South Carolina’s “Heritage Act” – which governs the disposition of many historical markers, monuments and other designations across the Palmetto State – is constitutional, according to an opinion issued this week by the office of attorney general Alan Wilson.
However, a key provision of the act – its requirement that a two-thirds majority approve changes to the law – is not constitutional, according to the opinion.
That means it will be much easier for state lawmakers to proceed with an ongoing purge of antebellum Southern history/ War Between The States history … should they choose to do so. And assuming governor Henry McMaster – a noted “son of the south” – is on board with their efforts.
That latter question remains very much up in the air …
“The short answer is the Heritage Act is constitutional,” Cook wrote in response. “The General Assembly possesses paramount authority over public property, public places or public areas of the State and its political subdivisions, and thus may protect monuments and memorials dedicated to past wars or to honor its citizens as it deems appropriate.”
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), the Heritage Act 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.”
The law was amended in 2015 when the Confederate flag was removed from the north lawn of the S.C. State House grounds. The flag’s removal – which this news outlet supported – came in the aftermath of the Holy City Massacre, the racially motivated murder of nine black South Carolinians (including S.C. senator Clementa Pinckney) by avowed white supremacist Dylann Roof.
Some lawmakers have advocated for the civil disobedience of the Heritage Act in the aftermath of the killing of George Floyd in Minneapolis, Minnesota last month – and in at least one instance that appears to have been exactly what happened. Others have argued the act itself is unconstitutional.
Cook’s opinion rebuked those latter arguments, calling the act a “valid exercise of the General Assembly’s plenary power to preserve the State’s history.” Critically, however, the solicitor general’s opinion concluded that the two-thirds “supermajority” requirement of the act was unconstitutional and would likely be struck down by the courts.
“One legislature cannot bind another by statute (only by a constitutional provision is a legislature bound),” the opinion noted. “Thus, under this principle of law, should the General Assembly decide to vote to amend or alter a protected monument, or even the Act itself, it may constitutionally do so by majority vote of each house.”
Both of these conclusions are consistent with our interpretation of the law, which we shared with readers last week. Of course, it is ultimately up to the courts to determine the act’s constitutionality. And as we noted in our analysis, this question would not be “ripe” for judicial review unless (or until) lawmakers rejected an amendment based upon its failure to attain this supermajority threshold.
Also important? Wilson’s office concluded (as we did) that the likely unconstitutionality of the two-thirds requirement of the law does not mean the rest of the act is invalid.
“The two-thirds provision would not jeopardize the Act’s validity,” Cook wrote. “Accordingly, notwithstanding the two-thirds requirement, monuments or memorials protected by the Heritage Act cannot be moved or altered without legislative approval.”
This sets up precisely the political “tightrope walk” we envisioned for McMaster – who is now likely to see a “barrage of renaming/ removal requests” headed for his desk.
To read our thoughts on how McMaster might respond to these requests, click here …
To view the attorney general’s opinion in its entirety, scroll through or download the document below …
ATTORNEY GENERAL’S OPINION02312098
(Via: S.C. Attorney General)
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