On Wednesday, the Commonwealth of Virginia took down and then sawed to pieces Robert E. Lees 21-foot bronze equestrian statue in the former Confederate capital of Richmond.
On paper, this was illegal. In 1889, the General Assembly guaranteed that the state would hold the said [Lee Monument] perpetually sacred to the monumental purpose to which it has been devoted. In 1890 the association to build the monument deeded the land to the Commonwealth. This month, the Virginia Supreme Court noted that:
The 1890 Deed states that The State of Virginia . . . executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold [the Lee Monument and the land it stands on] perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.
That should have been the end of the story, but Virginia Democrat Governor Ralph Northam had already decided to take the statue down in 2019. While he was in med-school, he posed in blackface or in a KKK costume (its still unclear which). He then told conflicting stories about the photograph, but admitted wearing blackface when he went to a party as Michael Jackson. He even offered to moonwalk for the press before his wife mercifully restrained him.
He survived the scandal, and to ensure black support, he claimed his eyes had been opened and that he would make racial equity. . . a top priority for the remainder of our administration. This included removing Confederate monuments, so Gov. Northam decided Virginia need no longer affectionately protect the statue. The heirs of those who donated the land for the statue sued to prevent its destruction.
Governor Northams legal team told the state supreme court that the Lee monument sent a message that many believe contradicts the values of equality, inclusion, and diversity. It added that the post-war white citizenry wanted to impose and state unapologetically their continued belief in the validity and honor of their Lost Cause, and thereby vindicate their way of life and the former Confederacy. The court didnt care that the statue was a National Historic Landmark, nor that a colored Confederate soldier attended the unveiling in 1890.
It also found that the 1889 guarantee did not bind the current government. It ruled that government speech is a vital power of the Commonwealth, and that though the statue said nothing except the word Lee, it play[s] an important role in defining the identity that [the government] projects to its own residents and the outside world. It said further that the state not need be viewpoint neutral, and that affectionately protecting the statue would contradict public policy and be unreasonable in light of changed circumstances.
Democracy is inherently dynamic, the court added. Values change and public policy changes too. Therefore, the terms of the grant of property to the state in exchange for protecting the monument are unenforceable because they were the product of a nineteenth-century attempt to barter away the free exercise of government speech regarding the Lee Monument in perpetuity. Forcing the state to keep its promise to protect a statue with the word Lee on it would violate the states right to free speech.
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