a.e. dick howard – C-VILLE Weekly

‘Grace and dignity’: Former UVA president Robert O’Neil remembered as constitutional icon

It’s no surprise that Robert O’Neil, the University of Virginia’s sixth president, who died September 30, leaves behind an accomplished life, particularly in constitutional law. But what friends keep mentioning is his generosity, kindness, and concern for others—something that was reflected in his efforts to open the university to more diversity during his term in office.

A prominent defender of the First Amendment, especially free speech and freedom of religion, O’Neil founded the Thomas Jefferson Center for the Protection of Free Expression in 1990. The nonprofit organization defends First Amendment rights and annually gives out “Jefferson Muzzles” to call out “especially egregious or ridiculous affronts to free expression.”

UVA President Jim Ryan said O’Neil was a friend and mentor to him at the university’s law school, where they were colleagues. “I’ll never forget and always appreciate the great kindness he showed to me when I was just starting my career,” Ryan told UVA Today.

Boston born and Harvard educated, O’Neil came to Charlottesville in 1985 from the University of Wisconsin, where he served as president. He was UVA’s first president with no Southern ties.

His five-year tenure was short by UVA standards, and in 2012, he described to this reporter the Board of Visitors’ desire for change and the orderly transition of his departure—in sharp contrast to that year’s abrupt ouster of Teresa Sullivan, who was subsequently reinstated.

Although issues with the board arose during his first year, O’Neil said, “Both my coming and going were very smooth.”

UVA law professor Dick Howard, author of Virginia’s Constitution, met O’Neil in the early ’60s when they were both Supreme Court clerks—O’Neil for Justice William Brennan and Howard for Justice Hugo Black. “He really stood out,” says Howard. “I had enormous respect for him.”

O’Neil’s arrival at UVA in 1985 came during a time of transition, when it was still perceived as a place of privilege for students from comfortable backgrounds, says Howard. O’Neil took steps toward diversity. “He cared about the university being an open forum for people of other races and ethnic and religious backgrounds,” says Howard.

On a personal level, Howard says, “I admired his kindness, his humility, his sense of self. I never saw him posture or preen.”

O’Neil continued to teach constitutional law throughout his administrative careers. Josh Wheeler, who succeeded O’Neil as director of the Thomas Jefferson Center, first met him when he took his Freedom of Speech and Press course as a law student. “One aspect of his character that really defined everything he did was his generosity, particularly with his students,” but also everyone who sought his input on the First Amendment, says Wheeler.

The Thomas Jefferson Center was a “tremendous part of his legacy,” says Wheeler. “The center was Bob O’Neil. I feel privileged to have worked with him for 19 of the 21 years he was at the center.”

During that time, O’Neil established himself as one of the most respected defenders of free speech, says Wheeler, and the center weighed in on close to 200 cases. “Having his name on the brief immediately commanded the respect of other jurists.”

Howard agrees that O’Neil left his mark on free speech, open society, and religious freedom. “He was enormously respected throughout the country for constitutional law,” Howard says. But his character garnered respect as well.

“Grace and dignity were two of his prime qualities,” observes Howard. “For someone in a high position, that’s often a rarity.”

O’Neil, 83, died in his Washington, D.C., home surrounded by his wife of 51 years, Karen, and their four children. His family will hold a memorial November 18 at the Cosmos Club in Washington.

Legal opinion: Don’t clutter the Constitution of Virginia

Virginia voters will notice two constitutional amendments on the ballot in November, and given past history, they’ll probably pass them, despite legal experts concerns that such amendments clunk up the state constitution.

The first amendment on the ballot enshrines an existing right-to-work statute that prohibits employers from requiring union membership. The second allows spouses of first responders killed in the line of duty to be exempt from property taxes if their localities agree.

UVA law prof Dick Howard drafted the current constitution, which was approved in 1971. “The constitution embodies fundamental law—the branches of government, local government, the bill of rights and individual rights,” he says. “The more you load the constitution with policy judgments, the more it’s like a code.”

Howard also says it’s a mistake to put social issues into a constitution, and points to Prohibition as exhibit A for bad amendment ideas in the U.S. Constitution. More recently, Virginia’s definition of marriage amendment in 2006 is another example of an issue upon which American public opinion quickly changed and which has been struck down by the U.S. Supreme Court.

While Howard thinks the effect of the property tax amendment is inconsequential, he says, “In principle, that should not be in the constitution. Don’t use the constitution to rewrite the tax code.”

He calls the right-to-work amendment “highly controversial,” and notes there is no constitutional challenge to the statute. “It’s a non-issue,” he says. “Some are arguing the attorney general of Virginia, Mark Herring, is not to be trusted to enforce the statute. I think that’s a chimerical concern.” Some Republicans voiced concerns after Herring refused to defend the state’s same-sex marriage ban, which was being challenged as unconstitutional.

Delegate David Toscano (D-57) says there’s no indication the attorney general will not enforce the statute. “That’s a red herring,” he puns. The amendment “is a clear case of trying to solve a problem that doesn’t exist” for a statute that has never been challenged in a state with few unions. Its main purpose, he says, seems to be “to get people to the polls.”

However, Delegate Rob Bell (R-58), who is running for attorney general next year, says right-to-work is “fundamental” to Virginia’s business competitiveness, and by putting it into the constitution, “it’s less subject to change by subsequent legislatures.”

Bell says he’s “puzzled and concerned” by people who don’t think right-to-work is an issue, and that the constitutional amendment is like seat belts in cars: “We want to have protections in place.”

The property tax break for surviving spouses of first responders has a much smaller impact, says Bell, but without the constitutional amendment, localities can’t offer that break if they choose to do so.

To get an amendment on the ballot, the General Assembly must pass it two consecutive years with a House of Delegates election in between.

Recent amendments have tended to give property tax breaks to veterans or the elderly with disabilities. Bell carried an eminent domain amendment that passed in 2012. As for cleaning up now-unconstitutional amendments like definition of marriage, says Bell, “I’m not on that committee.”

For Howard, amendments typically are “good examples of how people misuse the constitution.” He mentions the right to hunt and fish amendment. “If ever there was a practice in no danger,” he says. “A lot of these are feel-good issues.”

And they almost always pass, he says.