SC AG finds Heritage Act constitutional but says no supermajority needed to change it

The office of S.C. Attorney General Alan Wilson has issued an opinion saying that no supermajority vote is needed by both chambers of the Legislature to change the Heritage Act.

But the Heritage Act itself — which seeks to preserve the history of South Carolina as memorialized in public spaces — is constitutional, Wilson ruled.

An opinion by the attorney general is not as binding as a court ruling but is regarded as guidance by those who would like an informed decision on how a court might rule.

One controversy of the Heritage Act, passed in 2000, has always been that it tied the hands of future general assemblies by requiring a two-thirds majority vote by both chambers for any change to historical structures , parks, roads bridges that were named or dedicated for any historic figure or event. That threshold is extraordinarily difficult to meet.

“One legislature cannot bind another by statute (passing a law),” the nine-page opinion said. The opinion was written by Solicitor General Robert Cook. Wilson’s top opinion writer.

The opinion was requested last week by S.C. Rep. Mike Burns, R-Greenville, who wanted to know what the Attorney General’s opinion was on the Heritage Act’s constitutionality.

Burns made his request in the wake of weeks of protests, still ongoing, by many around the country and nation to alter or move statues and symbols representing slavery, segregation and white supremacy.

The protests followed 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.

Although there are numerous historic names and relics in public places across the state, only a minority are in likely peril. Those are structures honoring symbols of or figures who have endorsed slavery, white supremacy, the Confederacy, segregation and racism.

In recent weeks, the Clemson University board of trustees has asked the Legislature for permission to rename Tillman Hall, the university’s most prominent landmark. The building is named after Ben Tillman, a former S.C. governor who publicly advocated lynching Black people and who as a U.S. senator became one of America’s most foremost white supremacists.

In Columbia, the University of South Carolina’s 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 Black slave women.

Those requests could find easier going now that the Attorney General has ruled.

The opinion also said that if the two-thirds requirement of the Heritage Act were ever struck down by a court, that would not affect the rest of the Act.

“The Heritage Act, in our view, would stand independently of the two-thirds voting requirement,” the opinion said.

“While there are segments of South Carolina’s history which many today may consider worth forgetting, or removing from public view, there are other portions of the State’s pasts which everyone can take pride in as noble,” the opinion said.

Rep. Todd Rutherford, D-Richland, said he welcomed the opinion. “It means the General Assembly is relieved of the burden of believing that the only way of removing a statue or a monument was by a two-thirds vote in the House and the Senate.”

But, Rutherford said, the Heritage Act does not stop universities from altering or removing names on buildings, bridges or roads on their own without going through the State Legislature.

In a statement accompanying the opinion, Attorney General Wilson, a Republican, said the Heritage Act likely did not apply to the Charleston monument honoring John C. Calhoun, a South Carolinian and one of the nation’s foremost supporters of slavery. That monument was taken down Wednesday by the City of Charleston, whose city council passed a resolution to do just that on Tuesday night.

Calhoun, who was not a war hero, is not included in the category of protected monuments, Wilson wrote, and the Calhoun monument was also on private property.

The Heritage Act only applies to monuments on public property, Wilson wrote.

“Our legal analysis of the law’s ambiguity coupled with the organization’s understanding from the City of Charleston that it would protect and care for the statue until a suitable place was found for it led us to the decision to not file a legal challenge at this time but to instead focus on the overall legal defense of the Heritage Act,” Wilson wrote.

“My defense of the Heritage Act is not a defense of those parts or acts of our history that we find abhorrent,” Wilson wrote. “My defense of the Heritage Act is based on my sincere belief that we should follow the rule of law. This means following the laws that our duly elected legislature has passed and prosecuting those individuals who intentionally flout the law by illegally destroying public property.”

Wilson continued, “Instead of tearing down history I believe we should add to it. I suggest that we work instead to provide historical context to the bad acts of those who have been immortalized in stone so that future generations will know what we as a people had to overcome.”

This story was originally published June 25, 2020 at 5:44 PM.