On September 8, 2021, the commonwealth of Virginia finally removed its sixty-one-foot-tall statue of Robert E. Lee. For more than 130 years, it towered over Richmond's Monument Avenue, until a combination of activism and political mobilization laid the groundwork for its removal. The story of the monument—from its origins to its demise—is also a legal story that should be of interest to state and local government scholars. The construction and destruction of the monument raise issues ranging from special legislation to local power to the interface between private law and public policy.
Special Legislation, General Legislation, and the History of Virginia Monuments
The history of erecting Confederate monuments can itself be a story for local government wonks. Others have aptly told the story of these monuments as both representations of ideological movements and as pieces of individual cities' or states' histories. But there is an interesting legal history behind Virginia's monuments, one with interesting lessons on the transition from special legislation to general legislation (and its consequences).
My own research in Virginia state records has found that beginning in 1871, the Commonwealth's general assembly began receiving requests from locals' representatives pertaining to counties, cities, and various private associations erecting monuments to Confederate leaders or war dead. The Commonwealth responded to these requests with special legislation, numerous acts empowering individual localities and entities to erect monuments in particular spots. The first of these requests evidently came from the Lee Monumental (sometimes Monument) Association, the group eventually responsible for the Robert E. Lee monument just removed last week. In 1871, the general assembly passed an act incorporating the Association and authorizing it to raise money to purchase a suitable plot for the proposed monument. While the act provided that the land so acquired would be held "sacred to the purposes of the association"—a restriction appearing to bind the association, not other actors—it said nothing else restricting future removal of the statue.
In 1876, another monument-related request came in from Westmoreland County, Virginia, a fairly small and not terribly populous county in Virginia's Northern Neck region. This time, the general assembly passed an act incorporating a Ladies Memorial Association and authorizing the county to grant the Association the "privilege" of erecting monuments either to their war dead or to Lee. But the act contained a curious proviso: in addition to authorizing the erection of a monument, it provided that "it shall not be lawful thereafter for the authorities of said county, or any other person or persons whatever, to disturb or interfere with any monument so erected." It is unclear why this ban on removing Confederate monuments appears in the Westmoreland act, but not in others either before or after. Was there a reason why the Ladies Memorial Association was worried the monument wouldn't last? Despite my detective efforts, I've been unable to find any clear reason (though I did find out that the eventual monument constructed was financed by selling tiny Lee busts).
From that point onward, the Commonwealth started to face a barrage of requests from localities seeking special legislation permitting them to erect Confederate monuments. Not all of these requests contained the ban on removal found in the Westmoreland act, but some did. By 1903, most of this special legislation was patterned after the Westmoreland act, with only the name of the relevant county changing: Prince William County, Roanoke County, and so on. After that particularly active year of monument-related special legislation, in 1904, the Commonwealth ultimately passed general legislation authorizing the circuit court of any county to erect Confederate monuments "upon the public square of such county at the county seat." This act likewise prohibited anyone, including those counties, from "disturb[ing] or interfer[ing]" with the monuments in the future. The act was subsequently revised in 1997 to include cities as well as counties (and monuments to causes other than the Confederacy). But with its origins in the early twentieth century, Virginia's ban on local Confederate monument removal significantly predated other states' bans on removal (indeed, some new bans have emerged as recently as 2017). From a single piece of special legislation in 1876, the Virginia general assembly began copying and pasting authorizations, ultimately patterning the general legislation that continued in force for over a hundred and forty years.
Dillon's Rule and the Monuments
The local government story picks up again in 2017. Then fifteen years old, Charlottesville resident Zyahna Bryant petitioned the Charlottesville city government to remove that city's Robert E. Lee statue. The subsequent public history is likely well known to this audience. Charlottesville's city council did vote to remove the statue, despite the still-extant and arguably applicable state law banning "disturbing or interfering" with monuments. With that vote in place, but the monument still standing pending legal and other logistical issues, white supremacists mobilized for Charlottesville both in defense of the statue and for a "Unite the Right" rally that ended in enormous tragedy.
As that tragedy unfolded, however, a courtroom controversy was already underway. Did the state-law ban on removing Confederate monuments really apply? Co-blogger (and colleague extraordinaire) Rich Schragger took note of a puzzle at the statue's root: it was erected in 1924, a time when the 1904 authorizing legislation discussed only counties, not cities. Because Charlottesville is now and was then a city, its monument could not have been erected pursuant to that legislation, and the companion ban likewise could not apply. Virginia is a Dillon's Rule state, notoriously stingy with local power, where localities exercise only authority explicitly delegated to them. Either the Charlottesville monument was beyond the city’s legal powers when built or it was erected pursuant to some other authority that did not contain a companion ban. This argument was developed further both by the city in litigation and in a fabulous article by UVA Law grad Amanda Lineberry.
I have taught the Charlottesville monument saga as a great example of why the structure of local power matters. Although the Dillon's Rule argument was initially rejected by the trial court, on April 1, 2021, the Virginia Supreme Court agreed that the 1997 changes bringing cities within the monument ban did not apply retroactively, and Charlottesville's monuments came down in July. (Those interested in statutory interpretation will also find much grist for the mill in these opinions.) Sadly, of course, the length of time it took to reach that result left Charlottesville and its people suffering while the monument remained standing.
Covenants, Public and Private Law, and the Monuments
The very last chapter in the monument saga concluded with the Lee monument's removal last week. And that chapter also carries lessons about some emerging problems that are likely to recur in local government law in the coming years.
Recall that Richmond's Lee monument was the first that the general assembly licensed (in 1871) and that the act incorporating the Lee Monument Association authorized it to procure land to be held "sacred to the purposes of the association." From that point, the Lee monument detours into private law. In the mid-nineteenth-century, Richmond resident William C. Allen had amassed a great deal of land in the city, and after his death, his children set about over the 1870s and 1880s subdividing and developing it. Their holdings included the land that would become Monument Avenue, a grand parkway with tony homes (many of which had deeds containing racial restrictions providing that no lots could be sold to Black residents). As the street name would indicate, the proposed monument to Lee was to be a central focal point for the subdivision. In 1887, the Lee Monument Association procured from Allen's heirs a deed to a round circle of land at the intersection of two proposed avenues in the new subdivision. The 1887 deed from the Allens to the Association required the Association to use the land for the monument and to hold the Circle "only for said use." After a short while, the Association sought to transfer the circle and monument to the state. I should note that there wasn't much separation between the state and these individual citizens in 1887; the Governor of Virginia at the time was friends with the Allens, Lee's nephew, and himself a member of the Lee Monument Association.
In 1889, the General Assembly in a “joint resolution” authorized the Governor to accept a transfer of the monument and circle and to provide assurance that the state would “hold the said land perpetually sacred to the monumental purpose to which it has been devoted." A year later, in 1890, the Lee Monument Association executed a deed transferring the monument to the Commonwealth “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.” Attached to this deed was a plat indicating the layout of the Monument Avenue subdivision and indicating the location of the monument itself. (The monument was not universally celebrated at its unveiling. The contemporaneous writings of John Mitchell Jr.—the editor at the Richmond Planet, the city's Black newspaper—about its erection are very much worth your time.)
So things stood until 2020, when Governor Ralph Northam announced that the Commonwealth would seek to remove Richmond’s Lee statue. Immediately, a number of plaintiffs claimed removal would violate various rights purportedly created by these 1887 and 1890 deeds. One of these groups—comprised of Helen Marie Taylor, John-Lawrence Smith, Janet Heltzel, George D. Hostetler, and Evan Morgan Massey—consisted of owners or trustees for owners of parcels along Monument Avenue. Among other things, they claimed that this "perpetually sacred" language created a covenant running with the land (oh no, 1L Property!), burdening the Commonwealth's property and benefiting their adjoining parcels in the subdivision. Covenants, you may recall, are land use planning tools by which owners bind themselves and future owners to certain restrictions laid out in the deed (provided they satisfy a few technical requirements): promises to build only to a certain height or to build only single-family homes, for instance. They are the bread and butter of homeowners’ associations and residential subdivisions; the beneficiaries of the covenant with standing to sue for violations are the owners of adjacent and nearby land (or associations of owners). In any event, this group of plaintiffs used the alleged covenant to seek injunctive relief preventing the state from removing the monument.
Another plaintiff—William C. Gregory—was an heir of the Allen family, those who subdivided Monument Avenue in the first place. He asserted that as an heir he was the beneficiary of some sort of easement in gross (not 1L again!) created by the 1887 and 1890 deeds. He claimed that this “easement” entitled him to enjoin the state from removing the monument. (Candidly, Gregory’s claims about some kind of “easement” could be easily disposed of—property law disfavors easements in gross generally, let alone where the deed itself gave no indication of the intent to create that kind of servitude.) As the litigation in both cases wound on, the Virginia General Assembly passed a Budget Amendment repealing both the 1889 joint resolution (authorizing acceptance of the monument) and authorizing the state Department of General Services to remove Lee.
These cases—Taylor v. Northam and Gregory v. Northam—raised numerous interesting issues (I’ll save most for future property nerd blog posts, or for talking to myself about the “touch and concern” requirement while on a walk). But I want to focus in on one extremely fascinating one from the Taylor case. The Commonwealth’s attorneys argued that even if the 1887 and 1890 deeds created a covenant running with the land, binding the state and benefitting adjacent owners along Monument Avenue, it was terminated because the covenant was now invalid either due to “changed circumstances” or because it was “against public policy.” Why? State legislatures set public policy, as they did through the Budget Amendment. More broadly, Virginia has now abandoned its policies of racial segregation and subordination in favor of policies endorsing diversity, equity, and inclusion. And lastly, a restriction purportedly requiring the government to endorse a message in perpetuity compels government speech, raising serious red flags. A small group of property professors (including me and fellow SLoGers Rich Schragger and Nestor Davidson) filed an amicus brief in support of these claims.
In a work in progress, I am exploring some of the ambiguities surrounding these covenant termination doctrines, "changed circumstances” and “against public policy.” Though parts of hornbook property law, much about the doctrines remains opaque. Changed circumstances cases usually turn on physical alterations to the landscape (for instance, a highway that now runs by a subdivision rendering some old restriction moot), not always other kinds of intervening changes (like changes in the meaning of a monument). And “public policy” cases are few and far between, mostly concerned with invalidating covenants that could be classed as restraints on alienation. A few early opinions on racial restrictions found those restrictions against public policy, though the famous case that permanently hobbled racial restrictions—Shelley v. Kraemer—involved public law, not private law termination doctrines.
This underdevelopment is especially intriguing for two related reasons. First, state laws invalidate covenants all the time outside the context of Confederate monuments. Yet surprisingly few cases have tested the boundaries of what counts as “public policy” or a “changed circumstance.” Is public policy whatever the state says it is, the state’s law plus corroborating evidence of changing policy, or something else? As examples, Va. Code Ann. § 36-96.6 provides that “[a]ny restrictive covenant and any related reversionary interest, purporting to restrict occupancy or ownership of property on the basis of race, color, religion, national origin, sex, elderliness, familial status, sexual orientation, gender identity, military status, or disability . . . is declared to be void and contrary to the public policy of the Commonwealth.” A California law invalidates restrictions that affect satellite dishes. And as of 2019, as part of its efforts to tackle the affordable housing crisis, California now declares any covenant that “effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use . . . [to be] void and unenforceable.” Second, and relatedly, how will termination of covenants through a combination of these regulations and private-law doctrines be viewed by federal courts that may be increasingly bullish on the Takings Clause or other property-protective provisions? It turns out that there is a deep split among the states in how to treat covenants under the federal and state constitutions, with some states considering them compensable property interests that can be affected by condemnations or regulations and others not at all. I hope to have more answers about the interactions between constitutional property doctrines and covenant termination doctrines in the semi-near future.
While there is much still to work out, the Confederate monument saga in Richmond is already a fascinating one for the readers of this blog. The Commonwealth prevailed in Taylor, with the Virginia Supreme Court finding the covenants unenforceable as against public policy and as unreasonably compelling government speech. The opinion is worth reading for its discussion of monuments as speech, the Lost Cause myth, and the authority of the state to set policy without the bindings imposed by past legislatures and governors. It is also an interesting contrast against a recent Alabama Supreme Court decision where—instead of validating a state’s capacity to remove a statue when opposed by a group of neighbors—that Court upheld Alabama’s authority to insist that Birmingham retain and display a monument where the city had previously prevailed in a lower court in its claims that being forced to display Confederate monuments violated the city’s speech and property rights. (For more on city speech, I again recommend to you some of Rich’s work.) Perhaps that returns us to another lesson frequently taken up in these pages: the city and state may not have too much to fear from private law and clamoring neighbors, but conflicts between cities and states raise entirely different conundrums.