Pennsylvania Courts Anesthetize Article I, Section 27

• Author: Franklin L. Kury
• Pages: 59-64

59

Chapter 7: Pennsylvania Courts

Anesthetize Article I, Section 27

Shortly after the voters approved Article I, Section 27, on May 18, 1971,

I received a telephone call from the state attorney general’s oce. Could

they borrow my les on the amendment? e governor was contemplat-

ing a lawsuit under the amendment, and they would appreciate reviewing t he

material I had assembled. I had the only information on the creation of the

amendment. A few hours later I turned over my les to an attorney from the

attorney general’s oce.1

Governor Milton Shapp wanted to block the construction by a private

party of the Gett ysburg National Tower, a 307-foot high observation tower

on private land adjacent to the Gettysburg Battleeld near t he National

Cemetery, the site of Lincoln’s Gettysburg Address.

On July 21, 1971—only two months after Article 1, Section 27, was

enacted—Governor Shapp asked the Cour t of Adams County, where the

battleeld is located, to issue an injunction to block the tower. Shapp claimed

the tower infringed on the people’s historic and scenic rights under Article

I, Section 27.

To support his cla im, the governor called eight prominent witnesses,

including Bruce Catton, a Civil War historian; Sylvester K. Stevens, direc-

tor of the Pennsylvania Historical and Museum Commission; and architect

Louis I. Kahn.

In spite of this testimony, Judge John A. MacPhail ruled in favor of the

defendants. He concluded that the governor had not met his burden of prov-

ing that the tower violated the rights he contended.

e case eventually went to the Pennsylvania Supreme Court, but the

decision was unchanged.2

Governor Shapp lost his battle at Gettysburg. But there is another aspect

of the case in which Governor Shapp won on an issue that has been critical

to enforcing the amendment ever since.

1. At that time Pennsylvania’s attorney general was appointed by the governor and served in his cabinet.

In 1980 the voters approved changing the law so that the attorney general would be independently

elected as a state oce, which it has been ever since.

2. Commonwealth v. National Gettysburg Tower, Inc., 454 Pa. 193, 311 A. 2d 588 (1973).