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Virginia Isn't Bound by 1890 Deed to Perpetually Display Robert E. Lee Monument
Today's Virginia Supreme Court decision in Taylor v. Northam (unanimous opinion by Judge Bernard Goodwyn) deals with an 1890 deed, which conveyed a Robert
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The Government of the Commonwealth is entitled to select the views that it supports and the values that it wants to express. The Taylor Plaintiffs erroneously assert that the Commonwealth is perpetually bound to display the Lee Monument because of the 1887 Deed, the 1890 Deed, and the 1889 Joint Resolution.
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.
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. 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.
