"Adverse possession"

[Volokh, Eugene]

	I tend to agree that under the endorsement test, new city names with sufficient religious content might sometimes be unconstitutional.  But even there, I think, much depends on whether the name also has some secular significance.  Is it, for instance, a version of the name of a neighboring city (e.g., West Corpus Christi)?  Is it the longstanding name of a neighborhood that is just now being incorporated?  So I think it returns to the question we were discussing as to the memorial -- to what extent does the memorial also have a secular meaning.

	But I want to turn for a moment to the language of "adverse possession," or even of "constitutional easement," which I take it refers to "prescriptive easement."  That seems to suggest (and please correct me if I'm wrong) that an action was illegal at the outset, but acquired legality because of long use and acquiescence.

	Yet I take it that at the time the cities were named, and at the time the first cross was put up in 1913, and at the time the current cross was put up by the veterans' group in 1954, then-existing Establishment Clause caselaw would probably not have been seen as prohibiting this sort of religious speech by the government.  It is only the Court's more recent decisions that have suggested such governmental religious speech -- or religious speech given special treatment on government land -- was unconstitutional.

	Of course, the Court does often claim that it's providing The True Interpretation Of The Constitution, Which Has Always Been True.  Yet we shouldn't make the mistake, I think, of actually believing legal fictions.  The Court has set up a constitutional rule that looks very different than the one that was in place at the time many cities were named, seals were created, monuments were set up, and so on.  To the extent the legal system accepts them because of their age, it isn't really because of some notion that they were once trespassers but now have title for adverse possession.  They were once perfectly legal, and the question is whether new constitutional doctrines should lead to a destruction or removal or alteration of historical landmarks, names, and symbols.

	Eugene

> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
> Sent: Thursday, April 22, 2010 1:24 PM
> To: Ira (Chip) Lupu; Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> Subject: RE: war memorials
> 
> I take it that it would be unconstitutional today for Texas to recognize as a city
> name "Corpus Christi" or, for that matter, "San Antonio," though such names
> remain acceptable because of some theory of constitutional easement or adverse
> possession.  (That is to say, I agree with every word of Chip's posting.)
> 
> sandy
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
> Sent: Thursday, April 22, 2010 3:08 PM
> To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> Subject: RE: war memorials
> 
> We're talking about a war memorial, not a holiday display, like marking Easter
> with a cross (would a publicly sponsored cross on Easter Sunday be OK?), or
> Chanukah with a Menorah.  The holiday displays are acknowledgments that some
> people (not everyone, we realize) are celebrating a holiday. The best analogies to
> the war memorial are, as Eugene suggests, the city names and city seals,
> because these purport to be symbols for all.  But those names and seals have
> historical significance, and tend to lose any independent religious meaning over
> time.  War memorials -- designed to commemorate  the dead -- never lose their
> religious significance.  Why should government ever be free to choose the symbol
> of one faith for a war memorial, when it can choose a non-religious symbol -- a
> plaque, or statue, or something that calls forth remembrance in secular terms.
> Crosses as a war memorial don't just prefer or endorse Christianity -- they
> comparatively devalue the deaths of non-Christia!
>  n !
> soldiers who gave their lives for their country.
> 
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>