SC AG: Heritage Act constitutional, but required two-thirds vote to remove monuments unconstitutional

COLUMBIA, S.C. (WIS) - In response to the removal of monuments across the country and in South Carolina, the state attorney general issued an opinion saying the state’s Heritage Act is constitutional.

The act is a law that, in part, protects certain monuments from being removed from public property in the state without a vote by the General Assembly.

It was passed in 2000.

Statues covered by the Heritage Act include war monuments and those erected for Native Americans and African Americans. The monuments must also be a “public area,” Wilson said.

Wilson said his office is prepared to defend the constitutionality of the Heritage Act in court.

However, the attorney general also said that the part of the law that requires a two-thirds vote of the General Assembly in both the House and Senate to remove a protected monument could be found unconstitutional.

Wilson said the required two-thirds vote could be challenged in court because the General Assembly only passes laws with a simple majority vote, under the state constitution.

Some have argued that because the part of the Heritage Act requiring a two-thirds vote could be found unconstitutional, that the entire law could be unconstitutional. Wilson disagrees.

He says the act includes a severability clause which allows part of the law to be found unconstitutional while keeping the rest of it intact.

In his opinion released Thursday, Wilson also addressed whether or not he believes the Heritage Act protects the John C. Calhoun monument in downtown Charleston.

Wilson says it does not.

The attorney general says the act does not protect the Calhoun statue because it is not a war monument and because it stood on private property.

Owners of the property told Wilson their attorney agreed that the Heritage Act does not protect the Calhoun monument.

The Calhoun statue was removed this week, though its base remains at this time.

Wilson said his office would not legally challenge the monument’s removal, but they would defend the constitutionality of the Heritage Act in court if necessary.

“My defense of the Heritage Act is not a defense of those parts or acts of our history that we find abhorrent,” Wilson said. “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.”

He added: “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. Next, we should work to immortalize people from all races and backgrounds who have worked and suffered to make us a better society.”

Read Wilson’s entire legal opinion on the Heritage Act by clicking or tapping here.

Copyright 2020 WIS. All rights reserved.