One of South Carolina’s most powerful lawmakers warned the S.C. Supreme Court in a new filing this week that should it find the 20-year-old Heritage Act unconstitutional, Confederate and other statues could be “ripped from their pedestals” all over the Palmetto State.
“A decision by this court that (the Heritage Act) is unconstitutional could result in chaotic scenes unfolding across the state, with an untold number of statues ripped from their pedestals and numerous streets, buildings, bridges and other structures renamed,” Peeler, R-Cherokee, wrote in a legal brief filed Wednesday with the high court.
The Heritage Act is a “political matter,” and is more appropriately handled by the state’s legislators, not the Supreme Court, Peeler told the justices.
“The only way to ensure that the wide range of views on this issue will be heard is to keep it in the political arena to allow for thoughtful debate that is reflective of the state as a whole,” Peeler wrote.
Peeler’s brief was in response to a petition filed last month with the S.C. Supreme Court.
That petition by three prominent South Carolinians — Columbia city council member Howard Duvall; former state Sen. Kay Patterson; and Jennifer Pinckney, a survivor and widow of the late state Sen. Clementa Pinckney, who with eight other Black parishoners were killed by a white supremacist in the 2015 Charleston church massacre — asked the high court to take up the issue of whether the Heritage Act was constitutional.
In their petition, the three charged that the Heritage Act required an unconstitutional “supermajority” in both chambers of the General Assembly to make any changes to historical monuments. Moreover, the plaintiffs alleged, the Heritage Act violates Home Rule because it should only be up to local governments to decide what to do with local monuments. Named as defendants in the case were Peeler, House Speaker Jay Lucas, R-Darlington, and Gov. Henry McMaster.
Plaintiffs are represented by Columbia attorney Matthew Richardson and state Sen. Gerald Malloy, D-Darlington.
Peeler is represented by state Senate attorneys Kenneth Moffitt and John Hazzard. Lucas is represented by Columbia attorneys Grayson Lambert and Bradley Wright, and McMaster is represented by his staff attorneys Thomas Limehouse and Anita Fair.
Debate over the Heritage Act gained new ground this summer, after the May death of George Floyd sparked nationwide and statewide protests around racial injustice and the treatment of Black people by police officers.
Floyd, a Black Minnesota man, died after a white Minneapolis police officer knelt on his neck for eight minutes and 46 seconds. Under the officer’s knee, Floyd repeatedly said, “I can’t breathe” — words that were captured on cell phone video that went viral.
In his brief, Peeler did not object to the Supreme Court granting original jurisdiction and hearing arguments on the Heritage Act. His two co-defendants in the case, Lucas and McMaster, also did not object to the high court taking it up. All three reserved the right to file detailed replies should the court agree to hear the case.
Republican State Attorney General Alan Wilson also said he wants the Supreme Court to hear the case.
“Given the State’s strong interest, we urge the Court to accept this action in its original jurisdiction,” Robert Cook, Wilson’s top opinion writer, wrote in a letter to the high court last week. ”The Heritage Act touches virtually every community in the State. Historic monuments, memorials, the naming of streets and roads, all preserved by the Act, abound everywhere.”
The Heritage Act is “constantly in the public eye” after it was enacted in 2000 as part of the compromise that ultimately led to the Confederate flag being removed from atop the State House dome to the Capitol grounds, Cook wrote.
“Many monuments, statues or memorials, erected long ago in a different time and place in the State’s history, such as the (Ben) Tillman Monument, are now highly controversial as many citizens feel offended by what a particular monument or memorial may symbolize,” Cook wrote.
Tillman, a former S.C. governor and U.S. senator in the late 1800s and early 1900s, was a charismatic speaker who traveled the state and nation preaching that Blacks were inferiors who should be killed if they sought rights equal to those of white people, according to his biographers, Stephen Kantrowitz and Francis Butler Simkins.
In an opinion earlier this year, the Attorney General’s Office said the Heritage Act’s “supermajority” provision is likely unconstitutional. The “supermajority” means that two-thirds of each chamber must vote to change a monument before any change can happen — an almost impossible hurdle. However, the opinion also concluded that the Legislature’s power over historical monuments and matters like street names was likely constitutional.
Ordinarily, the state’s Supreme Court maintains the lowest profile of any of the three major branches of government.
Its rulings, often on narrow legal issues, on various civil and criminal legal issues usually don’t command wide public attention.
But this summer, the high court has found itself injected into three major public controversies — whether to broaden absentee voting for the November election because of COVID-19 pandemic, the Heritage Act and whether McMaster can spend $32 million in public tax dollars on private schools.
Late Friday, the court barred McMaster from spending any of the $32 million on private schools until the case is decided.
Already, the Supreme Court has agreed to take up the issues concerning absentee ballots and whether public money should go to private schools. The court has set Sept. 18 to hear arguments in those two cases.
But the court has given no sign of whether it might decide to hear the Heritage Act case.
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John Monk has covered courts, crime, politics, public corruption, the environment and other issues in the Carolinas for more than 40 years. A U.S. Army veteran who covered the 1989 American invasion of Panama, Monk is a former Washington correspondent for The Charlotte Observer. He has covered numerous death penalty trials, including those of the Charleston church killer, Dylann Roof, serial killer Pee Wee Gaskins and child killer Tim Jones. Monk’s hobbies include hiking, books, languages, music and a lot of other things.