The Commonwealth of Virginia accepted a gift of property in Richmond in 1890. The legislature approved a resolution in 1889. The Governor signed off on it in 1890. The property came with a catch.
On July 15, 1887, the heirs of William C. Allen (the Allen heirs) conveyed by deed (the 1887 Deed) to the Lee Monument Association a round piece of property (the Circle) located at the intersection of Monument Avenue and Allen Avenue, which is now in the City of Richmond, Virginia. The terms of the 1887 Deed required the grantee, the Lee Monument Association, to
use the Circle as a site for a monument to Confederate General Robert E. Lee (General Lee), and required the Lee Monument Association to hold the Circle “only for the said use.” Several months later, the Lee Monument Association commissioned an equestrian statue of General Lee and a pedestal (together, the Lee Monument) to be erected on the Circle.
And so the statue of Robert E. Lee stood in the circle, with Governor at the time, P.W. McKinney, executing a deed that stated:
The State of Virginia, party of the third part acting by and through the Governor of the Commonwealth and pursuant to the terms and provisions of the [1889 Joint Resolution] executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold [the Lee Monument and the Circle] perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.
In 2020, the current governor, Ralph Northam, decided to remove the Lee statue from the circle and was sued to enforce the condition that the monument remain in the circle in perpetuity, as was approved by the 1889 joint resolution of the Virginia legislature. The court ruled otherwise.
A restrictive covenant against the government is unreasonable if it compels the government to contract away, abridge, or weaken any sovereign right because such a restrictive covenant would interfere with the interest of the public. “[T]he State cannot barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, and the exercise of which in full vigor is important to the well-being of organized society.” “[C]ontracts to that end are void upon general principles,” and they cannot be saved from invalidity by the constitutional prohibition against laws that impair the obligation of contracts.
There is no doubt that the government of Virginia did all that was necessary, indeed possible, to create a binding contract, getting the circle in consideration of keeping the statue there in perpetuity. And yet, more than a hundred years later, the deal is nullified because “values” change?
Governor McKinney had no power to contract away the Commonwealth’s essential power of freedom of government speech in perpetuity by simply signing the 1890 Deed. Similarly, the General Assembly of 1889 had no authority to perpetually bind future administrations’ exercise of government speech through the simple expedient of a joint resolution authorizing the 1890 Deed.
If the governor and legislature agreed to make the deal in 1890, with as much formality as there could be, does the “message” conveyed make the deal, the “exercise of government speech” then is no longer the preferred exercise of government speech now?
The Commonwealth has the power to cease from engaging in a form of government speech when the message conveyed by the expression changes into a message that the Commonwealth does not support, even if some members of the citizenry disagree because, ultimately, the check on the Commonwealth’s government speech must be the electoral process, not the contrary beliefs of a portion of the citizenry, or of a nineteenth-century governor and legislature.
It’s no doubt true that the “beliefs of a portion of the citizenry” will change from time to time, and that a governmental message that was entirely acceptable when the entirety of the government approved it no longer meets with approval of future citizens. Does a government . as opposed to individual officials, have a right to free speech?
And what of the deal? What of the promises made, the consideration provided, the legal commitment of a government?
Eugene Volokh’s reaction to this decision is “seems right to me.”
The government’s right to free speech is an essential power inherent in all governments, and that agreement, entered by Governor McKinney signing the 1890 Deed as authorized by the General Assembly, is unenforceable.
If so, is any “deal” with the government enforceable, or can every agreement be subsequently dishonored when it expresses a message that the current governor or citizenry decide is no longer the message they prefer? And if they remove the statue, shouldn’t the circle revert back to its grantors? You don’t get to keep the benefit when you fail to fulfill the promise, or is that not the case when you make a deal with the government?
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Needs more cowbell.
One of James Bland’s satirical greats. This particular version of it was a huge hit, ironically climbing to widespread popularity a few years after Bland himself had died in poverty, of tuberculosis.
Once again, the courts find a way to finagle around plain language. It’s the same syndrome as, say, a court saying that civil asset forfeiture is totally fine despite the fact that the language of the fifth amendment says differently in very obvious language.
And the government gets to do something once again that us citizens could never get away with. In this case ignoring a contract. Think “well I changed my mind” would work to eliminate my mortgage?
And since when did the 1st amendment protect the rights of the government? The bill of rights is designed to restrict the government, not enable it. Does this decision mean that the government can go to church where it wants and hang out with whatever other government it wants as long as it does so peaceably? Can it not be forced to house soldiers?
This is why us laypersons don’t trust you lawyers. If plain language doesn’t mean anything then we live under the rules of calvinball.
This is actually a well established rule of Calvinball. Just as children cannot legally enter into most contracts, local governments lack the power to enter into certain kinds of contracts.
However, the Admiral’s point about reversion is a sound one. The contract either exists or it does not. In most U.S. jurisdictions, a local government cannot avoid the contract but keep all the benefits. The land should go back to the heirs of the original grantors.
The state should replace the original statue. The new one should depict Lee surrendering his sword to the seated Grant while several black enlisted men look on. This would celebrate Lee’s respect for peaceful transitions of power.
The deal remains intact. Why decide today, a question that can be resolved another time?
How can one tell if the enlisted men are black or white in bronze?
By the way, that sounds like a fabulous statue idea.
Odd you should say that. The University Of Tennessee just unveiled a statue of Condredge Holloway and there are complaints that his hair looks “white.’ ?
They’ll complain about anything.
I grew up in Tennessee and remember Holloway. And the reaction of some of my 8th grade friends. They were not happy to have a quarterback with his, uh, coloring.
Apparently people could tell with the Stephen Foster statue Pittsburg removed from display.
The way you tell everything else about statues: You put it on the associated plaque.
What happens when there’s more plaque than statue?
Or just put another statue next to the original one, à la Fearless Girl.
That’s not a bad idea either.
The difference between “current governor” and “citizenry” seems pretty consequential. Especially since governors can use this sort of thing as campaign strategy, which is putting the cart before the horse.
They should make it an “appropriate” educational monument. It’s not like it’s an inconsequential part of state history. Or, if society prefers to live in puritanical ignorance about such things, maybe get out the checkbook.
The judge presumes that governor to be acting as the elected representative of the citizenry, just as the governor was in 1890 when he committed to the statue in perpetuity.
I am not sure that there is anything to see here. At least in Texas, rules governing the enforcement of restrictive covenants are altered with nearly every legislative session. Some covenants become utterly unenforceable as a result of legislative action. Covenants regarding the exclusion of certain races of people are the first thing that comes to mind. Antennas and satellite dishes another. Political signage another. Tree removal, backyard chickens, et al, etc. Every time it happens, someone’s ox gets gored and other people are really happy about it.
This isn’t that type of restrictive covenant.
If the original deed is unenforceable, then it seems the land and its contents should revert back to the original owners or their estates. This business of “we dont like the deal we made” doesn’t cut it.
I’m also highly suspicious of this “govt’s right to free speech” line of argument. Fabricating governmental rights is dangerous territory.
A fickle govt, allowed to change its will at a whim and renege on lawfully entered agreements seems to fly in the face of the presumption of regularity.
“A fickle govnt . . .” What other type of government is there? A deal is never a deal.
Seems straightforward to me, if the state doesn’t want the statue, violating the deal, but they still want to property, it’s a straightforward taking and appropriate compensation is in order.
Not sure they get to play the eminent domain game backward. Compensation may be better than nothing, but it’s not the deal.
Your proposed remedy?
Leave the statue or give back the land (and statue).
It’s not clear the restrictive covenant in this case would support such relief, as nothing I saw in the VA S Ct opinion indicates that reversion was a term of the covenant. Nor does it appear that the court even addressed the propriety of such alternative relief, probably because these plaintiffs didn’t want it, choosing specific performance or nothing. Even if the “contract” wasn’t subject to avoidance in like fashion as Shelley v Kraemer avoided racial restrictive covenants.
Are breach of contract remedies contingent upon being included in the K? Is there a public policy against statues? If the court is fashioning relief, can it do so to create unjust enrichment by only addressing one aspect and ignoring the consequence of its relief?
I know the US system of government differs from the UK, so feel free to trash. There’s a concept in the UK surrounding Parliamentary Sovereignty that “no parliament may bind a future parliament.” I don’t know how my next statement would wind its way through the courts, however I don’t think any law is inviolable and can’t be changed. Even the Constitution doesn’t suggest it binds that tightly. Indeed, if law were that binding we wouldn’t have the USA right now. A better path might have been for the legislature to pass a law invalidating the previous one. But I wouldn’t doubt that anything is irrevocably binding on the government.
Not sure how this would apply in the UK, but this wasn’t merely an act, but a contract. Can Parliament make a transaction, take the benefit and later reneg on paying for it when another parliament decides it doesn’t like the price?
As you like to remind us, President Jackson had some pithy words about getting an uncooperative sovereign to do something for the court, presuming a contract breach suit would be successful. I would think you’d eventually hit that wall, or a general inability to sue an uncooperative sovereign before you even get there.
In UK terms, “Parliament can make any law” so things like Bills of Attainder are available. Hell, Parliament can just deny the courts the ability to review the contract.
I like to make this point to explain to people how nice it is the US has a written Constitution: If it wished, Parliament can kill the firstborn son of every family in the Nation. Nothing would stop it other than revolt of the people. But the Act itself would be totally lawful.
Yes
@ Kehoe, In 2020, dhe Virginia General Assembly did pass a law repealing the original 1889 resolution and providing funds for the removal of the statue. This was a factor considered by the court in its analysis on the final appeal.