The Supreme Court of Virginia heard arguments Tuesday from people hoping to block the removal of the Lee Monument from the former Capital of the Confederacy.
General Robert E. Lee once proudly led the Confederacy in an effort to maintain the rights of southern slaveholders. And while he and his cause lost that battle, a massive monument to the leader remains in the heart of Richmond’s Fan District and in an ongoing legal fight that went before the Virginia Supreme Court Tuesday morning.
Now, locked behind a fence, covered in graffiti and facing a removal order from Governor Ralph Northam, Lee’s future is up to the state’s highest court following an effort by local landowner Helen Marie Taylor and others who claim Virginia is bound by a 131 year old contract to keep and protect him.
But not all Richmond residents feel that way. “Too little too late. It should have come down 100 years,” says Don Baker. He’s lived on Monument Avenue, where his front door opens to views of Lee, for nearly 40 years.
After a year of protests and marches, Baker and other neighbors signed on to a brief supporting Northam’s effort to remove Lee. “Some of our neighbors, a handful of them, are causing the problems by trying to maintain it.”
Baker is far from alone - on the West side of Lee sits Lawrence West, leader of BLM RVA. The group started in the wake of last year’s George Floyd protests which also helped inspire Richmond’s statue removal effort. The group has maintained a presence near the monument ever since. “Robert E. Lee represents the Confederacy which also represents chains and shackles for people like myself,” West said while setting up a booth to distribute food and water. It's part of the group’s advocacy work which also includes court watching and other crime diversion efforts.
Back inside Tuesday’s hearing, held online due to the ongoing coronavirus outbreak, Patrick McSweeney, who represents Taylor and others, said a budget amendment passed by the legislature last year which empowered Northam to remove the statue was passed in a way that violates the state’s constitution.
“The General Assembly’s plenary power is obviously capped by specific provisions of the constitution, particularly the contract clause in this case, Article 4 Section 14 Paragraph 2 is another, as well as the separation of powers," McSweeney argued. "It does not exercise the right and power to invalidate contracts in every exercise in what would otherwise be a legitimate exercise of police power or sovereign power.”
But Virginia Solicitor General Toby Heytens argued the landowners, as well as William Gregory, a self-proclaimed descendant of the original deed holder who granted the land and statue to the state, were attempting to overthrow the will of the people via the duly elected General Assembly. "This case is about whether a handful of private individuals possess a judicially enforceable right to override the decision of the Commonwealth’s political branches and the will of many of their own neighbors.”
The judges from the state’s high court stayed silent during the Tuesday morning hearing, offering little insight into how or when they might rule. But Rich Schragger, a professor at the University of Virginia School of Law, was skeptical of the pro-Lee landowner’s arguments which would, in effect, compel the state to speak in support of Lee and his Confederate cause. “One could imagine a property owner saying I'll make an agreement with you but you’ll have to put up a sign that supports republicans or democrats, or you have to vote a certain way," Shragger said. "Those would be quite shocking restrictions on peoples’ rights, and in this case it's a restriction on the democratic process, the ability of the Commonwealth to decide what it wants to say.”
The lower courts have consistently agreed with the state during the year-long fight, so anti-Lee folks like Lawrence West are already looking at what’s next after the statue is removed. Ideas include better recognition for the city’s role in the slave trade and better treatment for slave burial grounds in Shockoe Bottom. “All of those things being a part of Richmond’s history and acknowledging the journey it's been for black people to get equality.”