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?
No comments:
Post a Comment