sufficient to guide this new path. Earl Warren's treatment of the Fourteenth Amendment in the Brown case is one of the most important crossroads in the history of
27 American Constitutionalism, not only because it ended the separate but equal rule of Plessy vs. Ferguson and de jure segregation, but also because of what the Court called the "inconclusive nature of the Amendment's history." Warren and the Court said that the Fourteenth Amendment's history, including the record around its adoption in 1868 by Congress and ratification by the states "is not enough to resolve the problem with which we are now faced." Let's pause and hear within those words of Earl Warren the title of Rockwell's masterpiece, The Problem We All Live With, a painting that came later but that rings with the same inconclusive nature of a collectively owned ("we") problem. Legal history for Warren was "not enough to resolve the problem with which are now faced" and Rockwell's headless federal marshals marching a black child through mob epithets was not enough to solve "the problem we all live with."
Warren believed the Fourteenth Amendment's history was "inconclusive" in addressing the 20th century problems of American public education and race: "Education of Negroes was almost non-existent [in 1868] and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world." Warren's words did not mention Thurgood Marshall, but this brilliant "professional" and future member of the Court, evidenced for Warren, his point. Marshall, in effect, was better evidence by his own example than the Fourteenth Amendment's history was.
Thus framed, Brown is a paradigmatic lens for seeing what happens when the Court is faced with a problem that it has to decide by breaking away from its own case precedent, a problem consisting of strong opposing forces, of contradiction between constitutional freedom and equality and the reality of segregated schools, of inconclusive legal history, of changed societal and racial circumstances, of changes in public education and who would be fully included in a more perfect Union. Problems of this magnitude require a new level of creativity, a new synthesis at a new level above that level on which the problems were created, a creativity that is rooted in the Constitution.
Warren linked the new synthesis to an old idea, an 18th century idea, a Revolutionary idea that arises from the logic of a we-the-people form of self-government: education is "the very foundation of good citizenship," "perhaps the most important function of state and local government," is a right and opportunity necessary for a person's success, and so a right which "must be made available to all on equal terms." The Constitution's commitment to a more perfect Union would be an illusion without an educated citizenry, revolutionary enough to imagine a government of, by and for the people.
The Brown case was not "judicial activism" in any sense that implies straying from the Constitution with judge-made law. The Brown case rooted itself, unanimously, in the Constitution with a new synthesis out of a problem where other ways of solving it were inconclusive and still at the level of the historic tension and contradiction between slavery, the Revolution and the Constitution. The idea of the educated American Citizen, without legal exclusion based on race, was Brown's legacy of creative constitutionalism.
But Brown itself could not by judicial fiat alone end racism, since the courtroom alone can't remedy racism then or now, and Earl Warren knew his pen would not without more work by the people [sic] create a more perfect Union. A civil rights movement would follow, as would violent resistance to Brown and more litigation, deep debate over its
28 meaning and implementation, national crisis, exertions of federal authority vs. state and local resistance, and continuing racism. But Earl Warren knew the Court needed to mend its own house divided, needed to create a unified Constitutionalism around public education in a democracy, and take the first judicial steps along a much longer bridge.
CHAPTER SIX: WE THE PEOPLE: ROBERT S. DUNCANSON
Before Brown vs. Board of Education and Rockwell's Four Freedoms, before America fought its only Civil War to preserve the Union, and before the Supreme Court considered African Americans to be citizens of the United States, a self-taught descendent of slaves named Robert S. Duncanson painted visions of a more perfect Union.
Duncanson is one of the most inspiring – and most forgotten – painters in the history of American landscape painting. An African-American painter in 19th century antebellum America, Duncanson's story is about how a descendent of slaves came to paint visionary images of natural freedom. Duncanson painted abolitionism, not as literal subject matter, but as proof and vision arising from his painting. As painter and as American, Robert S. Duncanson dreamed of a more perfect Union.
Duncanson's story is tied to larger narratives in antebellum American history. His story spans the great migration of African Americans north before the Civil War; his rise from house painter to internationally acclaimed master; his self-imposed exile during the Civil War, away from his home country that still considered him unworthy of full citizenship. His panoramic murals would rest hidden behind layers of wallpaper in an aristocrat's home until uncovered years later during a museum renovation.
Today, in American art history, Duncanson's story is still to some extent behind the wallpaper. His paintings are the best evidence we have today of his vision. They contain the principles of inspiration, composition, focal point, balance and craftsmanship – that is, the designs of Robert S. Duncanson.
Duncanson's connection to a larger American story would inspire his artwork. At the turn of the 19th century, Duncanson's parents and grandparents – listed in the U.S. Census as "mulatto" "free colored persons" – moved from Virginia to Upstate New York as part of the south-to-north migration of African Americans. He was born in 1821 and entered the family trades of carpentry and house painting. His skill and knowledge of house paints would later transfer to paint handling with fine art.
After a brief stint as a self-employed house painter, he turned to painting on canvas, and in 1840 moved to what was then the cultural center of the United States west of the Appalachians – Cincinnati. On the border between free and slave states, new home to a large community of "freed colored persons," center of abolitionist fervor and tension, and with a growing collection of artists and art patrons, antebellum Cincinnati was an immensely influential place for Duncanson to begin his remarkable journey.
Working in Cincinnati, he taught himself to paint through copying prints, outdoor painting and portraiture, and traveled across Ohio and Michigan for portrait commission work. But Duncanson had the outdoor heart of a landscape painter rather than a commissioned portraitist, and in 1847 came under the influence of a rockstar of 19th century landscape painting, Thomas Cole. Cole and others were painting panoramic scenes of the
29 American landscape, glorifying nature and America as the new Garden of Eden. The 19th century public interest in landscape painting was intertwined with the public interest in seeing the natural wonders and epic extent of the American territory. In this age before big screen TVs and the cinema, seeing such large, dramatic works was like going to the movies.
While Cole's work certainly influenced Duncanson, Duncanson's inspiration was not nature's grandeur alone. Duncanson's inspiration (unlike Cole's) derived from the way grand visions of the American Eden conflicted with earthly realities of slavery. The why of Duncanson's work would be a visual reconciliation between nature's grandeur and his personal and communal connection to slavery. Duncanson wrote late in life: "My heart has always been with the downtrodden race." When that empathy connected with 19th century landscape painting, there was at once a profound irony and energizing personal hope that found its way into his painting abilities. He knew that his technical skills were or could be up to the task of painting great works. But more than that, he saw in landscapes a visual metaphor for personal, racial and spiritual freedom.
What if a painting could be a visual act of abolitionism? In his prime painting years, America was headed to Civil War, there was no Emancipation Proclamation and United States Supreme Court Justice Robert B. Taney would opine in the Dred Scott case in 1859 that African Americans, having been considered inferior at the time the Constitution was drafted, were not part of the original community of citizens and could not be considered citizens of the United States. Duncanson's masterpieces themselves would belie this legal decree of inferiority from the highest court in the land. The work would, self-evidently, proclaim emancipation.
If a painting could be so bold as to be an act of abolition, it would need careful design and considerable craftsmanship to do so. Duncanson rarely chose abolitionism as his overt topic, a strategic decision. Natural freedom, freedom from slavery, was the content of his work, if not always its subject matter. Examples of overt abolitionist subject matter included illustrations he did for Uncle Tom's Cabin and an anti-slavery mural project. But Duncanson probably knew that if his genre were limited to abolitionist paintings as subject matter, this would, in antebellum America, have labeled and circumscribed him as a painter. After all, Duncanson wanted to make a living as a painter and to realize his artistic gifts. He needed to both sell paintings within a career and paint what inspired him, since without the inspiration the work would lose its strength. So he painted his inspiration within a non-literal form.
Duncanson in 1850 found in Cincinnati a patron who would have a huge impact on his career. Lawyer, wine-grower, real-estate magnate, lover of the arts and anti-slavery sympathizer, Nicholas Longworth (1784-1863) took notice of the talented landscape painter in 1850 and commissioned him to paint eight monumental murals, each over nine feet tall and six feet wide, in the hallways of his Cincinnati mansion, Belmont. After two years of work with apprentices, Duncanson's murals were among the finest domestic murals in the antebellum United States. Eventually, as years went by, the murals would be covered with wallpaper, only to be rediscovered in the twentieth century in the renovation of Cincinnati's Taft Museum of Art – a symbolic re-emergence of a forgotten master painter.
In the decade before the outbreak of the Civil War, Duncanson saw his career flourish; he was recognized as one of the leading landscape painters in North America. It's
30 difficult to overstate how improbable it was for a self-taught man of color to achieve such acclaim in 19th century landscape painting. But with the Civil War coming and tensions rising for African Americans, Duncanson was forced into a self-imposed exile. He left Cincinnati in 1863 and moved to Canada, joining a growing Canadian arts community. From Canada he travelled to England and Scotland, the landscapes of which captivated his imagination and fueled his art-in-exile. He finally was able to return to Cincinnati in 1866-67 where he worked mainly on his Scottish landscapes. However, by 1870 his health tragically began to fail and he suffered premature dementia, likely as a result of lead poisoning from years of exposure to lead in the paints he used. He died in 1872.
Let's take a closer look at the work itself. We'll see how Duncanson's inspiration influenced his design, and how he used design principles in two antebellum landscapes he painted in 1851: Blue Hole, Flood Waters, Little Miami River and View of Cincinnati, Ohio from Covington, Kentucky. The originals of both paintings are in the collection of the Cincinnati Art Museum.
The compositions of both paintings begin with places. Both involve rivers: the Little Miami River and the Ohio River. Today, the Blue Hole of the Little Miami is in John Bryan State Park, near Yellow Springs, Ohio. Duncanson's other location was Covington, Kentucky, looking across the Ohio River to Cincinnati. (I've set up my easel and painted in both locations.)
In both paintings, Duncanson places us as viewers above ground level. The horizon line – or imaginary line in the distance that is level with our sight line – overlooks the foreground, goes above the figures in the foreground, and rests approximately at the far shoreline of the rivers. Compositionally, Duncanson has set the designs in the two paintings more or less the same so that our eyes travel across the scene: first the immediate foreground, then tiny figure ensembles, then the rivers, then the distant shore and scene across the rivers, then the great blue sky opening up, framed with trees on either side, creating expansive openings to the margins of the top frames.
With every element of composition, there's a why. Why did Duncanson choose to guide our vision like this? He wanted us to start on earth, with our feet on the ground like the figure ensembles. He wanted us to cross the river; and end up on the other side – but not on earth. He wanted the visual experience to start on earth and take off.
This design wasn't serendipity for Duncanson. He designed his many paintings again and again in this earth-to-sky takeoff way. He was the painter's equivalent of abolitionist William Lloyd Garrison's The Liberator. How do you paint freedom? He was painting the visual sensation of being set free. One way to really get this visually is to stand in front of the paintings and follow Duncanson's trajectory from earth, across rivers, to sky.
It may be harder for our 21st century eyes to see, but for African Americans in the antebellum United States, crossing a river had powerful, symbolic and spiritual significance. Crossing the Ohio River from Kentucky meant crossing from slavery to freedom. Crossing bodies of water was a visual, physical and spiritual event with Biblical reference. Twelve years before the Emancipation Proclamation (in 1863), Duncanson's compositions invite the viewer, liberate the viewer, just as he liberated himself, to cross the river – to be free.
31 As we noted earlier, in painting and in composition, there's a difference between content and subject matter. Content goes to purpose, meaning and inspiration. Subject matter is topical. Superficially, the subject matter of Duncanson's work is landscapes and places; but the content is more than that. Let's look closer at View of Cincinnati and Blue Hole and see how Duncanson reveals this content.
If you stand ten feet away from View of Cincinnati, you may miss what's going on in the foreground. As you step closer, you can see four figures. Two appear to be white, a smaller, perhaps younger girl in a red dress and a man, perhaps her father. The two white figures appear free and at leisure, on a walk in a sunny landscape. To the right of these two white figures is a black man. He's painted larger, with a straw hat and white work shirt, a worker leaning on a scythe. In the distance is a rustic cabin with a clothesline. A black woman is handing out laundry, also at work like the black man.
The figures are on the Kentucky side of the river. In 1851 when Duncanson painted this picture, Kentucky was considered an upper south border state and had a substantial slave population, albeit in transition. By some estimates, in 1850 more than 20 percent of white Kentuckians owned slaves. Duncanson's ensemble of small figures as part of the design and composition has multiple layers of meaning: black/white; slave/free; leisure/work; rural/urban. The ensemble is tiny compared to the whole composition. Landscape painters in the 19th century often painted tiny figures in the foreground to give enlarged proportion to the whole landscape and to figuratively place us as viewers in the scene. Duncanson adopts this device, but adds nuanced meaning and revealed his content incrementally, in layers. The ensemble isn't there just to give a grand scale and proportion to the painting. They are there to make a point about abolitionism. In a unified composition, the painter uses details to harmonize with the whole composition. So the figures in View of Cincinnati do so visually as well as thematically.
Duncanson's layers of meaning, however, don't stop on the Kentucky side of the river. After a few more distant cabins on the shore, he guides our eye across the Ohio River to Cincinnati. There in the distance is the symbolic Promised Land of the antebellum, industrial north. The distant city, where Duncanson's career itself was finding business opportunity with the likes of Nicholas Longworth, is teeming with activity, rising smokestacks from business and industry, riverboat traffic – a symbol of free, industrial enterprise. In contrasting the two sides of the river in 1851, Duncanson linked slavery with a retrograde agrarian past and backwardness. Laundry being hung by a slave from a log cabin. The city across the river is identified with industrial progress and future promise. Duncanson is making an economic case here, as well as a social/moral/cultural one. Slavery was an economic system of labor; but, in Duncanson's imagery, it is a primitive hand tool like a scythe. Economic prosperity, still in the distance, was part of the anti-slavery vision.
While Duncanson's abolitionist designs are manifest in View of Cincinnati itself, there's an interesting supporting fact about how Duncanson made the painting. He based it on a daguerreotype entitled View of Cincinnati, Ohio from Covington, Kentucky by J. W. Steele that appeared in Graham's Magazine 32 no. 6, 1848, p. 352. One of the focal points in both the painting and the daguerreotype is the ensemble of figures. However, in the daguerreotype the figures are white and one carries a rifle instead of a scythe. Duncanson radically shifted the focal point and the entire meaning of the artwork by painting two figures black.
32 Blue Hole's figures are fisherman enjoying the freedom of a beautiful and serene setting. There's no bustling Cincinnati across the river as in View. However, the two paintings are very similar in design, different in degree rather than kind. Both are about freedom, but the degree to which they contain anti-slavery imagery varies.
Robert Duncanson's paintings – not as abolitionist speeches or pamphlets, but as pictures – visualize the abolitionist argument. It's easy to walk by his pictures in the Museum and see nothing but bucolic landscapes. Maybe that's why Duncanson was for years forgotten, once the historical and personal context faded into history. But strong designs work and can speak over time. We just need to remove the wallpaper.
Duncanson's achievement has, in the history of American art, not yet gained its rightful place. The big names of 19th century American landscape painting have long overshadowed Duncanson. There were more successful 19th century landscape painters than Duncanson, but none that combined such quality against such odds and none with his abolitionist designs.
When Duncanson painted his masterpieces, the Constitution and the Supreme Court did not see him as we the people. With political and legal citizenship thus denied, he created ahead of its time an emancipation of person, art, culture and race – the most perfect Union Robert S. Duncanson could form.
33 CHAPTER SEVEN: EQUAL PROTECTION AND THE IDEA OF A MATURING DEMOCRACY
"The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of a Nation and its people."
~ Justice Kennedy (Schuette vs. Coalition to Defend Affirmative Action)
We've seen the constitutional work of a more perfect Union in the 1954 case of Brown vs. Board of Education under the leadership of Earl Warren, unifying a divided Court around the idea of an educated citizenry as fundamental to democracy and extending the equal protection of the laws guaranteed by the Fourteenth Amendment to black children in America's public schools, but not by any means ending racism. In the sixtieth anniversary year of the Brown decision, its constitutionalism continues to innovate, even in a decision upholding the right of Michigan voters to amend their State Constitution to prohibit state universities and other state entities from granting race-based preferences. How does the Court today use Brown in a decision allowing Michigan voters to limit affirmative action? Creative constitutionalism is at work when two seemingly dissimilar ends in two different cases (desegregation vs. limiting affirmative action) are reconciled and synthesized within a single constitutional idea or inspiration. We'll first look at how Justice Kennedy does this in Schuette vs. Coalition to Defend Affirmative Action (2014), following the thread of inspiration, composition, focal point, balance and craftsmanship.
We'll look also at another majority opinion authored by Justice Kennedy in an equal protection case, U.S. vs. Windsor (2013) striking down as unconstitutional a federal law's definition of marriage that conflicted with a state law's definition of marriage. In both of these cases, the Court was sharply divided, with strongly worded dissents and with Justice Kennedy crafting the opinion that was able to garner a majority. As in Schuette, we can trace the thread of design, of form and function, that was strong enough to get the necessary votes, but not enough to create a perfect Union of nine. That's the way more perfect Unions work in a democracy, even the judicial democracy of 9 voters.
Schuette
Justice Kennedy starts his composition with limiting words of selectivity, "what this case is not about," setting the focal point not on the controversial topic of race-conscious admissions policies in higher education but on something else. Setting the focal point is, as we've seen, a strategy that says to the audience: look here, not there. The first step to persuasion is to define the issue, set the frame, say what's in and what's out, so that the argument can be directed at the best target for the purposes at stake. Setting the focal point strengthens design and deploys resources by concentrating where it counts, rather than on extraneous or superfluous arguments that don't help the cause and distract, confuse or lose the audience. Visual art does the same thing in composition. So Justice Kennedy points the reader away from the debate about racial preference: "This case is not about how the debate about racial preference should be resolved. It's about who may resolve it."
The compositional focus is thus strategically set on who gets to decide, who is the decider. Will it be the voters of Michigan, who said what they wanted in amending their
34 State Constitution? Or will it be university admissions officers or boards, or the Court itself? Justice Kennedy says the voters get to decide. Why does Justice Kennedy say the voters get to decide; what constitutional inspirations are at work? Justice Kennedy's answer is the "freedom secured by the Constitution," a freedom that involves the "right of the individual not to be injured by the unlawful exercise of governmental power," a principle he finds in the Brown case's rejection of the "mandate for segregated schools," as well as "the right of the citizens to debate."
Freedom involves rights both individual and collective, an idea that is the connective one with Kennedy's focal point on voters – as deciders. The case thus framed by Kennedy is about constitutional freedom that protects the freedom of citizens to debate and decide for themselves what if any role racial preference should have. This freedom to debate, seek consensus and vote in concert is, for Kennedy, a protected right and also essential for democracy to, as he says, "mature": "The idea of democracy is that it can, and must, mature." And here Justice Kennedy points to the aspiration of a more perfect Union: the history of race relations, he writes, "demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity."
So, the more perfect Union that Kennedy paints is one where democracy matures, through an informed, educated and participating citizenry. This brings us to Kennedy's citation, in the sixtieth anniversary year, of the Brown decision. Earl Warren's composition focused on public education of American citizens without exclusion based on race. The picture of "constitutional order" that both Warren and Kennedy paint depends on the quality of citizenship exercised by we the people through a "rational, civic discourse." Sixty years after Brown, in a changed America, some Americans believe, as Schuette's dissenters led by Justice Sotomayor argued, that racial minorities are still in need of protection from "the majority of Michigan voters [who] changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities." Sixty years after Brown, in a changed America, some Americans believe, as Justice Kennedy argued, that the voters should decide. If Schuette is the trend, the balance seems tilted away from deciding the constitutionality of racial preferences by judicial fiat and more toward letting the marketplace of ideas and the American democratic process "mature."
The idea of a maturing democracy is, after all, the idea of a more perfect Union.
Windsor
On June 26, 2013 the Supreme Court issued a landmark decision in U.S vs. Windsor, et al, striking down as unconstitutional Section 3 of the federal Defense of Marriage Act ("DOMA"). Let's view the DOMA decision through the six principles of inspiration, composition, focal point, balance and craftsmanship [sic].
As in Schuette, Justice Kennedy narrowed the focal point: i.e., to the constitutionality of one section of a federal statute (DOMA). The majority said it was not deciding the broader question of whether states that do not recognize same-sex marriages violate the Constitution. How did Justice Kennedy shape the focal point of his composition? To start, the DOMA case involved a federal law in conflict with a state law, also known as a question of federalism in constitutional jurisprudence. The federal vs. state conflict
35 involved the definition of marriage. Which will prevail? The federal law or the state law definition of marriage?
The majority could have chosen federalism by itself as its focal point; but it did not. The focal point they chose was federalism plus stigma. What's the difference between federalism and federalism-plus-stigma? An argument based only on federalism would have gone like this. Marriage is traditionally the bailiwick of the states. As Justice Kennedy notes: "The recognition of civil marriages is central to state domestic relations law" and "the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations." So, if it were only deciding the case on federalism, the Court could have decided that DOMA's federal definition of marriage would need to defer to New York's definition of marriage. End of story? Not yet.
The majority focal point goes further than just federalism. In other words, this case would not be decided only by telling a federal law to step down in deference to a state marriage law. The majority focused instead on what it called "stigma." Says Justice Kennedy: "The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism." Key words: "quite apart from principles of federalism." The majority shifts from federalism to a new and different focal point, saying: "What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect." New York gave "this class of persons the right to marry" and thereby "conferred upon them a dignity and status of immense import." DOMA does the opposite: it confers, in Kennedy's words, "a stigma upon all who enter into same sex marriages." (Emphasis supplied.)
So, for the majority, the case is not just about federal law deferring to state law under principles of federalism. It's a case of federal law stigmatizing a class – same-sex couples – that state law has dignified. Note the choice of judicial words here: stigma vs. dignity. Note the words "designed to injure." The majority focuses on what it calls DOMA's design to injure same-sex couples and others (e.g., their children). For equal protection, the majority is saying that where a state decides to treat "as alike" and confer the same marital dignity upon same-sex and non-same-sex couples, the federal government cannot deem the class as "unlike" in order to injure the state law protected class.
This choice of "stigma" as a focal point is what, fair to say, sends Chief Justice Scalia ballistic in his dissent. He takes particular offense at the majority's depiction of DOMA, an act of Congress, as a design to injure. "It is one thing for a society to elect change; it is another thing for a court of law to impose change by adjudging those who oppose it … enemies of the human race."
Justice Roberts, in his dissent, also has an opinion about the focal point. He says in so many words to the majority: you say your decision isn't based on federalism … but it really is no matter what you say. In his words: "I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism."
What about states that decide not to treat same-sex couples "as alike" with non-same- sex couples? Does that state (not the feds now) deny equal protection? The Court says it wasn't deciding that question. But what's to come? What may be the logical legal consequences of the focal point the majority chose? If only based on federalism, the Windsor precedent becomes less applicable to a case where federalism is not presented
36 – where it's only a state law in question and not a federal law vs. state law conflict. However, since the new focal point is, as Kennedy expresses it, whether a law confers a stigma on or is designed to injure a class, then the Court creates a broad principle of marriage equality jurisprudence for a future state-law-only case. In states that do not treat same-sex couples as alike with non-same-sex couples, will the Court in a future case say that is like what is outlawed in Windsor: i.e., stigmatization and design to injure?
By artful design, the majority creates a focal point that not only draws enough votes to decide Windsor, but, going beyond federalism, is a building block for a future composition they see coming down the road. How the Court sets the focal point within its composition is not only a strategy for deciding the instant case, but a strategy for precedent. The majority is looking down the road, and so are the dissenters. Justice Roberts' refusal to let the majority off the hook of federalism is his way of forecasting what may happen in the next case to come along on the bigger question of the constitutionality of state treatment of same-sex marriages. By saying that it is "undeniable" that the majority is basing its decision here on federalism, he may be laying the groundwork for his future dissent, as if to say: if and when, you, the majority, apply Windsor in a case not involving a federal statute vs. a state statute, I will remind you once again that Windsor is based on principles of federalism.
In sum, in two controversial cases involving division within the Court and the country, the creative constitutionalism of Justice Kennedy used ideas of freedom and equality to let alone a voter decision about racial preference and not let alone a federal law stigmatizing same-sex couples that a state law protected. Both cases involved minority rights, and both involved equal protection, but deference to state voters carried the day in one and striking down a federal law versus a state law prevailed in the other. For Justice Kennedy, this is all part of the maturing of a democracy through "a consensus to shape the destiny of a nation and its people," a consensus that sets and re-sets the balance between the majority and the minority. The balancing process that decides some of the most challenging constitutional questions of our times is a way that creative minds have visited and re-visited, invented and re-invented, painted and re-painted, the picture in the frame.
CHAPTER EIGHT: EQUALITY: MARY CASSATT AND THE MODERN WOMAN
Mary Cassatt's story is how an American woman of the 19th century journeyed from sheltered beginnings into a broader world leading to a monumental work about the modern American woman. Out of a life with many conflicting pieces, Mary Cassatt painted visions of a more perfect Union in which women who were decades away from the right to vote could in her words "pluck the fruits of knowledge."
Mary Cassatt was, by some description, a Victorian Era spinster born into a well-to-do family in Pittsburgh in 1844. She was also a strong-willed, independent person who aspired to enter the male-dominated career of painting – not just for quiet recreation but for a living and for success in a career. From the perspective of today's art world which is more open than it was in the 19th century to the idea of women pursuing careers in art, Mary Cassatt was way ahead of the times. She wanted not only to make art but to make an independent living at it. Her father at first refused to pay for paints and said he'd rather be dead than see her a painter. But she was destined to become the first and only American woman to join a then-revolutionary art movement underway in Paris
37 known as Impressionism; and then return to Chicago in 1893 to paint a huge mural about a new vision for women in the new world.
When we look at Mary Cassatt's work, especially her scenes of mother and child, we see she could draw and compose with great truth and strength. Drawing ability was a compelling talent for Cassatt, meaning the kind of drawing ability that makes the hands of a painter itch to pick up the brush and lay down the lines and forms, the kind that makes the painter take risks and go new directions – that's the kind of ability to draw that helps explain Mary Cassatt's career.
She didn't set out to be modern. Self-conscious modernity was not as much a part of her makeup as was a dogged pursuit of her art that took her into a place we might now call modern. We can look back from a contemporary perspective; she looked ahead, following inspirations both personal and universal.
What were her inspirations? One was Edgar Degas and the breakaway movement of Impressionism. A second was Japanese design or Japonisme. A third was an affinity for compositions of mother and child. And a fourth was her advocacy for women to advance in education, at the workplace and in the arts and sciences. Her inspirations moved her into a viewpoint of what she and other women could be in an America that was still far behind her vision.
Degas and the Impressionists
Edgar Degas was Cassatt's mentor and her entry point into French Impressionism. From today's perspective Impressionism may seem less than revolutionary. But in the nineteenth century it faced a monolithic establishment called the French Salon. In his book David and Goliath, author Malcolm Gladwell cites the Impressionists as David and the Salon as Goliath. Impressionists had the gumption to reject the Salon that had so often rejected their paintings, held a wildly successful show of their own, and were underdogs willing to challenge the status quo ways of making art and succeeding. Impressionism involved a radical re-interpretation of natural light, painting outdoors (plein air), using portable tubes of oil paint, color experimentation (especially the use of violet in shadows and broken color where the painter applies mosaic-like chips of color that merge with viewing from a distance) and broader subject matter.
In The Millinery Shop, now in the collection of the Art Institute of Chicago, Degas used the hat and shop as a symbol of the modern woman, a woman at work in retail, making a hat for sale. Both Degas and his friend Mary Cassatt composed scenes where the subject seems unaware of the observer, inviting us into the scene, into the shop itself, and into the creative process of making a hat. The Millinery Shop shows Degas' strong draftsmanship and you can see the influence in Cassatt's work.
Degas shared Cassatt's affinity for the well-drawn line, recognized her talent, included her in his circles beginning in 1877, powerfully influenced her art and helped her become the only American – and one of only a few women – within the Impressionist vanguard in Paris. Not only did Cassatt and women artists face the exclusionary conventions of the Salon that men did, but they were also excluded from life drawing classes and subject to a different set of Victorian rules about where and with whom they could be seen and what work they should do. From today's perspective, the arts may seem inclusive. But
38 in the late 19th century, Cassatt was facing the exclusionary practices of a formidable art establishment.
Japonisme
A second inspiration for Cassatt and other Impressionists including Degas was Japonism (in French Japonisme), a term first used in the 1870s to refer to the influence of Japanese art, aesthetics and culture following the opening up of Japan, after 200 years of isolation, to the West in the mid-nineteenth century. Masters of the Japanese Woodblock print, Hokusai and Hiroshige, caught the attention of Impressionists. Hokusai's The Great Wave off Kanagawa is a woodblock print from 1831, Rockwellian in its popularity and frequent reproduction. What was it about the designs of Hokusai and Hiroshige that were so compelling to Cassatt, Degas and many others, including the architect Frank Lloyd Wright? The Japanese prints are based on bold and simple compositions. The shapes and colors are flat, yet convey depth by their arrangement. Everything is in balance, without excess. Shapes and forms don't rely on the elaborate shading and three-dimensionality of traditional academic European art. Economy of line creates a graceful calligraphy to the Japanese print. They look unified and whole, and with just enough detail to convey how observant the maker was – a little figure's bent posture walking in the mountains, a facial expression suggested by a few lines, an enormous wave dwarfing everything, even Mount Fuji. The perspectives were different and radical, making the viewer feel he or she had been powerfully positioned to observe something.
Mother and Child
The third inspiration for Cassatt was a particular creative affinity for mother and child figurative painting. Cassatt made them seem less like portraits of individuals and more like archetypes of motherhood and childhood. This was akin to the Japanese prints that stood for universal truths rather than individual likeness. Cassatt's best mother/child paintings place us, the observers, in a vantage point of seeing maternity and its natural intimacy. Cassatt was never a mother, living a lifetime without children of her own. Yet her most successful genre was mother and child. This might seem contradictory until we see within the four corners of the frame the evidence of the maker's inspirations.
Cassatt's masterpiece The Bath (1891-92) has within its composition the influences of Degas, Japonisme, and maternity. She set the focal point and perspective so that we are looking down on a figurative scene that encircles the mother, child, circular bath, and drapery. The dark hair of both figures against lighter skin tones connects with Japanese prints of home scenes.
Cassatt was interested not only in what is pictured, but how it is pictured. She painted mothers and children as subjects; but the paintings also convey a manner of picturing that is itself maternal. Cassatt's temperament toward the painting reflects the sensibility between the subjects, between mother and child. Her art is Mary Cassatt as mother,
39 showing as much maternal care for the content of her paintings as the subjects themselves were showing and experiencing. She made the mother and child archetypal, but she painted archetypes without loss of intimacy or distancing them from us as symbols. Look at the way the circle shape of the bowl and bathwater is in unity with the circle shape of the arms and gesture of mother holding child.
Cassatt's unity between what is pictured and the way it is pictured is the power behind the work that invites us to relate to it, to understand it. We might take this idea a step further. There is strength of design – artfulness – when there is unity between what is created and the way it is created. In music, do the lyrics fit the notes, the tone? In architecture, does the form fit the function? Do the materials used and the way they are combined fit the purpose of the building? (One of the reasons a dilapidated and neglected school building is wrong is because it doesn't convey a sense that learning is important.) In law, does the lawyer's tone and manner fit with the subject matter presented? Do the words and behaviors of the lawyer fit the subject and purpose of his or her advocacy? Is the lawyer going on and on about unfairness but doesn't seem to be fair himself? A lawyer is supposed to represent. Is that representation unified with the client, the task at hand, the cause?
"Plucking the Fruits of Knowledge"
In 1893 Chicago was the site of a watershed event in American history: the World's Columbian Exposition. The site covered 633 acres and included 200 buildings. It announced America's arrival as a global center of trade, culture, innovation and politics. Among the buildings was the Woman's Building. For perspective consider that the final passage of the suffrage amendment would not happen until 1920. The Woman's Building was designed to recognize the contributions of women to the world economy and culture.
The person most responsible for the Woman's Building was a Chicago socialite, art collector and force of nature named Bertha Honore Palmer. In 1870 (when she was 21 and he was 44), this beautiful daughter of a bankrupt and prominent Chicago businessman married a Chicago tycoon named Potter Palmer who had made his fortune in real estate and a store he sold to Marshall Field. While an easy target for gossip, Bertha Palmer was also a woman who got things done, supported progressive causes (women's rights, labor and Jane Addams's Hull House) and had the interest and resources to invest in world-class art.
For the Woman's Building, Palmer conceived of the idea of two enormous murals. One would be called Primitive Woman and the other would be Modern Woman. To paint Modern Woman, Palmer chose the only American woman within the circle of French Impressionism – Mary Cassatt. Cassatt and Palmer became close friends and it was Cassatt who encouraged Palmer to put down $500 in 1889 to buy her first Impressionist painting – a pastel of ballerinas by Cassatt's mentor Edgar Degas. Cassatt became Palmer's guide in buying Impressionist masterpieces. That collaboration of art and savvy purchasing between these two women in the late 19th century turned out to be an outstanding return on investment and a transformative gift to the Art Institute of Chicago. After she died of breast cancer in 1918 at the age of 69, Palmer's collection of 70 Impressionist paintings valued in 1922 at $2.5 million became the core of the Art Institute of Chicago's renowned collection.
40 For Cassatt, the Modern Woman mural commission was the largest painting project of her career, both in terms of sheer size – 58 feet long and 14 feet tall – and also in terms of thematic scope and ambition. The mural celebrated the modern woman – a personal manifesto on behalf of an expatriate painter who was ready to make a larger social, cultural and political statement in the United States. The central panel was entitled Young Women Plucking the Fruits of Knowledge or Science and showed the vivid influences of Impressionism, bold color and figurative draftsmanship. Cassatt chose allegorical themes, boldly painted, to show the world that women of the future would "pluck the fruits" of knowledge and enter a new era of contribution to the sciences, art and commerce.
After a year of work and high expectations, Cassatt's ambitious mural was to end in disappointment. Chicago audiences were critical of the murals, and after the exposition, they were rolled up, put in storage and have since disappeared. All that remains today are photographs. Cassatt believed that the negative reviews of the murals reflected a rejection of their message by a society not yet ready to see women as equals. Since it would be twenty-seven years before the Constitution was amended to allow women to vote, Cassatt's assessment was correct. Cassatt had invested high hopes, a year's time and enormous creative energy in painting an image of a more perfect Union. In her mind, she had failed. She returned to France disappointed in the reception by her own country, going on to great success in France and some of her strongest work.
Mary Cassatt would not be part of the modern movements in art history that would follow: Picasso, Cezanne, Miro, Cubism, Surrealism. Those movements made her paintings look, to some, dated and tame. Also, the loss or destruction of her Modern Woman mural has denied to art history the original evidence of Cassatt's version of social, cultural and political modernism. I think the loss of the Cassatt mural is one of the greatest losses in the history of American art, because it was "Exhibit A" for the Constitution's cultural meaning in the life and work of a woman who defined we the people. Her life and art was as bold in its time and place as the new picture planes of Cubism. She had against great odds pursued her dream of a career in art, broken barriers at home and at the very center of the art world of old, the Paris Salon, helped build one of the finest collections of Impressionist artwork in America, and thematically included her vision of the modern woman in a monumental mural for the world to see. Side-by-side with these bold accomplishments, Mary Cassatt created artwork of tender discernment, the held-in-arms love of mother and child. Her compositional talent, inspirations and influences led her to something new, pushing past 19th century boundaries and expectations for women, helping to set the stage for a more perfect Union.
CHAPTER NINE: HEALTH CARE: THE POWER TO TAX AND ARTFUL JUDGING
In the 21st century, the idea of a more perfect Union includes something that impacts all of us, one way or the other, sooner or later: health care. Who will receive it? Who will provide it? Who will pay for it? How good will it be? Where are its frontiers? Where are its boundaries? The American health care system is an extraordinarily complex system, involving millions of patients and procedures every day, scores of health care workers, physicians and providers, hospitals, and caregivers, insurance plans and companies, federal and state programs. The idea of a more perfect Union is revolutionary enough to gather together all of these pieces, all of the conflicting interests, and ask how American health care can lead to the best quality of care for the greatest number of Americans at
41 the most reasonable cost. Health care engages the Constitutional mechanisms for dealing with problems of such monumental scope, involving all three branches of government, the public and private sectors, the checking and balancing of power, the role of states vs. the federal role. It is yet another measure of America's creative Constitutionalism that such a complex 21st century problem engages our 18th century document. James Madison didn't have to worry about things like "MOOP" (maximum out-of-pocket expenses for health insurance).
The Affordable Care Act, the signature legislative initiative of the Obama Administration, made its way through the judicial process to the Supreme Court in the case of NFIB vs. Sebelius, decided on June 28, 2012, and various aspects of the Nation's new health care law will continue to be litigated and debated. Supreme Court decisions involving the ACA and deep controversies about health care have and will continue to reflect America's creative constitutionalism at work.
A key provision of the ACA is the "individual mandate," requiring most Americans to maintain a level of health insurance coverage or make a "shared responsibility payment" to the Federal Government via the Internal Revenue Service. The majority opinion of the Court in NFIB vs. Sebelius, written by Chief Justice Roberts, upheld the essential "individual mandate" feature of the Act, with other Justices concurring in part, dissenting in part and four full dissents from Justices Scalia, Kennedy, Thomas and Alito.
Many were surprised that the majority opinion and key vote would be by a Bush appointee and denominated conservative, Chief Justice Roberts. Many wondered how a conservative Republican Justice could justify upholding, with his deciding vote, the signature legislative achievement of the first Obama Administration. One answer is: artfully. The creative process of a more perfect Union would involve not only hearts and minds, but also bodies and healthcare. And the debate over how to do that, how and whether to address healthcare on a national level, was, and remains, a long and loud debate.
The Act's individual mandate to purchase health insurance engages fundamental constitutional questions about the limits of Federal Government power, the limits of the Court's power and the rights of we the people. If the Federal Government could individually mandate the purchase of health insurance, where's the limit of governmental compulsion? In the popular debate, and even in the Court's Sebelius decision, broccoli became a visual metaphor for being forced to eat something we may not like. So the design problem of the case was how to reconcile the individual mandate with the Constitution. If, by a slim majority, the case could be decided so as to uphold the Act, where's the constitutional form for doing so that would garner the needed votes from the other Justices?
Form follows function. The form of NFIB vs. Sebelius reflects a majority judicial purpose not to strike down the first and what certainly won't be the last act of Congress to comprehensively address one of the most longstanding, controversial and consequential problems in the United States. Chief Justice Roberts, writing for the majority had to reconcile and unify a number of conflicting pieces and interests: i.e., the extent and limits of federal power; the extent and limits of the Court's power; the rights of the people; the individual mandate's compulsion to buy insurance. He made a fundamental and judicially creative design decision not to use the Commerce Clause of the Constitution to unify the composition and reconcile the interests. He knew that the
42 Commerce Clause jurisprudence of the Court has an inconsistent and controversial history that can be used to elastically expand Federal power. The Commerce Clause would not be Chief Justice Roberts' design of choice because it would have expanded the Commerce Clause into an unacceptable realm of federal power: i.e., forcing individuals into commerce by actively purchasing something. The unifying composition would come not from the Commerce Clause, but from a different, and in Roberts' view, more limited authority of the Federal Government: i.e., the power of Congress, enumerated in the Constitution, to "lay and collect Taxes." The inevitability of taxes is part of the good news/bad news of the Constitution. Inspirational ideas of liberty and equality co-exist, sacred-and-profane, with the uninspiring pragmatics of taxation. Article 2, Section 8, or the Taxing and Spending Clause, gives the federal government the power to tax; and the 16th Amendment, adopted on February 3, 1913, allows Congress to levy an income tax. Such a plain-as-day Constitutional authority as taxation has a tempting feature: it's available and useful. It's available for many functions and forms. It's available for the Supreme Court to use in upholding the constitutionality of an act of Congress. It's a useful way for the Court to restrain its own power in deference to the legislature. It was available and useful in creating a 5-4 majority to decide the constitutional fate of America's controversial new health care law.
Considering the individual mandate as a tax, enabled Roberts to harmonize the Act with the Constitution. The Act doesn't compel the individual to buy insurance; it just imposes a tax if you don't. That enumerated power to tax saves the Act and reconciles the whole case for the majority author by preserving the right of the individual not to be compelled into commerce by an overreaching Federal Government of limited and enumerated powers. Chief Justice Roberts could, in his mind, stay true to conservative views of limited government without sending an Act of Congress to the scrap heap on this huge issue of health care.
We've said that a focal point is a design's center of interest; and setting the focal point is a strategic decision that impacts the outcome. This case is a great example of focal point shifting. Chief Justice Roberts shifted the focal point to tax. He reframed the center of interest from the Commerce Clause to the Taxing power of Congress under Article 1. He did this even though the Act itself called the payment a "penalty" rather than a "tax." That's creativity! He wrote: "While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful." It's not a penalty; it's not "unlawful" not to buy insurance; indeed some 4 million Americans may choose to pay the IRS rather than buy insurance. That's a tax, and one of Congress' enumerated powers. The Chief Justice went out of his way to shift – even create – the focal point, since not even the Act itself used the word tax. Justice Ginsburg agreed that the Affordable Care Act should survive, but she strongly disagreed that the focal point should be tax. Rather, for Justice Ginsburg, the Commerce Clause is a "capacious" federal power broad enough to cover regulation of the huge healthcare industry in the U.S. She dismissed the Chief Justice's "crabbed reading" of the Commerce Clause. The fundamental difference between Roberts and Ginsburg relates to how much weight, or not, they were willing to give Congressional power under the Commerce Clause to regulate healthcare. Justice Ginsburg was unafraid of "the broccoli horrible."
When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods,
43 effectively compelling Americans to eat only vegetables. Yet no one would offer the 'hypothetical and unreal possibility' of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.
Chief Justice Roberts balanced the relative powers of Congress, the Court and the individual by avoiding expansion of the commerce power. A decision that would say the Constitution permits Congress to compel an individual to buy health insurance would be out of balance. The individual, having been compelled to buy insurance, could be compelled virtually without limit to actively participate in commerce in other ways.
By contrast, Justice Ginsburg applied her viewpoint to reach the same outcome (upholding the ACA) through different art. The Commerce power is broad, the Framers intended it to be so; and it is subject to the checks and balances of the democratic process. She calls that democratic process a "formidable check" on Congressional power. Chief Justice Roberts sees the power to tax rather than the commerce power as the better check and balance for health care regulation. The various Justices design their decisions around individual viewpoints about where and how power is best legally and democratically checked and balanced.
Even while upholding a controversial law that many Americans oppose as a broad exercise of federal power, Chief Justice Roberts took pains to craft a judicially modest tone of "limits" and "limited." He deliberately chose a low key tone to convey a monumental decision. He's a painter who tones down color to avoid overdoing the composition. Too much color upholding a law that already seemed like too much federal authority would have been, well, too much. Justice Roberts thus distances himself and his decision from health care policy and legislators: "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders." "Resolving this controversy requires us to examine both the limits of the Government's power, and our own limited role in policing those boundaries." In other words: we're appointed not elected; we're not saying Obamacare is sound, and we didn't even set the boundaries. But in our limited role as boundary "police," this kind of "tax" fits within the Constitution. Craftsmanship in law and painting involves choosing the right tone.
In the end, the Roberts opinion in NFIB vs. Sebelius is an act of creative constitutionalism, whether or not one agrees with the outcome. He unified his composition by balancing competing powers, shifting focal points, creating and repeating the tax theme, and crafting a limited role tone, persuading a majority and arriving at an outcome that he could harmonize and reconcile (even if others couldn't) with his jurisprudential outlook, background and values. Looking down the road to future cases that would inevitably engage the Nation's new health care law, perhaps Justice Roberts could foresee that, while the law would not be struck down in Sebelius, there would be other times and ways that the law would be challenged, maybe in a piecemeal way. Future creative constitutionalism would shape and re-shape the Nation's health care law, including, we will see, a case memorably called Hobby Lobby involving constitutional objections based on religion.
44 CHAPTER TEN: MAKING PRESIDENTS AND PRESIDENCY: GEORGE GREY BARNARD'S LINCOLN AND JOAQUIN SOROLLA'S TAFT
Article II of the Constitution vests the executive power in a President of the United States of America. How that power is exercised is partly a function of constitutional checks and balances. But executive power is also about the character of the person who holds the office, and the times, places and circumstances of history in which the President finds himself or herself. Portraiture, at its best, is about capturing character. Masterpieces of portraiture have verisimilitude, reveal truths and create myths and symbols. Presidential portraiture paints the person, but also the office and the nation. How does the portraitist bring all these pieces together? How does he or she relate to the person, to the office, to the nation? Does the finished work reconcile these into a whole and successful composition? What is the more perfect Union of character, the Presidency and the nation that the finished work conveys?
Sorolla and Taft
It's April 6-12, 1909 and the newly elected 27th President of the United States, William Howard Taft, is having his portrait painted. The painter is a Spaniard named Joaquin Sorolla. This is a story about how Taft and Sorolla – one a lawyer statesman, the other a master artist – met at the White House and, through the rare alchemy of portraiture, created one of the finest portraits of an American president ever done.
A live portrait session is called a "sitting." But Taft is restless and not easily a sitter. His five foot eleven and half inch frame carries upwards of 340 pounds. The chair is too small for him, or he too big for it. As observed by Taft's military aide: "The President is having his portrait painted and we are having a great time getting him to sit long enough to have it done. When once we get him in the chair he is a perfect study in still life, but the difficulty is to get him in the chair."
Taft has other reasons not to sit very long. He has a lot to do and a lot on his mind; after all, he's now the leader of the most powerful nation in the world. Both he and America are restless, expansive. The nation and its President are full of the energy of a new century – a Progressive Era, a Panama Canal building era, a time of American optimism and aggrandizement. History would later see 1909 in a light that neither Sorolla nor Taft could see. They, along with the world, were in a hiatus before the cataclysmic event that would soon change everything, World War I. A post-war portrait of Taft would not likely be smiling.
The great portrait painters are not mainly concerned with likeness or surface appearance. Being able to make a picture look like someone is the price of admission for a painter like Sorolla, but not the whole show. The painters Sorolla most admired – especially fellow Spaniard Diego Velazquez – painted deeper than likeness. Masterpieces of portraiture reveal something of the character, the identity, even the soul of the sitter. Technique takes a back seat to truth. The painter from Valencia was, very decidedly, a truth-seeker.
Sorolla sees his subject as large scale, the personification of abundance. Certainly Taft's abundance of girth was some source for popular humor, like the story that he got stuck in the White House bathtub and needed a new oversized one. But Sorolla's respect for Taft bypassed humor and saw strength both personal and national.
45
Sorolla sees American heft and vigor. Taft was, in his younger days, physically strong and imposing. Taft's Presidential predecessor and political mentor in 1909 (later to be his political adversary) was a force of nature named Theodore Roosevelt. At about five foot nine and 220 pounds, TR was not as abundant as Taft. But Sorolla's eye will notice that Taft has a TR look about him, an American vigor, a jovial and grinning mask with intensity and ambition showing through in the eyes, brow, head, and chest. Like TR there is the signature mustache.
Painting a portrait from life is a daunting task under even normal circumstances. Painting a freshly minted President in the White House who can hardly sit still requires something extraordinary, not the least of which is the technical mastery and tremendous self-confidence to paint fast. For that, Sorolla is the man. "I could not paint at all if I had to paint slowly," Sorolla would say. "Every effect is so transient, it must be rapidly painted." Slower painters than Sorolla could and would do portraits of Taft. But none would paint with the genius and immediacy of Sorolla.
Capturing "transient effects" with rapid painting was also the genius of Sorolla's friend John Singer Sargent (1856-1925) who about 6 years earlier had painted another President who couldn't sit still, Theodore Roosevelt. Sargent eventually resorted to painting TR standing with his hand on a staircase banister. The Sargent portrait of TR and Sorolla's Taft have much in common – an artistic alliance mirroring a political alliance. (The political alliance between TR and Taft would fall apart in 1912 when TR broke from the GOP with his Bull Moose party.)
As they meet in the White House, both the painter and the President have reached a high point, if not yet the high point, of their careers and lives. In 1909, America discovered Sorolla, and Sorolla discovered the American art market. After years of artistic and financial struggle he had a colossal sale of paintings in New York that made him suddenly wealthy, selling 195 of 356 of his paintings at an exhibition hosted by the Hispanic Society of America. Now, portrait commissions of the American rich and
46 famous are rolling in for Sorolla, a man who started life in 1863 and was an orphan by age 2 when both his parents died from a cholera outbreak in Spain and whose prodigious talent at a young age set his life course.
His creative energy, combined with his rapid painting abilities, produced an enormous body of work, both in terms of numbers of paintings as well as size and scale. Dressed formally in hat, white shirt and long pants, he set up mural-sized canvases outdoors on the sun-drenched beaches of Valencia – canvases that towered above his head and were secured by scaffolding against the wind – and painted masterpiece after masterpiece. His strength was light, the outdoor light he called "truth." His canvases exude light, like "Mending the Sail," a nine foot high by seven foot wide canvas that Sorolla painted in 1896, depicting sun-drenched figures repairing a huge sail canvas. In a sort of double entendre, the painted canvas of the sail transforms the canvas of the painting into more light than canvas. "I hate darkness," Sorolla said. He didn't like to paint indoors. "I do not care to paint portraits indoors. I cannot feel sympathetic." "A studio," he said, "is only a garage." "Sympathetic" for Sorolla meant "inspired."
Painting Taft presents a paradox for Sorolla. His mastery of outdoor light and rapid brushwork on the beaches of Spain has led him to this famous indoors, the White House, to paint a restless world leader. Will the painter, not to mention the sitter, "feel sympathetic" or not? The painter won't know until the work is done.
Sorolla believes that "You should not know what your picture is to look like until it is done. Just see the picture coming." Sorolla's best work depends on putting himself at the disposal of nature – the direct scene before his eyes – and unselfconsciously taking the leap of faith that if he is true to the light and shapes and colors before him – the picture will happen as it should. Suffice it to say, this leap of faith is potentially unnerving in front of a President of the United States. But a painter who has the confidence – the right stuff to borrow Tom Wolfe's phrase – to set up huge canvases on the Valencia seashore and walk away with masterpieces, knows he may have the right stuff to paint the imposing William Howard Taft, 27th President of the United States.
The painter and President had arrived at their 1909 intersection by distinctly different life pathways. In contrast to the orphaned Sorolla, Taft was born into and surrounded by a Cincinnati family of influence, prominence and resources. He attended Woodward High School, Yale, and Cincinnati Law School; was appointed Assistant Prosecutor of Hamilton County; appointed judge to the Superior Court of Cincinnati; appointed at age 32 as the youngest Solicitor General of the United States; served on the Sixth Circuit Court of Appeals; and between 1896 and 1900 was the first dean and professor of constitutional law at the University of Cincinnati. His dream was to be a justice of the United States Supreme Court – a dream he eventually achieved in 1921 after serving his lesser dream of the Presidency from 1909-1913 –thus becoming the first and only American to ever be both President and Chief Justice. Taft's central public theme was the rule of law. He envisioned and launched a new Supreme Court building whose architecture would embody the ideals of the rule of law in a constitutional democracy. The physical building needed to be an architectural, three-dimensional, symbolic visualization of law and justice.
By the time Taft met Sorolla in 1909, his public offices and experiences had broadened internationally. He had become an expert on Latin American affairs, creating a bridge of sorts to a non-American, Hispanic painter. By the time he met Sorolla, Taft had already
47 served as Governor-General of the Philippines (1901-1904), TR's Secretary of War (1904-1908), Civil Governor of Cuba, (1906) and supervised the beginning of the Panama Canal. Taft spoke Spanish well. Sorolla spoke no English.
There are few painting subjects as interesting and revealing as the human face and its seemingly endless range of expression. Facial expression is a window to the deeper truths sought by painters like Sorolla. The lawyer learns, and certainly a lawyer like Taft knew, that you ignore the look on a person's face at your own peril. Facial expression, sometimes more than words, tells the story, gives the insight. A labor negotiator or trial lawyer or transactional lawyer who spends more time looking at his or her laptop screen than the faces of all the players – clients, witnesses, opponents, judges, juries – is like a painter who never looks up from his canvas to see his subject. The amazing array of facial muscles, tendons, bones, tissues, hair, eyes/mouth/nose/ears convey human thought and emotion beyond words. The best portraiture connects with something primal. Human observations of and reactions to the facial expressions of others are deeply wired in the brain and part of our neuropsychology. (Our ancestors learned a long time ago that a frown on the face of a club-wielding adversary triggers fight or flight.)
Sorolla focuses his trained powers of observation on Taft's facial expression and how that relates to the whole image of the subject. In addition to his subject's large scale presence, Sorolla's eye sees a conundrum in Taft's facial expressions. Taft's military aide wrote in a letter that, "He (Sorolla) told me yesterday in Spanish that the President was very hard to paint for the reason that there was little expression save joviality and that it was not the expression to paint on great men. He said, too, that which I have long known to be true, that when in perfect repose his face is hard and almost sinister, and that any portrait with this expression would be disliked."
Sorolla's solution to the facial expression problem would be the "without which there is nothing" of the Taft commission. Painting (no less than law) involves problem-solving. The problem-solving the American President had on his mind in April 1909 can only be imagined. While of a different type and scale, Sorolla's problem-solving also presented elusive challenges.
So what would the scene have looked like in April 1909 with the painter and President at the White House? A photograph of Sorolla (in another context) shows him with a full beard in formal suit and tie, cradling his palette in his left hand and forearm, extra brushes in his non-painting hand and seated while painting indoors. (It's remarkable to me, by the way, how he kept his suit so evidently pristine, especially considering how fast he painted.) We know that the President was seated, but was the painter? I think he was, at least part of the time, because in the final portrait Taft is at eye-level or somewhat above-eye level. This gives the portrait a commanding presence it wouldn't have if the viewer were looking down on the subject (not very Presidential). (Another possibility is that the President's chair was on a platform, and that the painter stood.)
Unfinished paintings are a clue to a painter's working methods because you can still see the first lines and brushwork that are later covered in layers of paint. Very few unfinished Sorolla's exist to this day. One unfinished portrait I've seen online gives some clues. Sorolla liked the color violet, calling it "the only discovery of importance in the art world since Velazquez." He seems to have started his portraits with a violet colored schematic line and figure drawing of big shapes and gestural movement, drawn
48 directly on the canvas with a filbert (i.e., tapered bristle) brush. This is likely how he starts with the Taft portrait. From there he fills in the large patterns of darks and lights. The canvas size used for the Taft portrait – 59 inches high by 31 and a half inches wide – is large for a single portrait of a sitting figure. His brushstrokes are broad and sweeping, with the look of getting it right the first time without re-working. All look fresh and immediate. He paints a strong, clenched fist for the right hand and an impressionistic left hand holding scrolled pages. The trunk is a huge barrel. The background, like Velazquez and Rembrandt, is mostly black on the left and lighter on the right suggesting a window and light direction. The facial paint is mostly heavy impasto, painted thicker than the dark background. The double contrast between thinly painted dark background and heavily painted highlighted face illuminates the head and facial expression. The whole aspect is brilliantly larger than life, and indeed Sorolla may have even enlarged the head and figure.
How did Sorolla solve the painter's conundrum of Taft's facial expression? He did so by managing to capture both gravitas and levity at the same time. The brow and eyes are intense, serious and intelligent, while the mouth is open in a half smile, with the smiling upward strokes of the curled mustache. Taft looks both Presidential and jovial simultaneously. We feel even today an immediacy and truth. Had we never seen another photograph or painting of Taft, we would be impressed with the verisimilitude of Sorolla's brush. That truthfulness comes from the fact that Sorolla had the right stuff to go after both the gravitas and levity of Taft – to achieve an artful balance between the conflicting expressions. Such balancing of complex and potentially conflicting emotion and semblance, without tipping Taft's expression over into sinister hardness or jovial lightness, is a genius-level demonstration of the artful principles of balance and focal point.
To achieve such truth in portraiture involves more than technique. Recall the words of Sorolla that as a painter of light outdoors, painting portraits indoors could make him "not feel sympathetic." However, in the most important portrait commission of his career, he overcame that feeling and became sympathetic – or inspired. Some of the credit for this goes to the painter. But some of the credit goes to the President. Accounts of the sittings in April 1909 suggest that Taft and Sorolla hit it off. Not a small reason for this is that Taft could converse with Sorolla in the Spaniard's native tongue. If Sorolla had not been able to converse and connect with Taft except through the translator he was travelling with, something would have been lost. Sorrolla's portrait is Exhibit A that he and his famous sitter had connected.
There were more reasons for mutual "sympathy" between painter and President. Perhaps they saw in each other, in April of 1909, the reality that each of them in their different life endeavors had reached certain heights; but they both realized they had monumental work left to do, without knowing yet precisely what that work would entail. For Taft it was to lead a nation and then to lead its highest court. For Sorolla it was to undertake, a year after the Taft portrait, the most important commission of his life, a series of huge panels capturing the provinces and cultural spirit of his home country, a work so vast and exhausting, painted largely outdoors and on sites across Spain, that the painter suffered a life-ending stroke in 1920 while painting a portrait.
No transcripts, recordings or films, no YouTube or smart phone videos, no such documentary evidence exists of the Taft/Sorolla painting sessions now more than a century in the past. But we know that the painter and the President together over the
49 course of a few sittings in the White House, sought and found a lasting truth within the four corners of a canvas. We have the best evidence of that before our eyes. Together, the painting they made captured a President both friendly and formidable, a fitting symbol for a nation engaged in the "Big Stick" diplomacy of the time. America had assumed a new and expansive role on the world stage, seeing itself as a good and congenial neighbor but also as a don't-tread-on-me world power.
Barnard's Lincoln
Almost eight years have passed since the Sorolla/Taft portrait sittings of April 6-12, 1909.
It is March 31, 1917 and thousands of Cincinnatians, "a great number of school children," visitors and dignitaries have gathered in Lytle Park for the unveiling of a statue. Under the cloudless sky there's a great deal of excitement and anticipation to see the sculpture waiting underneath an enormous white sheet set for the unveiling ceremony, surrounded by a stage covered in American flag bunting. On stage are Mr. and Mrs. Charles P. Taft, Mr. Taft's white hair and beard shining in the sunlight. The Taft's gift of $100,000 made the statue possible. Also present is William Howard Taft, former President of the United States, who will give the Presentation Address.
Lytle Park is not far from the banks of the Ohio River, and at this time and place, many currents, both historic and symbolic are converging. On the minds of many in the crowd, and top of mind to the keynote speaker, is that America will soon enter the First World War. The United States declared war on April 6, 1917, just six days away from the unveiling ceremony in the Park. The world's first modern war had been raging in Europe since 1914, but now a European war would be an American war, with the promise of Woodrow Wilson to make the world safe for democracy. World War I would be a dividing line between an old world and a new one, between the Gilded Age and Progressive Era of the old world and the sea change brought on by Industrial Era warfare.
The Great War would be the larger unveiling that the crowd gathered on March 31, 1917 could not yet fully see. As a 1917 commemoration booklet said of the day, "the statue was unveiled with ceremonies that acquired unusual significance because of the entrance of the United States into the world war." The unusual significance arose not only from the imminence of war, but from the symbolism of the statue subject: Abraham Lincoln.
What the thousands see when the giant white cover falls away is a Lincoln like they've never seen before. Starting at the top, their eyes see a Lincoln without a beard. Nor [sic] a top hat. His hair is disheveled, as if blown by wind. His expression is faraway, still and profound. The beardless chin is set on a long neck. In contrast to the solidity of the head is clothing that looks slept in. His shirt collar is crooked and his poorly tied bow tie is listing to the side. The shirt, vest and long coat are deeply rumpled, without a hard- edged seam. The long legs are draped in trousers that bunch up around the shoes. The hands and feet are huge, oversized, ungainly, awkward. The bronze pedestal is
50 modest and sits on a common stone. The overall sculptural composition is full of artful contrast: power without grandiosity; humility combined with dignity; common man at one with extraordinary man. He makes no grand gestures, wears no weapons, wields no sword, rides no stallion. His hand holds the wrist of the other hand, and that's all.
The sculptor is George Grey Barnard (1863-1938), an American and son of a Presbyterian minister, who said his "earliest recollections are of my grandfather's talks of Douglas and Lincoln." Barnard saw in Lincoln qualities the sculptor described in mystical terms – the personification of democratic ideals. Barnard wrote this about people who saw Lincoln in person: "Lincoln often looked the Christ." Thus inspired, Barnard went to enormous lengths to create the sculpture. He lacked a real Lincoln to model and was uninspired by Lincoln photographs, at least as reference for sculpture.
He wrote: "My intense desire to tell the truth about Lincoln's form led me to search through two years for a model that should approximate the man he must have been." Barnard travelled across the United States and finally located a man in Louisville, Kentucky, six foot four, forty years old, born on a farm fifteen miles from where Lincoln was born, who told Barnard that he had been splitting rails all his life. After completing the sculpture, Barnard received a letter from a man named H. W. Gourley who was born across from Lincoln's home in Springfield, Illinois and had met Lincoln in person as a younger man in Springfield. The letter praised the likeness and said: "Your Lincoln without whiskers is the man we of Springfield loved. Thanking you for the treat you gave me to commune with my friend,…"
While this Springfield eye witness to the living Lincoln praised the work, his opinion was not at all universally shared. The public reaction to Barnard's Lincoln was mixed and controversial. Many thought it was an offensive and undignified portrayal of Lincoln. Even before it came to Cincinnati, the sculpture was surrounded in controversy, including a fight over the commission itself that embroiled the Tafts.
But on March 31, 1917 the words of William Howard Taft put Barnard's Lincoln in the moment. When he delivered the Presentation Address to the thousands gathered in Lytle Park, Taft's Presidency (1909-13) was four years in the past and the job he most aspired to, Chief Justice of the Supreme Court, was four years in the future (1921). Taft saw in Lincoln some reflected light. Both were lawyers, both from the Midwest, both Republicans, both Presidents. He speculated to the crowd that Lincoln would have been a fine Supreme Court Justice. On the eve of World War I, Lincoln was a reminder of the other great war for the union, for democracy. Taft was at home with his topic and at home in this place. Taft's childhood home looked out on Lytle Park. He was speaking to his home town, virtually on his front lawn.
In his presentation, Taft traced the highlights of Lincoln's presidency. "Lincoln, to us and to the world, means wisdom and equal opportunity," Taft said to the crowd. He reminded America it was the "richest nation in the world today," but that "national wealth" was not the symbol of Lincoln. "Why, then," Taft asked, "is he the great American? Why do we love him? Because he is to us the supreme sacrifice to virtue."
"In such a time as this," Taft told the thousands at Lytle Park, "when we are facing war for vindication of right, Lincoln is the figure that comes before our eyes." As if to anticipate the public reaction to the ungainliness of Barnard's Lincoln, Taft praised the way the sculptor composed "the unusual height, the sturdy frame, the lack of care in
51 dress, the homely but strong face, the sad but sweet features, the intelligence and vision of our greatest American." Barnard, said Taft, "has with success caught in his countenance and this form the contrast between the pure soul and the commanding intellect of one who belongs to the ages, and the habit, and garb of his origin and his life among the plain people – a profound lesson in democracy and its highest possibility."
Taft summed up the meaning of the day for his audience by saying that the gift of Barnard's Lincoln was an "inspiration to highest effort, an earnest of victory." At this moment, when national sentiment was in turmoil about entering a war in Europe, some for it and some against it, an appeal to democracy's ideals set in bronze seemed fitting.
Today, Barnard's Lincoln is known to Cincinnatians as the Lytle Park Lincoln. The sculpture is such a familiar resident of the Park that it's easy to drive by with hardly a notice. The edge of controversy surrounding the work in 1917, the perception that it was ungainly and undignified, is all but gone today. We are more comfortable with the informal. In addition to the faded controversy, Barnard's Lincoln has also lost in the public mind its context of an America heading to its first world war.
Yet Barnard's Lincoln, for those who may pause and see, still inspires. Lincoln still stands there, big hands folded, looking out, his suit rumpled, hair blown, no more perfect that[sic] the Union he and others sacrificed with life to save, yet still perfectly suited to that dream.
CHAPTER ELEVEN: WHEN TIME HAS UPSET MANY FIGHTING FAITHS: WORLD WAR I, OLIVER WENDELL HOLMES, JR. AND JOHN SINGER SARGENT
[W]hen men have realized that time has upset many fighting faiths, they may come to believe…that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes can safely be carried out. That, at any rate, is the theory of the Constitution. It is an experiment, as all life is an experiment.
~ Oliver Wendell Holmes, Jr. in dissent in Abrams vs. United States 1919
After tea we heard that on the Doullens Road at the Corps dressing station at le Bac-du-sud there were a good many gassed cases, so we went there. The dressing station was situated on the road and consisted of a number of huts and a few tents. Gassed cases kept coming in, lead along in parties of about six just as Sargent has depicted them, by an orderly. They sat or lay down on the grass, there must have been several hundred, evidently suffering a great deal, chiefly I fancy from their eyes which were covered up by a piece of lint…Sargent was very struck by the scene and immediately made a lot of notes.
~ Letter by artist/surgeon Henry Tonks, March, 29, 1920, describing the scene he and John Singer Sargent saw in July 1918 for "Gassed"
52 World War I was the great divide, the passing away of an older world and the rising of a modern one, a divide between the illusions of a Gilded Age and the reality of industrial warfare, a divide that profoundly changed the world, politically, socially, economically, culturally, and shook the American idea of a perfectible Union. For many in the Great War's aftermath, the ideas of a perfectible mankind, of progress itself, the appealing assumption that human endeavor in industry, government and culture would lead as if preordained to a new and better order, and the Wilsonian idea to "make the world safe for democracy," were now the conflicting ideas of a divided mind. In early twentieth century America, many would ask: How could these cherished ideas be real in the face of the never-seen-before destruction in Europe? New and unimagined weapons like mustard gas, tanks and planes had changed even warfare itself for a Nation that had not very long ago fought a Civil War with implements that seemed, now, almost primitive.
One American in whom memory of the Civil War was very much alive at the time of the Great War, a man who had fought in the Civil War, been seriously wounded three times and re-enlisted to fight again, a Justice of the Supreme Court who would serve for thirty years and profoundly influence American Constitutionalism, was Oliver Wendell Holmes, Jr. He was a legacy member of the 19th century American brand of aristocracy known as the Boston Brahmins, a social, economic and political elite with traditions of public service, abolitionism, and Emersonian Transcendentalism. Yet, Holmes' inner Boston Brahmin had undergone a change, been tested in the fire of near-death Civil War injuries and experiences, a change that shaped his world view and view of life.
"[A]ll life," he would write in his famous Abrams dissent, "is an experiment" and so was the Constitution itself an "experiment." The Civil War veteran would become a legal realist, seeing the law in his 1881 legal classic The Common Law not as a set of logical "syllogisms," theories or doctrines to be applied like "the axioms and corollaries of a book of mathematics," but as something akin to how the battlefield can shatter grand theories and illusions. "The life of the law has not been logic; it has been experience," he famously wrote; and "the rules by which men should be governed" had to do with "[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow men."
Holmes' judicial pragmatism was far from perfect, could have a cold-heartedness about it (certainly evident in his eugenics case opinions) and stirs controversy even to this day with those who see his legal realism as straying from the Constitution's original intent. But Holmes' focal point on what he called deciding "concrete cases" rather than on "general propositions" (Lochner vs. U.S.), his dedication to facts, his realism about judges as real people shaped by life experiences (like his) that shape their view of law, his ideas about the Constitution and of common law as an experiment reflecting life's experiments and changes, all of these ideas are today woven into American Constitutionalism. All of them have helped forge the uniquely American brand of creativity in deciding real cases with hard facts between contesting litigants, cases that arise not in a vacuum but within certain times and contexts, within Holmes' "felt necessities of the time," like the Supreme Court's 2014 digital age ruling that police need to get a search warrant before an arrested suspect's smart phone can be searched.
In Holmes we see a creative judicial mind expressed through a masterful use of language. Words were his paintbrush for reconciling the "experiment" of his life with the "experiment" of the Constitution. Masterful creativity we've seen is often sourced by a
53 person's felt necessity to use best talents for new expressions to resolve profound conflicts. Holmes fought for the Union in the greatest test of a more perfect Union and its Constitution of the 19th century. That life-altering experience on both a personal and public level stayed with him as he dealt with facts and litigants and crafted judicial compositions, often in dissent, and case-by-case sought the unifying ideas and words that would keep the Constitution alive and well. Two cases, Schenck vs. United States and Abrams vs. United States, both decided in 1919, show Holmes' creative constitutionalism at work to resolve the conflict between the governmental interests during wartime and free speech rights. Both cases involved criminal prosecutions of war protestors under the Espionage Act for distributing leaflets. In Schenck, Holmes wrote for the majority and upheld the convictions, focusing on what he saw as the "clear and present danger" that the leaflets would obstruct the draft. For the Civil War veteran who honored enlistment, the focal point was on the government interest in "gaining fresh supplies for the forces." But in Abrams, Holmes in dissent voted to overturn the convictions, seeing no "specific intent" of the protestors or "forcible act" against the government, and noting how out of balance the sentences were: "[T]wenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the government has to publish the Constitution of the United States now vainly invoked by them." Balance is the artful principle behind the idea that the punishment should fit the crime.
Holmes wrote that he regretted he could not "put into more impressive words" his belief that the convictions were unconstitutional, but Holmes' words are still plenty impressive and his expressed regret only makes them more so. Having experienced and seen his own "fighting faiths" tested in the Civil War, Holmes created something new, a constitutionalism that recognized that "[e]very year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge." That "experiment is part of our system," he wrote, and so "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so immediately threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." In the history of the Supreme Court, Holmes demonstrated how artful expression can empower and enlarge the opinion or decision itself; even in dissent. His craftsmanship went deeper than writing style; his words had seen many fighting faiths upset.
* * *
In the summer of 1918, when the protestors in Abrams were distributing the two leaflets that would lead to their convictions and Holmes' dissent, another man had travelled to the battlefield in France, unarmed except with painting supplies, hired by the British Government to paint an epic work on the subject of Anglo-American cooperation for a Hall of Remembrance for World War I. The man, John Singer Sargent, was in many ways deeply unprepared for what he was about to witness. He was 62 years old in 1918, and had never experienced war of any kind, had never, like others in 1918, seen an industrial war like this, and was so naïve about its ways that he asked a general at the front when he arrived whether the fighting would take a break on Sundays. He was in many ways the personification of the Gilded Age, the Sargent family tracing back to Boston Brahmin roots like the Holmes family (both Sargent's and Holmes' fathers were physicians), an early prodigy who travelled and painted extensively abroad with his parents, the most successful portrait painter of his generation, known throughout the world for his stunning portraits of the rich and famous, of royalty and wealth, of sons and
54 daughters in silk and finery, able to paint with such speed, accomplishment and self- assurance that the commissions kept rolling in, each of the big ones bringing in over six figures in today's dollars. The British offered Sargent knighthood but he turned it down to keep his American citizenship. Sargent's talent was so prodigious that he saw himself, and many others did too, as the painting heir to the great Diego Velázquez, someone who had so mastered brush and paint, romanticism and neoclassicism, the traditions of grand portraiture and the art of pleasing commissions that he would, Sargent dreamed, bridge the old world to the new.
But there was something missing. By 1918, Sargent was tired of portraiture, writing in 1907 that "I have long been sick and tired of portrait painting." His international success as portraitist for aristocracy and wealth had relied heavily on flattery, painting his subjects taller, thinner, more refined, more important than they were. By 1918 he was tired of the flattery, the forced smiling and geniality, the artificiality and pretensions. He was looking for different and what he thought could be truer subject matter in outdoor painting, watercolors, natural scenes, and large-scale murals. Sargent's technical mastery of the grand style had run ahead of the inspiration that sources lasting masterpieces; he had become, in this sense, too good at painting for his own good.
So the wartime commission by the British Government seemed like the opportunity to paint an epic work far from the privileged parlors that had made Sargent's career. But in the summer of 1918 there was a collision underway on many levels between the life and ideas of John Singer Sargent and the reality of the Great War.
In July 1918, Sargent travelled to the war in France with a British physician and surgeon who was also an artist specializing in medical illustration of wartime facial injury, Henry Tonks. Sargent's father had been an eye surgeon, a noteworthy fact in light of a son who would focus on painting what he saw, and a painting he would do about blindness. When he first arrived at the battlefield site, we know from writings by Tonks and Sargent himself that Sargent struggled over what to paint. We can imagine that for a person at Sargent's level of mastery, a person who made brush and paint look effortless and took quickly to his subjects, struggling over what to paint presented unfamiliar territory and internal conflict. How could war scenes, after all, be flattered? The art of flattery had run out of gas. How could Sargent reconcile the new and real facts he was seeing with the painting manner that had been the ways and means to all his prior success? Of his battlefield observations he wrote: "The further forward one goes, the more scattered and meagre everything is. The nearer to danger, the fewer and more hidden the men – the more dramatic the situation the more it becomes an empty landscape. The Ministry of Information expects an epic – and how can one do an epic without masses of men?"
In these words are the despair over two sets of expectations and world views colliding, the old romantic idea of epic drama that Sargent imagined himself performing and had been commissioned to paint versus the new reality of "empty landscape" bereft of "masses of men." In the creative mind, large collisions lead to large creativity, a search to reassemble broken pieces into something new. The idea that people and nature could be captured nearly perfectly and even better than they are, the faith that brush and pigment could make things more beautiful, even the idea of beauty itself – what place would there be for these ideas in the emptiness Sargent was seeing?
Inspiration comes in many forms and the long story of art teaches that chance has a role. Inspiration happens sometimes by serendipity during low points when it seems that
55 there is no way to resolve the conflicts that are presented and felt. So it was that Sargent's struggle over the "scattered and meagre" aspect of everything he was seeing chanced upon a scene that, as Henry Tonks wrote, left Sargent "very stuck" and drove him to "immediately" make "a lot of notes." To a draftsman of Sargent's genius ability, immediately making a lot of notes meant extraordinarily deft and quick sketching. Sargent's immediate sketches are fascinating and rare insights into raw observation and the creative process in the making. Here we see what Sargent was seeing, a group of soldiers who had been gassed by mustard gas, lint blindfolds covering their eyes, walking in a line, blind leading blind, many men on the ground, helmets and gear strewn about. Here we see Sargent working out the lines and forms of his composition, spontaneously processing visual sensation onto sketchbook, solving problems of design, adding and subtracting.
A mustard-colored sun is setting in the heavy air. The same practiced eye and hand that had so rapidly captured the aristocratic lines of royalty, gowns and silk, captains of industry, sons and daughters of privilege was now going to work on a scene that "struck" him like never before. These blind men in line and on the ground were from all walks of life, a generation of English and Americans, upper class and working class, war and gas made no such distinctions. And then, in the distance, if you look beyond the men lying in the foreground and the line of blinded soldiers in the mid-ground, Sargent saw a scene that he would include in the composition and leave no mistake about the collision of old world and new world he was experiencing. There in the distance was a group of soldiers playing football, a sport they played on the boyhood school fields they'd come from, maybe Americans on one side and British on another. Sargent's creative process needed to leave the conflict unresolved because it was unresolvable, and there was no way out except to show it. He would juxtapose blindness of war against a lighted field of play, two worlds colliding at once unseeing.
Sargent would convert his sketches and visual memories into a monumental mural, over seven feet in length. He had honored the commission, but the painting he made defies the word "epic" that had been his expectation. There are echoes in the painting of epic quality figurative work and composition. These compositional skills were so ingrained in Sargent that even the war experience didn't shake a certain classicism in his art. He still used, for example, the classical device of balance, rhythm and repetition in his profile line up of the men, contrasting the balance with some figures off balance, stumbling and supported by comrades. He honors the men and, son of an eye surgeon for whom vision was virtually everything, captures their unseeing ways of supporting each other. But there would be no epical resolution. Picasso's later Cubistic war mural, Guernica, painted in 1937 compared to Sargent's mural in 1919, belonged to movements in art that were foreign to Sargent, yet both murals in their way are masterpieces of war's unresolvedness.
The title of the mural is one word, Gassed. It describes what had happened to a group of soldiers, but also what had happened to a set of ideas and assumptions that Sargent and others had held, and that now would need to walk with blindfolds into an uncertain future.
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CHAPTER TWELVE: WE THE PEOPLE: FARNEY'S SONG AND NATIVE AMERICANS
Who are we the people? What are our stories and how do they fit with the larger American story? Do our stories exemplify America's ideals or show how far away those ideals are? Or both? And, if both, how will the stories be told so as to capture both the near and the far away of a Nation's promises and its people's lives? Robert Duncanson and Mary Cassatt painted their answers to that, and so did Henry Farney whose story and art lived to see the Industrial Revolution overcome ancient ways of living of a native people. Farney's narrative painting documented a cultural passing away that culminated in a haunting image of a Sioux hunter with his ear pressed against a telegraph wire, surrounded by imagery of death. Farney's more perfect Union was an elegy, a "song" as he called it, that wondered what the future would bring when a modern culture so overtakes a native one.
Narration, or the art of connecting events into a meaningful story for an audience, is common ground for both law and art. While not all visual art is narrative, the 30,000 year story of art is in large part a story of visual story-telling. Every major museum has story after story hanging in its galleries – stories with frames around them, stories of the artists and events that led to their making and telling, stories that flow into the larger narrative of human civilization. Images and stories of the hunter and the hunted are ancient ones, going back to the earliest Paleolithic case drawings of our known art.
57 Whether in art or law, narration is central to persuasion. Lawyers and judges have to organize information into a manageable and meaningful form. And not just any form – but a form that fits with law. During a client interview, the client tells his or her story. The lawyer has to sort it out, envision a sequence, create a timeline, discern connections, look for cause and effect, parse out the details, collect the facts, sort through the documents, compile the evidence, separate fact from fiction, construct the case or argument. The lawyer then has to present and explain all this to others. And not just any explanation – but one that holds attention and fits within boundaries. Briefs have page limits, dockets are crowded, people are busy, smart phones are ringing.
Rarely does the client's story legally narrate by itself. It needs a composition. Henry Farney was a storyteller and, like Rockwell, linked his narrative art to his audience and to themes that would move them. He invited his viewers into small-scale, intimate canvases that encouraged them to connect with the people in the frame and listen to their "song." He saw an archetype of hunter and hunted in an old world meeting a new world.
Henry Farney's fascination with Native Americans[sic] began early in his life. At age six he moved with his family from his birthplace in France to Warren, Pennsylvania. Nearby Seneca Reservation and his boyhood contacts with native Americans[sic] made a lasting impression. Farney's father was a carpenter and ran a saw mill. In 1859 the family moved to Cincinnati and he started doing illustration work for Harper's and other magazines. He moved to New York with Harper's and worked as a wood engraver and cartoonist. His art training received a jumpstart between 1867 and 1870 when he studied with Albert Bierstadt in Dusseldorf. Back in Cincinnati, he received another jump start as an illustrator. He illustrated Cincinnati's now famous pigs for the Cincinnati Pork Packers' Association at the 1873 Vienna exposition. That commission led him to visit Munich where he met Frank Duveneck and fellow artists at the Bavarian Royal Academy of Arts. Back in Cincinnati he succeeded as a free-lance illustrator for the McGuffy reader schoolbook series. Around 1880 his interest circled back to his boyhood connection with Native American subjects. In 1881 he took his first trip West to the Dakota territory and he returned to his studio with lots of raw material for his paintings: reference photos, sketches, Sioux clothing and artifacts, mental images and compositional idea. Other trips throughout the West followed, each adding more inspiration to Farney.
Farney's training as an illustrator of children's books, popular magazines, cartooning and trade association artwork honed his skills in visual arts narration. An illustrator then and now has to keep the client's and viewer's interests in mind. To secure commission work, satisfy clients and earn a living, the illustrator often doesn't have the luxury of creating whatever he or she wants to create. Illustrators work to deadlines and to page size and format. Illustration artwork needs to complement a text, tell an impactful story, be understandable to a popular audience. Farney knew that his artwork would need a compelling message, an emotional impact, and a point or feeling that would be accessible to popular audiences.
Because of these practical ends of illustration, there has been a tendency across art history for some to separate illustration from fine art. Norman Rockwell, as we've seen, spoke modestly about being an illustrator, a story-teller, rather than a fine artist. The Rockwell and Farney lesson is that distinctions between fine art and illustration are often arbitrary.
58 In 1904, Farney painted a picture that, over time, arguably stands as his masterwork: The Song of the Talking Wire. The painting received a mixed reception in its time as the work of an illustrator rather than a painter. Some saw the work as fictional dramatization. Others saw in the painting a moving story, powerfully told. In 1904, the story Farney wanted to paint was nothing less than the threatened extinction of a native people. He didn't pull his punches in this work, or ignore its implications for America and the idea of we the people.
The painting is modestly sized and horizontal – only 22 inches high and 40 inches wide. The scene is a creation of his imagination, not an actual scene he would have painted live on site or even photographed as is, and includes: a desolate winter scene, a buffalo skull in the snow half-buried, a deer carcass slung over a horse. The lone human figure, a Sioux Chief, is dressed in a death shroud. He cradles his rifle in his arm. Even the light is dying in the winter sky. No shadows are cast, no reflective light on the snow. The mood is somber and desolate. The vertical horizon is vast and solitary.
Farney used contrast to draw attention to his focal point: the facial expression and form of the protagonist. Against the stark horizontal he placed the severe vertical telegraph poles in perspective. Leaning against the foreground pole is the standing and vertical figure – russet and hard-faced (in contrast with the grays and whites) pressed against the pole. The painting constructs a powerful focal point for the head and the place where ear meets "song."
What was the talking wire Farney depicts? A painter, portrait artist and inventor named Samuel Morse (1791-1872) invented Morse Code in 1835, a way to send electromagnetic signals over wire, and in 1844, sent the message "What hath God wrought?" by code over a wire from the old Supreme Court chamber in Washington, D.C. to Baltimore. The first transcontinental telegraph line followed in 1861, replacing the Pony Express and revolutionizing communication across the vanishing American frontier. When Farney painted the "Song" in 1904, Alexander Graham Bell had already patented his telephone, but a transcontinental telephone line did not yet exist. Still, America was undergoing rapid technological change in communication roughly analogous to the cell phone industry of today.
The telegraph wire looks antique from today's telecommunication perspective. But when Farney painted it at the turn of the century, the telegraph was still a symbol of modernity and technological progress. Farney's "Song" is not only about a vanishing frontier and threatened extinction of its people, but is also a commentary on the ironies of technological change. Native Americans had, before Morse Code, developed ways to signal messages across vast western spaces – the smoke signal and semaphore, for example. The electrical staccato of tapping telegraph signals over wires was foreign and new, signal messaging was not. The industrial revolution had redefined American progress by 1904 with even the once limitless West within its grasp.
The story is thus told. The main actor is a tragic hero, a mythic lone man in the middle of nowhere in winter, his ability to survive literally in his own hands, his game slung over his horse. As if survival in such conditions were not enough, he has overcome what must have been fear of the unknown to listen to the song of the talking wire. It's a siren song … one that entices the curiosity but will spell the end of the protagonist's way of life. The wires and poles are foreign objects, as different from the surrounding landscape as a visitor from another planet. Who is the intruder in this world – the Native
59 American or the singing wire? In a visual image, we don't need to hear the song's lyrics or its narration any more than the hero does.
The industrial revolution had redefined American progress by 1904 with even the once limitless West within its grasp. Farney's contemporary, the historian Frederick Jackson Turner, had delivered in 1893 his influential paper "The Significance of the Frontier in American History" warning that the ideas that shaped American democracy – equality, liberty, progress – could vanish along with the frontier that was their inspiration and source. Farney's "Song" contains the melody of Turner's Thesis.
Farney knew how to make a persuasive visual argument like a trial lawyer making a verbal one. He personifies the problem with a human presence rather than an abstraction. Every good storyteller learns to put a human face on the story so the reader will relate. He solicits our empathy by creating a picture of individual courage and perplexity in the face of doom. He uses form, color, tone and contrast to set the stage and highlight the actor. He tells his story with pace and direction, and we get the point much faster than it takes to explain it in words. Farney worked on the edges of melodrama, but it worked; he had, after all, only a small canvas on which to make his point.
Farney and the Social Documentarians
Farney's narrative art is related to a broader type of visual art – the documentary. The documentary form mixes fact and art into a social, historical, cultural or political commentary. The documentary often tells a story, and today often uses the camera. The first photograph by a camera image was made in about 1816 (by Nicephore Niepce) but the camera's predecessor, the camera obscura goes back to the ancient Chinese and Greeks. The camera obscura is based on the discovery that a pinhole or lens can be used to project an image of a scene upside-down onto a viewing surface. Vermeer likely used the camera obscura to compose some of his masterpieces. Farney used and rearranged photographs of Native Americans as well as artifacts to paint and compose his scenes.
Documentary photography made a leap forward during the American Civil War when photographers like Matthew Brady captured vivid battlefield and portrait compositions – works of documentary art later composed into a new form by documentary film maker Ken Burns. Jacob Riis, photographer and journalist, took his camera into the tenements of New York City and made his masterpiece of the documentary genre, How the Other Half Lives: Studies Among the Tenements of New York. Documentary photographers such as Dorthea Lange and Walker Evans recorded the facts of America's Great Depression, holding a mirror up to America in black and white pictures of sharecroppers and other dispossessed. Documentary artwork has had a central role in the image- making of American democracy, its promise, ideals and self-contradictions. Documentary directs its lens to real people caught up in larger conflicts and circumstances, sometimes involving tipped scales of social justice.
Farney's "Song" is a documentary in pigment, a commentary on we the people. It undertakes an epic story, bringing together a wide range of persuasive devices around the major themes of technological change, its impact on people and culture, and America's loss of the frontier that had shaped its history, democracy and national character. His composition departs from the usual Western Art genre of painting. It's
60 not, in the end, a beautiful landscape or a pretty picture. It isn't decorative or comfortable. We can find larger and grander artwork. He doesn't paint the awe- inspiring, Garden-of-Eden landscapes of the American West of Cole, Moran and Bierstadt. Nor does he paint with the abolitionist vision of Duncanson, although he is painting a dispossessed people.
Instead, he is the documentarian, the visual narrator, the silent interpreter of an elegy and song without notes, music or words; the painter of a talking wire without talk.
CHAPTER THIRTEEN: THE THIRTEENTH JUROR: AMERICAN CONSTITU- TIONALISM AND THE JURY'S ART
On August 28, 1927, a young Hispanic sheepherder shot and killed a 30-year old professor of modern languages named Russell DeWese, who was out hiking with his new wife and a friend on vacation in New Mexico. The sheepherder, José Cruz Maestas, confessed to the killing and was tried for murder in a Taos, New Mexico courthouse. The local Taos County jury of twelve men reflected the native Hispanic and Pueblo citizenry of Taos in early 20th Century America. The jury heard testimony of Maestas' confession, but also may have taken into account other complicating evidence and questions such as that Maestas was intoxicated, that he'd been invited by the hikers to share a picnic, some question as to whether the hikers served him alcohol, Maestas' possible mistaken belief that the hikers would steal sheep, and his testimony that "the devil within him" made him shoot DeWese. Weighing all this and perhaps with a reasonable doubt on the issue of premeditation on account of the alcohol involvement, the jury voted to convict the defendant of second-degree murder, which carried a life prison sentence, rather than first-degree murder, which carried the death penalty. The county judge sentenced young Maestas to between ninety and ninety-nine years in prison, but went on record as being angry at the jury for not voting for the death penalty, dismissing them without thanking them for their service.
61 The Maestas case inspired an American painter named Ernest L. Blumenschein to paint Jury for the Trial of a Sheepherder for Murder, now in the permanent collection of The Rockwell Museum of American Art in Corning, New York. In the mid-1930's[sic] Blumenschein was a nationally-renowned American artist who was a founding member of a group of American painters who had discovered their inspiration in the native Hispanic and Pueblo citizens of Taos and the monumental and colorful landscapes of New Mexico. Born in Pittsburgh in 1874 and raised in Dayton, Ohio, the son of a musician and himself an accomplished violinist and athlete, Blumenschein studied painting in Cincinnati, New York and Paris, joining a vanguard of American painters who wanted to establish a New World American art independent from the traditions of Old World Europe. Believing the American West was the last, best hope for a true American genre, Blumenschein and another painter named Bert Phillips embarked in 1898 on an adventure westward, traveling in a wagon, learning as they went, hunting and camping, sketching and painting until, fatefully, their wagon wheel broke in New Mexico and they flipped a coin to see who would travel ahead for repairs.
Having lost the bet, Blumenschein journeyed on to Taos, knowing as soon as he beheld for the first time its colorful people and landscape that he had discovered the inspiration of his life and career as an artist. Blumenschein later moved his wife and daughter to Taos, immersed himself and his family in the local community and culture, befriended its native people, hired them as his models, and became an early and forceful spokesperson against what he saw as governmental disrespect of and intrusion on the native culture of Taos and the rights of its citizens. Blumenschein's vision of Taos and its people was not the cowboy-and-Indian genre of western art, with galloping horses or nostalgia for times past. Rather, Blumenschein's Taos-inspired vision was a forward- looking modernism, using bold and harmonic colors, rhythmic and (given his music background) visually musical lines and forms, seeing in the Hispanic and Pueblo people a here-and-now strength and authenticity.
A patriotic German-American who illustrated for the U.S. war effort in World War I and absorbed the social realism of the Depression-era WPA arts movement, Blumenschein had a public and civic conscience. He painted with a deep sense of citizenship, both as an American and as a citizen of Taos. (Possibly, his Americanism was reinforced by one of the largest losses in his life, a new-born son who died several days after childbirth when Blumenschein and his wife lived in Paris, leading them to attribute the loss to Parisian medicine and prompting them to move back home to America after a second pregnancy.)
The Maestas murder case for Blumenschein involved the complications and weight of doing justice in the context of a local culture, actual circumstances and people. Blumenschein saw in the jury the local farmers and citizens of Taos whose ways, judgment and culture he respected. His composition places them in the Pueblo-style Taos County Courthouse, in the jury box, crowded together, serious, eyes averted or downward looking, large hats in laps, dressed in coats against the chill inside and outside. In the foreground are the court reporter and an empty chair, maybe the witness chair. Left out are the lawyers, the judge, the defendant himself, the witnesses, the spectators; that is, except for two symbolic spectators both without eyes. One is in a painted oval over the jury box with a faceless, expressionless, unseeing George Washington. The other is a mysterious man with round opaque glasses crouching as if partially hiding next to the jury box. The faceless George Washington and the mysterious observer with glasses create an editorial tension in the painting. The
62 effacement of Washington may symbolize a federal authority far removed from the daily realities of the Taos jurors.
The mysterious observer in the painting strikes me as the thirteenth juror. While not a literal representation of Blumenschein, the man in glasses (Blumenschein also wore round glasses) is I believe a figurative symbol of Blumenschein's empathy as the thirteenth juror, the mind and presence of the painting's creator who sits (almost) with the jury. He is one of them, but not one of them. He sees them in a way he believed the judge did not, seeing them with empathy and respect, seeing the conflict they are feeling in their role of judging a young sheepherder from their community who they know is wrong, but need to decide how wrong. Would he die for this crime or not? The prosecutor thought young Maestas should die, the government thought he should die and so did the judge. In the face of such out-of-the-picture authority, in the faceless face of Washington, on what authority could they, twelve common men of Taos, say that Maestas should be punished, but not die, for killing an innocent outsider on a visit? The tension and conflict of the jury's authority, its collision with other absent or faceless authorities, weighs heavily on the composition, the whole look of the painting weighed down and slump-shouldered, closed-in and claustrophobic in the too-small jury box, twelve men stuck in a box. The painting asks the viewer not so much to judge the jury, but, like the thirteenth juror who is the painter, to feel the weight of their life-or-death decision. Maybe once this weight is felt and shared, the jury's decision would get more respect than even the judge gave it. So who put this uncommon weight on these common people? The answer resides in the we-the-people Constitution that gave the authority to the Taos jury to decide the fate of José Cruz Maestas.
In the history of American art, there are relatively few successful or memorable paintings of juries, and perhaps, no other painting that captures the psychological, cultural, legal and human weight and conflict of life-or-death decision-making like Jury for a Trial of a Young Sheepherder for Murder. The tension and weight of ordinary individuals vested with extraordinary responsibility is what gives Blumenschein's masterpiece its universality, a tension and weight inherent in the American jury system and the Constitution that supports it.
The Constitution addresses juries in Article III, and in the Fifth, Sixth and Seventh Amendments. In criminal cases, the Constitutional promise is that unless the government can convince a jury of twelve individuals of a person's guilt beyond a reasonable doubt, the government cannot deprive the accused of his or her life, liberty or property. We have seen that the Constitution's inspiration links to the American Revolution and the radical idea of government of, by and for the people rather than of, by and for a monarch. A cornerstone of that idea has been the right to trial by jury. Why? Why is it important for people to serve on juries? Why put the weight on twelve jurors from Taos to decide the fate of a sheepherder for murder? Why put them through it? Why not let the judge decide?
The answers to these questions is in the jurisprudence of the Supreme Court and, ironically, in the observations of a Frenchman who spent nine months in 1831 studying American society and whose classic book, Democracy in America, was quoted by the Supreme Court.
In the 1991 case of Powers vs. Ohio, the Supreme Court reversed the murder conviction of a white man because the prosecutor excluded from the jury panel (in what are called
63 peremptory challenges) seven black venire-persons based on their race, ruling that this violated the Equal Protection Clause even where the defendant was white and the prospective jurors were black. In reaching its decision, the Court summarized the rationale for the Constitution's right to trial by jury. "The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system," the Court wrote in Powers. Quoting Chief Justice William Howard Taft, the Court wrote: "'The jury system postulates a conscious duty of participation in the machinery of justice . . . one of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse.'" (Balzac v. Porto Rico). The Supreme Court in Powers echoed the observations of Alexis de Toqueville about American juries:
The institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority [and] invests the people, or that class of citizens, with the direction of society.
. . . .
. . . The jury . . . invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society; and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society.
. . . .
"I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ." 1 Democracy in America 334-337 (Schocken 1st ed. 1961).
The "why" of jury service, is its role in a participatory democracy, giving citizens a voice in dispensing justice, checking governmental abuses of individual rights, validating the rule of law by being part of its rule, rubbing off the "rust" of egotism in de Toqueville's phrase, which links metaphorically to the Taft language of the "machinery" of justice.
As the thirteenth juror, as the painter sitting both alongside and outside the jury box, Ernest Blumenschein painted an archetype of a jury in a Constitutional democracy. He painted the necessary burden of doing justice, a burden on the people's shoulders, a gravity in their eyes and expressions, not on the eyeless face of a Washington portrait. It is the burden carried by citizens that ennobles justice and ennobles democracy. The jury heard the testimony, shouldered the burden, shouldered the disapproving anger of judge and prosecutor, and decided the sheepherder would pay for the crime with a life sentence rather than death.
The creativity of American Constitutionalism rests not only in the consensus of nine individuals on the Supreme Court and their appellate look back at judges, juries, litigants and lawyers below, but also in the creative decision-making of juries who are charged with the duty to listen, consider evidence, apply law, set a person free or send him away, and bear the weights and balance of justice. Justice, constitutional justice, is something
64 we the people participate in creating. And the way that juries make justice is a mosaic of facts, law, personality, experience, background, reason and emotion that has to be composed into a verdict. Publicity about verdicts that are the exception rather than the rule can skew public perceptions of jury work. The day-in-day-out work of juries for the most part reflects good and often nuanced decision-making. A colleague and former prosecutor, Steven Goodin says this about juries: "I was a legislative aid before I went to law school and saw the sausage-making process of the state legislature. Then I went to law school and learned the law. But when I tried cases to juries I realized they are the true gut check of the process. They're not perfect, none of us are, but they are the reality check on how law is being applied to real situations in real lives, and they mostly get it right."
The Constitution's reliance on juries in its design is yet another feature of its overall purpose to deal with conflict as it seeks a more perfect Union. Not just the executive, not just the legislators, not just the judges, but the people lean in. We vote. We serve on juries. We participate. We carry our part of democracy's weight.
The thirteenth juror is us.
CHAPTER FOURTEEN: PAINTING A DIGITAL AGE CONSTITUTION: PRIVACY AND PROPERTY
Technological change pushes new ways of looking at constitutional rights. The creativity of American constitutionalism is evident in what may become one of the most important rights of the digital age: the right to privacy. The word "privacy" doesn't appear in the Constitution. The idea traces its origins to a Harvard Law Review article co-authored by Louis Brandeis and Samuel Warren in 1890. Brandeis would serve as a member of the Supreme Court from 1916 to 1939, its first Jewish member and one of its most influential creative minds. The Brandeis/Warren article, "The Right to Privacy," is remarkably prescient in that Brandeis was responding in 1890 to technological changes that he feared would give the government and the media new powers to invade private lives:
65 cameras, recording machines and what he called "any other modern device for rewording or reproducing scenes or sounds." To the authors, traditional common law rules against trespass, assault and libel seemed to be dated and not good enough in the face of these "modern devices." Brandeis thus saw a new right of privacy –what he, called, in artful simplicity, a right of the individual to be left alone. As with most creative thought, this idea was not pulled out of thin air, but was linked to prior ideas. Brandeis saw the right of the individual to be left alone as related to nothing less than the constitutional idea of liberty.
After he became a Supreme Court Justice in 1916, Brandeis would reach back to his right to privacy innovation in the 1928 case of Olmstead vs. United States. "The right to be left alone" was now a comprehensive right recognized in Supreme Court precedent. The right to privacy today has a jurisprudential legacy that extends beyond the late 19th and early 20th century contexts, including one of the most controversial cases ever decided by the Court, Roe vs. Wade, and its extension of the right to privacy to abortion. Today, the right to privacy continues to weave its way through societal and technological changes as we'll see in two recent cases.
Riley vs. California
In the Supreme Court's most sweeping decision to date on digital age technology and the Constitution, Justice Roberts imagined what a visitor from Mars might think: cell phones are "now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they are an important feature of human anatomy." The digital age of our 21st century and the 18th century Constitution have met and don't have the luxury of living on different planets. They meet on the streets of America and in cases and controversies that have to be decided.
So, if the police arrest a person for suspected illegal firearms possession or drug dealing, can the police search the person's cell phone without a warrant? Does the Fourth Amendment's protection against unreasonable search and seizure extend to smart phones? In its most sweeping digital age decision to date, the Supreme Court said in Riley vs. California: "Our answer to the question of what police must do before searching a cell phone seized incident to arrest is accordingly simple – get a warrant." The question is one of balance of power between competing interests. The Supreme Court balanced the government's interest in fighting crime on one side of the scale and the individual American's right to privacy on the other. And it stuck the balance in favor of privacy. It recognized that "privacy comes at a cost" – that not allowing police to do a warrantless search of a phone could make crime-fighting harder.
The Court set the balance on the side of privacy by going back to the inspirations of the Revolution and the "founding generation." Justice Roberts compares and links a 21st century police officer going through a smart phone without a warrant to the "reviled" general warrants and writs of assistance of the colonial era "which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity." And then, the Chief Justice reminds us once again that the Revolution of 1776 is alive and well in its jurisprudence – digital age law about a device which might have seemed Martian to John Adams but which Adams' would, if it was used to rummage through privacy, have reviled. "Opposition to such searches," Chief Justice Roberts wrote, "was in fact one of the driving forces behind the Revolution itself." The forces that
66 drive the Revolution would be the forces that drive whether a drug dealer or gun runner go free.
The painting of the Constitution artfully composed in the Riley case is one that puts within the frame: the British Officer rummaging through homes; the police without warrant scrolling through apps, photos, texts, tweets, emails and links of a suspect's cell phone; a "young John Adams" ready to "take up arms" against writs; a detailed image of the powerful modern cell phone as not "just another technological device." In the Court's picture the smart phone is the tangible thing and intangible symbol of "the privacies of life." "The fact that technology now allows an individual to carry such information does not make the information any less worthy of protection for which the Founders fought." The judicial words ring that the inspiration of that "for which the Founders fought."
Justice Roberts' composition takes the right to privacy to a constitutional point in time way before Brandeis and way before Roe vs. Wade. His reference is the Revolution. In that way, he could anchor his creative constitutionalism in nothing less than the founding principles and also avoid the controversial forms of the right to privacy in the abortion context.
Is this art or is it law? It's both.
The Jones Case
In United States vs. Jones, Justice Scalia, writing for the majority, dealt not with smart phones but with a GPS tracking device. How does the Fourth Amendment apply to a GPS tracking device used to gather criminal evidence? How does an 18th century text apply in a world where a "search" might involve the police attaching an electronic tracker to the underside of a suspected drug dealer's vehicle? Clearly, judicial creativity and artful lawyering is involved for Justice Scalia, even though he characterizes his jurisprudence as "textualist" or "originalist."
The Fourth Amendment provides (in part) that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Fourth Amendment does not use the words "property" or "privacy." So whether or not one is a textualist, the two words don't appear. Justice Scalia reads "effects" to mean property – in this case the Jones Jeep.
Justice Scalia went back to the 18th century for his inspiration in United States vs. Jones. He framed the case as one of "sacred property," and quotes Lord Camden: "Our Law holds the property of every man so sacred, that no man can set his foot upon his neighbor's house without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor's ground, he must justify it by law." (Entich vs. Carrington, 1765) Justice Scalia calls this a "monument of English freedom undoubtedly familiar to every American statesman at the time the Constitution was adopted." Note again, as in Riley, the art of going backward in history to deal with the forward of modern technology.
Justice Scalia unifies the majority in Jones around property and trespass ideas. The people have the right to be secure against an unreasonable "search" of their effects. A GPS is a new digital age "search," is installed on a car, and monitors the car's
67 movements. "Installation" of the GPS to the vehicle plus short-term monitoring is a search, because it's a trespass.
The focal point for Justice Scalia and the majority is property, not privacy. Once the focal point is sacred property, the issue becomes trespass. Justice Scalia shifts the focal point from privacy to property, a viewpoint more consistent with his conservative jurisprudence. Justice Scalia sets the focal point in no uncertain terms: "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information."
In stark contrast, the focal point for Justice Sotomayor is not property, but privacy. She writes: "The Government usurped Jones' property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection." The use of focal point shifting in painting these two different legal arguments is clear when we line up the words of Justice Scalia next to those of Justice Sotomayor. She sets the focal point "on him" – i.e., on Jones himself and his privacy right not to have his Jeep usurped for surveillance. She focuses on the person and the privacy. Justice Scalia focuses on the physical occupation of the Jeep itself to obtain information. Justice Alito, in a concurring opinion, also focuses on privacy rather than trespass. He notes the Court's "[d]isharmony with a substantial body of existing case law." Justice Alito's "harmonious" composition would center on privacy not property.
Justice Scalia's creativity in deciding Jones aligned with 18th century traditions of property and trespass rather than 21st century notions of privacy. Justice Scalia sees privacy as a constitutionally elastic concept (e.g., Roe vs. Wade). Justice Scalia brought together the necessary consensus by looking back to the 18th century to deal with the Brave New World future of technology. The GPS may be new, but the law isn't.
Justice Scalia uses artful lawyering to unify his composition, attract a majority and decide a case in harmony with his judicial philosophy. By shifting the focal point from what is, for him, a constitutionally weak concept of privacy, to a constitutionally sound and 18th century concept of property, he would rather give a drug dealer another day than let the full power of governmental authority use a GPS to trespass. If looked at only through the labels of "conservative" or "liberal," the expectation could have been for a decision from Justice Scalia more weighted in favor of law enforcement, since use of GPS systems is undeniably a powerful crime-fighting tool. But Justice Scalia strikes the balance between individual property rights and governmental authority differently.
Jones and Riley are now leading cases in the Supreme Court's jurisprudence of the Constitution in the digital age. The talking wire of Henry Farney's song is defunct, and new technologies transform the American landscape. Both cases are Fourth Amendment search and seizure cases, yet Riley's focal point is privacy and Jones' focal point is property. They arrive at similar places through different creative routes. In the Constitutional balancing process of state power versus citizen power, both cases end up on the side of the individual. The Revolutionary idea of individual rights instead of monarchy continues to creatively evolve in an age when technology of our own creation can make us wonder about how the powerful, mobile devices of everyday life present new questions and challenges about Constitutional rights.
68 CHAPTER FIFTEEN: WORKS OF ART ON THE ART OF WORK: WINOLD REISS
The art form of a mural seems well-suited to a democracy, large works, made for public display, attached to architecture and requiring many hands to make. The Berlin wall was covered with popular mural-making that in a way tore the wall down before it was torn down. The mural tradition is an ancient and modern one, from Paleolithic cave drawings, to the storied walls of ancient Egypt, Rome and Greece, to the industrial murals of Diego Rivera, to the urban murals that enliven a city's built landscape. Murals on walls and built structures are places for people and nations to present their stories, attracting ambitious creativity even though and sometimes because the odds are against it.
As a youngster and later with my own kids, I would stand under the huge rotunda of Cincinnati Union Terminal arching some 100 feet overhead and look up at a panoramic recounting of Cincinnati's history, along with 20-by-20 foot murals of steelworkers, piano builders, soap makers, meat packers, airplane manufacturers, foundry workers, and others, 14 industries in all, covering the businesses that were the foundation of my hometown's economy and employment opportunity. The Terminal today stands as an icon of Art Deco design that served as a major transportation hub during World War II. The murals witnessed many goodbyes between loved ones boarding trains.
Here were Procter & Gamble, Cincinnati Milling Machine, Kahn's Meat Packing, Crosley Broadcasting Company, U.S. Playing Card Company, Champion Paper Company, and others. My dad would point out the mosaic figure of Murray Seasongood, Cincinnati's mayor in 1929, a prominent lawyer and civic leader of a municipal reform movement that replaced the corrupt machine politics of Boss Cox with a city manager form of government. Here, set in glass of about 8,000 colors, were the people who built Cincinnati and the industries that employed parents and grandparents. The murals helped explain, visually, why we were living here and where and how the things around us, from soap to hotdogs, were made.
The figures in the murals have verisimilitude as they carry molten steel to the smelter, carve the graceful curves of a piano frame, inspect red sides of beef. Yet, as real as they look, for many years we did not know the names of the workers in the murals.
In 2013, Cliff Radel, a reporter with the Cincinnati Enquirer, tracked down the names of 35 of the workers by reprinting black and white reference photographs of the worksites and workers used in making the murals. Readers who recognized family members or others featured in the photos contacted Radel and helped solve the decades-old mystery of the workers' identities.
The idea of tracking down these names underscored the inspiration behind the murals and revived their central theme: celebrating the worker. The murals' creator was the artist and graphic designer Winold Reiss (1886-1953). The son of a German artist who painted portraits of peasants, Reiss emigrated to the United States in 1913 and, for the next 20 years, produced a body of drawings and paintings that culminated in the Cincinnati murals in 1933.
Reiss established his reputation with portraits of Native Americans and African Americans. He traveled to Montana and produced pastels of Blackfoot Indians; to Mexico to paint workers and revolutionaries; and to New York City to paint the cultural,
69 artistic, and political leaders of the Harlem Renaissance. His inspiration and the focal point of his compositions was the spirit of people who, through creative effort and strength of culture, had survived and overcome dispossession and discrimination. Reiss brought this feeling to his design of the Cincinnati murals, the largest commission of his career. While the murals were about Cincinnati's major industries and employers, Reiss composed them so that the industrial workplaces did not dominate the workers. His murals were about work, but work done by human hands, arms, backs, brains, and effort.
Reiss's first step was to photograph the various workplace locations and workers onsite. He rearranged the pictorial elements to emphasize the workers, drew larger-than-life compositions on paper, and sent the drawings to the Ravenna Mosaic Company in Berlin, where the tiles, half-inch squares of colored glass, were attached to the paper. Back at the site, these paper-with-mosaics pages were pressed into wet stucco. The richly colored mosaics defined and highlighted the forms of the workers while surrounding spaces were presented in dyed plaster so that the work environment would not compete with the human element.
The story of the murals is indeed one of survival: survival of the original project in the face of the Great Depression; survival of the industries, businesses, and jobs depicted in the murals; and then, beginning in 1972, survival of the murals themselves. In the 1970s Union Terminal was sold and partly demolished, threatening the murals with destruction. Fourteen of the murals, each weighing eight tons, were painstakingly removed from Union Terminal, crated, transported 15 miles, and reinstalled at the Cincinnati/Northern Kentucky International Airport.
Winold Reiss' murals are masterpieces of the Art Deco mosaic mural genre. But, like all great art, they connect on personal and universal levels. Here in colored glass are so many strivings, the American workplaces, the images in mosaic of real people with real names. Here is the mosaic of work itself, things and products made, from Ivory soap to Baldwin pianos, each with a form and function as Louis Sullivan said, a white bar (that floats!) for washing, a graceful curve of bent and sculpted wood for sending notes of music into listening ears. Reiss, like the other artists in this book, took the realities before him and translated them into a new form. The Depression Era workplaces of the black and white reference photos he used were not nearly so colorful, nor the workers so ideal, but Reiss was creating new forms to make his point. We see in mosaic a piano-maker's hands and forearms pressing a plane against a curve, and we feel and see, even from a distance, America working and
70 making; the visual arts principles of inspiration, unity of composition, balance, focal point and craftsmanship have a double meaning and impact in the Reiss murals. They are present in Reiss' work, but also in the work he depicts. Reiss had a purpose beyond representational depiction, and instead spoke to the American people of a more perfect Union: one where work itself becomes art for the ages because of the dignity of those who did it when the meaning of work itself seemed, to millions of Americans, lost and broken.
CHAPTER SIXTEEN: THE RICH MOSAIC: RELIGION AND CREATIVE CONSTITUTIONALISM
"[T]he American community is today, as it long has been, a rich mosaic of religious faiths."
~ Justice Kagan (dissenting in Town of Greece vs. Galloway)
In his Four Freedoms, Norman Rockwell applied his brush to the idea of freedom of worship, depicting individual consciences rather than any one religion. The unity Rockwell painted was around a singular idea, not a singular faith: freedom of the individual conscience. Within the four corners of a canvas, in visual form, Rockwell's creative constitutionalism expressed the American ideal of tolerance.
Religion cases have been among the most challenging, interesting and controversial in the history of the Supreme Court. Religion engages the conscience and so it's not surprising that religion cases are flash points for strongly held views and opposing forces, reflecting broader conflicts and debates in American history. Jefferson's famous phrase about a "wall of separation" between church and state is not so easy in practice, since even as concrete a metaphor as "wall" becomes more complicated when the construction project involves prayer in public schools, religious symbols in public places or procreative rights.
This book's theme of creative constitutionalism, distinctly American and arising from Revolutionary roots, plays out in religion cases, testing the creativity of nine very human beings to decide a dispute between litigants, harmonize their reasons with the Constitution and, as if that weren't enough for a days' work, reconcile their decision and reasons with their own consciences. We've seen that the Constitution's origins substituted the judgment of a king for that of the people, resolving that one person's birth and privilege would not equate to law, that one king would not be the decider, that the people would self-govern, and that the Constitution's design and form would necessarily follow its function of dealing with the people's inevitable differences and divisions. It could not, without contradicting its origins, dictate a singular way to craft a more perfect Union, or presume one religion. Far from being based on the presumption of unanimity or homogeneity, the Constitution presumes its opposite – the conflict of multiple interests that were the turbulent waters out of which it was born, waters that were not just political but social, cultural, religious and personal. In answer to those who would today despair about the nation's modern divisiveness, we can say that the good old halcyon days of the nation's founding, the picture of founding fathers in full philosophical sweetness and light, is an illusion made out of wishful cardboard rather than historic fact. So it is that freedom of religion has always and profoundly included the great expectation that we the people will disagree about all sorts of religious things, except the freedom to disagree.
71 The Constitution is deliberately and characteristically artful and concise in its dealing with religion, doing so expressly in two places and by judicial incorporation in a third:
• Article VI says "…religious tests shall never be required as a qualification to any office or public trust under the Unites States."
• The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.…"
• Through the Supreme Court jurisprudence of "incorporation," the First Amendment (which applied to acts of Congress) was incorporated in the Fourteenth Amendment and applied to the states: i.e., "…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."
Sometimes the names of cases are memorable, a gift to law students and lawyers who need to recall case names, like the euphonious Hobby Lobby decision. But euphony is where the harmony ends. Cases with easy names can, especially with religion, get complicated, with the Court in Hobby Lobby taking on no less than eight controversial topics:
• The nation's new and controversial health care law, the Affordable Care Act;
• Government regulations requiring a "contraception mandate" in health insurance;
• The religious beliefs of business owners that life begins at conception and that termination of human life after conception is a sin against God;
• The religious beliefs of employees of the business;
• The reproductive rights of women;
• Whether a privately owned, closely-held, for-profit business is a "person" for purposes of religious belief;
• The meaning of an act of Congress (the Religious Freedom Restoration Act or RFRA);
• Whether the religious accommodation for religious non-profit corporations is a less restrictive way to balance business owners and the reproductive rights of women employees.
Writing for the 5-4 majority, Justice Alito found that the contraception mandate, as applied to closely held corporations, violates the federal statute RFRA and its focal point of religious freedom. Justice Ginsburg wrote for the dissent, a dissent which when compared to Justice Alito's majority opinion juxtaposes two different ways of deciding, balancing and synthesizing powerfully conflicting ideas even though the constitutional inspiration, or why, for both sides centers on religious freedom. We've seen in other cases how setting the focal point is a strategic device in the creative art of persuasion, cases where the central constitutional inspiration is the same, but the choice of where to
72 set the focal point is different. Justice Alito and Justice Ginsburg both compose strong arguments for religious freedom, recognizing the diversity of religious views that are part of a more perfect Union, but Justice Alito sets the focal point on the religious freedom of the business owners and their corporate "person" while Justice Ginsburg sets the focal point on the employees. Justice Alito thinks the way to thread the needle between the owners' religious views of procreation and the interests of women employees in health insurance covering contraception is to use the model that applies to religious non-profits: i.e., make the government rather than the owners pay for the contraception that offends the owners.
For Justice Ginsburg, the focal point is the rights of women, the rights of the employees to exercise their choices and their religious freedoms, objecting that the Court has entered a "minefield" in religion cases by opening the door to all sorts of religious objections and exceptions to health care laws and other laws. Since a woman who is an employee makes the contraception decision, not the owner, Justice Ginsburg sees too much of a gap (her word, "attenuated") between the owner's religious belief and the decision of the employee.
Creative constitutionalism balances the scales of justice by using the same constitutional "why," freedom of religion, but setting the focal point differently (religious freedom of owners vs. religious freedom of women employees), leading to this question: what do we think motivates justices to balance the scales in such different ways in religion cases? As I write, that question is being hotly debated across America on talk shows and blogs, with theories about the Hobby Lobby case including party politics (Republican justices in majority v. Democrats in dissent), gender (men in majority vs. women justices in dissent) and religion (Catholics in majority vs. non-Catholics in dissent). So, what is going on in these religion cases?
I think these single-reason theories are an incomplete lens through which to see what's going on, not only in Hobby Lobby and other specific cases, but in the broader story of how the Court has decided cases for over two hundred years. Single-reason theories, saying a Justice decided a case because he or she is a Republican or Democrat, Christian or non-Christian, man or woman, risks paint-by-numbers rather than portraiture, yielding a picture that misses the nuances, shading, color, detail, texture, tensions, contradictions and, in the end, the truer picture. In a paint-by-numbers coloring book, we can tell the cloud is a cloud, a white oval in a blue sky, but how unlike the real thing it is when we look up and see a cumulus cloud with all its gradations of shade and color, edges forming and re-forming in airstream currents.
Justices are men and women with public and private lives. Each has a life story and many of them have written about those stories. Discerning portraiture, as we've seen, discerns a real person. Joaquin Sorolla painted a real human being, William Howard Taft, a President and future Supreme Court Chief Justice, a presence both large and jovial yet also formidable and intense, a smile and a clenched fist, a symbol of a nation's new role on the world stage, a nation that could be friend or foe, smile or clenched fist, but, like Taft, not easy to miss or dismiss. Painting a real portrait, searching for the paintable character in a human face, the time and effort and difficulty of that search, the humility and responsibility to get it right, the ability to see contradictions and tensions and hold opposing thoughts in the mind at once; all of these things and more are what separate character from caricature. What portraiture teaches is that the real person is a much more interesting creation than singular labels of politics, gender or religion.
73 Another factor at work here is that the Supreme Court's deliberations are by and large secret and confidential. We don't sit in on the debates, conversations, give and take, questioning and answering that the Justices do with each other and with their staffs. I have some appreciation for the nature of confidential legal conversation through my work as a federal district court clerk in Chicago and career in a busy law office. Away from the public formality of written briefs and opinions is a world of interaction, ideas, emotions and personalities that go into the mix, a world of legal problem-solving more nuanced and textured than single label theories.
Yet another fact of life about the Supreme Court that shapes its decisions is so self- evident we can miss its implications: it's a group of nine. To use a sports analogy, Supreme Court decision-making is a team rather than solo sport; and so there are at least some checks and balances against the dominance of a singular religious view. Supreme Court work is necessarily teamwork, each Justice free to make decisions, free to choose to vote for the majority, concur, dissent or in special cases recuse, free to be a single voice on an issue, or to join his or her voice with others, but not free from a job that includes eight other strong-minded individuals. There is shared gravity in this sort of teamwork, and in the Hobby Lobby case, both majority and dissent recognize what Justice Ginsberg rightly referred to as "the gravity of the interests at stake." The sincerity and gravity of the litigants resonates in the gravity of the Justices' prose. It's certainly not all cooperative and nice, with lawyers and judges, by temperament, training and professional convention, tending toward solo-types rather than team-types. That said, there's no escape from the fact that hard cases require teamwork. No lawyer standing before nine Supreme Court Justices in oral argument is there without the work of a team.
That's the way it often is in hard work requiring creativity. The tougher the problem, in art and in law, the more likely it is that creativity needs a group rather than one person, like the digital age creative teaming between engineering, design and marketing; or Michelangelo who used a team to create the Sistine Chapel ceiling, to set up the scaffolding, assemble and move the tools, grind the pigments, work the wet plaster, transfer the outlines of huge drawings; or world-renowned glass artist Dale Chihuly who revolutionized the art of glass sculpture through the use of creative teams.
While religion has been an area of great judicial inconsistency, there has generally been a judicial preference for, in the words of Justice Stevens, keeping the courts "out of the business of evaluating the relative merits of differing religious claims" or evaluating the sincerity of these beliefs. The Establishment Clause of the Constitution prohibits the Court and the government from favoring one religion over another, from picking out one favorite "mosaic" from what Justice Kagan has called "America's rich mosaic of religious faiths." In other words, judges don't get to judge religion, saying, in effect, I like this mosaic more than that, or that mosaic is ridiculous, since judging religion in that way risks establishing one religion over the other which the Constitution prohibits.
American's constitutionalism requires, sometimes, that a Justice make a decision he or she does not like, but that his or her judicial conscience says is right. Justice Kennedy, in the First Amendment flag-burning case of Texas vs. Johnson (1989) clearly did not like joining the five-justice majority that struck down the laws of 48 states prohibiting desecration of the American flag, but he candidly wrote:
74 The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
Religion was not the issue in the flag-burning case, but the "hard fact" which Justice Kennedy writes about has likely existed for him, a Catholic, in cases he has joined that have not overturned Roe vs. Wade. If the single label of personal religious viewpoint were a good enough lens to see why a Justice decides a case, then we would not expect to see Justice Kennedy's abortion case decisions.
Finally, while a person's religious viewpoints can influence decision-making, art teaches that the workings and dimensions of another person's conscience are at some intangible level not something one can presume to in any complete sense know. Artwork across the ages has struggled at the uncertain edges between the seen and unseen, with masterpieces that wordlessly acknowledge and allow for something that even law contains: mystery.
CHAPTER SEVENTEEN: CLOSING: THE CONSTITUTION AND CREATIVITY
In closing, we return to our question: What if we look at law, our most fundamental law, through the lens of visual art?
Through a side-by-side look at gallery and courtroom, brush and briefcase, works of law and works of art; through the Constitution, Supreme Court decisions, and constitutional creativity; through the lives and ideas of makers of masterpieces of painting, architecture and sculpture, we can see common ground. We see that our Constitutionalism resides not only in our courtrooms and law work but also in our Nation's artwork, in our American culture, and those who enlarged the Revolutionary idea of we the People. We see that painting a more perfect Union is a dream that has inspired and continues to inspire people against great odds, on both personal and national levels. To summarize, the idea of a more perfect Union puts a frame around the following ideas.
First, art and law share deep roots in the humanities and principles both ancient and modern: inspiration, unity of composition, focal point, balance and craftsmanship. Design is a problem-solving process. Form follows function. Strength of design, or what we call artfulness, exists in a unity between what is created and the way it is created – a unity between the composition we see in the finished work and the purpose behind its making. The Brown decision's design of brevity, unanimity among justices and readability by the people was unified with the purpose to end separate-but-equal and segregation's disunity. The Constitution's compositional structure, we-the-people narrator and balancing of power within a revolutionary idea of self-government was unified with the dream to form a more perfect Union. The visual arts lens is a good fit for the Constitution, in all its greatness, scope and meaning, because art has for millennia, across generations and world cultures, been a powerful way to communicate and understand humankind's most profound ideas about rights and governance; freedoms and limits; powers and abuses of powers; life, liberty and the pursuit of happiness.
75 Second, the idea of a perfectible Union, as worked and lived by the artists in this book and in the lives and work of we the people, is a cultural and social idea, not just a political one. The American Revolution went beyond politics; it was a social and cultural revolution that involved new conceptions of the value of the people's words and actions free from the presumptions and control of monarchy. This bold legacy and inspiration is still cited by justices to decide cases and resonates still in masterpieces of American visual art: in Rockwell's four freedoms; Sullivan's architecture for a new world democracy; Duncanson's abolitionism; Wyeth's world of courage-enabled disability; Cassatt's modern woman; Barnard's perfectible and common Lincoln; Sorolla's friendly- while-formidable national symbol; Farney's song for Native America; Reiss' artwork about work during America's Great Depression. A more perfect Union is a painted, sculpted, crafted, made and built idea; an idea in earth-bound pigment and color, stone and metal. It involves many makers, strivers, builders of all types and many different inspirations and whys. A more perfect Union is not just officer-holder and official; judge and lawyer; executive and election cycle. A more perfect Union is the 19th Amendment; but it is also Mary Cassatt, almost three decades before, with her Victorian Era sleeves rolled up in a Chicago studio covering yards of stretched canvas with her vision of a new world. America's Constitutionalism resides with the people, in their lives and work and how they interpret it.
Third, there is the hope that seeing our Constitutionalism through the lens of art may lend some color, dimension, accessibility and interest to the picture. My legal career of thirty plus years, practiced mostly in Ohio and the American Midwest, has taken me to many different places where the American story is daily written: courtrooms in small towns and large cities; administrative agencies and governmental offices; board meetings of all stripes, from school boards to park boards to tax boards to corporate boards; hospitals and places of health care; factories and workplaces making everything from hotdogs to jet engines. Like the thousands of mosaics in a Winold Reiss mural, the places and people, colors and hues, textures and forms, points and counterpoints, characters and stories form an interesting panoramic.
None of it is perfect. The quoted wisdom about justice carved into the sandstone of the courthouse knows that inside the docket is backed up, some nervous witness has put a pencil through the plastic cushion of a waiting room chair, and an American jury, guaranteed by the Constitution, is debating the liberty of the defendant. It's the sort of detail Rockwell would have painted … and did.
None is perfect, but all is in the frame – this pigmented realism that sometimes makes and sometimes breaks democracy's ideals – in a peoples' painting of a more perfect Union.
Fourth and finally, there is the idea of America's creative Constitutionalism. What does this mean? The answer involves both the Constitution and its legal history as well as the essential features of human creativity. Albert Einstein said: "You can never solve a problem on the level on which it was created." Americans took on the problem of how to replace dependence on a monarchy with a form of self-government that would both protect individual rights and balance governmental power in a more perfect Union. We the people took on the problem by taking it to a new level: we created a Constitution.
Legal problems begin at the level of facts, what I call the facts in the frame. Facts reveal, in Einstein's words, the level on which the problem was created. To get to a
76 solution, lawyers and judges have to start by digging into the facts –the raw material of the law. All sorts of facts enter the offices, phones, electronic messages and paperwork of America's lawyers every day – facts of human behavior and thought, actions and inactions, motives and intents, dates and places, timelines and deadlines, shouts and whispers, facial expressions and body language, calm and disruption, aggression and forbearance, truth and lies. It's all there. And it's one reason many lawyers can look back at their careers and say that, for good or ill, they certainly saw, heard and learned a lot about people and the human condition.
The facts in the frame are not, to say the least, pictures of order and harmony. In many ways, they are its opposite. Facts rarely speak for themselves. Some are lost, some are found; some are forgotten, some are imperfectly recalled. Many are partial, circumstantial and without an organizational narrative or story to connect the dots. The facts in the frame involve strong disagreement and opposing forces. They are not the picture of a more perfect Union. But they may become so. They are the real stuff that needs to be organized, presented, argued; files opened/files closed, problems heard and wrestled with and tough decisions made. The ways and means are far from perfect, but this is what we have to work with. Every day, privately and publicly, facts in the frame get shaped and hammered into accords and decisions, the little and big acts of justice that people create for themselves and each other. And people often reach their own solutions, without the courts. When this is done (without breaking the law) these private resolutions cumulate into a larger order. The people's solutions are, on closer inspection, often creative. A collective bargaining negotiator decides not to overreach with a proposal he knows will anger the other side and lead to workplace disharmony. He sums it up with this version of justice: "You go in a pig you come out a sausage."
The facts in the frame are the unavoidable reality and terrible beauty of law, which, when combined with aspirations of justice, yield a duality and creative tension between the hard materials we have to work with and the ideals we can't let slide. The symbolic goddess of justice, Themis, holds a balance, a sword and is blind-folded. Themis may strike some as a tired image, and visual familiarity can breed a bit of contempt. But ancient imagery endures for a reason. As for the scales, we've seen that our Constitutionalism is replete with checks and balances, balancing tests and struggles to balance strong opposing forces of opinion, faith, politics, race, speech, privacy, property, authority, government, freedom and equality. As for the sword, the work of justice is often as real and sharp as life and death, compelling a recalcitrant President to turn over Watergate tapes, ordering a school to desegregate. And the sword has made some terrible mistakes, like Dred Scot[sic] or relocating Japanese citizens to camps or sterilizing the mentally impaired. As for the blind-fold, the ideal of impartial and equal justice rendered by an independent judiciary comes into focus when a nervous client asks you: "Do you think the judge will hear us out and be fair?"
The facts in the frame, combined with the practical necessity to deal with them within the law and socio-cultural context of our times, leads to the creative constitutionalism that I believe is a common thread that runs the course of the Supreme Court's history from its low-key and inauspicious beginnings in 1790 to its central role today. The greatest Justices of the Supreme Court have understood the tension and duality between the idea of a government of, by and for the people and the necessity of a government of laws instead of the whims of monarchs or men. John Marshall, regarded by many as the most influential justice in the history of the Court, wrote: "The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives
77 only by their will." Madison was hardly a wild-eyed populist; he was a Federalist who believed in a strong central government and a strong judiciary and perhaps more than any other justice in the Court's history shaped the role of the Court for years to come. He was a remarkably creative legal thinker. His creation, in Marbury vs. Madison (1803), of the principle of judicial review along with idea that the "very essence of judicial duty" is "to say what the law is" was one of the most creative ideas in American Constitutionalism, setting the stage for today's Supreme Court decisions to "say what the law is" and uphold or strike down acts of the people's legislatures.
Justices are sworn by duty to include the Constitution in their synthesis, and synthesizing is a tall task. If there is a comprehensive thread that runs through the history of the Supreme Court it is that American Constitutionalism requires creativity. Creativity is behind every significant jurisprudential change in the Court's history.
Certain labels tend to dominate the commentary about the Supreme Court, "liberal" and "conservative," "judicial activism" and "judicial restraint." The pivot points for these shorthand terms are differing opinions about whether the Court is following the Constitution or straying from it or worse. The activist-types are accused of making up law and the restraint-types are charged with antiquarianism. What has developed, in short, is a sort of habitual code in the public discourse about Supreme Court decisions that tends to flatten the picture and reduce its dimensions. But creative constitutionalism is not at all the same thing as judicial activism, since Justices of all types and labels utilize creative thought and argument in support of limiting as well as expanding judicial authority.
The problem with the usual labels is that they form an incomplete lens. The Supreme Court cases of today, and legal history, show that there is much more going on in the process of deciding difficult cases. Indeed, the most important case in the Court's 20th century history, Brown vs. Board of Education, was a unanimous synthesis lead by Earl Warren, unifying a badly divided court with different political backgrounds and views of race. Labels don't explain the Brown case. In a more contemporary example, a Chief Justice widely labelled as conservative, John Roberts, was the deciding swing vote and wrote the majority opinion upholding as constitutional the central and most controversial legislative initiative of the Obama Presidency. He not only upheld it, but went to creative lengths to do so by making a Constitutional synthesis between the taxing power and a word the legislation under review never used: tax.
The Constitution's genius and durability is its design (its form and function in Louis Sullivan's words) to deal with opposing viewpoints, conflicting powers and the pluralism of democracy. It is thankfully uncooperative with attempts, historic and ongoing, to paint it with a single political brush, a single racial color, a single religion, a single form of speech, a single economic theory or ideology. Freedom of speech protects the marketplace of ideas and so mirrors the Constitution's and the Revolution's ideal of the free citizen at liberty to think and speak even the most unpopular things. The idea of the marketplace of ideas connects with a central feature of human creativity discussed above: out of the dialectic of opposing views – some mainstream, some radical, some right, some left, some reasonable, some half or full-blown crazy – it is possible to hammer out a synthesis and solve problems.
We've seen that American Constitutionalism lives not just in words and legal briefs, courtrooms and law offices, but in the arts and culture of we the people – in the things
78 the people make and create, in drawing, painting, architecture, sculpture, song, music, writing and verse, in the diverse mosaic of American creativity. We don't do the Constitution justice if, in our mind's eye, it's just parchment in a glass case, a document, an imposing marble building in D.C., nine black robes, and legal texts and citations.
America's past, present and future is shaped by how vast and diverse it is – the world's third largest country by size covering almost 3.8 million square miles, encompassing remote wilderness and teeming cities, fast food drive-thrus and some of the deepest lakes and canyons in the world, farms and prairies and football fields, mansions and bridges to sleep under, barren deserts and towering skyscrapers, sandy two-track roads and super highways, backyards and basketball nets, rivers and oceans that serve and inspire and also destroy at nature's call. The fifty states have their own geographies and characters as do the regions of New England, Mid-Atlantic, South, Midwest, Southwest and West. All states have their own systems of laws and courts, and the federal system includes 94 District Courts, 13 Circuit Courts and a Supreme Court.
America's creative Constitutionalism has a geography – a grounding in places, cities, towns, States, Regions, a Nation. In art we've seen: Louis Sullivan's Chicago; Norman Rockwell's New England and North and South of school desegregation; Christina's World and a Maine farm; Cassatt's brush at home and abroad in Paris; Duncanson's river-to-cross to freedom; Barnard's Kentucky Lincoln; Sorolla's world-view of Taft; Sargent's Great War in France; Farney's fading Western frontier; Reiss' workplaces; Blumenschein's Taos. In law we've seen: the North and South of Brown vs. Board; Michigan's Constitution vs. the U.S. Constitution; New York's view of marriage vs. DOMA's view of marriage; the rulings by lower state and federal courts and the decisions of the Supreme Court; the powers granted to the Federal government vs. those reserved to the States and the people; individual rights of speech, privacy, religion and others expressed throughout the Nation.
Add to this vast American mosaic the ideals of freedom and equality. And while we're at it, add the dream of a more perfect Union. It really does sound daunting, doesn't it? How is all this pluribus supposed to be unum? Daunting as it is, it's the Constitutional commitment of we the people – to be many and to be one.
In our Constitutionalism, the facts in the frame are not just or even mainly about party politics and the labels so generated. We've seen that through the arts and culture of we the people, though masterpieces of depth and meaning, through lives that push boundaries and open eyes, the work of visual art in moving and connecting people is a powerful means for a Nation to find common ground in its pluralism.
Such is the constitutionally creative idea of a more perfect Union.
79 CREDITS AND BIBLIOGRAPHY:
Cases Cited:
All are United States Supreme Court Cases and are listed here in chronological order. In the text, I have used case names in quoting the cases, but have not used formal legal citations.
Marbury v. Madison, 5 U.S. 137 (1803). Dred Scott v. Sandford, 60 U.S. 393 (1857). Lochner v. New York, 198 U.S. 45 (1906). Abrams v. United States, 250 U.S. 616(1919). Schenck v. United States, 249 U.S. 47 (1919). Olmstead v. United States, 277 U.S. 438 (1928). Brown v. Board of Education, 347 U.S. 483 (1954). New York Times Co. v. United States, 403 U.S. 713 (1971). Roe v. Wade, 410 U.S. 113 (1973). United States v. Nixon, 418 U.S. 683 (1974). Texas v. Johnson, 419 U.S. 397 (1989). Powers v. Ohio, 499 U.S. 400 (1991). United States v. Jones, 132 S.Ct. 945 (2012). Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). United States v. Windsor, 133 S.Ct. 2675 (2013). Town of Greece v. Galloway, 134 S.Ct. 1811 (2014). Riley v. California, 134 S. Ct. 2473 (2014). Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). Schuette v. Coal. To Defend Affirmative Action, 134 S.Ct. 1623 (2014).
Museums:
Thank you to the following museums whose collections variously contain the originals of the paintings discussed in this book. I have visited almost all of these museums and seen the original paintings either at the museums or in exhibitions at other locations. This book contains my first-hand observations about the works, but credits also the museum experience and arts education provided by the museums about their collected works.
• The Cincinnati Art Museum • The Art Institute of Chicago • The Taft Museum (Cincinnati) • Museum of Modern Art (New York) • The Rockwell Museum: Art About America (Corning, New York) • Norman Rockwell Museum (Stockbridge, Massachusetts) • Columbus Museum of Art (Columbus, Ohio) • Imperial War Museum (London, England)
Catalogues of Museum Collections and Exhibits:
Cincinnati Art Museum: Collection Highlights (2008 Edition). The Art Institute of Chicago: The Essential Guide (2003 Edition).
80 The Taft Museum: European and American Paintings (1995). The Taft Museum: The History of the Collections and the Baum-Taft House (1995). Robert S. Duncanson, Joseph D. Ketner II, Thomas Cole National Historic Site, Catskill, New York (Exhibit Catalogue, May 1-October 30, 2011). Barnard's Lincoln, Catalogue of 1917 Presentation Ceremony containing William Howard Taft address and essay by George Grey Barnard.
Books:
Autobiography of an Idea, Louis H. Sullivan (Dover Publications, 2009). Brown vs. Board of Education: A Civil Rights Milestone and Its Troubled Legacy, James T. Patterson (Oxford U. Press, 2001). Composition of Outdoor Painting, Edgar Payne (original publication date, 1941). Ernest L. Blumenschein: The Life of an American Artist, Robert W. Larson and Carole B. Larson (University of Oklahoma Press, 2013). Eve's Daughter/Modern Woman: A Mural by Mary Cassatt, Sally Webster (2004, University of Illinois Press). Great Expectations: The United States, 1945-1974, James T. Patterson (Harvard U. Press, 1987). How I Paint, Thomas S. Buechner (Harry N. Abrams, 2000). In Contemporary Rhythm: The Art of Ernest L. Blumenschein, Peter H. Hassrick and Elizabeth Cunningham (University of Oklahoma Press, 2003). (Includes an essay by art historian James Moore on Jury for the Trial of a Sheepherder for Murder, which was my secondary source for facts about the Maestas trial.) John Singer Sargent, Carter Ratcliff (Abbeville Press, 1982). Norman Rockwell: Artist and Illustrator, Thomas S. Buechner (Abradale Press/Harry N. Abrams, Inc., 1970). The Art Spirit, Robert Henri (New York: Basic Books, 2007). The Common Law, Oliver Wendell Holmes, Jr. (Boston: Little, Brown and Company, 1881). The Radicalism of the American Revolution, Gordon S. Wood (Vintage, 1993). The Story of Art, E.H. Gombrich (Phaidon, 2006). Thomas Jefferson: The Art of Power, Jon Meacham (Random House, 2012). Trail of the Brush: A Painter's Guide, Bruce I. Petrie, Jr. (2011).
Articles, Websites, Documentaries:
David Brooks,"The Creative Climate," New York Times, (July 7, 2014), available at http://www.nytimes.com/2014/07/08/opinion/david-brooks-the-creative-climate.html?_r=0 Clidd Radel, "After years of quiet labor, men in the murals are named," The Cincinnati Enquirer and Cincinnati.com (A Gannett Company) (December 28, 2013), available at http://www.cincinnati.com/story/news/2013/12/29/12/4210779/. Harold E. Dickson, "George Grey Barnard's Controversial Lincoln," 27(1) Art Journal 8 (1967). “Gassed”,Imperial War Museums' (Art.IWM ART 1460), available at http://www.iwm.org.uk/collections/item/object/23722. "The Right to Know," Look (August 20, 1968). "The Tall Office Building Artistically Considered," Louis H. Sullivan (Lippincott's Magazine) (March 1896). "Louis Sullivan: The Struggle for American Architecture," A Documentary Film by Whitecap Films (2011).
81 "Transcript of Interview with Professor Gordon Wood," U.S. History.org (May 8, 1999).
NOTES:
(Numbers on left margin refer to page numbers in text.∗ References to sources herein link to the Bibliography.)
Chapter One:
2 Books by Gordon S. Wood and James T. Patterson are listed in the Bibliography. The "four-ideas" summary in the text is a synthesis interpretation of the main ideas I learned from Professors Wood, Patterson and Thomas while an undergraduate history student at Brown; and of course variations exist between each of these scholars as reflected in their respective works.
Chapter Two:
6-8 The introductory visual arts principles are not new, go back centuries in art history and are referenced in more art books than I can count, including many in my own art book collection. Three sources stand out for me. The first is my friend, mentor and first oil painting teacher, now deceased, Thomas S. Buechner, whose career included masterful painting, art instruction and authorship, museum directorship (the Brooklyn Museum of Art) and corporate leadership (President of Steuben Class, Corning, New York). Tom's ideas about visual art are partially reflected here and his excellent writings are referenced in the Bibliography. Two other cited books, by Edgar Payne and Robert Henri, are classics in art composition, design and inspiration.
8-9 See David Brooks Article.
10 See "Tall office Building Artistically Considered" by Louis Sullivan. Background about Sullivan comes from visiting the Art Institute of Chicago which has extensive information about and works by Sullivan. Sullivan also wrote an autobiography and Whitecap Films in 2011 produced an excellent documentary about Sullivan.
Chapter Three:
16-17 The Gordon S. Wood quotes are from a May 8, 1999 interview transcript re- printed on U.S. History.org's website.
20 Background information about Thomas Jefferson comes from my visit to the University of Virginia and Monticello in the spring of 2014. American historian Jon Meacham's book Thomas Jefferson: The Art of Power is an excellent, one- volume work.
∗ These numbers refer to the original text in which this piece appeared, and not the KBA publication.
82 Chapter Four:
21 Thomas Buechner's 1971 book on Rockwell which I cite is, in my view, the best book about the painter, in part because of the very large reproductions of the work and the fact that Tom Buechner was a painter. A lot of art history is written by individuals who have not themselves painted extensively. Buechner's book has the insights of a painter. He did not focus, as I have, on the constitutionalism or art/law aspects of Rockwell; and the interpretations of the paintings I write about are my own interpretations rather than Tom's. Living in the Rockwell-like small town of Corning, New York (where my wife grew up), Tom Buechner deserves credit for recognizing Rockwell at a time (1971) when some in the art establishments of New York City and elsewhere dismissed Rockwell. Today, there is a full-blown Rockwell revival underway, reflected in the market value of his paintings. Tom Buechner certainly was right on about Rockwell.
22 James Patterson's excellent book about the Brown case is my main source of legal history about the case, especially the divisions on the Court and Earl Warren's role as unifier. My interpretation of the case relies mainly on the case text itself.
Chapter Six:
32-37 Sources of information about Duncanson include the catalogues cited in the Bibliography as well as frequent visits to both the Cincinnati art Museum and Taft Museum where Duncanson's works referenced in the text are held, including the monumental murals at the Taft.
Chapter Eight:
43-47 Sources of information about Mary Cassatt include visits to the Art Institute of Chicago, its collection catalogue, and Sally Webster's excellent book about Cassatt's Modern Woman mural.
Chapter Ten:
52-58 Sources of information and the quotes about the Sorolla-Taft sitting come from the Taft Museum's collection catalogue, European and American Paintings, at 231-233.
58-61 The quotes and details about the Barnard sculpture and ceremony come from a primary source program catalogue from the dedication ceremony in 1917 that includes Taft's speech and an essay by Barnard. The Taft Museum's catalogues also contain extensive information about the Taft family and the Barnard commission.
Chapter Eleven:
62-64 The Holmes quotes are from The Common Law and the Abrams, Schenck and Lochner cases.
83 64-67 Information about Gassed, and the quotes from the Sargent and Tonks writings are from the Imperial War Museum's website article about Sargent's mural. Carter Ratcliff's book about Sargent is a beautiful book with informative text about Sargent's career and life, with more of an emphasis on Sargent's other work as opposed to my emphasis on the mural Gassed. The quote from Sargent about being sick and tired of portrait painting is from Ratcliff's book.
Chapter Twelve:
69 Information about Farney's life and career is in the Taft Museum's collection catalogue at 298-301.
Chapter Thirteen:
73 The facts about the Maestas trial come from James Moore's essay in the cited book In Contemporary Rhythm. My introduction to the Jury painting was a visit to Corning, New York's Rockwell Museum: Art About America, which holds Blumenschein's masterpiece in its permanent collection and is, by the way, a gem of a museum and worth a visit to that lovely Upstate, New York town.
Chapter Fifteen:
82-84 The Weiss murals have been a "presence" in my life since childhood as noted in the text. Cliff Radel's outstanding journalism about the murals and his tracking down of the names of the workers depicted has added an extra dimension to these murals and is a significant contribution to American art history.
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