The statue of former Vice President John C. Calhoun removed this week from a Charleston park was not protected by the South Carolina law known as the Heritage Act, S.C. Attorney General Alan Wilson said Thursday.
But the 20-year-old law giving the Legislature sole authority over removing many historical monuments or renaming streets and buildings tied to historical figures is constitutional, according to an opinion issued by Wilson's office Thursday.
The Calhoun statue was not covered by the Heritage Act that applies to monuments for a war, Native Americans and African Americans, Wilson said. The statue of the politician known for his fierce defense of slavery also was on private property instead of public areas designated by the law.
Wilson said his office spoke to an attorney with the Washington Light Infantry Sumter Guards that owns the property where the Calhoun statue stood for 124 years, and the lawyer agreed the statue was not covered by the Heritage Act.
Because the city of Charleston pledged to protect the statue until a new location is found, Wilson said his office did not challenge its removal, which took place Wednesday.
Calls have increased to remove historical markers to the slavery defenders, the Confederacy and segregationists in the past month amid protests over the killing of George Floyd while in custody of Minneapolis police.
But the Heritage Act, passed in 2000 as part of a compromise to remove the Confederate battle flag from atop the Statehouse in Columbia, presents a stiff obstacle for removing some historic monuments in public areas. The law gives that power only to the General Assembly.
The law has been rarely invoked, though lawmakers agreed to remove the Confederate flag from a location in front of the Statehouse in 2015 after the Charleston church mass shooting.
Still, the Heritage Act law does not step over constitutional lines, a legal opinion from Wilson's office found. The Heritage Act does not spell out a penalty for removing or renaming historic memorials outside the Statehouse grounds in Columbia.
"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."
Wilson suggested adding "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."
The attorney general's opinion is not binding but could be used by defenders of the Heritage Act in legal battles over removing monuments or renaming buildings or streets should they come in the future.
"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 past which everyone can take pride in as noble," the opinion written by state Solicitor General Bob Cook reads.
"History is history," the opinion said. "It includes the very bad, but also the very best of South Carolina's many accomplishments. All of these events are in the history books and cannot be erased."
The attorney general's opinion does change one key portion of the Heritage Act.
The 2000 law requires a two-thirds vote in the House and Senate for approval to alter any monument or street it covers, a high standard that scared off removal efforts over the years.
But the supermajority to win approval no longer applies, the opinion found. Lawmakers must change the state Constitution to keep the two-thirds requirement.
Any future proposals to remove monuments or rename buildings should need only a majority vote in the General Assembly.
Some politicians have said they believe the Heritage Act does not apply to historical figures who did not fight in a war, such as Calhoun or Ben Tillman, a former senator and governor who was an avowed white supremacist.
Three colleges plan to ask lawmakers for permission to remove the names of Tillman and J. Marion Sims, a doctor who experimented on enslaved people, from campus buildings next year.
S.C. House Minority Leader Todd Rutherford said he expects many more bills to come in 2021 addressing the Heritage Act, including one calling for the removal of a Tillman statue from the Statehouse grounds.
"While I continue to disagree with it, at least (Wilson) has answered the question that has dogged many a General Assembly that, 'no, to take down racist symbols does not require a two-thirds vote,'" said Rutherford, D-Columbia.
Senate President Harvey Peeler, R-Gaffney, said he thinks a two-thirds majority will be needed anyway to override a veto from the governor. Peeler hopes lawmakers on both sides can "sit down and be reasonable” to avoid what has happened in other states where monuments have been removed.
"We don’t want it to come to that," he said.
House Speaker Jay Lucas, R-Hartsville, had no comment, a spokeswoman said.
State Rep. Mike Burns, R-Taylors, said he sought the opinion after listening to Rutherford's suggestion on social media that universities act without consulting the Legislature and see what happens.
"I didn’t think that was a good way for a person who makes the law to view the law," Burns said.
Republicans could introduce bills to take away funding for local governments that remove monuments or fail to protect them from vandals.
"It’s going to be quite a battle," Burns said.