The South Carolina supreme court will hear oral arguments this week in connection with a lawsuit targeting the state’s so-called “Heritage Act” – which governs the disposition of many historical markers, monuments and other designations (i.e. building, street and park names) across the Palmetto State.
The lawsuit was brought by last year by Jennifer Pinckney, the widow of slain South Carolina senator Clementa Pinckney. A pastor at historic Mother Emanuel AME Church in downtown Charleston, S.C., Pinckney was among the nine people killed in the 2015 Holy City massacre, a racially motivated mass murder perpetrated by white supremacist Dylann Roof.
Those parameters are simple and straightforward: The Heritage Act is constitutional … but one of its key provisions is not.
“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,” S.C. solicitor general Bob Cook wrote in a 2020 opinion (.pdf) issued by Wilson’s office.
And yes, the state’s “paramount authority” extends to the preservation of certain monuments which are clearly in need of, shall we say, “fuller historical context.”
To recap: The Heritage Act was 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) to a position on the north lawn of the State House complex. It 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.”
This law was amended in 2015 when the Confederate flag was removed from the State House grounds following the Holy City massacre. The flag’s removal – which this news outlet supported – was achieved by a two-thirds vote of both chambers.
Was this “supermajority” threshold really necessary to obtain, however?
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Not according to Cook, who argued in his opinion that the two-thirds requirement of the Heritage Act was (and is) unconstitutional.
“One legislature cannot bind another by statute (only by a constitutional provision is a legislature bound),” he wrote. “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.”
Is he correct? Yes. Current S.C. General Assemblies cannot tie the hands of future General Assemblies via statute. Only a referendum of the people amending the state constitution can do that.
The rest of the law stands, though, according to Cook.
“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.”
Top Democratic lawmakers in South Carolina have advocated for the civil disobedience of the Heritage Act in the aftermath of the killing of George Floyd in Minneapolis, Minnesota last Memorial Day – and in at least one instance that appears to have been exactly what happened.
I noted last summer that “the likelihood of a court finding the Heritage Act constitutional is exceedingly high” – but that the two-thirds requirement was exceedingly likely to be struck down.
Assuming the court concurs, such an outcome could become politically problematic for governor Henry McMaster – who would likely face a flood of monument renaming/ removal requests approved by a simple majority of lawmakers. Assuming such laws were to reach his desk, McMaster – who readers will recall has a decidedly less-than-woke personal history – would be compelled to choose between his GOP base (which opposes historical sanitization) and the more moderate wing of his party (including home rule supporters who believe local governments should be allowed to make these decisions).
McMaster is no doubt hoping the court takes its time with this decision … but given how cut-and-dried these issues are, I don’t see that happening.
ABOUT THE AUTHOR …
Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children. And yes, he has LOTS of hats (including that beautiful 2013 St. Louis Cardinals’ Fall Classic lid pictured above).
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