CHARLESTON, S.C. (WCSC) - The South Carolina attorney general issued a legal opinion Thursday on the constitutionality of South Carolina's Heritage Act and why it could not have been used to protect Charleston's John C. Calhoun statue from removal.
The opinion, from Attorney General Alan Wilson, focuses on two points brought up this week. The first is whether the law should have prevented the city of Charleston from removing the Calhoun statue from Marion Square. The second is whether the 2000 law is constitutional at all.
“My defense of the Heritage Act is not a defense of those parts or acts of our history that we find abhorrent,” Wilson said in the opinion. “My defense of the Heritage Act is based on my sincere belief that we should follow the rule of law.”
Wilson argued the law’s provisions did not cover the Marion Square monument to Calhoun, the nation’s seventh vice president and an advocate to slavery.
“The Heritage Act is very specific in some places as to what it protects and ambiguous in other places,” Wilson said.
He said the first provision of the law protects “war monuments and monuments for Native Americans and African Americans.”
"John C. Calhoun does not fall under any of those categories," he said.
Another provision requires the monument be in a public area, but the Calhoun monument was on private property.
Wilson said his team also reached out to the attorney for the organization that owns the property who agreed that the Heritage Act did not apply to the Calhoun statue.
"We also learned that the group received assurances from the City of Charleston that the statue would be cared for and protected until a suitable location for it was found," Wilson said.
Charleston Mayor John Tecklenburg announced last week he would send a resolution to city council to remove the statue and relocate it to a museum. On Tuesday night, city council approved the resolution and work began after midnight Wednesday. It took crews some 17 hours to remove the statue from its pedestal in Marion Square Wednesday evening.
Next week, crews will return to the square to remove the column on which the statue stood and the base of the monument.
Wilson said he believes the Heritage Act and its protections are constitutional and that only the South Carolina General Assembly can remove a monument that fits the qualifications of the law. That is position he says his office is prepared to support in court.
While the first provision of the act defines which monuments are protected, the second describes the process required for the General Assembly to actually authorize the removal of such a monument. Specifically, removing a protected monument requires a two-thirds vote of both the state House and Senate before it can be sent to the governor for his signature.
“Some critics of the Act have claimed that the two-thirds vote requirement is unconstitutional and therefore the entire Heritage Act is unconstitutional,” Wilson said.
He says he agrees that a court “would likely find that the two-thirds vote requirement is unconstitutional because under our state constitution the General Assembly is only allowed to pass laws by a simple majority vote.”
“A General Assembly from twenty years ago cannot bind the General Assembly of today to a new super majority vote requirement,” he said. “However, there is a legal precedent used by the courts whereby the court will literally read out the invalid procedural part – which in this case is the two-thirds vote requirement – and then apply the valid simple majority vote in order to uphold the substantive part of the law.”
The law also includes “a severability clause,” which Wilson says means that if any part of the law is found to be unconstitutional, then only that portion is “severed out” and the remaining law is saved.
So even if the two-thirds vote requirement faced a legal challenge and was struck down, the law itself would still survive a court challenge, presumably with a simple majority vote in place of the two-thirds vote requirement.
“Instead of tearing down history I believe we should add to it,” Wilson said in closing in his opinion. “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.”