No name changes? SC lawmaker seeks opinion on whether Heritage Act is constitutional

A Greenville state representative has written to S.C. Attorney General Alan Wilson’s office, asking for a legal opinion on whether the Heritage Act is constitutional.

“I don’t have any idea when the Attorney General will respond,” said Rep. Mike Burns, R-Greenville, 68, who has served in the House since 2013.

Whether the Heritage Act, passed in 2000, is constitutional has suddenly emerged as a key question this month as major South Carolina institutions have taken steps to rename, remove or otherwise change the physical status of buildings, statues or other prominent relics of the state’s slaveholding and white supremacist past.

The moves to alter or move symbols of the state’s racist past that still stand in places of honor were prompted by the outburst of protests around in South Carolina and around the nation following the May 25 killing of African American George Floyd, who died after a white Minneapolis police officer knelt on his neck as he pleaded for air. That officer and three others face charges in Floyd’s death.

In recent weeks, efforts to rename, take down or otherwise change the physical status of buildings, statues or other relics of South Carolina’s white supremacist past — including those that commemorate the state’s slaveholding days as well as

20th Century Jim Crow segregation — have been much in the news. They include:

▪ At Clemson University in the Upstate, the board of trustees voted to give Tillman Hall a new name. It is named after Edgefield County’s Ben Tillman, a former governor and U.S. senator and one of the South’s most prominent post-Civil War white supremacists.

▪ In Charleston, the city council plans to take down a prominent statue of John C. Calhoun, one of the South’s most prominent advocates of slavery who died in 1850.

▪ In Columbia, the University board of trustees will ask the Legislature to approve a name change for a dorm named after J. Marion Sims, a Lancaster-born white doctor who carried out medical surgical experiments on enslaved women without anesthesia.

Burns said he had reservations about the rush to change vestiges of the state’s past and asked where it will stop.

“I’m hearing conversations about renaming Lee County (named after Confederate Gen. Robert E. Lee) and Calhoun County (named after John C. Calhoun),” Burns said. “It goes on and on — I’m hearing about the Washington Monument and the Jefferson Memorial.”

“I get it about Ben Tillman,” Burns said. “But everything is becoming unglued. For us to want to take everything out of history that might be objectionable to one group or one person, I think that flies in the face of most people’s common sense.”

Burns continued: “There are a lot of us who think we need to know exactly what our history was, draw perspective from it and learn from our mistakes, from the good things we’ve done, and incorporate them into our lives. It does not seem good to me that we would want to wash out every part of our history if we don’t like it.”

Burns’ letter to Attorney General Alan Wilson’s office was prompted by a remark that a colleague, Rep. Todd Rutherford, D-Richland, said to the effect that the Heritage Act is unconstitutional, Burns said. Burns said he took that comment to mean that institutions with historical building names or structures can now do what they want to do because the law is unconstitutional.

“Todd’s raised the issue that our state Heritage Act is not constitutional. All I’m trying to do is find out what our Attorney General thinks about that comment,” Burns said. “It’s a fair question.”

Rutherford said he doesn’t object to Burns’ seeking an Attorney General’s opinion. But in any case, the Heritage Act is unconstitutional on its face because it requires a two-thirds majority vote in each Legislative chamber — a super majority — to alter or change most historical monuments or names.

But it is unconstitutional for a Legislature in one session to tie the hands of a future Legislature by requiring super majorities to change a specific law, Rutherfold said. All that is needed is the same as for most other votes, a simple majority. Super majorities are notoriously difficult to obtain.

“We can’t bind future General Assemblies,” Rutherford said.

As for USC’s and Clemson’s moves to seek permission to change the name of Sims dormitory and Tillman Hall, Rutherford said the universities don’t need to ask permission from the General Assembly. All they need to do is to remove the names because the Heritage Act doesn’t prevent that, Rutherford said.

Burns said he will wait for the opinion, which doesn’t have the force of a court decision, but is usually regarded as a valued statement of what a court decision would be.

“We’ll have to depend on what the Attorney General says to see what happens next,” Burns said.

An Attorney General’s spokesman said Friday his office would have an opinion out “early next week.”

This story was originally published June 19, 2020 at 5:34 PM.