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Treading On Hallowed Ground:
Implications for Property Law and Critical Theory
of Recognizing the Consecration of Land Through Death and Burial
In the aftermath of September 11, 2001, the land underlying the WorldTradeCentertowershas come to be considered hallowed ground. How did this happen? The land was deemed consecrated by the deaths of nearly 3000 people that day, including those who worked in the towers and those who died trying to rescue them. Now considered hallowed,the land is thoughtinappropriate for private commercial development despite its statusas some of the most valuable real estate in the world. In thinking about the commitment to preserve theWorld Trade Center tower footprintsin their newly undeveloped state, this Article considers other ways in which landhas come to be considered consecrated (understood in humanistic, rather than theistic, terms), and what consequences that has forproperty law and critical theory.
I.Introduction
A.Framing the questionof land’s consecration through association with human death and burial
B.“Consecration” humanistically defined
C.Roadmap of discussion
II.Land Considered Consecrated (or Not) Through Association with Deathand Burial
A.Examples of sites widely recognized as consecrated by death and burial
1.The World Trade Center footprints
2.The Oklahoma City bombing site
- Recognizing battlefields as consecrated ground and the rise of the national cemetery
in the Civil War era
Gettysburg National Battlefield and Cemetery
Antietam National Battlefield and Cemetery
4.The evolving status of burial sites generally
5.Memorial and monument sites
Lincoln Memorial
Vietnam Memorial
Pearl Harbor Memorial
Megan Kanka Memorial
(but see) KentState Memorial
B.Examplesof legal solicitude granted certain parcels of land associated with death and burial
1.Adverse possession
2.Dedication
3.Partition
4.Historic preservation
5.Eminent domain
6.Zoning
7.Taxation
8.Other legal implications
C.Examples of partial or conflicted recognition of consecrated nature ofdeath and burial sites
1.The contested legal status of Native American burial sites
2.The contested preservation of New York City’s African Burial Grounds and slave
burial grounds generally
3.The contested preservation of the Japanese American internment camps
4.International treatment of burial grounds, especially in armed conflict
D.Examples of sites of mass death not treated as consecrated land
1.Site of the 1911 Triangle Shirtwaist factory fire
2.Site of the 1990 Happyland Social Club fire
- Implications for Critical Legal Theory of Recognizing (or Not) the Consecrated Nature of Land
Associated with Death and Burial
- Failure to recognize the potential for human attachment to the sacred in property as a gap in
Radin’s personhood theory
B.“Totem and Taboo” and law’s solicitude toward land associated with death and burial
C.Critical race theory critique of differential treatment of land associated with death and burial
D.Thoughts on tragedies “in” the commons and the consecration (or not) of land touched by death
E.Words of caution on potential dangers of asserting the consecrated nature of land
IV.Epilogue
I.Introduction
A.Framing the question of land’s consecration through association with human
death and burial
In the aftermath of September 11, 2001, the land underlying the former WorldTradeCentertowers has become hallowed ground.[1] How did this happen? The landwas deemed consecrated by the deaths of nearly 3000 people that day, including those who worked in the towers and those who diedwhile trying to rescue them. As a consequence,theWorldTradeCentertowers’ footprints, i.e., the land immediately underlying the buildings, have been taken off-market, no longer considered appropriate for private commercialdevelopment. Indeed, members of Congress have petitioned for national historic landmark status for the footprints, relying on their perceived consecration in seeking to preserve the footprints in perpetuityin their undeveloped state.[2]
The extraordinary nature of the at least publicly unanimous agreement not to rebuild on the footprints cannot be overstated, given the land’s status as some of the most valuable real estate in the world (at least pre-September 11th) and given New York’s famously fractious political environment, where agreement on anything, especially something as significant in meaning and consequence as this, is rare indeed. The commitment not to rebuild on the footprints, and thus not to redevelop the central acreage of the World Trade Center site,[3]represents a decommodification of heretofore highly prized commercial space,[4]reinfusing itinto the “commons”[5]for use as a public memorial.[6]
Drawing on a rhetorical framework first articulated by Emile Durkheim in Elementary Forms of Religious Life,[7]and subsequently developed by others, this Article argues that the WorldTradeCenter site contains elements of the sacred and the profane, both simultaneously and sequentially. Now hallowed, it was for thirty years devoted to commercial enterprise.
In reflecting on the largely undisputedcommitment to preserve the World Trade Center footprints in their newlyundeveloped state, I began thinking about other ways in which property, specifically real property, i.e., land and fixtures on land,[8]has, or has not, been recognized as consecrated through association with human death and burial,[9] and what consequences that recognition has had for property law and critical theory.
This Article explores the most important of those consequences, revealing the special legal solicitude given many, but not all, sites of death and burial, and offers a race-based critique of the differential legal treatment accorded land associated with death and burial.
With the exception of Native American burial sites, whichhave received substantial attention in the legal literature, there has been a near total absence of attention by legal scholars to the law’s treatment of land associated with death and burial and its theoretical implications. While there has been much written in the humanities on the significations of burialsites (including the fields of cultural anthropology, history of religion, philosophy, psychology, and sociology), there is a dearth of attention to these issues in the legal literature. With this Article, and others,[10]I hope to initiate a discussion of these important issues.[11]
B.“Consecration” humanistically defined
In referencing ideas of “consecration” and the “sacred,” I do not intend a theistic conception of property’s place in the larger religio-cosmic order, but, rather, seek to draw on a humanistic understanding of the inestimable value of human life,[12]informed, inter alia, by the transcendentalist writings of Ralph Waldo Emerson and others in nineteenth century New England and by Immanuel Kant’s writings on the centrality of human dignity to moral philosophy in the Metaphysics of Morals.[13] Thus, my understanding of “the sacred” is captured in the following definitions offered by the Oxford English Dictionary:
4. Regarded with or entitled to respect or reverence similar to that which attaches
to holy things;
and
5d. Devoted to some purpose, not to be lightly intruded upon or handled.[14]
The OEDlikewise defines “consecration” as:
6. Dedication or devotion to some cherished purpose or pursuit; also, appropriation to a
special purpose.
7. The action of rendering sacred; hallowing.[15]
As with “the sacred,” these come closest to my humanistic understanding of the consequences for land of association with human death and burial.[16]
In contemplatinga non-theisticunderstanding of “consecration” and the “sacred,” I read widely in the literatures of cultural anthropology, history of religion, philosophy, psychology, semiotics, and sociology for a greater understanding of the basic human impulse toward reverential treatment of land associated with death and burial. Ultimately, I sought to discover whether the law gave (or refused) special solicitude to such sites, looking both to property law doctrine as it has developed and to critical theory in reflecting on what the shape of the law could and should be.
While writing from a humanistic, explicitly non-theistic, non-sectarian vantagepoint, I recognize the central role land has played in religious traditions concerning death and burial. My thinking about the implications for property law and critical theory of recognizing the consecrated nature of land was thus also informed by readings on theburialrituals of the Buddhist, Christian, Hindu, Muslim, Jewish, and Taoist traditions.[17]
As with Durkheim in the Elementary Forms of Religious Life, I acknowledge the extreme malleability of the term “sacred.” Quite literally, one person’s “sacred” can be another’s “profane,” as in the WorldTradeCenter example above.[18] Thus, I recognize the need for boundaries on my usage of these concepts. Simply put, my reference to the “consecrated,”“sacred,” or “hallowed” character of land is meant to connote that which is most elevated in human nature and experience, the intangible dignity and value of human life. Land associated with death and burial is sacred because it acts as an enduring connection between what was, what is, and what shall be. Put otherwise, land set aside to honor the dead moors us both physically and emotionally with particular respect to our values and sense of permanence.
In American Sacred Space, editors David Chidester and Edward Linenthal note that sacred sites can be desecrated in two principal ways – through defilement, whereby the ritual observance of the sanctity of the site is specifically flaunted, and dispossession, where the site cannot be honored because those who seek to honor it are physically blocked from access to it. Property law, as well as tort and criminal law, specifically seek to redress these harms.[19]
C.Roadmap of discussion
This Article proceeds in two parts. The first part highlights a range of examples of land deemed consecrated, or not, through association with death and burial, returning briefly to the World Trade Center footprints before moving on to other sites. In this section, I examine the many ways in which property law principles have been modified, or not, to accommodate the perceived hallowed character of land touched by death. For example, principles of adverse possession, dedication, eminent domain, zoning, and taxation have been modified to give special legal recognition to conventional cemetery grounds and other land associated with large-scale loss of white lives. I show that the same solicitude has not beenextended to other land associated with human death and burial, such as slave burial grounds and Native American burial sites.
The second part addressesimplications for critical theory of recognizing the sacred character of land associated with death and burial. It begins with Margaret Jane Radin’s failure in her personhood property writings to acknowledge the potential forhumanistic understandings of the sacred, or transcendental, as motivatingpersonal attachments to property.[20] It then briefly addresses law’s solicitude toward certain parcels of land touched by death as a further manifestation of totemic significance. Next, the Article undertakes a critical race theory critique of the differential treatment of land associated with death and burial. I seek to addresswhy certain sites of significant loss of lifehave been widely and immediately recognizedas consecrated landand accorded speciallegal solicitude, whileothers have not. The highly conflicted treatment of Native American burial sites is one example. Othersinclude slave burial grounds, the African Burial Grounds in Manhattan, the Japanese American internment camps, and the Triangle Shirtwaist factory fire site. I conclude with thoughts on which tragedies are perceived as having occurred in the commons and therefore publicly “owned,” or not, and, finally, with words of caution on the dangers of giving legal recognition to the “consecrated” nature of land.
***
A brief word on what this Article is not. First, because it draws on a non-sectarian, non-theistic understanding of the “sacred,” the Article does not address property consecrated for use by religious entities, such as houses of worship, religious schools and camps, etc.[21] Second, because the Article focuses on the ways in which land comes to be considered sacred (or not) and their implications for the law of real property, it does not consider the potentially sacred character of personal property, including jewelry, books,photographs, and other mementos. Finally, the Article is not principally concerned with property in the human body, but, rather, with interests in land, where the question of the body’s status as property, including the dead body, has been amply examined elsewhere in the legal literature.[22]
II.Examples of Land Considered Consecrated (or Not) Through Association with
Deathand Burial
A.Sites widely recognized as consecrated by human death and burial
1.The WorldTradeCenter footprints
In a story declaring in bold lettering, “TWENTY-FOUR TONS OF ADIRONDACK STONE WILL BE SET INTO HALLOWED GROUND ON JULY 4,” theNew York Timesrecently emphasizedthe consecrated nature of the land at the WorldTradeCenter site:
[T]he sanctity and rawness of that ground, where the incision of a ceremonial spade would have been regarded by some as the reopening of an awful wound or the desecration of a cemetery, compelled state officials to devise another kind of ceremony.[23]
Likening the building’s footprints to a cemetery, or burial ground, is apt, where they were the site of the deaths of nearly 3000 individuals,[24]with little in the way of mortal remains found as a consequence of the mode of death,[25] where the site was instead blanketed with ash, constituting a composite of bodies, buildings, and things.
Thelargely unquestioned commitment to hallow the footprints by decommodifying them, i.e., taking them off-market, includes a proposal currently pending in Congressto confer National Historic Landmark status on them, thereby removing them from private commercialdevelopment in perpetuity.[26] Introduced by Representatives Carolyn Maloney of Long Island and Chris Shays of Connecticut, the proposal is explicitly premised upon the land’s significance as a burial site, or final resting place, for those killed on September 11th. Thefindings upon which the proposed landmark status lie emphasize the grave-like nature of the site. Findings 9 and 10, for example, provide:
(9)A broad and deep consensus has emerged in the United States that the former World Trade Center site, and particularly the tower footprints, bear a uniquely tragic and transcendent significance in our Nation’s history due to the unparalleled events that took place there; the almost unfathomable number of innocent lives lost; . . . and the fact that the circumstances of their death has meant there is almost no physical trace of most of the victims.
(10)The bedrock footprints of the former WorldTradeCenter towers are in the area of the site where the greatest number of victims lost their lives and where the majority of human remains were found, and therefore represent the final resting place of a majority of the victims.[27]
Thus the proposal assumes the land’s consecrated nature as a widely accepted and significant fact, central to its value as a historic landmark.
While national historic landmark status has not been forthcoming,[28]the footprinted land has nevertheless been taken off-market and devoted to non-commercial use as a memorial to the dead.[29]
2.The Oklahoma City bombing site
As with the WorldTradeCenter footprints, the site of the AlfredP.MurrahFederalBuilding in Oklahoma City was regarded as consecrated by the deaths of 168 people, including 19 children, resulting from the April 19, 1995 bombing attack. More expansive than the WorldTradeCenter footprints, theOklahoma Citymemorial encompasses the entirety of the bombing site and proclaims to “honor[] the victims, survivors, rescuers, and all who were changed forever on April 19, 1995.”[30]
Because theOklahoma City bombing site was already public land, there was no need for federal authorities to exercise eminent domain, nor negotiate with private parties (as at issue in the WorldTradeCenter site), to gain control of the site for purposes of erecting a national memorial. Rather, the federal government was free to demolish what was left of the Murrah building, which it did,[31] and to erect a memorial and museum in its place.
The Oklahoma Citysite’s memorialization represents the decommodification of a public site, while the WorldTradeCenterfootprints’ memorialization represents the decommodification of a site that was both publicly and privately held. Indeed, the Oklahoma City memorial constitutes the “decommodification” of the site from use predominantly as public office space[32] to use strictly as public open space, while the WorldTradeCentermemorial constitutes the decommodification of the site from use primarily as commercial office and retail space[33]to use strictly as public open space.
As with the WorldTradeCenterfootprints, legislation was introduced in Congressseeking to confer national historic landmark status on theOklahoma City bombing site. But, unlike the legislation at issue in the WorldTradeCenter site, the Oklahoma City National Memorial Act of 1997 was enacted,[34]thereby transferring control of the site in perpetuityto the National Park Service. In signing the Oklahoma City National Memorial Act, President Clinton declared:
I am pleased to sign today S. 871, the "Oklahoma City National Memorial Act of 1997." This Act establishes the Oklahoma City National Memorial as a unit of the National Park System to recognize the profound changes brought to so many lives on the tragic morning of April 19, 1995. … The significance of the tragedy of the bombing of the AlfredP.MurrahFederalBuilding in Oklahoma City, and the meaning and implications of this event for our Nation, compel the establishment of this memorial as a visible and prominent national shrine…[35]
By contrast with the Oklahoma City bombing site,other sites recently recognized with National Historic Landmark designations, including the African Burial Grounds in New York City and the World War II Japanese American internment camps in the western states (to date, only the Manzanar and Minidokacamps have been charted for preservation), have not been so quickly, or unanimously, embraced. I discuss the treatment of these sites in Part IC below, concerning partial or conflicted recognition of the consecrated status of sites associated with human death and burial.
3.Recognizing battlefields as consecrated ground and the rise of the national
cemeteryin the Civil War era[36]
Gettysburg National Battlefield and Cemetery[37]
Any reference to the consecration of land by association with death and burial necessarily evokes Lincoln’s address in dedicating the Soldier’s NationalCemetery at Gettysburg, Pennsylvania.[38] It is noteworthy, in this regard, that Lincoln’s Gettysburg Address was read as part of the ceremony commemorating the first anniversary of the WorldTradeCenter attack.[39]