"Adverse possession"

[John Bickers]

Is this not the point of Justice Breyer's concurrence in Van Orden?
Whether we take the view that long use has made the illegal legal, or
that the Constitution changed because the justices said so (a doctrine
we seem only to acknowledge directly in the criminal law), is there not
some value in preserving societal peace?

Bulldozing out the monument in Austin would have severely upset the
religious peace of the area (a goal of the Establishment Clause noted in
Lemon, but long ignored).  Putting up a new monument is a different
equation.  By focusing on purpose, or meaning, or some such other test
that assumes historical constancy, aren't we just making things worse?



John Bickers
Salmon P. Chase College of Law
Northern Kentucky University


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, April 23, 2010 12:41 PM
To: 'conlawprof at lists.ucla.edu'
Subject: "Adverse possession"


	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
> 
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