(Posted September 2, 2021) In two rulings handed down this morning, the Supreme Court of Virginia affirms lower-court judgments that permit the Governor to remove the statue of Gen. Lee on Monument Avenue in Richmond.

In a short published order in Gregory v. Northam, the court affirms the denial of declaratory-judgment relief to the descendants of the Nineteenth Century donors of the land on which the monument now rests. There are no sweeping public-policy pronouncements in the order; in the end, it turns on principles of real-property law.

In 1890, the Commonwealth accepted a deed to the site containing this language:

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 Special Statute herein before mentioned executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold said Statue and pedestal and Circle of ground perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.

The modern heir to those grantors sought to enforce the rights that the Commonwealth thereby granted to his ancestors, as the language quoted above unmistakably creates a perpetual obligation on the part of the Commonwealth.

The justices rule that any rights reserved by the grantors created an easement appurtenant – that is, an easement that benefits a particular parcel of land – and not an easement in gross, which benefits one or more individuals. That’s dispositive here because the heir doesn’t allege that he owns any particular parcel of land that this language was intended to benefit. This means that the heir doesn’t have a property interest that gives him the right to enforce the language against the Governor.

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The discussion in Taylor v. Northam is more sweeping and will be cited liberally in many future cases involving public policy. This appeal stems from litigation brought by property owners in the vicinity of the monument. They, too, sought a declaration that the Governor had no right to repudiate the promise made by the 1889 General Assembly when it adopted a joint resolution. This resolution authorized the Governor at that time to accept the gift and guarantee that the Commonwealth would hold the monument “perpetually sacred to the monumental purpose to which it has been devoted.”

A circuit court judge considered the matter in a bench trial. After receiving evidence and arguments, the court took the case under advisement before issuing a letter opinion last October. The court noted that a restrictive covenant like this can be enforced only if it’s consistent with public policy. The burden to establish a contrary public policy fell on the Governor here.

At trial, the evidence on this point was lopsided, judging from the recitation in today’s opinion. The Governor called two expert witnesses, eminent historians both, who told the court about the variance in public policy between the 1890 Commonwealth and today’s. The monument rose at a time when white Virginians, stung by the pain of what they saw as a punitive Reconstruction, sought to affirm their pre-war dominant position in society. The statue was for them a symbol of what we now refer to as the Lost Cause myth.

Modern society is, as we all know, quite different. The subjugation of one race by another is anathema to all but a few modern-day fringe groups. The decision to remove the statue is in line with other current legislative actions and public-policy statements.

As today’s opinion explains, the circuit court noticed “the lack of any evidence” from the plaintiffs on public policy other than those from the Nineteenth Century. They had claimed that these declarations survive today as modern public policy.

The circuit court disagreed with the plaintiffs, finding the covenants repugnant to modern public policy. It accordingly refused to enforce them and granted judgment in favor of the Governor. When the plaintiffs appealed, the circuit court sua sponte entered an order granting a temporary injunction against the statue’s removal, pending resolution of the appeal.

By current standards, that resolution was quite swift. Today, ten or eleven months after the final order below, the Supreme Court issues a 26-page opinion that affirms the judgment below, albeit on slightly different grounds. In contrast, what I’ll describe as garden-variety appellate litigation takes a year and a half or more from circuit-court judgment to SCV merits decision. This appeal was fast-tracked.

Justice Goodwyn pens today’s opinion. He begins his analysis by noting that the plaintiffs’ claims rest on two assumptions. The first is that they have an enforceable property right to control the use of land owned by the Commonwealth. The second is that the Constitution of Virginia bars the Governor from removing the statue because the legislature passed that joint resolution. He concludes, “Rightfully, neither premise survived the [circuit] court’s scrutiny.”

The monument is a form of government speech, and government speech “is a vital power of the Commonwealth.” The plaintiffs were claiming the right to force the government to embrace a particular message, one that Nineteenth Century white Virginians sought to perpetuate.

But as the Governor’s experts explained, times change. And one generation of Virginians – those with political power, anyway – cannot force later generations to agree with a message that is no longer widely held. This is all the more true of a public-policy statement in a joint resolution, a lesser form of legislative pronouncement than an enactment. That joint resolution is not, and never was, binding law; it was merely an expression of the post-Reconstruction legislature’s desires.

The Governor pointed to a budget amendment passed by the 2020 General Assembly, expressly repealing the 1889 resolution. The plaintiffs asserted that this action was unconstitutional. Today’s opinion finds that even without the 2020 act, it’s clear that the language in the resolution and the deeds violates modern public policy.

Justice Goodwyn also invokes a doctrine that I learned perhaps 30 years ago when I worked in City Hall: A government cannot contract away the power to govern. That includes the right to decide what form of public speech it will embrace. The Nineteenth Century legislature could no more bind the modern Commonwealth to express this view than it could contract away the right to set any speed limit for the new invention, the automobile, above ten miles per hour. Times have changed in the field of transportation, too.

The Supreme Court thus rules that the Governor in 1890 had no power to contract away future generations’ right to decide for themselves what forms of government speech could be expressed. The restrictive covenant is thus unenforceable.

In a short passage, Justice Goodwyn dispatches the plaintiffs’ claim that historic-preservation statutes also bar removal of the statue. He concludes that those statutes make the Governor the final authority on whether to remove memorials.

In a concluding paragraph, the Supreme Court affirms the judgment below and “immediately dissolve[s] all injunctions imposed by the circuit court.” So is the Governor free to schedule removal of the statue this afternoon? Technically, he has to await the issuance of a mandate, the formal order that carries out the Supreme Court’s opinion; but the word immediately suggests otherwise. It’s conceivable that the losing parties in today’s two decisions could petition the court for rehearing, but that would be a futile gesture that would only buy time, and very little time at that. Both of today’s rulings are unanimous.

Between the June session, when the Supreme Court heard oral argument in this case, and now, I’ve read a book entitled Robert E. Lee and Me by a retired brigadier general, Ty Seidule, who’s a historian on the faculty at West Point. The young Ty Seidule, four years younger than me, grew up in northern Virginia and received the same formal education that I got in southeastern Virginia. Our school teachers, in our fourth- and seventh-grade Virginia History classes, taught us that the Civil War was a noble effort by the South to preserve states’ rights to decide their own affairs, rather than having a federal government tell them what to do; it wasn’t about slavery. They taught us that Confederate generals and soldiers were better than their Northern adversaries; the Yankees only won because of great advantages in manpower and matériel. We learned that Reconstruction was as cruel and vengeful as I’ve described above, and that slaves were happy with their lots in antebellum life, preferring that to the savagery of their lives back in Africa.

Yes, we who grew up here in the 60s and 70s really did learn that in public school. We were tested on it to ensure that we had mastered what was in the official school textbooks. Ty Seidule got even more indoctrination in the Lost Cause myth when he went to college at Washington & Lee, where Gen. Lee was revered – in his words, on a par with Jesus himself. Only after he began his military career did he begin to question what he and I had been taught.

This essay is about two Supreme Court decisions, so I won’t spend too much time waxing eloquent about history. All I’ll say is that generations of Virginians, including me, received this set of myths as education. We absorbed it and accepted it – as fourth graders are wont to do; we didn’t talk back to our teachers, especially in the days when corporal punishment was still around – and carried it into adulthood. Some of us have realized over time that we were being lied to, and have cast off those lies. Today the Commonwealth may finally cast off one more prominent postwar lie.