The Legal Debates Brewing Over South Carolina’s Proposed Monument Purge

“It’s complicated …”

Whatever the question, it seems as though the answer in South Carolina is never simple. And when matters of race and heritage are involved, things quickly become very complicated. And very contentious.

Take the current push to purge the state of symbols of its admittedly racist past – most notably the proposed removal of a towering monument in Charleston, S.C. honoring the legacy of the late U.S. vice president John C. Calhoun.

This news outlet opined extensively on this issue yesterday, drawing quite a mix of reactions from our readers.

Some felt our “slippery slope” exposition took things too far … while others believed it was an illuminating perspective on the prevailing vanguard of historical sanitization.

To say nothing of the inherent divisiveness of such ostensibly “unifying” campaigns …

Anyway, today we step off our soapbox to dispassionately address the legal minutiae attendant to the Calhoun monument debate. And, in turn, to address the broader debate surrounding the 2000 “Heritage Act” – the state law governing (among other things) the disposition of markers, memorials and designations related to the War Between the States and the civil rights movement.

Passed in 2000 as part of a bipartisan, biracial compromise that moved the Confederate flag off of the dome of the S.C. State House (and from within the House and Senate chambers), this law holds that “any monument, marker, memorial, school, or street erected or named in honor of the Confederacy or the civil rights movement located on any municipal, county, or state property shall not be removed, changed, or renamed without the enactment of a joint resolution by a two-thirds vote of the membership of each house of the General Assembly.”

Some lawmakers have advocated for the civil disobedience of the Heritage Act in the aftermath of the killing of George Floyd in Minneapolis, Minnesota on Memorial Day – while others have argued the act itself is unconstitutional.

We will get into all that in a moment. First, though, the debate over the Calhoun monument …

While liberal Charleston mayor John Tecklenburg and his allies on city council are moving forward with plans to remove the Calhoun monument and place it in a museum there is a roadblock at the local level.

While the city took possession of the monument back in 1898, it does not own the land surrounding it. The park where the Calhoun monument resides is leased by the city from the Washington Light Infantry and the Sumter Guardmeaning the statue resides on private ground.

Oh, and the owners of that ground do not want it removed …

According to reporter Fleming Smith of The (Charleston, S.C.) Post and Courier, city officials don’t seem particularly concerned about the guard’s objections – having delivered an “ultimatum” to the group earlier this week regarding their plans to take down the monument.

Also, Tecklenburg – who as recently as last year supported keeping the monument in its current location – is facing withering criticism from liberals who believe it should be discarded or destroyed as opposed to being displayed in another location.

While Tecklenburg attempts to navigate these ever-shifting political waters, the particulars of the Calhoun memorial (i.e. its public ownership/ placement on private land) could throw a major wrinkle into the interpretation of the Heritage Act.

Meanwhile, the law itself is facing extensive scrutiny – particularly its requirement that any amendment (like the vote to move the Confederate flag from the S.C. State House grounds to a museum in 2015) be passed by a two-thirds majority of the legislature.

Constitutional scholars believe this is an example of a former S.C. General Assembly imposing its will on future legislatures – whose members, they argue, ought to be able to amend the law based on a simple majority of votes, not a two-thirds “supermajority.”

Are they correct in this assessment? We believe so … but we also believe such a controversy would not be “ripe” for judicial review unless (or until) lawmakers actually rejected an amendment based upon its failure to attain this supermajority threshold.

Also of interest? The Heritage Act contained what is known as a “severability” clause, which held that if any portion of the law were later determined to be “unconstitutional or invalid” that the rest of the law still stood. In other words, if the courts were to strike down the two-thirds threshold amendments to the law would still have to pass the S.C. General Assembly by a simple majority vote.

Stay tuned … the next question we plan on addressing as it relates to this ongoing debate is the uniquely precarious political predicament it forces upon South Carolina governor Henry McMaster, a noted “son of the south.”




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