Opinion Extra

Crangle: Is SC Heritage Act just absurd, or unconstitutional?

State law prohibits Greenwood Mayor Welborn Adams from replaceing plaques on his city’s war memorial that segregates soldiers killed in World Wars I and II into “white” and “colored.”
State law prohibits Greenwood Mayor Welborn Adams from replaceing plaques on his city’s war memorial that segregates soldiers killed in World Wars I and II into “white” and “colored.” AP

Cindi Ross Scoppe’s Aug. 20 column — “Shouldn’t monument owners get to decide their fates?” — criticized the S.C. Heritage Act for restricting the property rights of private parties and local governments and for limiting the Legislature’s power to change its own laws.

I believe it does much more than that. After consulting with Common Cause board members including former Sen. Mike Rose, USC law professor Ken Gaines and attorney Herb Louthian as well as Columbia attorney Joe McCulloch and professor James Underwood, the foremost authority on the state constitution, I found a clear consensus that the Heritage Act is suspect on constitutional and public policy grounds.

The attempt by the Legislature to effectively take ownership of the private property owned by the Greenwood American Legion Post is arguably a taking without compensation in violation of the due process clause of the Fourteenth and Fifth amendments of the U.S. Constitution as well as of the South Carolina Constitution (Article. I, Section 13).

In violation of free-speech protections in the First Amendment of the U.S. Constitution and Article I, Sections 2 and 3, of the S.C. Constitution, the act attempts to prevent the post from speaking out to change its message on its own monument and coerces it to continue expressing an old opinion about the legitimacy of racial segregation, which its leaders decided in 2014 they want to reject by expressing a new, modern opinion in favor of racial integration and acceptance.

The supermajority requirement in the Heritage Act is at best unusual in a statute; it is a requirement normally found in the S.C. Constitution, which, for example, requires a two-thirds vote of both houses of the Legislature to propose a constitutional amendment. Article III creates and fully empowers the Legislature, but the constitution does not authorize supermajority requirements for statutory laws.

The supermajority requirement attempts for no good reason to restrict the Legislature’s ability to change any part of the Heritage Act. Carried to its logical extreme, this idea means that one General Assembly could pass a statute and entrench it by requiring that no future Legislature could change the protected provision except by 100 percent vote of both houses.

Even worse, theoretically, one session could pass a statute that provided that it could never be amended or repealed by any future legislation. Such a requirement could be invalidated on grounds of good public policy, as no session should be allowed to encroach on future sessions.

There is also a question of whether the Heritage Act encroaches on the authority of local governments in violation of Article VIII, Section 14, of the S.C. Constitution by attempting to set aside “the freedoms guaranteed every person.”

The Heritage Act was a clever scheme to get the Confederate flag off the State House dome at a time when it was seen as an impediment to the state’s efforts to lure new businesses and tourists, while offering the false hope to heritagists that further changes could be made difficult if not impossible. It reflected the long history of tensions between South Carolina’s delusions about the self-inflicted and romanticized failures of its anachronistic and inept elite and the changing economy and culture of the state’s promising future.

Mr. Crangle is executive director of Common Cause/South Carolina; contact him via franklinscola@aol.com.